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Masito v The State (Criminal Appeal No. 22/95 ) [1995] BWCA 29 (11 July 1995)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 22/95
HIGH COURT CRIMINAL TRIAL NO. (F) 36/95
In the matter between:
KGOPO MASITA
Appellant
vs
THE STATE
Respondent
Mr. Attorney A. D. Murphy for the Appellant Mrs. Attorney L. Dambe for the Respondent
JUDG M ENT
LORD COWIE JA.
On the 8th May, 1995 the Appellant pleaded guilty at the High Court in Francistown to two offences. The first one was assaulting a woman employee of the firm of Nkate Masilo & Associates, Attorneys at Law, in their office, and occasioning her actual bodily harm contrary to Section 247 of the Penal Code (Cap 08:01) of the Laws of the Republic of Botswana. The second offence was unlawfully causing grievous bodily harm to the Senior Partner of the said firm when he intervened to try and stop the first offence, contrary to Section 230 of the Penal Code.
The Learned Judge sentenced the Appellant to three years imprisonment for the first offence and six years imprisonment for the second offence, with two years suspended for three years, on condition that during the
period of suspension, the Appellant was not convicted of the
2 offence of unlawfully causing grievous bodily harm or any offence of which violence to the person of another was involved. He also ordered the two sentences to run concurrently from 17th March, 1994, when the Appellant was taken
into custody.
It is to be noted that the maximum sentence which the Learned Judge could have imposed for the first offence was five years imprisonment with or without corporal punishment. For the second offence the maximum sentence which could have been imposed was fourteen years imprisonment and in terms of Section 230 of the Penal Code, as amended by Section 2 of the Penal Code (Amendment) Act 1993 No. 13/1993, the minimum period which had to be imposed was seven years unless the Court found extenuating circumstances in which case a lesser sentence could be imposed.
It will be seen therefore that the Learned Judge in the present case imposed a sentence which was substantially less than the maximum
for the first offence to which the Appellant pleaded guilty and also found that there were extenuating circumstances in the second one because of the Appellant's youth and excessive
jealousy. He therefore decided that that had a bearing on the Appellant's blameworthiness, and permitted him to refrain from imposing the otherwise mandatory minimum sentence for the second offence.
The Appellant has appealed against the sentences imposed by the Learned Judge on the general grounds that they were excessive and induced a sense of shock. In his Notice of Appeal the Appellant sets out five particular grounds in support of his general contentions. They are as follows:-
(1)
The Appellant showed contrition by pleading guilty and spontaneously and sincerely apologising in the Trial Court for his conduct*
(2)
The severe provocation that the Appellant suffered at the hands of the Complainant in the second offence arising out of the said Complainant's alleged affair with the Appellant's wife;
(1)
3
(3)
The Appellant is a comparatively young man equipped and about to make a significant contribution to the Botswana economy as a Businessman;
(4)
The Appellant is a first offender and other than this conviction a law abiding citizen;
(5)
In comparison widi sentences handed down for murder, attempted murder and assault in the High Court of Botswana, the sentence awarded to the Appellant was significantly higher and therefore
excessive.
The agreed facts of the case were as follows:-
COUNT1: ASSAULT OCCASIONING ACTUAL BODILY HARM
1.
The Accused person Kgopo Masita on the 17th March, 1994 at or around 8 am went alone to the offices of Nkate Masilo & Associates Attorneys at Law, in Francistown where Complainant in Count Two is the Senior Partner.
2.
Thereupon he found the Complainant Samong Mosetlhanyane (an employee of the Law firm Nkate Masilo).
3.
Upon his entry into the office the Accused was holding a gorilla steering lock produced in evidence by consent. The Accused demanded to know the whereabouts of Attorney Kabelo Masilo. The Complainant replied but the Arrnsgri immpHJatelv struck her several times with the gorilla steering lock. The Complainant ran under a table in order to hide but Accused continued beating her.
4.
The Complainant sustained injuries on her right arm, left thigh, right leg and finger all caused by the intentional application of
force resulting in bodily hurt
5.
The Complainant was taken to hospital where upon examination as contained in the medical form BP 73 (which is produced in evidence
by consent) confirms that the Complainant sustained these injuries on the date in question.
6.
Accused person on the 18th March, 1994 at 2.55 pm went before a judicial officer where he gave a confession admitting to having inflicted
injuries on the Complainant (which shall be produced by consent).
COUNT 2: CAUSING GRIEVOUS HARM
4
1.
The Accused person Kgopo Masita whilst engaged assaulting Complainant in Count One became aware of Complainant on Count Two when the Complainant tried to intervene to stop the assault in Count One.
2.
At that particular moment Attorney Masilo was in one of the offices speaking over the telephone. Whilst still on the phone the Complainant
heard a commotion and someone screaming in the reception.
3.
The Complainant went out of the office to investigate he then encountered the Accused person immediately he opened the door who struck
him with the gorilla steering lock. Once on the head and once on the neck. The Complainant thereafter fainted.
4.
The Complainant was rushed to Nyangabgwe Hospital whereupon it was found that he had a fracture of the skull. All this information
is contained in a medical form BP 73 (which shall be produced in evidence by consent).
5.
The operation results are contained in Medical BP 73 dated July, 1994 which is to be produced by consent.
6.
The Complainant was referred on the same day to a Specialist Neurosurgeon in the Republic of South Africa. An operation was there conducted.
7.
The injuries sustained by the Complainant are consistent with the use of an instrument which can cause serious injury such as the
gorilla steering lock. The Complainant has to take prescription medicines as a result of his injury.
8.
On the 18th March at 2.55 pm the Accused went before a judicial officer where he made a confession admitting to have inflicted the
serious permanent injuries on Attorney Masilo.
The confession statement referred to above described a series of events which gave rise in the Appellant's mind to the suspicion that the victim in the second offence was having an affair with his wife and that that affair was being furthered and encouraged by the victim in the first offence. The confession statement was accepted as evidence in the case and it formed the basis of the Appellant's plea in mitigation to the
effect that he had committed the two offences under provocation.
In elaboration of the grounds of appeal, Mr. Murphy for the Appellant submitted that in the light of the provocation which the Appellant had received as disclosed in the confession
5 statement; the fact that he was a first offender; and in the view of the minor injuries which the victim in the first offence had
sustained a sentence of three years imprisonment without any suspension was excessive for that offence. However he conceded that in view of all the circumstances, including the effect which this assault must have had on the female victim, a term of imprisonment could not be said to have been inappropriate, and he further conceded that a term of three years was within the range of sentence which the Learned Judge in the proper exercise of his discretion would have been entitled to impose. On the other hand his ultimate submission on this sentence was that one year of it ought to have been suspended for three years and he urged us to take that course. He maintained in particular, that the Learned Judge had not placed sufficient weight on the element of provocation which was disclosed in the Appellant's confession statement, and which indicated that
the Appellant had grounds for believing that the female victim had played an active role in furthering the illicit relationship between the second victim and his wife. He also maintained that the
Learned Judge had not given sufficient weight to the fact that the injuries which the female victim had sustained were of a minor
nature.
As regards the second offence, Mr. Murphy made much the same submissions, and, in this instance, while conceding that the sentence of six years imprisonment with two years suspended for three was within the proper exercise of the Learned Judge's discretion, he urged us, in the particular circumstances of this offence, and the background to it, to suspend four of the years instead of two, with the overall effect that the Appellant would serve an effective sentence of two years on each charge to run concurrently
from 17th March, 1994. Mr. Murphy submitted that this result would be appropriate because such a sentence would be consistent with the general trend of sentences in this type of case,
and also because the Learned Judge had in this case also failed to give sufficient weight to all the mitigating factors.
For the State, Mrs. Dambe submitted that the sentences imposed were appropriate in all
6
the circumstances of the case, and that it was clear that the Learned Judge had given proper weight to all the mitigating factors.
In particular she maintained that it was clear that the Learned Judge had taken into account the element of provocation and the injuries which each of the victims had sustained. She reminded
us that this Court could only interfere with the exercise of the sentencing Judge's discretion if we were satisfied.
(a)
that the sentence passed was wrong in law;
(b)
that the Trial Judge had misdirected himself by committing a fundamental error, or;
(c)
that the sentence was wrong in principle, where for example the sentence was so disproportionate to the offence that a reasonable man would consider it excessive and totally unjustified or where it was manifestly unfair or unjust.
Ngoma vs The State (1986) B.LJt. 173 per Muhammad A. J. at 175 G
The same principles were applied by this Court in the case of Mudangale vs The State (1986) B. L. R. 265 where, at page 266 Ammissah J.A. (as he then was) said:-
"The assessment of the sentence, however, is a matter for the judge or magistrate seised with the trial of the case. It is common knowledge that this sentence will not be disturbed on appeal unless he has misdirected himself as to the law or the factors he ought to have taken into account or the sentence is so manifestly disproportionate to the offence committed that no reasonable
trial court would have imposed it for the offence under consideration. The mere fact that the Appellate tribunal would, if in the
position of the trial court, have imposed a different sentence is not a sufficient reason for disturbing the sentence."
Applying those principles to the present case we are wholly in agreement with Mrs. Dambe that there is no basis for interfering with the sentences imposed by the Learned Judge in the present case and we accordingly
dismiss this appeal. In any event we are quite satisfied that the sentences which were imposed were appropriate in the present case. These were vicious assaults with an offensive weapon causing, in the case of the male victim, very severe injury to his head and necessitating delicate and expert medical treatment.
So far as the female victim is concerned, although her physical injuries were comparatively
minor, the whole incident must have been very frightening and it is important to remember that the effect on the victim should be borne in mind when considering what sentence should be imposed, as well as all the factors relevant
to the offender and the public interest. We have no reason to hold that the sentences in the present case are in any way contrary to the general trend of sentences in cases of this type, and we are not prepared to hold that they are excessive. For these reasons also we would dismiss
the present appeal.
DELIVERED IN OPEN COURT THIS ...11th DAY OF JULY, 1995.
LORD W. L. K. COWIE
JUDGE OF COURT OF APPEAL
I agree
T.A. AGUDA
JUDGE OF COURT OF APPEAL
I agree
P. H. TEBBUTT
JUDGE OF COURT OF APPEAL
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