This
matter was placed before me for review by the Regional Magistrate for
the Eastern Division in Mutare. In his letter to the Rreview Judge,
penned ten days after the accused was sentenced, on 7 November 2014,
the Regional Magistrate advised that he had sent the record for
review without seeking comments from the trial magistrate for fear of
further prejudicing the accused because of lapse of time.
The
opinion of the Regional magistrate was that the sentence imposed was
too harsh in the circumstances and would alienate the parties and
destroy their marriage. In his view, a community service sentence
would have met the justice of the case.
The
approach to sentencing by judicial officers who are faced with
accused persons charged with contravening the provisions of the
Domestic Violence Act has been heavily criticized by the High Court
in numerous review judgments and appeals. The main concern appears to
be that judicial officers misdirect themselves by failing to consider
that the intention of the legislature, in enacting the Domestic
Violence Act [Chapter 5:16] (the DVA), was not only to promote the
eradication of domestic violence, but to promote harmony in families.
This has been interpreted to mean that a custodial sentence,
especially for a first offender, is not only inappropriate, it is
incompetent.
The
accused was charged with physical abuse, as defined in section
4(1)(a), as read with section 3(1)(9a) of the Domestic Violence Act
[Chapter 5:16] (DVA), it being alleged that, on 15 October 2014 at
Gudyanga homestead, he unlawfully slapped Delly Gororo several times
on her face with open hands intending to cause bodily harm or
realizing that there was a real risk or possibility that bodily harm
would result….,.
The
accused was sentenced to two months imprisonment. A further two
months imprisonment which had been suspended on CRB N332/14 was
brought into operation and the effective custodial sentence of four
months imprisonment was imposed.
In
mitigation, the accused had submitted that he and the complainant had
a minor child together aged one year. He had no money, no assets of
value, and was unemployed.
In
assessing sentence, the court considered that the accused person had
pleaded guilty and not wasted its time, that he showed contrition,
and that he was frustrated by the denial of conjugal rights. In
aggravation, the court took into consideration the fact that the
accused person was a repeat offender who had previously been
convicted of a similar offence.
“Cases
of domestic violence are on the increase and in some instances, death
has resulted. Unless sufficiently deterrent sentences are imposed by
the courts, as provided by the Domestic Violence Act…, the whole
purpose of this piece of legislation will never be realized. Men will
continue to brutalise their wives, and, equally so, some men will
continue to be subjected to physical abuse by their spouses in the
knowledge that they will go to court and pay a small fine. Whilst
each case should be decided on its own merits, in serious cases
custodial sentences are appropriate”.
See
State v Muchekayawa,
Criminal
Review Judgment; HB42-12; 2012 ZLR 272
The
reviewing judge in that case found the sentence to have been
'disturbingly lenient'. The accused in that case was aged 29 and
employed as a small scale miner. He pleaded guilty to contravening
section 4(1) as read with section 3 of the Domestic
Violence Act [Chapter 5:16] (DVA).
He was sentenced to pay a fine of USD$150=, or, in default, thirty
days imprisonment. In addition, three months imprisonment was wholly
suspended for three years on condition that he refrained from
committing a similar offence.
The
facts of the matter were that the accused had assaulted the
complainant all over her body with a log until she fell to the
ground. She had sustained a deep cut over her right eye when the
accused had stoned her while she was on the ground. The trial
magistrate, in his reasons for sentence, had considered that the
complainant did not sustain serious injuries as evidenced by the fact
that she did not seek medical attention.
The
reviewing judge had this to say at p273F-G:
“Magistrates
should always request the complainants in such cases to obtain
medical reports for the court to assess not only the degree of
injuries suffered but the likelihood of any permanent disability. I
note here that both prosecutors and magistrates pay scant regard to
section 5 of the Domestic Violence Act which places duties on police
officers, in relation to domestic violence, in the following terms
under section 5(2):
'A
police officer to whom a complaint of domestic violence is made or
who investigates such complaint shall…, obtain for the complainant,
or advise the complainant how to obtain, shelter or medical
treatment, or assist the complainant in any other suitable way.'”
State
v Muchekayawa,
Criminal
Review Judgment; HB42-12; 2012 ZLR 272
can be distinguished from the case under consideration for a number
of reasons;
(i)
The first of which is that the reviewing judge in that case found the
sentence imposed to be too lenient as opposed to this case where we
have been asked to consider whether the sentence imposed is so severe
as to induce a sense of shock.
(ii)
The second thing is that from the circumstances described in State
v Muchekayawa,
Criminal
Review Judgment; HB42-12; 2012 ZLR 272,
the complainant sustained more serious injuries, although in both
cases the complainants did not seek medical attention and were not
guided to seek medical attention for the assistance of the court by
the police, by the court, or by the prosecutor.
(iii)
Finally, the accused person in this case, is not a first offender.
The
grounds for review are set out in section 27(1) of the High Court Act
[Chapter
7:06]
as follows:
“(a)
Absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
Interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
Gross irregularity in the proceedings or the decision.”
In
my view, the ground set out in section 27(1)(c) would appear to most
suit the nature of the query raised by the Regional Magistrate. The
issue that falls for consideration in matters of this nature is what
are the circumstances in which it is appropriate to interfere with
the exercise of discretion by a judicial officer (in this case
sentencing discretion), on the basis of gross irregularity in the
proceedings or decision. The following dicta of the Supreme Court
related to the exercise of judicial discretion in a civil appeal. In
my view, any exercise of judicial discretion, whether on review or
appeal, which is brought up for assessment of propriety by a higher
court, should be held up to the following standard:
“The
exercise of this discretion may only be interfered with on limited
grounds. It is not enough that the Appellate Court thinks that it
would have taken a different course from the trial court. It must
appear that some error had been made in exercising the discretion,
such as acting on a wrong principle, allowing extraneous or
irrelevant considerations to affect its decision, making mistakes of
facts or not taking into account relevant considerations.” Barros
& Anor v Chimpondah
1999
(1) ZLR 58 (S).
It
has been suggested by the Regional Magistrate
that the trial magistrate ought to have considered imposing a
community service sentence, as opposed to sending the accused person
to prison. For that reason, it is postulated that the sentence
imposed was too harsh in the circumstances, more particularly because
the imposition of a custodial sentence was likely to break up the
family, which runs contrary to the purpose of the Domestic
Violence Act.
What
this court needs to consider is whether the trial magistrate, by
imposing a custodial sentence, made an error in the exercise of his
discretion. Did the trial magistrate act on a wrong principle, or
allow extraneous or irrelevant considerations to affect the
sentencing process? Did the trial magistrate make any mistakes of
fact or fail to take into account relevant considerations in
sentencing the accused person?
We
know, from the reasons for sentence, that the accused was not a first
offender.
Section
10(8) of the Domestic
Violence Act [Chapter 5:16] prescribes
the penalty for repeat offenders:
“Any
respondent who repeatedly breaches a protection order, whether or not
that respondent has been previously prosecuted for such breach, shall
be guilty of an offence and liable to imprisonment for a period not
exceeding five years.”
My
reading of section 10(8) of the Domestic
Violence Act is
that, once a court makes a finding that the respondent is a repeat
offender in terms of the Domestic
Violence Act,
or that he has breached a protection order repeatedly, there is a
custodial sentence of up to five years imprisonment.
In
this case, the accused was a repeat offender who had one previously
imposed custodial sentence that had been suspended on condition of
good behaviour brought into effect. It is unfortunate that the
Regional Magistrate, in his wisdom, decided not to solicit the views
of the trial magistrate before referring the record of proceedings to
us. It is also unfortunate that the record of proceedings relating to
the accused's previous conviction was not referred to us. We are
hamstrung by the lack of detail regarding the circumstances of the
accused's initial conviction.
Clearly,
the sentence imposed fell within the purview of section 10(8) of the
Domestic
Violence Act [Chapter 5:16].
Where
is the misdirection on the part of the trial magistrate?
On
the one hand, sentences are being criticised as being too lenient.
Now, the charge is that the sentence was too harsh because the
purpose of the Domestic
Violence Act is
to bring families closer together.
In
order for us to interfere with the sentence we must find a
misdirection on the part of the trial court.
It
would assist us to gauge the severity of the sentence imposed by the
trial magistrate if we had knowledge of the accused's actions in
the first charge, the severity of the complainant's injuries,
whether permanent disability occurred, and, most importantly, the
sentenced imposed by the trial magistrate. As it is we cannot even
consider the basis on which the Regional Magistrate is advocating for
a sentence of community service - was he himself privy to the
contents of the record of proceedings of the accused's first
conviction?
We
are not at liberty to substitute the exercise of discretion by the
trial court with our own discretion just because we would have come
to a different conclusion. There is nothing in the record of
proceedings that was placed before us which convinces us that there
were any gross irregularities in the exercise of sentencing
jurisdiction by the trial magistrate. The sentence imposed is
provided for in the Domestic
Violence Act.
The accused had a previous conviction. It cannot be said that taking
his previous conviction into account amounted to taking into account
an irrelevant consideration. As previously stated, insufficient
information was placed before us to justify coming to the conclusion
that the sentence imposed by the trial magistrate is so severe as to
induce a sense of shock and to warrant interference.
It
is not a hard and fast rule that because the purpose of the Domestic
Violence Act is
to bring families closer together, custodial sentences must not be
imposed. It depends on the circumstances. It is one of the factors
that ought to guide a court in assessing sentence, but it is not the
only relevant factor. Some, but not all, of the factors that a trial
court may take into consideration in assessing sentence include:
(a)
The extent of the complainant's injuries as evidenced by the
medical affidavit.
(b)
The
possibility of permanent injuries.
(c)
Whether
any of the complainant's property was damaged.
(d)
The
relationship between the complainant and the accused (brother and
sister/husband and wife).
(e)
Whether
the parties still reside at the same premises.
(f)
Whether
the accused pleaded guilty/showed contrition.
(g)
Whether
the relationship between the parties is now sour or still acrimonious
or whether the parties have reconciled their differences.
(h)
Whether
the accused made reparations/amends.
(i)
Whether
the accused was previously convicted of contravening the Domestic
Violence Act.
(j)
The accused's explanation as to why he committed the act of
domestic violence.
(k)
Whether
the parties are willing to undergo counselling….,.
We
find no misdirection on the part of that magistrate for the reasons
stated above.
