CRI/A/45-49/87
IN THE HIGH COURT OF LESOTHO
In the Appeal of:
MOKO.TELI HATANE Appellant
v
R E X Respondent
JUDGMENT
Delivered by the Hon. Sir Peter Allen on the 20th day of August, 1987
The appellant and four others were convicted on their own pleas on 3 June 1987 by a magistrate at Mohale's Hoek of the offence of assault with intent to do grievous bodily harm. The appellant and the other accused were each sentenced to imprisonment for six months.
The appellant was the first accused in the lower court and he is the only one of the five accused to have appealed. The others are now serving their sentences and have indicated that they do not intend to appeal.
The appellant pleaded guilty and so he cannot appeal against his conviction. However, Mr. Pheko, appearing on his behalf, asked the Court to review the conviction on the ground that the facts given to the lower court by the prosecutor do not disclose an offence by the appellant.
Before doing so I wish to comment on the charge sheet.
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There was only one count and. it charged that the five accused did "wrongfully, unlawfully and intentionally assault one Ramakoatla Koroloso and Moeketsi Sarele ..... with intent to cause (them) grievous bodily harm."
This was not the correct procedure. The alleged assault upon two different complainants each constituted a separate offence and there should thus have been two counts in the charge sheet and not one. This is essential because the accused persons might have wished to admit one assault and deny the other, or the prosecution might have satisfied the court that one offence was committed but failed with regard to the other. The trial magistrate should be in a position to make a separate finding and verdict in each instance, and this must always be done in future.
Returning now to the facts disclosed by the prosecutor, this is the second appeal that I have heard this month in which both sides have complained of the inadequacy of the facts given to the lower court by the prosecutor. Magistrates must insist upon being supplied with sufficient facts so as to reveal whether or not the offence charged, or a lesser offence, has been committed, and also enough information to indicate just what part the accused person played in the commission of the offence. This information is essential so that the magistrate can enter a proper verdict and assess an appropriate sentence; and also so that the accused person is placed in a position whereby he knows exactly what is alleged against him, and so that he can then agree or disagree with those facts.
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In the present case the prosecutor informed the Court that on 2 May 1987 the five accused persons, including the appellant, were in a larger group of men who stopped the second complainant, Moeketsi, and proceeded to beet him about the body with sticks. The first complainant, Ramakoatla, intervened and tried to rescue Moeketsi, but only succeeded in being beaten as well. They both managed to escape and run away but Moeketsi fell down and was further beaten and stabbed by two others of the accused persons (not the appellant).
The injuries to Moeketsi consisted of open wounds on . his head and right arm. Ramakoatla. had bruises on his head, left arm, left leg and back. No medical report forms were put in as they should have been, so as to assist the magistrate in assessing the seriousness of the. two assaults. They were clearly more than,common assaults.
A month later the appellant and two other accused handed they over sticks to the police that they admitted using in the assault.The other two accused surrendered a knife. They were then all arrested.
These facts were admitted by all of the accused and, in mitigation none of them said anything except to ask for leniency. They were then sentenced.
With regard to the conviction it would have been helpful to have had more facts, especially the medical reports. but I cannot agree with counsel that no offence of assault was disclosed.. In fact I am satisfied that two separate offences of assault were revealed and, indeed, should have been charged.. The facts' indicate that the appellant was one of those who took part in beating these two men and he later
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handed over to the police the stick which he used for that purpose. He clearly knew what it was all about.
The offence of assault is not a difficult one for the ordinary person to understand, though he probably would not know the various legal grades of assaults. 1 am satisfied that the appellant did so understand the charge and that he admitted taking part in the
assaults. It is not clear just how much effort he put into assaulting the complainants but, when a group or gang of people indulges in such activities, it is often the case that the amount of individual participation is not known to the victim or the police. It was up to the appellant, if he wished, to say in mitigation that he merely stood and watched, or only pretended to strike blows, or only struck once, or whatever he wants to say. This appellant said nothing like that at all when the plea was taken, nor when the facts were read, nor when he spoke in mitigation. He had ample opportunity to speak.
In the event, his admission of the charge and the facts is sufficient, in my opinion, to justify his conviction as charged. I am therefore not prepared to interfere with the conviction on record.
Turning now to the appeal against sentence, both counsel for the appellant and Mr. Mokhobo for the Crown agreed that imprisonment for six months, in the case of the appellant, was too harsh and excessive and I agree. The worst part of the assault was the later use of the knife and it appears that the appellant was not involved in that episode.
The appellant was aged 31 years and the eldest of the five accused, but not necessarily of the whole group. But
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he was certainly old enough to know that he should not behave in this fashion, just as if he was a teenaged street hooligan. No reasons were given for the attack upon Moeketsi and there was no evidence of provocation. I think the magistrate ought to have tried to find out the motive of these people. Fortunately the two complainants were not badly injured. The appellant is a first offender who pleaded guilty and so saved the time of the Court and police, and it is customary in such cases to be lenient in these circumstances.
Consequently I think that this would have been a proper case in which to give the appellant an opportunity to pay a fine rather than commit him to prison without the option. That, in my opinion was an excessive punishment in these particular circumstances.
Accordingly this appeal against sentence only is allowed and I set aside the sentence of imprisonment for six months and substitute for it a fine of M100 or, in default, imprisonment for two months. The appellant's bail is also discharged.
With regard to the other four accused persons who have not appealed, they have already served about 2½ months of their terms of imprisonment. In the circumstances, in order to be fair to them and in view of my decision with regard to the appellant, I now set aside each of their sentences of imprisonment for six months and I substitute for those sentences in each case a sentence of imprisonment for such a period as will ensure their immediate release from prison.
P.A.P.J. ALLEN
JUDGE
20th August, 1987
Mr. Pheko for the Appellant
Mr. Mokhobo for the Crown