IN THE HIGH COURT OF LESOTHO In the Appeal
NKOMO MOKOTJOMELA ....... 1st Appellant
MPHO NTSIHLELE ........... ....2nd Appellant
R E X Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr.' Justice B.H. Molai. on.the
13th day of February 1987.
I have already dismissed this appeal and the following
are my reasons for the decision.
The appellants had appeared, before a magistrate with
first class powers charged with the crime of assault with intent
grievous bodily harm, it being alleged that on 28th January,
1986, at, or near ha Thipe they unalwfully and intentionally
Ts'eliso Damane with a stick and a knobkerrie on the body.
They pleaded guilty to the charge and the provisions of,S.240(1)(b)
the Criminal Procedure and Evidence Act 1981 were
The,facts and these were admitted as correct by the
appellants, disclosed that on the day in question; the two appellants
complainant walking on a foot path. They were armed with a
stick and a knobkerrie with which they suddenly assaulted the
for no apparent reason..
After he had reported the incident to the chief and the
police; the complainant was referred to a medical doctor whose
that he had sustained three (3) open wounds on the head
and a fractured right arm. On these findings', the medical doctor
that the injuries inflicted upon the
2/ complainant were.
complainant were minor and would not result in a
Having heard the outline of the facts, the trial court
found the accused guilty as charged and sentenced each to serve a
term of twenty
four (24) months imprisonment. The appeal is only
against the sentence on the ground that it was excessive regard being
had to the
fact that the appellants were first offenders and had
shown remorse by tending a plea of guilty.
I must mention that Mr. Mokhobo for the
Respondent accepted the grounds of appeal and submitted that in the
circumstances this court is at large on the question
i.e. it is at liberty to set aside the sentence imposed by the trial
court and substitute therefor a more lenient
The approach which this court, sitting as an Appellate
Tribunal, should, adopt was succintly stated by Roper
Shoto and Others v. Regina 1960 H.C.T.L.R.1 at
p.6 where the learned Judge had this to say on the subject.
"It is inadvisable for this court to attempt to lay
down a general rule or test as to the circumstances in which its
reduce the sentence of the trial court should be exercised.
There are of course cases where a trial judge has exceeded his
or imposed a sentence which was not legally permissible
for the crime involved; or he may have allowed himself to be
by facts or motives which were not appropriate for
consideration in relation to sentence; or he may have misdirected
the facts. In these cases (and there may be others of a
similar character) this court will obviously have power to interfere.
where no such consideration enters into the matter it is clear
that we are not entitled to substitute our own discretion for that
the trial judge and to alter the sentence imposed on the mere ground
that we would have passed a different sentence. Something
necessary, for example, that the sentence; was unreasonable in the
circumstances of the casia or that its severity was
quite out of
proportion to the gravity of the offence, so that it can be said that
a proper judicial discretion was not exercised."
In the present case the trial was before a magistrate
with first class powers. His jurisdiction permitted him to
impose a sentence not exceeding 24 months imprisonment
following a conviction on a charge such as the one the appellants
It cannot therefore, be seiously argued that this was
the case where in sentencing the appellants the trial magistrate had
It appears from the record of proceedings that after he
had returned a verdict of guilty the trial.magistrate was informed
appellants had no record of previous conviction, He then
gave the appellants the opportunity to disclose personal facts (if
that might be considered on their behalf in mitigation of
sentence. The appellants declined to do so. It was argued that it
the duty of the trial magistrate to investigate the existence of
any such facts.
It should be borne in mind that the appellants were at
the time of the trial men of 25 and 24 years of age. When the trial
took the initiative to offer them the opportunity to
disclose personal facts that might be considered in mitigation
sentence they should have cooperated with him by doing
so. If they refused the magistrate could not be expected to
on what personal factors were there to serve as mitigation
of their sentence.
However, in his written reasons for sentence, the trial
magistrate clearly stated that he took into consideraion the fact
appellants were first offenders and had tendered a plea
of guilty as a sign of remorse for what they had done. Nonetheless
he deemed the assault perpetrated by the appellants on the
complainant serious enough to warrant the deterrant sentence he
It was further argued that according to the medical
report the injuries sustained by the complainant were minor and the
misdirected himself by holding that they were
serious,. It is to be observed, however, that, according to the
evidence, the medical
doctor found that the assault on the
complainant had resulted in three open wounds on the head and a
fractured right arm. I found
it difficult to apprehend how, even by
any stretch of imagination, three
4/open wounds ..........
wounds on the head and a fractured arm could be considered
injuries, particularly so when it was borne in mind that
the injuries were inflicted on the complainant with such
' leathal weapons as a stick and a knobkerrie. '
In my view the medical doctor's conclusion that the
injuries were minor was,not borne out by,his findings and the trial
was perfectly entitled to ignore it as illogical or
Likewise I was unable to find any misdirection on the
part of the trial magistrate in taking into consideration as he did
that the appellants were first offenders and had pleaded
guilty as a sign of remorse but, nonetheless," deemed the
they had committed serious enough to warrant the deterrent
sentence he imposed. Nor did I find a sentence of 24 months
excessive where the complainant was brutally
attacked with leathal weapons and seriously, injured by two thugs for
reason at all.
In the result, I came to the conclusion that the appeal
was misconceived and accordingly dismissed it.
For Appellant : Mr. Z. Mda, For Crown: : Mr.
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