C of A (CRI) NO. 10 of 2000
Criminal Appeal - appeal by the Crown against the inadequacy of the sentence imposed by the high Court (Maqutu J). Accused convicted of murder by shooting his superior police officer who was in charge of security at a meeting addressed by the Prime Minister. Two shots fired whilst deceased was upright and three shots fired into his body after he had fallen down.
Appellant unjustly holding the deceased liable for his dismissal from the police force. Such sense of grievance constituting an extenuating circumstances.
Court finding extenuating circumstances These not specified or recorded. Failure to do so is an irregularity. Practice of not recording proceedings post conviction proceedings unacceptable - undertaking given by the S.P.P. that such practice will cease forthwith. Sentence of10yrs imprisonment held to be startlingly inappropriate and sentence of 15 yrs imprisonment substituted therefor.
C of A (CRI) No.10 of 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
DIRECTOR OF PUBLIC PROSECUTION APPELLANT
PETER MOHAU MARABE RESPONDENT
HELD AT MASERU
This is an appeal by the Crown against two sentences imposed by the High Court.
The respondent (the accused in the Court a quo and referred to as such also in this judgement) was convicted on a charge of murder. The court found that
extenuating circumstances were present. The sentence imposed was one of 10 years imprisonment. He was also convicted of a contravention of Section 3 (2)(b) of the Internal Security (Arms and Ammunition Act). On this charge the accused was cautioned and discharged.
The grounds upon which the propriety of the sentences were challenged reads as follows:
"The learned judge a quo misdirected himself by imposing a sentence which was disturbingly inappropriate as being derisory regard being had to the totality of the evidence adduced both by the prosecution and the defence on the two charges faced by the Respondent.
The learned judge a quo misdirected himself by failing to furnish reasons for sentence on both counts as required by the law.
The learned trial judge erred in law by meting out a sentence of a "caution and discharge" on Count II contrary to the Penal provision of the Arms & Ammunition Act No.17 of 1966 (as amended)
The learned judge a quo erred in law when he held: "After hearing Mr Mosito, the court finds extenuating circumstances" without specifying as enjoined by the law what such extenuating circumstances were."
The facts of the matter were largely common cause. They can be
summarised as follows:
The Respondent was a former member of the Lesotho Mounted Police Service (L.M.P.S).
It was established by eye-witness testimony and indeed admitted by the accused, that he shot and killed the deceased, one Molefi Kholokholo. His defence to this charge was that he acted whilst in a state described as "sane automatism". This defence was correctly rejected by the court a quo.
As indicated above the Crown challenges the propriety of the sentence on the murder charge, inter alia as being disturbingly inappropriate regard being had to the gravity of the offence committed by the accused.
On the day in question, i.e the 20th of August 1999, the accused went to a public meeting (Pitso) convened by the Prime Minister. He was armed with a loaded, cocked pistol. At the Pitso he saw the deceased, who was a former senior colleague of his, where the latter was responsible for ensuring the security arrangements for the Prime Minister and other dignitaries who were participating in, or attending at the meeting.
The accused walked up behind the deceased and fired two shots at him.
The deceased fell to the ground, at which the accused fired three more shots at him. The evidence of one of the witnesses was that the accused when asked what he was doing killing a person in this way replied as follows: "I am killing him, he caused my expulsion from work". He added that justice had not been done in his case. In his evidence when testifying in his defence, the accused admitted that he "felt like shooting the deceased."
The reference to the "injustice" done to him, was a reference to the accused's dismissal from the police service of which he had been a member for nine years. The evidence made it clear, however, that the deceased had played no part in the accused's dismissal. He had, upon enquiry from the accused, and after his dismissal, informed him that he was powerless to assist him. The deceased advised the accused that he should pursue his cause through the conventional channels and through the courts of law. This the accused did, however without success.
No rational explanation for the accused's selection of the deceased as the target upon whom he vented his grievance was tendered in evidence. It may be that he saw the deceased as the symbol of the institution that had, in his mind,
caused him an injustice. However that may be, the murder was, as counsel for the Crown put it - "a public execution" carried out in the presence of the Prime Minister and a large number of Lesotho citizens.
From this brief summary of the facts it is clear that the murder committed by the accused was a callous, premeditated killing of an innocent police-officer by one of his former subordinates. An aggravating feature is the fact that the accused had been a trained police officer, who knew and understood the unacceptability of anyone, leave alone an official charged with maintaining law and order, taking the law into his own hands and killing a fellow member of the L.P.M.S.
At the conclusion of the hearing as to the guilt or innocence of the accused the court convicted the appellant on the charge of murder. The record then reads as follows:
"After hearing Mr. Mosito counsel for the accused, the court finds extenuating circumstances. Accused has no previous convictions."
The sentence of 10 years imprisonment on this count is then recorded.
Both in the grounds of appeal and in his argument before us, the Director of Public Prosecutions contended that the failure of the court a quo to record what the extenuating circumstances were, was an irregularity. He accordingly contended that the court was at large to re-consider the sentence imposed by the Judge a quo.
In an affidavit Mr Mosito alleged that the record was incomplete, inasmuch as it failed to record that the Judge had in fact referred to the perceived "maltreatment" the accused had suffered "in the hands of his employers" as an extenuating circumstance. He also alleged that, when passing sentence, the court had "for not less than 10 minutes ... explained to the accused in extenso why he was punishing him."
It appears from an affidavit by Mr. Thetsane that he interviewed the officer who was responsible for the transcription of the record. The response to the question as to whether the record correctly reflects what occurred at this stage of the proceedings, is reflected as follows in the affidavit of the Director of Public Procecutions:
"In the presence of both of us (Mr. Mosito and the deponent)
the said recorder stated further that ordinarily such matters as submissions and judgment on extenuation and sentence are not mechanically recorded, unless otherwise specifically directed by the trial court, which eventually did not take place in casu." (Own emphasis)
It is obvious that such an approach to the recording of court proceedings is patently misguided and is calculated to prejudice the accused and the Crown in an appeal. I will return to this matter later in this judgment.
In my opinion a court is obliged to record not only what the extenuating circumstances are, but also, whether it finds that such circumstances are or are not present and, by what process of reasoning it arrived at its decision.
Mr. Mosito pointed out that Section 296 (1) of the Criminal Procedure and Evidence Act 1981 provides that the court convicting a person of murder "shall state whether in its opinion there are such circumstances, .... (and) (then) it may specify them." (my underlining). He also pointed out that the statute provides that a failure to comply with the requirements of sub-section (1) shall not affect the validity of the verdict or any sentence imposed as a result thereof." He went on
to submit that for these reasons a trial judge is in law not bound to specify extenuating circumstances, but rather that he is permitted or empowered by law to do so.
Mr Thetsane in a well-reasoned argument referred us to several judgments in this court as support for his proposition that there was an obligation on the trial court when it makes a finding that there are extenuating circumstances, to specify and to record these. He referred us inter alia to the following decisions of this court.
In Matsoai v Rex 1967 -1970 L.L.R. 70 at 75 (D) the court, per Maisels J.A., said:
"......... we are bound to say that in our opinion when extenuating circumstances are found, it is advisable that these should be specified. The nature of the extenuating circumstances may have a bearing on the proper sentence to be imposed and, if for that reason alone, the appeal court should have the benefit of the trial court's reasons for finding extenuating circumstances. Moreover on grounds of public policy it seems desirable that the public should be informed what the extenuating circumstances were". See also Mona and Another v. Rex 1985 -1989 LAC 364 and Molata v Rex 1985 - 1989 LAC 229. See also S v Ngoma 1984 (3) S.A. 666 (A) and S v. Masuku 1985 (3) S.A. 908 (A) at 912 for
the South African practice in this regard.
The findings by the trial court concerning the presence or absence of extenuating circumstances are almost invariably premised on findings of fact. It is clear law that factual findings must be recorded. See in this context the long line of decisions in the South African Court of Appeal commencing with the decision in Rex v Majerero and Others 1948 (3) S.A. 1032 (A). This decision was followed in R v van der Walt 1952 (4) SA. 382 (A) and in S v Immelman 1978 (3) 726 (A) at 729 (C).
In the latter judgment one of the compelling reasons for a court to state its findings is expressed by Corbett J.A. (as he then was) in the following terms at the page cited:
"The absence of such reasons may operate unfairly, as against both the accused person and the State. One of the various problems which may be occasioned in the Court of Appeal by the absence of reasons is that in a case where there has been a plea of guilty but evidence has been led, there may be no indication as to how the
Court resolved issues of fact thrown up by the evidence or on what factual basis the Court approached the question of sentence."
For these reasons I am of the opinion that, irrespective of the meaning to be ascribed the provisions of the Criminal Procedure and Evidence Act, the failure of a court to specify what the extenuating circumstances are when it so finds, is an irregularity.
However as indicated above, Mr. Mosito has stated under oath that the trial court did in fact state that the alleged " maltreatment that the accused has managed to establish in the hands of his employer" was a factor that constituted an extenuating circumstance. This statement has not been challenged and there is in my view no reason why we should not accept Mr. Mosito's evidence in this regard.
The propriety of the sentence must therefore be determined only on the ground of appeal No.1 cited above, i.e. that the sentence was disturbingly in -appropriate having regard to the totality of the evidence.
Even if due allowance is made for the fact that the appellant believed that he had been unjustly treated by those in command of the L.M.P.S., his crime falls into the most serious category of murder. He had a settled determination and subjective intention to kill the deceased as is evidenced by his firing three shots into the prostrate body of the deceased. He was a police officer himself and he killed a fellow police officer who had, as a matter of fact, done him no harm.
I am of the opinion that the factors outlined above outweigh such extenuation as would be attributable to the accused's belief that he had been unjustly treated. In my view a sentence of 10 years imprisonment is clearly inadequate and indeed startlingly inappropriate.
Mr. Thetsane referred to several decisions of this court in which sentences passed in similar cases were increased on appeal. See in this regard Phaloane v Rex 1980 -1984 LAC 72 and Motlatsi v The Director of Public Prosecutions C of A (CRI) No.6/97 (unreported) where Gauntlett J.A. says the following at p.6 of the judgment.
"Any sentence, it is well-established, must balance the personal circumstances of an accused, the nature of the
crime and the interests of the community. It is not evidenced to me that the trial court did this. Even allowing for each of the personal factors set out above, in my judgment the brutality of the offence and the need both to protect the community and to give effect to its repugnance against such abuse of power as we have here, require a far heavier sentence. Lesotho's Constitution entrenches (in s.5) the inherent right to life of every human being. It is founded on the principle of legality. The depredations of heavily armed servants of the State on defenceless citizens is inimical to both, and must be dealt with severely."
A sentence of 10 years imprisonment was accordingly increased to 15 years.
It is my view that, after giving due weight to both the mitigating and extenuating circumstances, also in this case a sentence of 15 years imprisonment would be appropriate on count 1.
It was common cause that the sentence of a caution and discharge passed on Count 2 was unlawful. The offence committed was however one of negligence -the accused had failed to renew the licence of his firearm. He is unable to pay a fine, and it was suggested that any period of imprisonment imposed should run concurrently with the sentence imposed on count 1.
On Count 2 the accused is sentenced to imprisonment for a period of 6 months. This sentence is to run concurrently with the sentence on count 1.
In summary the court orders as follows:
The appeal by the Crown against the sentences imposed by Maqutu J is upheld. The sentence of 10 years imprisonment on count 1 is set aside. In its place a sentence of 15 years is imposed.
On Count 2 the appeal is upheld and the sentence is set aside. In its place a sentence of 6 months imprisonment is upheld. This sentence is to run concurrently with the sentence imposed on count 1.
In regard to the practice of not recording proceedings post conviction, the
Crown has through the offices of the appellant undertaken that this practice will cease forthwith and that the findings, reasons and judgment of the Court on issues post conviction will also be recorded. The court trusts that the Director of Public Prosecutions will ensure that all necessary steps are taken to achieve this objective without delay.
PRESIDENT OF THE COURT OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered in open Court at Maseru this 12th day of October, 2001.
For Crown - Mr. Thetsane
For Respondent - Mr. Mosito