This brings me to the question
whether the trial magistrate properly handled the question of mitigation, and,
consequently the quantum of sentence.
As we have already seen, the accused
was a defenceless woman in a bar in the middle of the night. She indicated that
she damaged the complainant's motor vehicle using two empty beer ...
This brings me to the question
whether the trial magistrate properly handled the question of mitigation, and,
consequently the quantum of sentence.
As we have already seen, the accused
was a defenceless woman in a bar in the middle of the night. She indicated that
she damaged the complainant's motor vehicle using two empty beer bottles
because he had assaulted her. The accused, who was unrepresented at her trial,
was raising two very important mitigating features which needed to be
ventilated before arriving at an appropriate sentence. Her submission in this
respect was not challenged so it ought to have been accepted as the truth; and
yet the trial magistrate disregarded this important mitigating feature which
tended to reduce her moral blameworthiness considerably. Once the trial court
had established that the complainant had assaulted her, it was incumbent on the
magistrate to investigate and establish the extent and severity of the assault….,.
The circumstances and scene of the
crime suggest quite strongly that this might have been a drunken brawl. The
magistrate was therefore duty bound to investigate whether the accused's
natural moral inhibition had been affected by alcohol. This the magistrate did
not do, preferring to gloss over the question of mitigation in a rather
perfunctory manner. This was again an important mitigating feature that tended
to reduce the accused's moral blameworthiness considerably if proved.
While the accused's conviction, as
charged, is beyond reproach, the same cannot be said of the sentence. The
magistrate's failure to take into account important mitigating factors in
assessing sentence was a monumental misdirection warranting interference by
this court on the question of sentence. It is accordingly ordered:
1. That the conviction of the
accused as charged be and is hereby confirmed.
2. That the sentence imposed by the
trial court be and is hereby quashed and set aside.
3. That the matter be and is hereby
remitted to the trial court for re-sentencing after properly taking into account
all mitigating features.
4. That in re-sentencing the accused the trial
court shall take into account the period already served by the accused in
prison, if any.
