Criminal
Review
MUREMBA
J:
The
accused was charged with two counts of physical abuse as defined in
section 4(1)(a) as read with section 3(1)(a) of the Domestic Violence
Act [Chapter
5:16].
The
accused was convicted on his own pleas and was sentenced to 10 months
imprisonment of which four months imprisonment was suspended for five
years on condition of future good behaviour. The remainder of six
months was suspended on condition of performance of community
service. In addition to the sentence the trial magistrate said:-
“The
one month imprisonment on G12/12 is not brought into effect.”
The
record was referred to the Regional Magistrate for scrutiny. The
Regional Magistrate raised three queries and then sent it to this
court for review. The first query was that it was not clear from the
sentence that was imposed on the accused whether it was for both
counts or for one of the counts. In response the trial magistrate
stated that the sentence was for the two counts as he had treated
them as one for the purposes of sentence.
As
correctly stated by the Regional Magistrate, in sentencing the
accused the court should, for the avoidance of doubt, always make it
clear that the sentence relates to both counts if that is the
position. If the sentence relates to one of the counts, that should
also be made clear. This should be reflected on the charge sheet and
on the review cover. A pronouncement to this effect should also be
made to the accused as the sentence is pronounced to him.
The
second query related to the previous conviction that the accused had.
After the accused had been convicted the previous conviction record
was produced as an exhibit. The Regional Magistrate queried if the
accused had been given three days' notice of the intention by the
State to produce this previous conviction record. However, the
Regional Magistrate did not state the provision which makes it a
requirement that the accused be given three days' notice.
In
response to the query the trial magistrate said that he had advised
the accused of his right to three days' notice, but had over-looked
recording the question when the accused responded that he had no
objections to the previous conviction record being produced.
In
terms of the Criminal Procedure and Evidence Act [Chapter
9:07]
previous convictions are produced in terms of section 327. According
to that section's subsection 3 the procedure for producing previous
convictions is fairly straight forward. After conviction, the
prosecutor will state whether the accused has any previous
convictions. If he or she has, the prosecutor should tender the
record thereof and read out the previous convictions to the accused.
The court will then ask the accused if he admits these previous
convictions. In terms of section 327(4), if the accused admits to the
previous conviction the court shall proceed to sentence him or her
taking those previous convictions into consideration. There is
nowhere in that section where it is indicated that the accused should
be given three days' notice of the intended production of previous
convictions.
In
casu,
the prosecutor stated that the accused had a previous conviction and
went on to produce the record. The prosecutor further said that in
the previous conviction the accused had used a different name from
the one he was using now. In response, the accused admitted that
indeed that was his previous conviction and confirmed the names on
it. He said that he had no objection to the production of the
previous conviction.
I
find no irregularity in the manner the previous conviction record was
produced as it is in conformity with the requirements of section 327.
The
third query relates to the last part of the sentence which reads:-
“The
one month imprisonment on G12/12 is not brought into effect..”
As
correctly stated by the Regional Magistrate this part of the sentence
does not make any sense. On this query the trial magistrate said that
his intention was not to bring into effect the one month imprisonment
which was suspended in the accused's previous conviction in G12/12.
He said that his intention had been to further suspend the previous
conviction so as to spare the accused an effective prison term. The
previous conviction relates to an assault charge, but despite that
the trial magistrate was inclined to keep the accused with his
family.
I
have reservations with the trial magistrate's reasons for sparing
the accused an effective custodial sentence. The trial magistrate
ought to have shown the accused that he cannot continue to assault
other people and think that he can get away with community service
all the time.
In
the previous conviction he committed assault and had four months
imprisonment imposed on him. One month thereof was suspended on
condition of future good behaviour. The remainder of three months'
imprisonment was suspended on condition of performance of 145 hours
of community service. He was sentenced on 9 January 2012. Hardly,
three years later he committed the current two offences of assaulting
his wife on two consecutive days. On the first day he came home from
a beer drink at night. He found his wife and their five month old son
already asleep. In his drunken stupor he tried to wake up the five
month old baby and the wife stopped him. He responded by slapping her
three times on the face with an open hand before she escaped to her
grandmother's place. On the next day, in the morning, he approached
his wife as she was doing her chores and struck her several times on
the face and head using open hands. The wife's grandmother came to
her rescue.
What
is mitigatory about the accused's case is that he is 29 years old,
he has a family made up of himself, the complainant and the five
month old son. He pleaded guilty to the charges. The accused is not
formally employed and survives on part-time jobs realising $60-00 to
$80-00 per month.
The
fact that the accused has now been convicted of a total of three
counts of assault shows that the accused is a person of a violent
disposition. If he continues like this there is a great risk that he
may end up committing a more serious offence like murder. His
explanation in the present cases that he acted in that manner because
he was very drunk is in my view a lame excuse. On the second day in
the morning he was no longer drunk but he went on to further assault
his wife, more severely this time until she was rescued by her
grandmother.
The
court did not ask him to explain why he committed the second assault.
The accused is a person who committed the current offences knowing
fully well that he had a one month suspended sentence hanging over
his head. His actions show a total disregard and disrespect for the
law. If he continues to benefit from community service he might end
up thinking that he can always assault other people and get away with
community service. It is unfortunate that the court never asked the
accused the person whom he assaulted in the previous conviction. In
order to arrive at an appropriate sentence the court ought to have
made a thorough pre-sentence inquiry especially considering that the
accused had a previous conviction of the same nature.
I
do not believe that under the circumstances the accused ought to have
benefited from community service once more. A sentence in the region
of six months imprisonment with half suspended on condition of good
behaviour would have met the justice of the case. The suspended
sentence should also have been brought into effect.
I
therefore withhold my certificate.
