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[1996] BWCA 33
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Moseki v The State (Criminal Appeal No. 13 of 1996 ) [1996] BWCA 33 (1 July 1996)
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.RTF of original document
1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 13 of 1996
High Court Criminal Appeal No. 7 8 of 1998
In the matter between:
ORELEBILE MOSEKI
Appellant
vs.
THE STATE
Respondent
Appellant in person
Mr. S. Tselayakgosi for the Respondent
JUDGMENT (Delivered on the day of July, 1996)
CQRAH: AGUDA, J.A.
HOEXTER, J.A. ALLANBRIDGE, J.A.
ALLANBRIDGE. J.A.:
In this case the appellant was convicted on 29 April, 1994 in the Magistrates' Court at Mahalapye on a single count of causing grievous bodily harm contrary to Section 230 of the Penal Code, as amended by Section 2 of the Penal Code (Amendments Act, iggy He was sentenced on the same date to the minimum sentence of 7 years' imprisonment.
2 The appellant appealed to the High Court against
both conviction and sentence and on 23rd November,
1994 the High Court ordered that:
"Appeal against conviction be summarily dismissed."
The appellant then appealed to this court against both conviction and sentence and at a preliminary hearing he was granted leave to appeal against sentence. That was done because the question of sentence does not appear to have been dealt with in the High Court as its decision is silent on the matter. This can be seen from the above quotation of it. In this situation this court allowed the appeal against sentence to proceed. This court refused the appeal against conviction.
On 5 July, 1996 the appellant appeared in person before this court to argue his case against sentence. This court had before it the appellant's written Heads of Argument dated 7 June, 1996. Those grounds which
3
were relevant to the appeal against sentence were
Heads (5) and (6). The first of these Heads submitted that the sentence was too severe, he being a first offender and "being given the maximum sentence instead of the minimum sentence." (It is to be noted that the appellant misunderstood this situation because he received the minimum sentence of 7 years' imprisonment). The second of these Heads suggested that the sentence was inappropriate and that he had already served a period of 26 months' imprisonment.
The appellant was asked what he wished to say to the court on his own behalf. He said that he was asking the Court to consider reducing the sentence because it was excessive. He said the complainant had started the fight and he, the appellant, had fallen to the ground and then stood up. He was the breadwinner at home and had two kids and his family was suffering as a result of his imprisonment. When asked by the court how the victim's leg came to be broken, the appellant said the complainant was trying to get at him and "I blocked with my knee" and that is how the
4 complainant was injured.
Before considering whether the sentence imposed
was appropriate I will set out briefly the facts of
this offence as established in the Magistrate's Court.
The incident seems to have happened at or near the
gate of the appellant's yard. There was some
discussion between the appellant and the complainant
about a wallet which led to a quarrel and eventually
a fight between the parties. At a latter stage in
this fight the evidence of the witnesses, who were
believed by the magistrate, made it clear that the
appellant kicked the complainant on the chest when he
was leaning over his gate. The complainant fell to
the ground on his back. He was then pulled some
distance and thereafter kicked on the body as he lay
on the ground. When the complainant tried to free
himself from the appellant the latter hit him on the
lower lip with a can of beer. The appellant himself
admitted in court, when he gave a sworn statement,
that he had assaulted the complainant. He said he did
this in retaliation because he himself had been
5 assaulted by the complainant.
The whole incident concluded when the complainant tried to stand up but was unable to do so because his right leg was broken above the ankle. The medical report on the complainant lists a number of injuries which were sustained by him. They were a laceration to the lower lip, a swollen right eye and a fracture of the lower end of the right tibular bone.
The magistrate convicted the appellant of the offence charged and in terms of section 230 of the Penal Code, as amended, he was obliged to impose a sentence of not less than 7 years unless he could find there were extenuating circumstances. The magistrate decided there were no extenuating circumstances in this case and imposed the minimum sentence. In doing so he said he took into account the fact that the accused is a first offender as well as what he said in his plea in mitigation to the effect that he was a builder by trade and looked after his woman and children who were not working. On the other hand the magistrate indicated that he thought this was an
6
unprovoked assault which resulted in the complainant being incapacitated and losing his job.
I have carefully considered both the written and the oral submissions of the appellant. I can find no reason for disagreeing with the magistrate's finding that there were no extenuating circumstances. This was a brutal attack by kicking a defenceless man lying on the ground. This attack was so severe that it broke the victim's right leg. In such a situation and on the evidence in this case, even after taking into account the personal circumstances of the appellant, nothing has been put before this Court of Appeal which would justify us in interferring with the sentence imposed by the magistrate.
The appeal is refused and the conviction and sentence are confirmed.
• ;
GIVEN AT THE COURT OF APPEAL, LOBATSE, this July, 1996.
day of
I agree,
I agree,
W. I. S. ALLANBRIBGE JUDGE OF APPEAL
T. A.AGUDA JUDGE OF APPEAL
G. G. HOEXTER JUDGE OF APPEAL
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