HIGH COURT OF LESOTHO
by the Honourable Mr Justice WCM Maqutu on the 19th day of February,
2nd February 2001 this appeal was heard. Mr Tsenoli appeared for
appellant and Mr Hoeane for the Crown. After hearing both counsel,
the court made the following order:
sentence is reduced to two years imprisonment - half of which is
suspended for two years on condition that accused is not found guilty
of any other offence involving violence during
will be filed later.
judgment I have referred to the appellant as the accused throughout.
This is a
case of domestic violence between husband and wife. The husband was
charged with assault with intent to do grievous bodily harm.
appeal was against sentence only, as the accused had pleaded guilty.
court had sentenced him to four years' imprisonment half of which is
suspended for two years on condition that during the period of
suspension accused is not found guilty of an offence involving
had no previous conviction and he was unrepresented. In his
mitigation, accused had said the following:
"I ask for mercy and that is all, I have nothing further."
The court had then asked him what his occupation was, and accused
replied "I am a traffic inspector."
then sent accused for psychiatric examination within fourteen days.
Three days later, the medical officer made a report in which he
stated the following about the accused:-
"...was seen today and was fully examined. He was found to be
mentally and physically stable. He has no psychiatric
problems."—Signed Medical Officer This medical officer did
not specify what his qualifications are. He seemed to have assessed
the accused's present psychiatric state. The record
also gives the impression that what was required was the current
psychiatric condition of the accused. This report was therefore
inappropriate for a case such as this one.
reason I say this is that in cases of this nature, a person who
commits a crime under normal conditions of is often normal. Many
people who are temporarily insane are found to be normal and stable
after a very short time. By the day of trial (which takes place
several months or even years later) they are as normal as any other
man. Such a person is often found not "likely to repeat a
similar act".—Rex v T Makaba 1977 LLR 229 at 234. This
court quoted the following passage from the Runciman Commission on
Criminal Justice Report CM2263 HMSO (1993) paragraph 70:
"Expert witnesses must expect to have their evidence tested in
examination and cross-examination in the same as other witnesses.
Serious miscarriages of justice may occur if juries are too ready to
believe expert evidence or because it is
insufficiently tested in court"—See Rex v M.A. Chobokoane
words, the magistrate acted on the untested evidence of a medical
officer who might not even be a psychiatrist. His report is
irrelevant because it does not deal with the accused's state of mind
at the time of the commission of the crime.
best of motives, the magistrate referred the accused for psychiatric
examination. This reference to medical examination is normally made
to determine whether the accused is fit to plead. Once the accused
has pleaded and is fit to plead, there is a presumption that he is
normal. If he claims he was not, he bears the evidenciary onus to
elicit facts that show that he was not normal at the time of
commission of the a crime. In S v Trickett 1973(3) SA 326 at 530
Marais J put this principle as follows:
"Universal sanity in the sense of the accused being doll capax
is presumed. Whoever wishes to rely on a deviation from this general
norm, has to establish it on a balance of probabilities: it is only
then that the prosecution has to disprove the deviation
from the norm."
magistrate ought to have noted this. If the accused did not put his
mental state in issue the trial court ought to avoid interfering. The
reason being that consequences of temporary insanity are very
drastic. They could be an indeterminate detention at His Majesty's
pleasure. While the magistrate has a duty to protect the community at
large from insane people, he certainly will not be doing the accused
a favour by having him imprisoned idefinitely.
considered the following words in the reasons for sentence of the
magistrate a serious misdirection:-
"In mitigation accused merely said he asked for mercy and
nothing else - and this does not give an impression that he is
remorseful despite pleading guilty."
court in assessing credibility of a witness takes into account his
demeanour, it cannot convict on that alone. The court has to convict
conclude that because accused is not vocal he is not showing remorse
strikes me as simplistic. Surely a person who is ashamed of his acts
becomes tongue-tied. Courts do not convict on impressions alone. It
is not unknown for a vocal, bold liar to make a good impression
merely because he is a good actor. If the magistrate had thought
about this more carefully, he might not have reached such a
conclusion. I consider this statement an error of judgment.
accused was unrepresented, he saw clearly that he had done an
inexcusable thing. What more should he have said? If he considered
what he had done inexcusable, why should he waste everybody's time by
making all sorts of excuses. The accused might legitimately have felt
he might say what might aggravate his situation in the eyes of the
court. For an example, the court might not take kindly to what his
counsels said before this court when counsel said that since the
accused was the family's main bread-winner, the court should have
considered this fact in approaching sentence. I asked counsel whether
he meant husbands should always batter their wives in the full
knowledge that they will not be punished (as harshly as they might
because that will be punishing the children. In other words, the
accused might have thought that he is in a no-win situation.
nevertheless should have found out what the accused's personal
circumstances were. We do not know how many children they have. Since
accused was not represented, the court should have found out why he
did this. He could well have had a hang-over from intoxication the
previous day. From the summary, the assault occurred for no apparent
reason - but it could well be that there is something that triggered
this assault. In matters of husband and wife, a great deal happens
that never surfaces.
that accused did not accept the facts as outlined by the Crown in
their entirety. In a majority of cases, it would have been an
irregularity not to hear full evidence. Accused accepted the facts as
outlined by the public prosecutor "except that he denies hurling
insults". If the trial court did not enter a plea of not guilty,
it did not commit a major irregularity in the circumstances of the
case. In terms of section.............of the High
of 1978, I need not set aside the proceedings on grounds of an
irregularity, because such an irregularity must be a serious one. In
any event accused does not challenge his conviction in the court
below. The appeal is only on sentence. Nevertheless the trial court
should have been on guard when it approached the question of
sentence. It should have looked deeper into the surrounding
circumstances, which it was bound to elicit from the accused where he
has pleaded guilty.
record shows when accused asked his wife to look for his passport
"accused seemed very angry". Surely a person does not
become very angry for no reason. The least the trial court should
have done (as accused was unrepresented) is to find out why accused
was so very angry. There is only the issue of the accused's salary
cheque, which followed the demand for accused's passport. Why ask for
accused's salary cheque when his wife had found accused's passport as
required? This becomes even more puzzling because the month ended on
the 31st of July 2000. Why demand the salary cheque from the wife on
the 4th August 2000? What did the accused mean when he said "I
did not sleep for this cheque of mine" before he commenced
assault on his wife? These facts might have seemed not worth
investigating, but if the unrepresented accused person pleaded
guilty, they should have been looked into.
beginning of the Crown's summary, there seems to be an unclear
suggestion that the wife was also going to work on the day of the
assault. Counsel for appellant said the complainant (wife) was the
Clerk of Court of the very court in which the Magistrate served. It
is for this reason that the 3rd ground of appeal is the following:
"The court a quo imposed the sentence it did - out of anger not
out of considerations of justice and fairness."
record is silent on where the wife of the accused worked. If indeed
he was this Magistrates' Clerk of Court, then the magistrate was in a
dilemma. If the accused pleaded guilty and wanted this case out of
the way, the magistrate might have decided to be helpful and deal
with the case speedily. If the magistrate felt he could deal with
this case fairly and impartially, he
law entitled to hear the matter. If he felt he was emotionally
involved because a member of his staff had been hurt, then he should
have recused himself. The principle that justice should be seen to
have been done is an important one. It is wise therefore to
anticipate potential objections by withdrawing from a case where a
judicial officer's impartiality might be questioned. This is
"The judge who gives a right judgment while not appearing to do
so may be thrice blessed in heaven, but on this earth he is no use at
all. "—Lord Devlin in The Judge qoted in Commonwealth
Judicial Journal Vol 13 No4 4th December 2000 page 10.
was being argued that justice cannot have been seen to have been
done, because accused does not like the sentence. The accused's
problem is that this objection is a belated one. There are
circumstances in which this court might intervene, if there is a
manifest irregularity. In this case, I do not think it would be right
to interfere as there is no clear irregularity. But nevertheless in
retrospect, it now seems from the accused's current
the magistrate should have recussed himself. The accused did not
think so at that time. In any event the question of where the
accused's wife worked was not disclosed in the court below.
issue of sentence and the trial court's attitude is crisply captured
in the following words:
"However, the court is most amazed by the fact that the accused
assaulted the complainant for no apparent reason, and by the nature
of the injuries."
already said the court did not even try to find out from the accused
the "apparent reason" for the assault. It only contented
itself with the summary given by the prosecutor which must have come
from the statement of the complainant in the docket - and whatever
the prosecutor might have got as supplementation from complainant.
Even as the record stands, it is very one-sided and vague. At the
sentencing stage the trial court was expected to find out balancing
factors (as best as it could).
trial court only asked the accused what his occupation was and ended
already said that there was no remorse merely because he asked for
mercy and said nothing further. Actions speak louder than words.
There was really no need for a saddened accused person to say more.
injuries on the complainant are very disturbing. The degree of force
applied was severe. Accused fractured his wife's left distal radius
of her arm, and the left patella of the knee. In the assault of his
wife, accused was hitting his wife with fists and kicking her. In
modern times, it is doubtful if in our society people still believe
husbands still retain he customary right of moderate chastisement on
their wives. This court has held that such a right is obsolete. Even
in the first half of the twentieth century an assaut of this nature
would have been classified as immoderate and therefore punishable.
sometimes forgotten by criminologiests that corts of law have
that encompass not only the accused, the victim and the community but
the judicial system as well. One of these duties (which the courts
keep in mind in sentencing) is the maintenance of their authority and
the keeping of the respect of the general public for the criminal
justice system. Is is for this reason that Schreiner JA in R v Karg
at page 236B said:
"It is not irrelevant to bear in mind that if sentences for
serious crimes are too lenient, the administration of justice might
fall into disrepute and injured persons may incline to take the law
into their own hands."
already pointed out that in case of domestic violence courts in
punishing violent spouses cannot ignore the adverse effect this is
bound to have on the children when they have to impose a custodial
sentence. This may encourage violent spouses to believe they will not
get the punishment they deserve. In the case of Rex v M.A. Chobokoane
CRI/T/90/99 (unreported) this court observed:
"A law abiding man (in cases of domestic violence can take
liberties with his wife, in the belief that she will not press
charges for the sake of the children whose breadwinner he is. An
angry person might be under the belief that all will be forgiven."
led to very unfortunate consequences. In Maru Masakale v Mampolokeng
Masakale & Others CIV/APN/389/99 (unreported) a husband assaulted
his wife and expelled her from the marital home. The brother of the
wife (either by themselves or with the wife) in retaliation ,
assaulted the husband and killed him. It is to avoid cases of wronged
parties taking the law into their hands that the court have to
consider the sentences they hand down carefully. This aspect in
sentencing is often overlooked by the progressive or enlightened
criminologists, and academics. In short, sentencing is a balancing
act in which many considerations come into play.
violence is a problem that this court can never eradicate. Courts
have to do what they believe they can, they can never successfully
deter spouses from battering each other. The Oxford Pocket Dictionary
attests to the fact that the battering of women and babies is an old
It is an
abuse of physical strength that males possess that has been
scandalous and the magistrate was right to punish it as best as he
could. In the case of R v Karg 1961(1) SA 231 at page 236 BC
Schreiner JA said:
"It is not wrong, that the natural indignation of interested
persons and the community at large should receive recognition in the
sentences that the courts impose,.... Naturally righteous anger
should not becloud judgment."
case of Karg, the accused had shot a boy. He believed the boy who had
trespassed into his property was about to steal his property in
circumstances in which no reasonable man could expect the boy to have
stolen his property. He was a first offender and after a full trial
was sentenced to two years' imprisonment, full evidence had been
heard at a trial.
already come to the conclusion that the learned magistrate
misdirected himself and that his general approach to the facts on the
question of sentence was not correct. Yet he had duty to punish the
accused in order to exhibit the revulsion of the community towards
the accused's act, and
hopefully to deter him and others from such acts. There can be no
doubt that this particular assault called for a stiff sentence -
otherwise wives would develop a sense of grievance and feel
unprotected by the law. As I have already said, domestic violence is
mankind's perpetual problem, which cannot be eradicated but which has
to be controlled, punished and denounced as unacceptable. Whether
punishment will deter the accused and other's like him in future,
courts cannot be sure, they can only hope a salutary sentence might.
aside the sentence of four years' imprisonment, half of which is
suspended for two years because it is excessive and induces a sense
of shock in me - although I still consider the assault brutal.
consider the sentence I imposed in the place of the one that the
magistrate imposed as severe. As Schreiner JA said in R v Karg at
"While the deterrent effect of punishment has remained as
important as ever, it is, I think correct to say the retributive
aspect has tended to yield ground to aspects of prevention and
correction. That is no doubt a good thing. But the element of
retribution, historically important, is by no means absent from the
case of domestic violence and abuse of women, this court found itself
mixing the elements of deterrence and retribution in the sentence it
was at large to impose once it had found a misdirection. In my view,
a sentence of two years' imprisonment, half of which is suspended
meet the ends of justice adequately.
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