Appellant is appealing against sentence on a number of grounds which are infact of a mitigating nature, except the ground upon which
he argued that the consecutive sentence was harsh in view of the circumstances and facts of the case. The mitigation that the appellant
presented at the hearing of this appeal ought to have been given at the trial in the court below. The record shows thatas gias given
the opportunity to present his plea in mitigation and what he presented at the hearing of the appeal was merely an attempt to have
a second bite of the cherry.
The prosecution evidence was that on the night in questi about 8 p.m. the complainant was at her home with her fami family. She was
sitting at the front of her house when she saw a taxi stopped in front of her house. She saw the appellant got off the taxi and
came into her compound and started punching tmplainant in the face and also kicked her in the face and land left. As a result of
the assault she suffered injuries to the fad was taken to CWM Hospitalpital where she was examined and treated.
&nbs>
The medical report indicated that complainant's face was "swollennd puffy and had small cuts cuts on the face and inside the
mouth".
The appellant was interviewed by the police investigating offConstable Muni Murthi. He admitssaulting the come come complainant because
she assaulted his mother.
In court before the learned Magie appellant gave evidence on oath and denied going into the complainant's compound on the nthe night
in question. The Magistrathis judgment ment accepted the evidence of complainant and other prosecution witnesses and rejected the
evidence of the appellan found him guilty and convicted him on both counts as charged and sentenced him to 3 monthsonths imprisonment
on the first count and 9 months imprisonment on the second count and ordered that the two terms be served consecutively.
The appellant has a number of pus convictions for dishonesty but none for assault occasioning actual bodily harm. Bep; Be thatt may
I find tind that in view of the facts and circumstances surrounding the assault on the complainant it is clear that the sentence
on each of the two countsd not in any sense be regarded as harsh but I do believe thve that because the two offences were committed
in the course of a single transaction the sentence ought to be made concurrent. The lant has had a heart oart operation already
and according to the medical report Ex.A he still has a heart problem.
I will therefore set aside the 12 month consecutive sentence on the two counts impoy the court below and in suin substitution therefor
order that the sentence on both counts be served concurrently, but consecutive to any term that appellant is now serving.
To this extent the appeal against sentence succeeds.
S W Kspan>
JUDGE
9th June, 1995
Haa0007j.95s
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