MATHONSI J: This matter was referred to me by the
scrutinising Senior Regional Magistrate for the Eastern Division who felt
that it needed urgent attention as there was a likelihood of a grave injustice
occurring given that the accused person had been given an unjustified term of
imprisonment.
Although the referral letter of the learned Senior Regional Magistrate is dated
22 November 2012, it is not clear when the record was received by the registrar
of this court as it bears no stamp of receipt. The record was only placed
before me on 21 January 2013, exactly 2 months after its referral. Due to
that delay, the accused person had already served 73 days of an effective 3
months imprisonment term, he having been sentenced on 9 November 2012.
I find myself having to repeat what I have said several times before in
expressing the need for review records to be sent with speed to the reviewing
judge in compliance with the provisions of the law. See S v Mhondiwa
HB 193/11; S v Shava HB 200/11 and S v Moyo
HH 308/12.
I restate the pronouncement I made in S v Mhondiwa (supra)
at pp 4-5:
“In review proceedings time is always of the essence and for that reason there
must be
strict compliance with the time limits provided for in the
Act for submitting records of proceedings for review. The reason for
those requirements is self-evident. The reviewing judge may decide that
the sentence imposed by the magistrate is excessive and should either be
quashed or substantially reduced. It is therefore undesirable for an
accused person to serve the whole or a substantial part of the sentence which
he does not deserve while the record remains somewhere between the courtroom
and the judges chambers.”
As already stated, in casu the accused had almost completed the
sentence, a sentence he did not deserve, when the record was transmitted to
me. With the thankful concurrence of my brother MUTEMA J, I directed that
a warrant of liberation be issued forthwith to facilitate the immediate release
of the accused person from custody.
The 38 year old accused person, who is married with 3 children and was employed
as a guard earning $34 per week, is the sole breadwinner in his family.
Prior to his appearance before the trial court he had been over-detained by the
police for 7 days with his family unaware of his whereabouts. He had a
quarrel with the complainant who refused to repay him a sum of $1-00 which was
owed to him. The accused head butted the complainant once on the mouth
inflicting injuries.
The medical affidavit produced by the state was not helpful at all in that the
doctor who examined the complainant only observed that the injuries were caused
by a blunt object using moderate force. Although he took the view that
there was a possibility of permanent injury, he did not explain how he arrived at
that conclusion in the circumstances.
Navigating the way to the sentence that was imposed the trial magistrate
reasoned as follows:
“Accused person is a first offender who pleaded guilty to
the charge hence did not waste the court's valuable time. In passing an
appropriate sentence I took into consideration that the accused person
assaulted the complainant once by head butting him, the medical report
indicates the force used was moderate but this has resulted in complainant's
teeth shaking and the possibility of loosing (sic) those teeth is
high, showing that when accused inflicted the assault upon the complainant he
had the intention to seriously injure the complainant as he appreciate that the
mouth region is a very sensitive area.
I did take into consideration that the complainant is a
family man with responsibilities. However I was also concerned that you
assaulted the complainant for a debt of $1. If you could assault someone
with such force over a $1 how much more force would you use if something more
serious is done.
A fine as well as community service will trivialise this
offence and a custodial sentence deemed proper.”
It is not clear where the magistrate got the notion that
the complainant's teeth were shaking, that there was a possibility of losing
the teeth or indeed that he had the intention to seriously injure the
complainant when the medical affidavit does not say so and no other evidence
was adduced.
Clearly this is a classic case where the court paid lip
service to the mitigating factors of the matter and exaggerated the injuries
sustained by the complainant even as the state had nothing to submit in
aggravation. This was a misdirection as a result of which the magistrate
came up with a disproportionate sentence.
Where the court has accepted any factor as mitigation, such
must be specified and must be reflected on the reduced sentence. It is no
good to just pay lip service to mitigating factors S v Madembo
& Anor 2003 (1) ZLR 137 at 140 B-D; S v Nyenge HB
107/10 at p 2.
This is a case in which the court should have imposed a
non-custodial sentence of say a fine or a wholly suspended sentence. As
the accused has already served a term of imprisonment not much can be done to
regularise the issue other than to alter the sentence to fit the time he has
served.
In the result, it is ordered that:
1.
The conviction of the accused is hereby confirmed.
2.
The sentence of 5 months imprisonment with 2 months suspended is hereby set
aside and in its place is substituted the sentence of 70 days imprisonment.
3.
As the accused has already served that period he should be released from
custody immediately.
MUTEMA
J agrees.................................
