MOSALA v. THE STATE 1991 BLR 212 (HC)

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Citation: 1991 BLR 212 (HC)
Court: High Court, Lobatse
Case No:
Judge: Gyeke-Dako J
Judgment Date: May 31, 1991
Counsel:
Advocate Camp for the appellant. G. G. Rabasha, State Counsel, for the respondent.
Flynote

Criminal procedure - Evidence - Witness - Single witness evidence - When court may convict on evidence of single witness - Witness to be competent and credible - Power of court to recall witness - Court entitled to recall witness at any stage of proceedings if evidence appearing essential for arriving at just decision - Evidence available ab initio to prosecution and  C remedying prosecution case inadmissible - Whether evidence of prosecution's fifth witness properly before court - Criminal Procedure and Evidence Act (Cap. 08:01), ss. 201 and 239.

Criminal procedure - Sentencing - Factors for consideration - Person, character and circumstances of crime - Determination of quantum of punishment to bear relationship to moral blameworthiness of accused.
Headnote

The accused was charged with the offence of theft by a person employed in the public service contrary to section 281 as read with section 269 of the Penal Code (Cap. 08:01). He was convicted of 13 out of the 18 counts, he was charged with and sentenced to six years' imprisonment with two years conditionally suspended. The accused was employed as an accounts clerk at the High Court in Lobatse and his duties included, inter alia,  E the preparation of payment vouchers and payment of sums of money from government coffers to entitled beneficiaries. He prepared various payment vouchers which were effected to him at the Revenue Office, in his capacity as a paying officer of the Department of Administration of Justice for and on behalf of the beneficiaries. The accused then dishonestly misappropriated these sums of money received by him which never reached the legitimate payees. He appealed against his conviction and sentence on the grounds inter alia that: (a) the  F magistrate erred in relying on the evidence of the prosecution's fifth witness when such evidence was improperly before the court and prejudicial in nature to the appellant in his defence; (b) the magistrate erred in not taking into account that the evidence adduced by the State was in effect a single witness evidence, and in not applying the cautionary rule in question; and (c) the magistrate erred in finding that the State had proved its case beyond reasonable doubt.  G

Held: (1) a trial court is entitled to call or recall a witness to give evidence at any stage of the proceedings if such witness's evidence appears to it essential for the purpose of arriving at a just decision in the case. However, evidence available ab initio to the prosecutor, the relevance of which does not arise ex improviso and which remedies a defect in the prosecution's case is inadmissible. In the instant case, the prosecution's fifth witness was not recalled to give evidence on matters which the prosecution had belatedly introduced into the case  H against the accused. His evidence was not therefore, improperly before the court. R. v. Sullivan [1923] 1 K.B. 47, C.C.A.; R. v. McKenna (1956) 40 Cr. App. R. 65, C.C.A.; R. v. Wallwork (1958) 42 Cr. App. R. 153, C.C.A.; R. v. Cleghorn (1967) 51 Cr. App. R. 291, C.C.A. and R. v. Joseph (1971) 56 Cr. App. R. 60, C.A. cited.

(2) A court may convict an accused on the single evidence of any competent and credible witness. Despite the massive evidence adduced against the accused


 

1991 BLR p213

the court in the instant case, was cautious to advert its mind to the cautionary rule when dealing with the  A evidence of the revenue officers who deposed to paying out various sums to the accused. R. v. Mokoena 1932 O.P.D. 79; R. v. Abdoorham 1954 (3) S.A. 163; R. v. Mokoena 1956 (3) S.A. 81 (A.D.) and R. v. T. 1958 (2) S.A. 676 considered.

(3) A court sitting in its appellate capacity will not lightly interfere with the decision of the lower court except where  B it takes the view that there is, in all the circumstances, a substantial doubt in regard to the correctness of the conviction. The evidence against the accused in the instant case was overwhelming.

(4) Whatever the gravity of a crime and the interests of society, the most important factors in determining the sentence are the person, the character and the circumstances of the crime. Determination of an equitable  C quantum of punishment must bear a relationship to the moral blameworthiness of the accused. The sentence imposed on the accused in this case was excessive. S. v. Dualvani 1978 (2) P.H.H. 176 (0) applied.

Cases referred to:

     (1)     R. v. Sullivan [1923] 1 K.B. 47; [1922] All E.R. Rep. 31; 27 Cox C.C. 187; 16 Cr. App. R. 121, C.C.A.  D

     (2)     R. v. McKenna (1956) 40 Cr. App. R. 65, C.C.A.

     (3)     R. v. Wallwork (1958) 42 Cr. App. R. 153, C.C.A.

     (4)     R. v. Cleghorn [1967] 2 Q.B. 584; [ 1967] 2 W.L.R. 1421; [1967] 1 All E.R. 996; 51 Cr. App. R. 291, C.A.

     (5)     R. v. Joseph (1971) 56 Cr. App. R. 60, C.A.

     (6)     R. v. Mokoena 1932 O.P.D. 79.  E

     (7)     R. v. Abdoorham 1954 (3) S.A. 163.

     (8)     R. v. Mokoena 1956 (3) S.A. 81 (A.D.).

     (9)     R. v. T. 1958 (2) S.A. 676.

     (10)   R. v.Bellingham 1955 (2) S.A. 566 (A.D.).

     (11)   S. v. Dualvani 1978 (2) P.H.H. 176 (0).  F

     (12)   S. v. Matoma 1981 (3) S.A. 838 (A.D.).

     (13)   S. v. Clausen 1982 (1) P.H.H. 484 (A).

Case Information

Appeal against conviction and sentence in a case in which accused had been convicted of the offence of theft by a person employed in the public service contrary to section 281 as read with section 269 of the Penal Code (Cap. 08:01). The facts are sufficiently stated in the judgment.  G

Advocate Camp for the appellant.

G.G. Rabasha, State Counsel, for the respondent.

Judgment

Gyeke Dako J. This is an appeal against conviction and sentence.  H

The appellant, who for purposes of this appeal shall hereinafter be referred to as "the accused" was after a plea of not guilty, tried by the chief magistrate, sitting at the Magistrate's Court, Lobatse, on a summons containing 18 counts. Each of these counts charged him with theft by a person employed in the public service in contravention of section 281 as read with section 269 of the Penal Code (Cap. 08:01); and it was stated in its particulars of offence that he stole the sum stated therein by virtue of his


 

1991 BLR p214

GYEKE-DAKO J

employment as a Senior Administrative Assistant at the High Court, Lobatse.  A

He was, at the end of the trial on 9 June 1989, found guilty and convicted on 13 out of the 18 counts, i.e. counts 1, 2, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16 and 18, and sentenced to six years' imprisonment on each of the counts on which he was convicted. Two years of the six years' custodial sentence imposed in respect of each of the 13  B counts on which the accused was convicted were conditionally suspended. Furthermore, the custodial sentences were ordered to run concurrently.

The evidence which was accepted by the learned chief magistrate and on which the accused's convictions were based has been carefully and exhaustively spelt out in the judgment of the court a quo and I need not set them out in extenso.  C

Briefly stated, the accused was at the material time a public officer employed as an accounts clerk at the High Court, Lobatse. His substantive rank as noted earlier, was that of Senior Administrative Assistant. As an accounts clerk, his duties included, inter alia, the preparation of payment vouchers and payments of sums of money from government coffers to entitled beneficiaries.  D

The State case was in the main, based on various payment vouchers allegedly prepared by the accused and exhibited to prove that payments had actually been effected at the revenue office in Lobatse to the accused in his capacity as a paying officer of the Department of Administration of Justice for and on behalf of the beneficiaries, and that the accused dishonestly misappropriated these sums of money so received by him. These sums of  E money therefore never reached the legitimate payees.

The accused in his defence said that he was not the only paying officer during the period covered by the summons, that is, between 1985 and 1987, but that there were two others. They all worked immediately under Miss Nthate, a Senior Administration officer transferred to the Department of Administration of Justice and attached to the High Court, Lobatse. The accused admitted preparing 11 out of 18 payment vouchers exhibited  F before the court and forming the subject-matter of the respective counts laid in the summons.

It is pertinent to note that, in the course of the proceedings before the court a quo, Mr. Masoba, learned counsel who appeared for the accused, in pursuance of section 270 (1) (now section 273 (1)) of the Criminal Procedure  G and Evidence Act (Cap. 08:02) made the following admissions as reflected at p. 72 of the record of proceedings:

     "The defence is prepared to and hereby makes the following admissions:

     (1)      A statement made by John David Williams of the firm Minchin & Kelly and the affidavit made by same attorney to the effect  H that the sum of P4,267 was never received by the firm, and in addition moneys in respect of payment voucher attached to and referred to in the said affidavit.

     (2)      In the same terms, the statement and affidavit of David Newman of Kirby, Helfer and Newman.


 

1991 BLR p215

     (3)      In the same terms, the affidavit of Attorney Rahim Khan in respect of id. 3 page 13.  A

     (4)      In the same terms, the affidavit of attorney Lizo Ngcongco (id. p.15).

     (5)      In the same terms, a police statement of Neil Armstrong (exh. PG)."

The obvious legal effect of these admissions was to relieve the prosecution from the onus of proving that the  B alleged payees never received the sums of money purported to have been paid to them and that the documents evidencing those payments therefore told a lie about themselves.

On 14 June 1989, the accused, by his attorneys filed seven grounds of appeal against his convictions and sentences. These original grounds were however superseded by 11 amended grounds couched in the following terms:  C

     "(a)     The learned magistrate erred in allowing the recall of PW5 when in law he was not empowered to do so;

     (b)      The learned magistrate erred in relying on the evidence of PW5 witness upon recall when such evidence was improperly before the court and prejudicial in nature to the appellant in his defence;  D

     (c)      The learned magistrate erred in finding that the revenue officers had paid money directly to the appellant when in their evidence the aforesaid officers unequivocally accepted that they assumed that payment would have ordinarily been made to the appellant as he was a paying officer;

     (d)      The learned magistrate failed to reconcile the evidence of revenue officers with the uncontroverted evidence of the appellant that he was not the only paying officer at the High Court at the material time with particular reference to the issues referred  E to in paragraph (c) above;

     (e)      The learned magistrate erred in finding that it was the appellant who falsified the payment vouchers without the knowledge or acquiescence of the authorizing officers when the PW2 specifically admitted under cross-examination that in all cases  F where the appellant completed the vouchers, he did so on instructions either verbal or written;

     (f)       There was no evidence in the prosecution case that the completed vouchers were ever handed back to the appellant after authorization, and to conclude thus will be mere conjecture;  G

     (g)      The record as a whole is incoherent and unclear, and there is insufficient recorded evidence on the part of the State to support a conviction;

     (h)      The learned magistrate erred in not taking into account that the evidence adduced by the State was in effect single witness evidence, and in not applying the cautionary rule in question;  H

     (i)       The learned magistrate erred in finding that there were any improbabilities in the version of the accused, and in not finding that the accused was a credible witness;

     (j)       The learned magistrate erred in finding that the State had proved its case beyond reasonable doubt.

     (k)      The sentence imposed was so severe, regard being had to all circumstances of the case, as to induce a sense of shock."


 

1991 BLR p216

GYEKE-DAKO J

It could be discerned that most of the grounds are either no grounds of appeal at all or are repetitive and it is of  A little wonder therefore that learned counsel for the accused lumped and argued them together.

Judging from the arguments presented by Mr. Camp before this court, it appears to me that three main issues are raised on this appeal.

Firstly, whether the learned trial chief magistrate was in law entitled to allow the recall of the prosecution's fifth witness to give evidence and the prejudice caused to the accused in his defence through the reliance placed by  B the court a quo on this witness's evidence in convicting the accused.

Secondly, that the magistrate erred in not applying the cautionary rule since the accused's conviction was based on the evidence of a single witness.

Thirdly, whether upon the evidence before the court, it was erroneous for the trial magistrate to hold that the State had proved its case to the standard required in criminal trials, that is, beyond reasonable doubt.  C

In examining the issues raised seriatim, I find the learned counsel for the accused's submissions on the first issue unconvincing. In the first place, it is too broad a proposition to state that a trial court is not legally entitled, suo motu, to call or recall a witness to give evidence at any stage of the proceedings if such witness's evidence appears to it essential for the purpose of arriving at a just decision in the case. Under our laws, the power of a  D trial court to call or recall a witness is borne out by the provisions of section 201 of the Criminal Procedure and Evidence Act (Cap. 08:02) which state that:

     "The court may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine any person already examined; and the court shall subpoena and examine or recall and  E re-examine any person if his evidence appears to it essential for the purpose of arriving at a just decision of the case."

No one doubts that the discretionary power so vested in the court should be exercised with circumspection and  F that an appellate court will not interfere with the exercise of the discretion unless it appears to it that an injustice has thereby resulted to the accused: see R. v. Sullivan [1923] 1 K.B. 47, C.C.A.; R. v. McKenna (1956) 40 Cr. App. R. 65 , C.C.A.; R. v. Wallwork (1958) 42 Cr. App. R. 153, C.C.A.

The general rule as I understand it is that, matters probative of the accused's guilt should be adduced as part of  G the prosecution's case; and that evidence available ab initio to the prosecution, the relevance of which does not arise ex improviso, and which remedies a defect in the prosecution's case is, prima facie, inadmissible. This is even more so, when the evidence sought to be adduced is not to rebut issues raised on the accused's defence, as for example an alibi, but relates to a branch of the case on which the prosecution ought to have realised that  H positive evidence ought to be given and that without that piece of evidence, a trier of fact would have acquitted: see R. v. Cleghorn (1967) 51 Cr. App. R. 291; R. v. Joseph (1971) 56 Cr. App. R. 60, C.A. Even though in all cases where an application is made to adduce fresh evidence, the judge or magistrate is not limited in the exercise of his discretion, yet such discretion must be exercised judicially and obviously not to the prejudice of the accused person.


 

1991 BLR p217

GYEKE-DAKO J

Now, on the facts of this case, can it be seriously contended that the prosecution's fifth witness - Superintendent  A Kennel Kekgonegile was stricto sensu, recalled to give evidence on matters which the prosecution belatedly introduced into the case against the accused? I think not. The facts disclosed that all the documents put in for purposes of identification were stolen from the custody of Kennel Kekgonegile who was the police investigating officer in the case before they could be exhibited through him. It should be noted that Kennel Kekgonegile was a  B witness in the main case. Since the State's case principally rested on the missing documents, they rightly sought to rely on photocopies of the missing documents. Surely, such secondary evidence could only be adduced from the photocopies after the absence of the original had been satisfactorily explained to the court. It is abundantly clear from the record that it was for the sole purpose of testing the admissibility of these photocopies  C that Kennel Kekgonegile testified at the first instance. It was after the documents had been admitted and evidence relating to them received from other witnesses that Kennel Kekgonegile took his turn to depose on the merits of the case. The important thing to note is that Kennel Kekgonegile as a material witness to the State's case gave his evidence before the prosecution closed its case. I see nothing wrong with the procedure adopted  D in this case. In fact, it was the right procedure to follow.

It appears to me that the procedure followed in this case is in no way different from that to be adopted in a voir dire or a trial-within-a-trial to determine the admissibility or otherwise of an accused's confession statement, whereby, a witness called to testify in a voir dire is not precluded from giving further evidence touching on the  E merits of the case at an appropriate time. There can be no quarrel with the procedure adopted by the trial magistrate. In my judgment, the evidence of Kennel Kekgonegile touching on the merits of the case was properly received and this ground must accordingly fail.

Turning now to the next issue, Mr. Camp has submitted that the trial magistrate had been in error in relying on  F the evidence of a single witness to hold that payments of the various amounts were made to the accused, and that the evidence of the other revenue officers was based on assumptions and mere suspicions stemming from the fact that the accused was a paying officer; and that the magistrate failed to observe that cautionary rule attendant to circumstances where a trial court bases its findings on a single witness's testimony.

Now, section 239 of the Criminal Procedure and Evidence Act (Cap. 08:02) which deals with sufficiency of  G evidence of one witness in criminal trials stipulates that:

     "It shall be lawful for the court by which any person prosecuted for any offence is tried, to convict such person of any offence alleged against him in the indictment or summons on the single evidence of any competent and credible witness:  H

     Provided that it shall not be competent for any court -

      (i)      to convict any person of perjury on the evidence of any one witness unless, in addition to and independent of the testimony of such witness, some other competent and credible evidence as to the guilt of such person is given to such court, or

     (ii)      to convict any person of treason except upon the evidence of


 

1991 BLR p218

GYEKE-DAKO J

              two witnesses where one overt act is charged in the indictment, or, where two or more such overt acts are so charged,  A upon the evidence of one witness to each overt act."

Even though Mr. Camp did not expressly refer the court to the South African case of R. v. Mokoena 1932 O.P.D. 79, it was obvious from his submissions that he had in mind the statement of De Villiers J.P. in that case when  B the learned judge said at p. 80 that:

     "the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by sec. 284 of Act 31 of 1917, but in my opinion that section should only be relied on where the evidence of the single witness is clear and satisfactory in every material respect."  C

It is to be noted that section 284 of Act 31 of 1917 is in pari materia with our section 239 supra. It is equally worthy of note that the passage from R. v. Mokoena referred to supra, has been the subject of much comment and criticism by the South African courts themselves.  D

I think , a few examples of such judicial criticism may illustrate the point I am about to make in respect of the cautionary remarks made in the Mokoena case supra.

In the case of R. v. Abdoorham 1954 (3) S.A. 163 at p. 165, Broome J.P. stated:  E

     "Mr. Mall, for the appellant, relied upon the case of Rex v. Mokoena, 1932 O.P.D. 79, which held that where the Crown relied upon the evidence of a single witness who was contradicted by the defence, the Court could only convict where the evidence of the Crown witness was clear and satisfactory in every material respect. This proposition has been followed in many subsequent cases but none of them in this Court. I am very doubtful whether, as a proposition of law, it is correct. And, in any case, I regard it  F as entirely unhelpful. The Court is entitled to convict on the evidence of a single witness if it is satisfied beyond reasonable doubt that such evidence is true. The Court may be satisfied that a witness is speaking the truth notwithstanding that he is in some respects an unsatisfactory witness."  G

Subsequently, in a case which, by coincidence, has the same name as the case in which De Villiers J.P. had given judgment, Fagan J.A. in R. v. Mokoena 1956 (3) S.A. 81 at p. 86 explained that the criticism of Broome J.P.:

     "would be justified if the sentence in the 1932 judgment had to be read as laying down a requirement of law that must be strictly complied with. It is improbable, however, that De Villiers, J.P., intended it to be read that way."  H

In R. v. T. 1958 (2) S.A. 676 (A.D.), Ogilvie Thompson A.J.A. said at p. 678 that the cautionary remarks made in the 1932 case were equally applicable to section 256 of the 1955 Criminal Procedure Act, but that these remarks must


 

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GYEKE-DAKO J

"not to be elevated to an absolute rule of law ...." It is to be noted that in South Africa, section 256 has now been  A replaced by section 208 of the Criminal Procedure Act 51 of 1977 which omits reference to "the single evidence of any competent and credible witness" and provides merely that "an accused may be convicted on the single evidence of any competent witness."

In my judgment, the absence of the word "credible" is of no significance, since a conviction can only be grounded  B on the evidence of a witness or witnesses if that witness is, or those witnesses are credible. And as pointed out by Wigmore on Evidence, vol. III, para. 2034 at p. 262, there are "indefinite degrees in this character we call credibility."

In my view, there is no rule or thumb test or formula to apply when it comes to a consideration of the credibility of  C a single witness. The credibility of a witness is a matter for a trier of fact. The trial judge or magistrate who sits in a composite capacity of judge and jury and sees and hears the witness must weigh his evidence, must consider its merits and demerits, and having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.

Obviously, the application of the cautionary rule does not mean that an appeal must succeed if any criticism,  D however slender, or the witness's evidence were well founded. (See R. v. Bellingham 1955 (2) S.A. 566 (A.D.) at p. 569). And if I may be permitted to reiterate what has often been said: the exercise of caution must not be allowed to displace the exercise of common sense.

A careful reading of the record of proceedings in this case reveals positive evidence from which the learned trial  E chief magistrate rightly drew the necessary inferences to arrive at the conclusions he did. For instance, the prosecution's sixth witness - Miss Mpusetsang, one of the revenue officers, deposed inter alia:

     "I recognise my handwriting on the treasury voucher No. 494/2/87. I signed this payment voucher ... Payee are Minchin and Kelly.  F Amount is P4,081.64. I know the amount was received by the accused because he signed the payment voucher in my presence upon collection of the money in cash."

There are similar positive pieces of evidence stranding the evidence of the other treasury officers which I need  G not spell out, and which if viewed in the light of other facts deposed to by the various court officials and other witnesses such as (the prosecution's fourteenth witness) - Bokete, justified the conclusions arrived at by the chief magistrate.

There is absolutely no doubt that the learned chief magistrate was throughout alive to the fact that the charges  H before him were one of theft and not forgery or falsification of accounts and that any reference to forgery or falsification or any epithet in his judgment was only meant to show the modus operandi employed by the accused in getting at the sums involved. I therefore consider counsel's argument on this issue nothing more than an attempt to make a mountain out of a mole. I am unimpressed by the argument on this issue and reject it.


 

1991 BLR p220

GYEKE-DAKO J

Despite the massive evidence adduced against the accused, the chief magistrate was cautious to advert his  A mind to the cautionary rule when dealing with the evidence of the revenue officers who deposed to paying out the various sums to the accused. In not less than six pages of his judgment he analysed and carefully evaluated the pros and cons of the evidence placed before him, drew the necessary inferences from the primary facts proved and expressed his satisfaction at the prosecution evidence in the following words:  B

     "My undoubted conclusion is that it is the accused who presented the exhibited vouchers to the Revenue Office Lobatse and it is the same accused who received the sums of money in respect of such vouchers, except, for those payment vouchers bearing a doubt and in respect of which I have found it risky to convict the accused."  C

In my view, the evidence against the accused was overwhelming, and naturally, this court sitting in its appellate capacity, will not lightly interfere with the decision of the lower court on facts because of the obvious advantage enjoyed by that court in seeing and hearing the witnesses. This court can only intervene where it takes the view  D that there is, in all the circumstances, a substantial doubt in regard to the correctness of the conviction. I find no such doubt in this case.

Perhaps, it is apposite to express the opinion that, there is no obligation on the State to close every avenue of escape which may be said to be open to an accused in criminal trials. In my view, it is sufficient for the State to produce evidence, by means of which such a high degree of probability is raised that the ordinary reasonable  E man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that the accused committed the offence charged. An accused's claim to the benefit of a doubt, when it may be said to exist, must not be derived from speculation, but must rest upon reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by the proved facts of the case.  F

In conclusion, the accused has failed to satisfy this appellate court that his appeal ought to be allowed and as such, I am not prepared to interfere with the chief magistrate's well-reasoned finding. The appeal against conviction is therefore dismissed.

As regards the sentence of six years' imprisonment imposed on the accused in respect of each count, I tend to  G agree with Mr. Camp that it is excessive. This is despite the fact that the sentences were made to run concurrently. In so holding, I am aware of the principle that sentencing is within the discretion of the presiding judge or magistrate and can only be interfered with on illegality of the sentence or failure on the part of the sentencing judge or magistrate to take into account vital mitigatory factors put before him.   H

The maximum prison term prescribed by the legislature for the offence of stealing by a person employed in the public service is seven years' imprisonment. In imposing the six-year custodial sentence on the accused, it is obvious that the learned chief magistrate was over-influenced by the modus operandi employed by the accused and the persistency with which he "meticulously worked out the pattern of fraud" for the commission of offence.


 

1991 BLR p221

In my view, the magistrate failed to advert his mind to the fact that each of the 13 counts on which the accused  A was found guilty and convicted, formed a separate and independent offence by itself and therefore punishment must not be based on the global view of the counts proved against him.

In my judgment, a convicted person must not be visited with punishment to the point of being broken down. And as pointed out in S. v. Dualvani 1978 (2) PH H176 (O), whatever the gravity of the crime and the interests of  B society, the most important factors in determining the sentence are the person, the character and circumstances of the crime.

The determination of an equitable quantum of punishment as has often been said, must chiefly bear a relationship to the moral blameworthiness of the accused. Once a court allows itself to be over-influenced by the  C seriousness of the callous way of committing the offence or sets its face to impose a sentence to combat the increased incidence of a particular crime by means of deterrence, retribution and removal of the offender from society in the interests of the community, that court might inevitably be tempted to ignore the personal circumstances of the accused that could possibly lead to mitigation of sentence. It is for this reason that each case must be considered in the light of the accused and his personal circumstances (see S. v. Matoma 1981  D (3) S.A. 838; S. v. Clausen 1982 (1) P.H.H. 484 (A)).

From the record of proceedings in the case, the accused was about 23 years of age when he started the commission of the offences which spread over two years. Therefore, regard ought to have been had to the weaknesses of youths of such age and their propensity for succumbing to temptation.  E

In my judgment, the following reasons given by the learned chief magistrate in imposing such stiff and near-maximum punishment on the accused run counter to all established principles of sentencing:

     "Regarding the accused's youth, competency and intelligent condition as testified by his seniors at work, one feels tempted to allow such a young man in his prime of youth an opportunity to utilize his sharp faculties for good of the society as Mr. Masoba has  F suggested. My serious constraint in that aspect is that the amount stolen is substantive and the theft committed persistently over a long period on what appears to be a meticulous worked out pattern of fraudulent operation.

     It is on account of that factor, and his overall abuse of the trust deposed [sic.] in him by his seniors and the Treasury cashiers at  G Lobatse, that I find that a substantive term of imprisonment is inescapable.

     Accordingly the accused is sentenced to six years' imprisonment on each of the counts ... "

In my view, this constitutes a misdirection in considering the personal circumstances of the accused to be  H relevant only to the question of the duration of the sentence of imprisonment.

I therefore allow the appeal against sentence in part by setting aside the four years unsuspended prison sentence imposed by the court a quo and replace it by two-and-half years' imprisonment.

In sum therefore:


 

1991 BLR p222

     (1)     The appeal against conviction is dismissed.  A

     (2)     The sentence of six years' imprisonment imposed on the accused in respect of each of the 13 counts is set aside and in lieu thereof a entence of four-and-a-half years' imprisonment is imposed, out of which two years are suspended for three years on condition that he commits no offence of which theft is an element within the period of suspension.   B

     (3)     The sentences of four-and-a-half years' imprisonment on each of the 13 counts are to run concurrently and to be reckoned from the date of his convictions and sentences by the court a quo, i.e. 9 June 1989.

  CAppeal dismissed.
Sentence varied.

M.S.S.

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