The
appellants, who are young, first offenders, were charged with, tried
and convicted of assault as defined in section 89(1) of the Criminal
Law [Codification and Reform] Act [Chapter 9:23].
The
appellants were each sentenced to 18 months imprisonment; 8 months
imprisonment of which were suspended for 5 years on condition of
future good conduct. Each appellant, therefore, remained with an
effective sentence of 10 months imprisonment.
The
appellants' appeal was against sentence only.
They
submitted that, as youthful, first offenders, the court should have
sentenced them to community service and not to a custodial term of
imprisonment. They submitted that the sentence which the trial court
imposed was not only harsh and excessive but also induced a sense of
shock.
They
made every effort to move the court to set that sentence of
imprisonment aside and substitute it with what they said was an
appropriate sentence which, in their own words, was commensurate with
both the offence and the offender.
The
established facts of the present appeal were that on 26 August 2013,
and at FF6 Finneran Road, Adbennie, Harare, the appellants, who had a
misunderstanding with one Jeshow Zunzanyika, assaulted the latter
person with open hands and a wheel spanner. Evidence which is filed
of record showed that, on the mentioned date, the complainant and his
son, one Peacemark visited the appellants' garage. Their aim was to
have the complainant's motor vehicle repaired. A misunderstanding
ensued as a result of which the first appellant and Peacemark
Zunzanyika started to shove and push each other. Whilst this was
happening, the second appellant was head-butting the complainant.
When he saw that his father was being assaulted, Peacemark rushed to
the complainant's aid. It was at that stage that the first
appellant assaulted the complainant on the arm with a wheel spanner,
and, in the process, inflicted injuries on the latter's arm.
The
medical report which the State tendered, with the consent of the
appellants, described the assault as having been a severe one. It
stated that the possibility of the complainant having sustained
permanent injuries was not a far-fetched matter but a reality.
At
the time of their trial and conviction, the first appellant was 20
years of age and the second appellant was 27 years old. There is,
therefore, no doubt that both appellants were, or are, youthful
offenders who should, for the mentioned reason, have been treated
with some measure of leniency in so far as their punishment was
concerned.
Both
of them, it was established, are self-employed family men whose
respective family members stood to suffer by their fairly long
incarceration. The fact that they paid the medical bills which
pertained to the hospitalisation of the complainant and made a firm
commitment to continue doing so until he is fully recovered was an
extremely mitigatory feature which the court a
quo
should have taken into account when it proceeded upon its onerous
task of assessing an appropriate sentence. The appellants were,
therefore, correct when they insisted that the trial court paid lip
service to factors which were favourable to them.
The
court experienced some considerable difficulty in its effort to
arrive at what it considered to be in the best interests of the
appellants. The difficulty was occasioned by the fact that counsel
for the appellants and the respondent, cited, in their respective
Heads of Arguments, case authorities which referred to such generally
known and accepted principles as the following:
(a)
First offenders should, as much as possible, be kept out of prison;
(b)…,
it is generally accepted that imprisonment is a severe punishment
which should be considered as a last resort;
(c)
The court a
quo
erred in imposing a custodial sentence on youthful offenders, etc.
The
court mentions, for the benefit of the parties, that where the
latter's aim and object are to persuade a superior court to
interfere with the sentencing discretion of the lower court, the
parties, the appellant in particular, must make every effort to argue
their case in a logical sequence supporting it with relevant case
authorities which compare favourably with the case which they place
before the court for consideration. It is of little, if any, use for
a party who takes up a matter on appeal especially against sentence
to just state some well-known and accepted principle of law, as the
appellants did in
casu,
and
leave it to the court to make up its mind on whether or not to
interfere with the sentence which the court a
quo
will have imposed. It is, therefore, pertinent that legal
practitioners who appear for an appellant do examine decided case
authorities which have facts which are more or less similar to the
cases they are arguing and persuade the court to consider the appeal
in terms of such case authorities. What is urged the appellant to do
equally applies to the respondent.
The
court remains of the single view that what is stated in the foregoing
paragraph would be taken heed of in the interests of the attainment
of real and substantial justice.
The
respondent and the appellants are ad
idem
on the point that the sentence which was imposed on the appellants
was not only harsh but was excessively severe. Given the appellants'
circumstances, the court remains of the view that the sentence cannot
be allowed to stand. It induces a sense of shock in us and it will,
therefore, be interfered with. The court has considered all the
circumstances of this appeal.
It
is satisfied that the respondent's concession was properly made,
and it, in the process, left this court at large as regards the fact
of what the court may consider to be an appropriate sentence which
must be
imposed
upon the appellants.
The
appeal, therefore, succeeds. It is, in the result, ordered as
follows:
(a)
That the sentence which was imposed on the appellants be and is
hereby set aside.
(b)
That the following sentence be and is hereby substituted:
The
appellants are each sentenced to a fine of $200=, or, in default of
payment, 30 days imprisonment. In addition, each appellant is
sentenced to 3 months imprisonment the whole of which is suspended
for 3 years on condition that he does not, within that period, commit
any offence involving assault for which he is sentenced to
imprisonment without the option of a fine.
