Criminal
Review
CHIGUMBA
J:
This
matter was placed before me for review by the Regional Magistrate for
the Eastern Division in Mutare. In his letter to the review Judge,
penned ten days after the accused was sentenced, on 7 November 2014,
the Regional Magistrate advised that he had sent the record for
review without seeking comments from the trial magistrate for fear of
further prejudicing the accused because of lapse of time.
The
opinion of the Regional magistrate was that the sentence imposed was
too harsh in the circumstances and would alienate the parties and
destroy their marriage. In his view a community service sentence
would have met the justice of the case.
The
approach to sentencing by judicial officers who are faced with
accused persons charged with contravening the provisions of the
Domestic Violence Act has been heavily criticized by the High Court
in numerous review judgments and appeals. The main concern appears to
be that judicial officers misdirect themselves by failing to consider
that the intention of the legislature in enacting the Domestic
Violence Act [Chapter
5:16]
(the DVA) was not only to promote the eradication of domestic
violence, but to promote harmony in families. This has been
interpreted to mean that a custodial sentence, especially for a first
offender, is not only inappropriate, it is incompetent.
The
accused was charged with physical abuse, as defined in section
4(1)(a), as read with section 3(1)(9a) of the DVA, it being alleged
that, on 15 October 2014 at Gudyanga homestead, he unlawfully slapped
Delly Gororo several times on her face with open hands intending to
cause bodily harm or realizing that there was a real risk or
possibility that bodily harm would result.
According
to the outline of the State case, the complainant is an eighteen year
old female, and the accused is twenty years old, male, and
unemployed. They are husband and wife. It is alleged that accused
assaulted complainant over a denial of conjugal rights. Complainant
sustained a swollen mouth and did not seek medical attention. The
accused was sentenced to two months imprisonment. A further two
months imprisonment which had been suspended on CRB N332/14 was
brought into operation, and the effective custodial sentence of four
months imprisonment was imposed.
In
mitigation, the accused had submitted that he and the complainant had
a minor child together aged one year. He had no money, no assets of
value, and was unemployed.
In
assessing sentence the court considered that the accused person had
pleaded guilty and not wasted its time, that he showed contrition,
and that he was frustrated by the denial of conjugal rights. In
aggravation, the court took into consideration the fact that the
accused person was a repeat offender who had previously been
convicted of a similar offence.
“Cases
of domestic violence are on the increase and in some instances, death
has resulted. Unless sufficiently deterrent sentences are imposed by
the courts as provided by the Domestic Violence Act…the whole
purpose of this piece of legislation will never be realized. Men will
continue to brutalise their wives and, equally so, some men will
continue to be subjected to physical abuse by their spouses in the
knowledge that they will go to court and pay a small fine. Whilst
each case should be decided on its own merits, in serious cases
custodial sentences are appropriate”. See State
v
Muchekayawa
The
reviewing judge in that case found the sentence to have been
'disturbingly lenient'. The accused in that case was aged 29 and
employed as a small scale miner. He pleaded guilty to contravening
section 4(1) as read with section 3 of the DVA. He was sentenced to
pay a fine of USD$150-00 or in default thirty days imprisonment. In
addition, three months imprisonment was wholly suspended for three
years on condition that he refrained from committing a similar
offence. The facts of the matter were that the accused had assaulted
the complainant all over her body with a log until she fell to the
ground. She had sustained a deep cut over her right eye when the
accused had stoned her while she was on the ground. The trial
magistrate in his reasons for sentence had considered that the
complainant did not sustain serious injuries as evidenced by the fact
that she did not seek medical attention.
The
reviewing judge had this to say at p 273F-G:
“Magistrates
should always request the complainants in such cases to obtain
medical reports for the court to assess not only the degree of
injuries suffered but the likelihood of any permanent disability. I
note here that both prosecutors and magistrates pay scant regard to
section 5 of the Domestic Violence Act which places duties on police
officers in relation to domestic violence in the following terms
under section 5(2):
'A
police officer to whom a complaint of domestic violence is made or
who investigates such complaint shall…obtain for the complainant,
or advise the complainant how to obtain, shelter or medical
treatment, or assist the complainant in any other suitable way.”
Muchekayava's
case can be distinguished from the case under consideration for a
number of reasons, the first of which is that the reviewing judge in
that case found the sentence imposed to be too lenient as opposed to
this case where we have been asked to consider whether the sentence
imposed is so severe as to induce a sense of shock. The second thing
is that from the circumstances described in Muchekayava, the
complainant sustained more serious injuries, although in both cases
the complainants did not seek medical attention, and were not guided
to seek medical attention for the assistance of the court by the
police, by the court, or by the prosecutor. Finally, the accused
person in this case, is not a first offender.
The
grounds for review are set out in section 27(1) of the High Court Act
[Chapter
7:06]
as follows:
“(a)
absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
gross irregularity in the proceedings or the decision.”
In
my view, the ground set out in section 27(1)(c) would appear to most
suit the nature of the query raised by the Regional Magistrate. The
issue that falls for consideration in matters of this nature is what
are the circumstances in which it is appropriate to interfere with
the exercise of discretion by a judicial officer (in this case
sentencing discretion), on the basis of gross irregularity in the
proceedings or decision. The following dicta of the Supreme Court
related to the exercise of judicial discretion in a civil appeal. In
my view, any exercise of judicial discretion, whether on review or
appeal, which is brought up for assessment of propriety by a higher
court, should be held up to the following standard:
“The
exercise of this discretion may only be interfered with on limited
grounds. It is not enough that the Appellate Court thinks that it
would have taken a different course from the trial court. It must
appear that some error had been made in exercising the discretion,
such as acting on a wrong principle, allowing extraneous or
irrelevant considerations to affect its decision, making mistakes of
facts or not taking into account relevant considerations”. Barros
& Anor v
Chimpondah
It
has been suggested by the Regional magistrate that the trial
magistrate ought to have considered imposing a community service
sentence, as opposed to sending the accused person to prison. For
that reason it is postulated that the sentence imposed was too harsh
in the circumstances, more particularly because the imposition of a
custodial sentence was likely to break up the family, which runs
contrary to the purpose of the DVA.
What
this court needs to consider is whether the trial magistrate, by
imposing a custodial sentence, made an error in the exercise of his
discretion. Did the trial magistrate act on a wrong principle, or
allow extraneous or irrelevant considerations to affect the
sentencing process? Did the trial magistrate make any mistakes of
fact or fail to take into account relevant considerations in
sentencing the accused person?
We
know from the reasons for sentence that the accused was not a first
offender.
The
DVA prescribes the penalty for repeat offenders:
“Any
respondent, who repeatedly breaches a protection order, whether or
not that respondent has been previously prosecuted for such breach,
shall be guilty of an offence and liable to imprisonment for a period
not exceeding five years”.
My
reading of section 10(8) is that, once a court makes a finding that
the respondent is a repeat offender in terms of the DVA, or that he
has breached a protection order repeatedly, there is a custodial
sentence, of up to five years imprisonment.
In
this
case, the accused was a repeat offender who had one previously
imposed custodial sentence that had been suspended on condition of
good behaviour brought into effect. It is unfortunate that the
Regional Magistrate in his wisdom decided not to solicit the views of
the trial magistrate before referring the record of proceedings to
us. It is also unfortunate that the record of proceedings relating to
the accused's previous conviction was not referred to us. We are
hamstrung by the lack of detail regarding the circumstances of the
accused's initial conviction.
Clearly
the sentence imposed fell within the purview of section 10(8) of the
DVA.
Where
is the misdirection on the part of the trial magistrate?
On
the one hand sentences are being criticised as being too lenient. Now
the charge is that the sentence was too harsh because the purpose of
the DVA is to bring families closer together. In order for us to
interfere with the sentence we must find a misdirection on the part
of the trial court.
It
would assist us to gauge the severity of the sentence imposed by the
trial magistrate if we had knowledge of the accused's actions in
the first charge, the severity of the complainant's injuries,
whether permanent disability occurred, and most importantly, the
sentenced imposed by the trial magistrate, As it is we cannot even
consider the basis on which the Regional Magistrate is advocating for
a sentence of community service, was he himself privy to the contents
of the record of proceedings of the accused's first conviction? We
are not at liberty to substitute the exercise of discretion by the
trial court with our own discretion just because we would have come
to a different conclusion. There is nothing in the record of
proceedings that was placed before us, which convinces us that there
were any gross irregularities in the exercise of sentencing
jurisdiction by the trial magistrate. The sentence imposed is
provided for in the DVA. The accused had a previous conviction. It
cannot be said that taking his previous conviction into account
amounted to taking into account an irrelevant consideration. As
previously stated, insufficient information was placed before us to
justify coming to the conclusion that the sentence imposed by the
trial magistrate is so severe as to induce a sense of shock, and to
warrant interference.
It
is not a hard and fast rule that because the purpose of the DVA is to
bring families closer together, custodial sentences must not be
imposed. It depends on the circumstances. It is one of the factors
that ought to guide a court in assessing sentence, but it is not the
only relevant factor. Some but not all of the factors that a trial
court may take into consideration in assessing sentence include:
(a)
The extent of the complainant's injuries as evidenced by the
medical affidavit.
(b)
The possibility of permanent injuries.
(c)
Whether any of the complainant's property was damaged.
(d)
The relationship between the complainant and the accused (brother and
sister/husband and wife).
(e)
Whether the parties still reside at the same premises.
(f)
Whether the accused pleaded guilty/showed contrition.
(g)
Whether the relationship between the parties is now sour or still
acrimonious. Or whether the parties have reconciled their
differences.
(h)
Whether the accused made reparations/amends.
(i)
Whether the accused was previously convicted of contravening the DVA.
(j)
The accused's explanation as to why he committed the act of
domestic violence.
(k)
Whether the parties are willing to undergo counselling.
The
DVA is unique in its recognition and promotion of family values, of
adhesion and cohesion of the nuclear family. In recognition of its
objective to bring families together as opposed to contributing to
their break-up, provision is made in the Act for the appointment of
anti-domestic violence councillors by the Minister responsible for
social welfare, health, child welfare and gender or women's
affairs. There is a panel of anti-domestic violence councillors drawn
from social welfare officers, members of Private Voluntary
Organizations that deal with domestic violence issues, chiefs or
headmen.
The
functions of anti-domestic violence councilors include advising,
counseling and mediating the solution of any problems in personal
relationships that are likely to lead to domestic violence,
investigating the financial status of the parties at the request of
the court, investigating and making immediate accommodation
arrangements for complainants prior to the issue of protection
orders, arranging medical treatment and examination of any minors who
are complainants. In carrying out these duties, the anti-domestic
violence councilors may call upon the police for assistance. Judicial
officers are reminded of the need to send families for counseling
where the domestic violence complained of continues despite initial
conviction or sentencing.
We
find no misdirection on the part of that magistrate for the reasons
stated above.
