The appellants were sentenced to 36 months imprisonment of
which 10 months were suspended for 5 years on conditions of good behaviour. A
further 10 months imprisonment was suspended on conditions of restitution.
As such, each appellant was to serve an effective sentence
of 16 months imprisonment.
In sentencing the appellants, the magistrate ...
The appellants were sentenced to 36 months imprisonment of
which 10 months were suspended for 5 years on conditions of good behaviour. A
further 10 months imprisonment was suspended on conditions of restitution.
As such, each appellant was to serve an effective sentence
of 16 months imprisonment.
In sentencing the appellants, the magistrate took into
account the seriousness of the offence. The offence was aggravated by the fact
that the appellants are members of a respectible church organisation. As noted
by the court a quo, their conduct was not only unlawful but contrary to the
values and tenets of all Christian teachings and morality. It was further
aggravated, not only by the number of people involved but by their
relationship. The complainants were subjected to protracted relentless acts of
violence. It needed the intervention of armed police to quell the violence.
Property worth thousands of dollars was destroyed. The complainants suffered bodily injuries
while one of them was maimed for life sustaining a 23% permanent disability.
The magistrate took into account mitigatory factors.
In particular, he considered that the appellants were
family men with large families of so many wives and children. Further, that
they were first offenders. He accounted for the weight of mitigation by
suspending part of the sentence. However, the aggravating factors far
outweighed the mitigating circumstances. The appellants appealed to the High
Court against both conviction and sentence.
The appellants have now appealed to this Court against
sentence only.
The only issue that falls for determination is whether or
not the sentence imposed by the magistrate and confirmed by the High Court was
inappropriate.
Undoubtedly, the offence committed by the appellants was
serious. It is trite that, in the absence of a misdirection or gross
irregularity or abuse of the judicial function, an appellate court will not
interfere with the sentence imposed by the trial court unless the sentence is
viewed as disturbingly inappropriate….,.
In S v Ramushu & Ors SC25-93, GUBBAY CJ reiterated this
principle as follows:
“But in every appeal against sentence, save where it is
vitiated by irregularity or misdirection, the guiding principle to be applied
is that sentence is pre-eminently a matter for the discretion of the trial
court, and that appellate courts should be careful not to erode such
discretion. The propriety of a sentence, attached on the general ground of
being excessive, should only be altered if it is viewed as being disturbingly
inappropriate.”
Applying these principles, the court finds that the High
Court did not misdirect itself in holding that the sentence meted out by the
trial court eminently fitted the offenders and the offence committed. No
misdirection or irregularity is apparent on record. It is clear from the magistrate's
reasons for sentence that he considered, and correctly so, that imprisonment
was the only appropriate sentence.
The trial court's approach to sentence cannot be faulted.
Counsel for the appellants sought to argue that the
violence was localised and arose amongst members of the same family and church.
The argument that violence was localised and that the court
a quo ought not to have taken a serious view of the appellants' conduct ignores
the fact that it was the nature of the acts and their consequences which
aggravated the offence not the place where the offence occurred. The appellants
and the complainants belonged to the same church and one would have expected
them to act as brothers to protect each other, for the protection of their
religious faith.
The fact that they turned violent against each other and
were prepared to inflict serious injuries on the complainants suggests that
this was a pre-planned offence executed with determination as evidenced by the
length of time it took before the appellants were restrained. They only
terminated their acts of violence as a result of the intervention by police who
were armed.
A deterrent sentence was called for to send a message to
members of the public, and worshippers in particular, that the law will not
tolerate violent conduct which does not only divide people but cause injury or
damage to people or property. Further, no contrition was shown by the
appellants in terms of payment of restitution. Thus, no steps of reconciliation
were even taken.
The appeal was accordingly dismissed.
