CHEDA
J: The
above record was referred to me for review.
The brief
facts of the case are that accused was charged with assault with intent to do
grievous bodily harm which charge he pleaded not guilty.
Both accused and complainant were
drinking beer at Lalatau Bottle Store at Tshelanyemba area in the Sun Yet Sen
area, Matabeleland South when accused confronted him for no reason. Accused grabbed complainant and hit him with a
stone on the temple (forehead). The
assault was very severe as evidenced by the medical report which describes it
as follows:
Injuries
found
(1)
Excessive haermorrhage +/- 2 litres, Deep frontal
fracture (L) +/- 7cm long, coupled with diffuse haemotoma across (L) peri
orbital – zygomatric areas. Depressed
skull fracture (L) lateral aspect peri orbital.
(2)
The injuries were likely to have been caused by – some
heavy blunt weapon.
(3)
Amount of force used: severe
(4)
Possibility of permanent injury: depressed skull
fracture permanent and likely to complicate.
(5)
The potential danger to life: highly anticipated on
head injury of such extent
Conclusion:
the injuries were severe.
Accused
pleaded not guilty but was committed and sentenced as follows:
“15 months imprisonment of
which 7 months imprisonment is suspended for 5 years on condition the accused
is not convicted of any offence of which an assault on another is an element
committed within that period for which he is sentenced to imprisonment without
the option of a fine.
A further 8 months
imprisonment is suspended on condition the accused completes 280 hours of
community service at Thselanyemba Hospital on the following conditions: the community service starts on the 26 November
2009 and must be completed within 8 weeks of that date. The community service be performed between
0800am -1300pm and 1400pm-1600pm each Monday – Friday which is not a public
holiday to the satisfaction of the person in charge who may on good cause grant
accused of absence which leave shall not count as part of community to be
completed.”
Upon
perusal of the record I formed the impression that the sentence was on the
lenient side and I asked for the trial magistrate's comments. He responded and commented as follows:
“Kezi
Magistrates Court
Bag 506
KEZI
23 March 2010
Judge's Chambers
P O Box 579
BULAWAYO
RE: THE STATE VS MTHUKUTHELI
SIBANDA: CRB K195/09
The above record refers.
The trial magistrate did not
impose a custodial sentence bearing in mind that:
(a) The accused was a first
offender.
(b) The extent of congestion at
Gwanda Prison
(c) The option of community
service would have a rehabilitative effect on the offender.
Be that as it may, I agree
with the learned Judge's observation that this was a serious assault warranting
a term of imprisonment although I leaned towards giving the offender a second
chance.
I
stand guided by the learned Judge's direction.
(Signed)
Philemon LL
Senior Resident Magistrate
Matobo Jurisdiction.”
It is
trite law, that, decisions regarding sentences of inferior courts are
discretional and can only be interfered with by superior courts when they are
of the view that the said courts have not judiciously exercised their
discretion; see Attorney General v Bvuma
1987 (2) ZLR 96(SC). While this is the
legal position, triers of facts should bind their consciences in the decision
and determination of sentences to be imposed bearing in mind that justice must
not only be done but be seen to be done.
This court can do no more than disapprove sentences which are either
manifestly excessive or lenient and further guide triers of facts as to the
correct approach to sentencing. While I
can not advocate a tariff approach to sentencing, triers of facts should adhere
to laws regarding sentencing and at the same time strictly adhere to precedents
of higher courts.
On the
issue of the tariff approach, this was discouraged and criticised in S v Mugwenhe and Another 1991(2) ZLR 66
(S) where EBRAHIM JA said at 69B-D:
“An examination of cases of assault with intent to
cause grievous bodily harm lead me to the conclusion that a term of
imprisonment is invariably imposed, particularly where the assault causes
serious injury and/or disfigurement. The
'tariff' approach to sentence is gaining wider currency, if it is not already
firmly ensconsed on our judicial benches.
This approach to sentence, while commendable, is not without its
drawbacks; the principle one being that it ignores the fact 'that the
determination of a sentence in a criminal matter' is preeminently a matter for
the discretion of the trial court. 'In
the exercise of this discretion, the function of the trial judge has a wide
discretion in deciding which factors – I here refer to matters of fact and not
of law – should influence him in determining the measure of punishment:' per van Winsen AJA in S v Fazzie and others 1964 (4) SA 673
(A) at 684A.”
The
above case captures all the important principles regarding the approach to
sentencing.
While
this is so, assault on another poses serious danger to both life and limb. It is for that reason, that, invariably a
custodial sentence is imposed in serious cases.
There are numerous cases which buttress this point. In S v
Dangarembwa 2003(2) ZLR 87H CHINHENGO J while emphasising this point the
learned Judge referred to the following cases with approval;
“S v Ndhlovu HB
57/83- a young man attacked his mother with an axe resulting in fairly
severe injuries but no permanent disability – effective two years' imprisonment
appropriate;
S v
Lambe and Another HH 374/84- accused assaulted his wife
with hands and fists and burnt her arm and punched another woman; in the
absence of provocation, 12 months of which three were suspended was
appropriate;
S v Sparks HH 235/85-
accused assaulted a wife viciously with fists, towel
rail and heavy object, fracturing both wrists and lacerating forehead- 18
months' imprisonment of which nine months suspended appropriate;
S v Ncube HB 19/86- unprovoked and prolonged attack by accused on young girl with fists,
resulting in laceration and loss of tooth- six months' imprisonment with two
months conditionally suspended appropriate;
S v Horwe HH 311/86 –
brutal and unprovoked attack on woman- accused first
offender, throttling girlfriend by (sic) kicking her head, knocking out two
teeth- four months' imprisonment with one month conditionally suspended
appropriate;
S v Mwembe HB151/86- accused struck woman on head and arm with hoe handle and fractured her
arm – a short prison sentence appropriate;
S v Donga and Others
HB 37/87- deliberate assaults by the accused causing
serious injuries which necessitated hospitalisation of the complainants-
effective prison term rather than a fine appropriate;
S v Sibanda HB 62/87-
accused severely assaulted girlfriend with a stick
after beer drink causing a broken arm, two scalp lacerations and multiple bruising
– effective nine months' imprisonment appropriate;
S v Ndlovu HB 197/87-
accused stabbed his ex-girlfriend with a knife in the
stomach with severe force causing serious injuries – effective six months'
imprisonment appropriate;
S v Razawu HH 257/87-
accused drunk and provoked. Stabbed his wife in the face and side, but,
did not cause serious injuries – eight months' imprisonment of which four
months were conditionally suspended.”
As a
way of a guideline I urge the courts to pay particular attention to doctors'
reports as it is through their findings that a court can make an informed
assessment of the severity and consequences of the assault on the complainant. In as much as the court is entitled to form
its opinion bearing in mind the mitigatory features of the accused, such
opinion is in danger of being off-the mark as the courts lack the requisite
training and expertise necessary in the assessment of medical findings.
The
three reasons for a non-custodial sentence proffered by the learned trial
magistrate are far from convincing any reasonable scrutiny magistrate or
reviewing Judge.
The
principle of keeping first offenders out of prison is not a be-all-and-and-all
procedure. It is infact a guiding
principle which should always be applied with caution. It is not only first offenders who should be
kept out of prison as to do so would not do justice to particular cases which
demand nothing other than an effective prison term in the circumstances.
The
congestion of Gwanda prison is purely an administrative issue and not a legal
issue at all, therefore, by allowing it to cloud its mind, the court seriously
misdirected itself. While it indeed is a
factor to be considered, it can not be a factor which can justify a
non-custodial sentence where all the facts point to a prison term.
With
regards to giving the accused a second chance, this indeed is a noble idea,
but, however, this objective can be achieved by suspending part of the sentence,
but, still impose a custodial sentence.
This, in my view, is the only way justice would not have been done but
would have been seen to have been done.
The
sentence imposed is so manifestly lenient, so as to induce a sense of shock to
all reasonable and fair minded people.
In
view of this, it will be a serious indictment on our judicial system to confirm
these proceedings as being in accordance with real and substantial justice.
For
the above reason, my certificate is withheld.
Cheda
J.......................................................................
Mathonsi
J agrees.......................................................
