R v Phohleli (Rev. Case No. 124/03 CR 960/03 Rev. Order No. 13/03)

Media Neutral Citation: 
[2003] LSHC 92
Judgment Date: 
22 August, 2003

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IN THE HIGH COURT OF LESOTHO


In the Matter Between:


REX

vs

LIBETHE PHOHLELI


Review Case No. 124/03 CR 960/03

Review Order No. 13/03 In the District of Maseru


REVIEW ORDER


22nd August 2003.


The accused was charged and convicted on three counts of housebreaking with intent to commit a crime unknown to the prosecutor, indecent assault and escaping from lawful custody of police respectively by the first class Magistrate at Maseru Magistrate Court.


The accused was as a result sentenced to a term of 5 (five) years imprisonment. The Magistrate in passing sentence had this to say:


"five years imprisonment, all counts taken as one for purposes of sentence."


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The applicable section should have been Section 301 of the Criminal Procedure and Evidence Act of 1981 which reads:


"301 (1) when:


  1. a person is convicted at one trial of two or more different offences;


  1. a person under sentence or undergoing punishment for the Court may sentence him to such several punishments for such offences or for such last offences, as the case may be, as the Court is competent to impose.


    1. The punishment under this section, when consisting of imprisonment shall commence the one after the expiration setting aside or remission of the other, in such order as the Court may direct unless the Court directs that such punishment shall run concurrently."


There is nothing in the Criminal Procedure and Evidence Act which authorises the practice of taking more than one count together for purposes of sentence. The proper reading of section 301 instead, suggests that the proper course when a person has been convicted of two or more different offences, is for the Court to sentence him to such several punishments for such offences as it is competent to impose. A directive of how the sentences are to run will come after sentencing the accused on each of the counts separately.

A Judge of this Court stated in Mohapi and Others v Rex 1981 (1) LLR 6 that,


"it is clearly inappropriate to lump together different offences for the purposes of sentence where the type of punishment or the maximum punishment which may be


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imposed for one offence differs from another."


Surely it cannot be said that a crime of escaping from lawful custody can attract the same punishment as the offences of housebreaking and indecent assault, no matter what the circumstances of each were.


As this is a review and not an appeal, I am satisfied to accept that the accused was correctly convicted on all the three charges against him. But it is necessary to tidy up the sentence imposed. The cumulative sentence of 5 years for all three counts is set aside, and substituted by the following:


Count 1: 2 Years Imprisonment

Count 2: 2 Years Imprisonment

Count 3: 1 Year Imprisonment


These sentences are to run consecutively.


A. M. HLAJOANE

JUDGE


CC: The Magistrate - Maseru

Chief Magistrate

O/C Police - Maseru

O/C Prisons - Maseru

CID Headquarters - Maseru

Director of Prisons

Director of Public Prosecutions