Criminal
review
MAFUSIRE
J:
[1]
The
trial court has conceded that it could have suspended a portion of
the sentence on the usual condition of good behaviour, in line with
normal sentencing practice.
[2]
The accused was charged with two counts of domestic violence in
contravention of section 3[1][a], as read with section 4[1] of the
Domestic Violence Act, [Cap] 5:16; and one count of assault as
defined in section 89[1][a] of the Criminal Law [Codification and
Reform] Act, [Cap] 9:23 [“the Code”].
[3]
He pleaded guilty to the two counts of domestic violence, which were
Counts 1 and 3; but not guilty to the one of assault, which was Count
2. A trial ensued in respect of the count on assault. At the end, he
was convicted of all three counts.
[4]
He was sentenced as follows:
(a)
Count 1 [domestic violence] - 1 month imprisonment;
(b)
Count 2 [assault] - 6 months imprisonment; and
(c)
Count 3 [domestic violence] – 3 and a half years imprisonment.
[5]
No portion of the sentence was suspended, even for good behaviour, or
for restitution. Count 3 had a quantifiable loss. None of the
sentences were ordered to run concurrently either.
[6]
When I queried why no portion of the sentence was suspended, the
trial court had this to say:
“I
apologize for not suspending a portion of the sentence as usual. I
was of the opinion that the accused acted like a hardened criminal. I
then concluded that giving him a suspended sentence was academic. My
Lord, I however stand guided by you. Such will not be repeated.”
[7]
The trial magistrate's attitude is understandable.
By
all accounts, the accused behaved like a maniac. In the two domestic
violence counts, his then wife was the victim. In Count 1, he picked
a quarrel with her over her twelve-year old daughter who had just
arrived from the wife's rural home. Most probably, the daughter was
not the accused's child. The wife took the daughter to her sister's
place in another part of town. When she returned, the accused refused
to open the door for her. She then went back to her sister's place,
apparently to put up for the night. The accused later followed her
there. At the sister's place, at the ungodly hour of 02:00 hours,
the accused assaulted the wife with fists and a cooking stick several
times all over the body. On top of it all, he poured a bucketful of
water over her body. She sustained a swollen forehead.
[8]
Count 2 happened six months later. This time the major victim, the
complainant, was a neighbour. But the wife was still at the centre of
it all. The accused was quarrelling with her when the complainant
came to investigate. He threw the wife's blankets on fire. The
complainant retrieved them before they got burnt. That incensed the
accused. He began assaulting the complainant. At first he used open
hands. Later on he stabbed her with a knife, once on the right ear
and cheek.
[9]
In Count 3, the accused set the complainant's house on fire.
Property worth $1,620, including furniture, bedding material,
utensil, doors, window panes and asbestos, was damaged or destroyed.
[10]
I am satisfied that the accused was properly convicted on all counts.
Although the circumstances of Count 3 seemed more like malicious
damage to property for which the accused could have been charged
under section 140 of the Code, it is noted that malicious damage to
property is also a species of domestic violence in terms of section
3[1][h] of the Domestic Violence Act. Therefore, the convictions are
hereby confirmed.
[11]
Regarding sentence, other than the failure to suspend a portion,
there was no other material misdirection. I agree with the substance
and quantum of the sentence passed.
[12]
Suspending portions of prison sentences on appropriate conditions is
permissible in terms of section 358 of the Criminal Procedure and
Evidence Act, [Cap] 9:07. In my view, this is a very useful tool at
the disposal of a sentencing court to salvage multiple benefits out
of a situation of criminality. For example, suspension on condition
of good behaviour is both deterrent and rehabilitative. For that
period that the suspension order is in force, the accused knows that
a sword is hanging over his head, and that it will strike if he
should step his foot wrong again.
[13]
Furthermore, for that period, the accused is kept out of jail. The
pressure on prisons is reduced. The State does not have to worry
about feeding him. He regains his responsibility or privilege to feed
himself and his family and to act independently as a free member of
the community. He avoids the full wrath of prison life. His exposure
to dangerous elements inside prisons is avoided or reduced.
Commenting on jail sentences in general, EBRAHIM JA, in S v Mugwenhe
& Anor1,
had this to say:
“Apart
from the fact that … prisons are overcrowded and that the upkeep of
prisons and the maintenance of prisoners place a tremendous economic
burden on the State, there are also other considerations attaching to
imprisonment. The convicted person is removed from society, he is
deprived of all responsibility and opportunities of acting
independently as a free member of the community, his life is
disrupted, manpower is lost and the prisoner comes into contact with
elements which are … out of all proportion to that which he
possibly deserves. If the same purpose in regard to the nature of the
offence and the interests of the public can be attained by means of
an alternative punishment to imprisonment, preference should, in the
interests of the convicted offender, be given to the alternative
punishments …”
[14]
Still further, suspending a portion of the sentence on condition of
restitution, not only has the advantages mentioned above, but also it
has the added direct benefit to the victim of the crime. He is
compensated for the loss fostered upon him by the accused's
criminal conduct. He does not have to incur costs suing the offender
in the Civil Court. Above all, there is all the convenience to all
the parties concerned, including the courts themselves. They are
spared the burden of having to sit in two or more sessions over one
issue.
[15]
Therefore, unless there is good cause, a sentencing officer should
not, out of impulse or whim or caprice, depart from the standard
practice of suspending portions of prison terms on appropriate
conditions.
In
casu, the court a quo apparently took the view that the accused was a
lost cause. However, I do not think that any offender, even one
condemned to die, is automatically a hopeless case. Wherever
possible, rehabilitation, not retribution, should always be given a
chance.
[16]
In this case, the accused was 29 years old. He was a first offender.
He had a wife and two children. It seems this was a new wife because
the victim of his assaults was referred to as his ex-wife in the
charge sheet and the State Outline. Although the ages of the children
were not given, in all probabilities, given his own age, they were
still minors. He was gainfully employed. Whilst he deserved to go to
jail, nonetheless it is my view that he deserved to benefit from a
suspension of a portion of the total sentence and that the shorter
two sentences of Counts 1 and 2 should have been made to run
concurrently with the longer sentence of Count 3.
[17]
In the circumstances, the following is added to the sentences
pronounced by the court a quo:
“The
sentences in Counts 1 and 2 shall run concurrently with the sentence
in Count 3. In addition, six months imprisonment is hereby suspended
for five years on condition that the accused is not convicted of any
aspect of domestic violence for which he is sentenced to a term of
imprisonment without the option of a fine. The effective sentence is
therefore three years imprisonment.”
[18]
The court a quo is hereby directed to recall the accused and
pronounce on him the above altered sentence.
23
October 2017
Hon
Mawadze J: I agree _______Signed on original_______
1.
1991 [2] ZLR 66 [SC]
