R v Lebone (Rev. Case No. 180/04 CR 1416/2004 (Maseru)Rev. Order No. 19/04)

Media Neutral Citation: 
[2004] LSHC 112
Judgment Date: 
22 September, 2004

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IN THE HIGH COURT OF LESOTHO


In the Matter Between:


REX

V

LEHLOHONOLO LEBONE


Review Case No. 180/04 CR 1416/2004 (Maseru)

Review Order No. 19/04


REVIEW ORDER


DELIVERED BYTHE HONOURABLE MRS JUSTICE K.J. GUNI ON THE 22nd SEPTEMBER, 2004


It is not competent for the court to impose the severer sentence than the one stipulated by the statute.


This matter has been forwarded to this court for an automatic review in terms of Section 66 of the Subordinate Court Act 58 of 1958 as amended.


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This accused was charged with the crime of CULPABLE HOMICIDE and alternatively with CONTRAVENTION OF SECTION 90 (l)(4)(a) and (b) of ROAD TRAFFIC ACT NO.8 OF 1981. The charge as appears on the charge sheet reads as follows:-


Annexure "A"


" That the said accused is charged with a crime of culpable homicide.


In that upon or about the 23rd January, 2003 at or near ha 'Nelese along Main South I public road in the district of Maseru, the said accused did unlawfully drive motor vehicle AF 202 recklessly or negligently on the said public road and as a result hit a pedestrian and caused his death to wit, one Maloisane Mohapeloa.


Alternatively


That the said accused is guilty of contravening the Provisions of section 90(l)(4)(a)(b) of Road Traffic Act No.8 of 1980. In that upon or about the 23rd January, 2003 and at or near ha "Nelese along Main North I public road in the district of Maseru the said accused did unlawfully drive motor vehicle AF 202 recklessly or negligently on the said public road and


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as a result knocked down a pedestrian to wit, one Maloisane Mohapeloa and thus the said accused did commit an offence as aforesaid".

The accused pleaded guilty to the alternative charge. The public prosecutor accepted the plea which the court accordingly recorded.


FACTS


The statement of the agreed facts by the parties disclosed the following factors. On the date and at 8.30 a.m. and at the place of the scene of the alleged crime, the accused was driving a motor vehicle registration number AF 202. This motor vehicle was a taxi. He was driving along the Main South I - from Maseru to Roma.


The accused was driving his motor vehicle behind other South bound motor vehicles. When this amount of traffic was at Ha 'Nelese the accused proceeded to overtake the taxi infront of the taxi he was driving. He proceeded to travel on the left hand side of the motor vehicle that he was overtaking. This is illegal because it is not permitted by the law to overtake the vehicle in front of you on the left hand side. As a result of this illegal maneuver the motor vehicle which the accused drove was now traveling near the edge or outside the road. The deceased is the pedestrian who at that time was pushing the wheelbarrow as he walked outside the road. The accused with his motor vehicle traveling in that fashion hit and killed this pedestrian.


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This pedestrian at the time he was hit by the motor vehicle driven by this accused was two (2) paces from the road where the motor vehicles should be, and were traveling except the accused's motor vehicle. The accused picked up this pedestrian even though he appeared dead and rushed him to the hospital where he was definitely pronounced dead by the medical doctor.


The police officer who had been called to attend to that accident scene made a sketch map of that scene. After investigating the matter the officer cautioned and charged the accused accordingly. The sketch map of the accident scene was read and produced before the court by the consent of the accused.


MEDICAL EVIDENCE


The postmortem examination report was read and produced before the court also by consent of the parties. The cause of death of the deceased was due to intracranial and nitrabodminal haemorrhage.


SENTENCE


The accused was properly convicted as pleaded in accordance with these facts. The problem arose as regards sentence. He was sentenced to pay a fine of M3000.00 or failing which to go to prison for a period of three years.


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The sentence stipulated in sub-section (4)(b) is as follows: The person found guilty of driving negligently under Subsection (1) is liable to be sentenced as :-


"90 (1) (4) (b) in the case of the court finding that the offence was committed by driving negligently, to M1000 and 1 year imprisonment"


In the present case the sentence imposed exceeds the maximum penalty provided for by the statute under which the accused was convicted. The Magistrate's discretion in sentencing where the parliament in its wisdom has seen it fit to temper with that discretion, must be exercised within the four walls of the statute which makes provision for the penalties to be imposed when there has been a contravention of that statute. The accused was convicted of Contravening Section (90)(l) as read with Subsection (4) (b) ROAD TRAFFIC ACT 1981. In terms of this statute where the court finds that the offence was committed by driving negligently the accused person must be sentenced to a fine of M1000.00 Maloti or one year imprisonment. The court cannot impose a more severe sentence than the one provided for by the statute. It is not competent for the court to go beyond the powers set out in the statute.


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There are always reasons why the court imposes a severe or lenient sentence. The court is moved to adopt the lenient or harsh treatment of the accused by the factors which are presented before it. So far the factors which appear on record for sentencing are the accused person's appeals for leniency. The accused made serious allegations about his treatment of the family of the deceased.


The accused lied when in mitigation of his sentence, he told the court that he assisted the deceased person's family with the burial expenses. This was denied by the family which was in fact annoyed by this false allegation.


When the accused was asked by the court to explain his reason for lying, when it became apparent that he did not help the family of the deceased as he alleges, he could not explain. The Magistrate was, in my view, correctly annoyed by the accused person's attempt to hood wink her. The Magistrate was again correct by showing her displeasure at such an attempt to improperly influencing her by imposing a severe sentence. The only problem with the sentence imposed is that it exceeds the sentence stipulated by the statute which makes provision for the punishment of the accused who is convicted of negligent driving.


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Had the parliament not interfered with the exercise of the discretionary powers of the court in this circumstances the attitude adopted by the Magistrate would be wholly justified.


The Law-maker-in the form of the Parliament had seen it fit to restrict the discretionary powers of the court. Therefore the court is obliged to exercise it discretion within the four walls of the statute. The statute provides an appropriate sentence in the case where the court finds that the offence was committed by driving negligently. The court must apply the statute fully, in its totality.


Review Order


Section 69 subsection (2) (a) Subordinate Court Act 58 of 1938 empowers the reviewing officer to: "(a) alter or reverse the conviction or reduce or vary the sentence of the court which imposed the punishment " THEREFORE TOE SENTENCE IS ALTERED TO TOE ONE SET OUT IN SUBSECTION (4) (b) TOE ACCUSED IS SENTENCED TO M1000.00 OR 1 YEAR IMPRISONMENT.


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KJ. GUNI

JUDGE


CC. The Chief Magistrates.

The Magistrates - Maseru.

O/C Police-Maseru.

O/C Prisons - Maseru.

CID Headquarters - Maseru.

Director of Public Prosecutions.

Director of Prisons.


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