CRI/A/87/86

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

NKOMO
MOKOTJOMELA .............. 1st Appellant

MPHO
NTS'IHLELE ........... ... . 2nd Appellant

V .

REX
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 to do
grievous
bodily harm, it being alleged that on 28th January, 1986, at, or near
ha Thipe they unalwfully and intentionally assaulted
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)
of the Criminal Procedure
and Evidence Act 1981 were invoked.

The,facts
and these were admitted as correct by the appellants, disclosed that
on the day in question; the two appellants found
the complainant
walking on a foot path. They were armed with a stick and a knobkerrie
with which they sud­denly assaulted the
complainant 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 findings
were that
he had sustained three (3) open wounds on the head and a fractured
right arm. On these findings', the medical doctor
concluded that the
injuries inflicted upon the

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complainant
were minor and would not result in a permanent disability.

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 of sen­tence i.e. it is at liberty to set aside
the sentence imposed by the trial court and substitute
therefor a
more lenient sentence,

The
approach which this court, sitting as an Appellate Tribunal, should,
adopt was succintly stated by Roper J.A. in 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 power
to
reduce the sentence of the trial court should be exercised. There are
of course cases where a trial judge has exceeded his jurisdiction,
or
imposed a sentence which was not legally permissible for the crime
involved; or he may have allowed himself to be influenced
by facts or
motives which were not appropriate for consideration in relation to
sentence; or he may have misdirected himself on
the facts. In these
cases (and there may be others of a similar character) this court
will obviously have power to interfere. But
where no such
consideration enters into the matter it is clear that we are not
entitled to substitute our own discretion for that
of the trial judge
and to alter the sentence imposed on the mere ground that we would
have passed a different sentence. Something
further is 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

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impose a
sentence not exceeding 24 months imprisonment following a conviction
on a charge such as the one the appellants were facing.
It cannot
therefore, be seiously argued that this was the case where in
sentencing the appellants the trial magistrate had exceeded
his
jurisdiction.

It
appears from the record of proceedings that after he had returned a
verdict of guilty the trial.magistrate was informed that
the
appellants had no record of previous conviction, He then gave the
appellants the opportunity to disclose personal facts (if
any) that
might be considered on their behalf in mitigation of sentence. The
appellants declined to do so. It was argued that it
was 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 magistrate
took the
initiative to offer them the opportunity to disclose personal facts
that might be con­sidered in mitigation of their
sentence they
should have co­operated with him by doing so. If they refused the
magistrate could not be expected to speculate
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 that the
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 imposed.

It was
further argued that according to the medical report the injuries
sustained by the complainant were minor and the trial magistrate

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 on the head and a fractured arm could be considered minor
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 magistrate
was
perfectly entitled to ignore it as illogical or senseless.

Likewise
I was unable to find any misdirection on the part of the trial
magistrate in taking into consideration as he did the facts
that the
appellants were first offenders and had pleaded guilty as a sign of
remorse but, nonetheless," deemed the offence
they had committed
serious enough to warrant the deterrent sentence he imposed. Nor did
I find a sentence of 24 months imprisonment
excessive where the
comp­lainant was brutally attacked with leathal weapons and
seriously, injured by two thugs for no apparant
reason at all.

In the
result, I came to the conclusion that the appeal was misconceived and
accordingly dismissed it.

B.K..MOLAI

JUDGE

13th
February, 1987.

For
Appellant : Mr. Z. Mda,

For
Crown: , Mr. Mokhobo