IN THE HIGH COURT OF LESOTHO
In the matter between:
Review Case No. 227/2003 CR. No. 1946/2003
Review Order No. 23/2003 In Maseru District
ORDER ON REVIEW
(9th December 2003)
This matter has been brought before me on automatic review. I then approached the learned Director of Public Prosecutions who delegated Advocate L Shale. The latter shared my views in connection with the matters connected with the necessary changes to the sentences as shown hereinafter.
The Accused was convicted on four counts of breaking in and theft of the premises and property of one Lekokoto Ntlhasinye. What should have been indeed traumatic to the complainant was that the first three (3) counts were during the same month of August 2003 and the last was in September 2003.
The total goods stolen were worth M6,317.35 a few other items having been recovered.
The learned magistrate in imposing the sentences prefaces the same by saying:
"In considering these sentences the Court took into account the Accused's age and that he was a first offender what accused did is unlawful. It is difficult to understand why he persistently and on subsequent occasions break into complainant's lodge. What he did is unlawful and unforgivable. The Court has also considered the financial loss complainant has incurred due to these break in as they affect his business.
On the surface the learned magistrate seems to have applied her mind to all the relevant factors.
I am however worried by two things. Firstly that there could have been no justification for the sentences running consecutively and the formulation of the fines and the alternative terms of appointment. It is not clear why there was this kind of disparity in between the different sentences. If the Accused was to serve all the terms of imprisonment that would not be a problem. I believe that there would be a problem if the Accused would suddenly decide to make payments of some of the fines and not of others. This would be difficult. In any event why should the calculation of the terms have the effect of disabling the
Accused to pay his fine if it was the real intention of the learned magistrate in a practical sense? Perhaps the difficulties are illusory.
The sentences were as follows:
Count I: M2,000.00 or 3 years imprisonment (M143.25)
Count II: Ml,000.00 or 2 years imprisonment (M2,435.00)
Count III: M2,000.00 or 2 1/2 years imprisonment (M263.10)
Count IV: Ml,000.00 or 2 years imprisonment (M3,693.00)
The range of the above sentences belies the value attached to the goods unlawfully taken as shown in annexure "B" to the charge sheet. The value of the goods are stated as follows unless there is a mistake in calculation: Count I M143,25, Count II M2,435.00, Count III M263.10 and Count IV M3,693.00. I cannot see how this cannot attract comment more especially when no particular circumstances are suggested for the disparity in the sentences. If a sensible pattern was followed then the following picture would emerge:
Count IV M2,000.00 or 3 years (M3,693.00)
Count II M2,000.00 or 2 1/2 years (M2,435.00)
Count III Ml,000.00 or 2 years (263.10)
Count I Ml,000.00 or 2 years (M143.25). One cannot clearly speak of a need for mathematical calculation by presiding
officers except to say that there must be a kind of a balance which must be demonstrated.
In addition it cannot even be said there is a problem like one encountered in R v Mathaba 1980(1) 82. In this case a prison sentence which was imposed in default of a fine was denounced where it ran concurrently with other sentences of imprisonment. See also R v Makena 1961(3) SA 174 as referred to in page 84 of R v Mathaba case (supra).
Clearly therefore in the instant case the learned magistrate cannot, judging from the result, have applied her mind to the need to have a well thought out sentence. While conceding that she has the ultimate discretion arbitrariness is not desirable. Objectively there is apparent absurdity in the sentences taken as a whole. Indeed this calls for a need to regularize same without a serious departure or lessening of the cumulative weight of the sentences which the learned magistrate had probably intended.
There is one thing which is perhaps more worrisome. It is this that the learned magistrate does not state why the sentences have to be consecutive. Indeed she remarks that she has considered the financial loss to the complainant and the persistence of the Accused as seen in the number of bouts of unlawful
entries and takings. This can be called nothing but hard-heartedness and ruthlessness. As I concluded this aspect of the sentences being consecutive makes them in their totality much harsher and shockingly so in my view, than should have been the case.
I thought that the cumulative inequity of the sentences should be cured by altering the sentences in the following way:
Count I Ml,000.00 or 1 year imprisonment
Count II M2,000.00 or 2 years imprisonment
Count III Ml,000.00 or 1 year imprisonment
Count IV M3,000.00 or 3 years imprisonment
The sentences are to run concurrently.
Copy: The Magistrate Maseru
O/C Police Maseru
O/C Prisons Maseru
O/C Central Prison
Director of Prisons
Director of Public
All Public Prosecutors