After
hearing the parties' legal practitioners, we ordered that the appeal against
sentence should succeed in part and set aside the sentence of 36 months
imprisonment (with 6 months suspended) imposed by the trial court. We
substituted the sentence with one of US$50=, or, in default of payment, one
month imprisonment. We indicated that our reasons for doing so will follow in
due course.
These
are our reasons….,.
At
the hearing, counsel for the respondent conceded that an effective custodial
sentence was not called for. She suggested that the custodial sentence be
suspended on condition of performance of community service by the appellant.
The
appellant pleaded guilty and this is a mitigatory factor that should have been
accorded due weight – S v Bhuka 1995 (2) ZLR 130 (S) and S v Munechawo 1998 (1)
ZLR 129 (H). This was not done by the trial magistrate. The appellant is a
first offender. According to the medical report, the degree of force used to
inflict injuries on the complainant was “slight”. The injuries were not life-
threatening.
According
to the State Outline, the complainant sustained swollen face, mouth and eyes.
In his scant reasons for sentence, the learned Provincial Magistrate stated;
“there are more aggravating factors than mitigating factors in this case.” He
did not explain why he arrived at that finding. We agree that the moral
blameworthiness of the appellant does not warrant a prison sentence.
We
accordingly reduce the sentence to a fine indicated above.
