BERE J: The accused
appeared at Western Commonage Magistrates' Court and was charged
and convicted of contravening section 113(2)(d) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] and of contravening
section 1(a) as read with section 4(1) of the Domestic Violence Act
[Chapter 5:16] (physical abuse).
For the first count the accused
was sentenced to 5 years imprisonment part of which was suspended on
certain conditions. I have no qualms with both the conviction and
sentence in respect of this count. I also have no qualms with the
conviction of the accused in respect of the second count.
For this second count the accused
was sentenced to a straight term of 6 months imprisonment. It is this
sentence which has caught my attention.
To appreciate my concerns with
respect to the sentence of imprisonment preferred by the trial
magistrate I re-state the facts which spoke of the assault as gleaned
from the State Outline. The relevant portion of the State Ooutline
reads as follows:
“5. Complainant then relaxed
and sat on the sofa and accused
person charged towards her holding a small sofa cushion and covered
her face thereby suffocating her.
6. Complainant then struck
accused with her elbow and kicked her therefore hitting against the
wall and she freed her and accused ran away. (sic)
7. Complainant sustained some
injuries as a result of the accused did not seek any medical
attention (sic)
(my emphasis).”
As can be seen from these rugged
sentences, all the accused did in this case was to hold the small
sofa cushion against the face of the complainant and for this the
accused was slapped with a 6 months prison term.
By adopting such intuitive
approach to sentence the trial magistrate clearly departed from
applying the very basic principles of sentencing and there is no
evidence on record that the court attempted to derive assistance from
any precedent.
In the case of Maxwell
Mugwenhi and Alick Karande
vs The State1,
EBRAHIM
JA cautioned against the impulsive approach to sentence and took a
bold decision which was a complete departure from the then orthodox
approach of opting for a prison term whenever one was confronted with
group assault cases and settled for a fine coupled with a wholly
suspended prison term.
In a case that followed on the
robust decision of EBRAHIM
JA, ROBINSON
J was confronted with an almost similar case involving gang assault
in State
vs Timothy Chivore,
David and Willie Chikovero2.
Comparatively, the case which
ROBINSON
J had to deal with was much more serious than the instant case.
In Chikovero's
case, the gang had
attacked the complainant who was alleged to have been having an
affair with one of the accused's uncle's wife. The assault was
particularly a vicious one. The complainant had been attacked with
bricks and stones all over the body resulting in him seeking medical
attention. The medical report revealed the following injuries:
“laceration 1cm right scalp on
head, multiple bruises back and a fractured right ulma.”
Having been persuaded by the
approach adopted by EBRAHIM
JA in Mugwenhi
(supra),
the learned Judge sentenced the accused persons each to $300 or in
default of payment 1 month imprisonment. In addition each of them was
sentenced to 2 months imprisonment wholly suspended on the usual
condition of future good conduct.
The sentence imposed by the trial
magistrate in the instant case was and clearly excessive given the
nature of the assault. It should not be allowed to stand and is
accordingly set aside and substituted by the following one;
the accused is sentenced to pay a
fine of $50 or in default of payment 10 days imprisonment.
Mathonsi J ………………………………… I agree
1. 1991 (2) ZLR 66 (SC)
2. HC-H-208-91
