The
appellant was convicted, on his own plea, of assault as defined in
section 89 of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
State alleged that, on 21 March 2010, and at Paradise Motel Bus Stop,
Murambinda, the appellant assaulted one Dunmore Muripo several times
upon the face with clenched fists. He also struck the complainant in
the face with a bottle and several times on the leg with booted feet.
The
court a
quo
sentenced the appellant to 24 months imprisonment, 4 months of which
were suspended for 5 years on condition of future good behaviour.
The
appellant appealed against the sentence which he said induced a sense
of shock. His grounds of appeal were that:
1.
The trial court erred in sentencing him to an effective imprisonment
term when:
(a)
He was a first offender who -
(i)
Pleaded guilty, and, therefore, did not waste the court's valuable
time;
2.
The court a
quo
erred
in sentencing him to imprisonment in circumstances where the court's
policy was aimed at keeping young first offenders away from custodial
sentences;
3.
The learned magistrate erred when he failed to realise that the
complainant had provoked the appellant; and
4.
The trial court should have preferred such a punishment as community
service.
The
relief which the appellant sought was meaningless. It read;
“WHEREFORE,
Appellant prays that the sentence passed by the Learned Judgment be
set aside.”
Counsel
for the appellant successfully applied that the prayer be amended to
read:
“WHEREFORE,
Appellant prays that the sentence passed by the learned magistrate be
set aside and substituted with a non-custodial sentence.”
The
respondent put up a stiff opposition to the appeal.
It
submitted that the sentence which the trial court imposed was
appropriate for the crime which the appellant committed. It stated
that the sentence was arrived at after a careful analysis of all
matters which favoured and militated against the appellant. It
insisted that the sentence should not be disturbed as it did not
induce a sense of shock.
Counsel
for the appellant made two pertinent concessions. These were that:
(i)
The appellant was not a young offender as had, earlier on, been
submitted; and
(ii)
The appellant's assault of the complainant was an unprovoked
attack, and was, therefore, not warranted.
The
court commends Mr Tawona
for his candidness. He acted honestly and responsibly. What he did is
indeed encouraged to all legal practitioners who argue matters on
behalf of those whom they represent in court.
It
is trite that a legal practitioner's duty is first and foremost to
the court as well as to his or her learned colleague who will be
appearing on the other side of the divide in our adversarial system
of justice delivery. The legal practitioner's attention to his or
her client's case is equally important and must be accorded the
weight which it deserves. It should not, however, be allowed to cloud
his or her sense of judgment to a point where he or she refuses to
see obvious matters which are not favourable to his or her client's
case. He should, as in
casu,
make concessions where such are due, and, at the same time, advance
the cause of those whom he or she represents in a lawsuit or a
criminal trial in an effective manner. See in this regard Kawondera
v Mandebvu
2006 (1) ZLR 110 (S).
There
is no doubt that the appellant is a first offender who pleaded guilty
to the offence. The question which begs the answer is whether or not
he should have been sentenced to community service on the basis of
the mentioned mitigatory factors.
It
has already been accepted that the assault which the appellant
perpetrated on the complainant was without any provocation on the
latter's part. The appellant used clenched fists and a bottle to
assault his victim. The medical report which the State produced
stated that severe force was applied and the injuries which the
complainant suffered were serious. The doctor who examined the
complainant remained of the view that the possibility of permanent
injuries was likely. He also noted that the complainant suffered
internal injuries in addition to those which were visible to the
naked eye.
The
trial court remained alive to the severity of the injuries which the
complainant sustained and the need, on its part, to pass a deterrent
sentence on the appellant. The appellant did not tender any apology,
directly or indirectly, to the complainant for his wayward behaviour.
He did not meet the complainant's medical bills as he should have
done. His moral turpitude was very high. The conduct which he
exhibited when he committed the offence cannot be condoned let alone
accepted.
The
arguments which the appellant raised were not relevant to the appeal.
Case authorities which he cited had no bearing on the appeal which he
had placed before the court.
The
respondent's submissions, on the other hand, were well made and
were supported with relevant case authorities. Its aim, which it
successfully established, was to persuade the court not to interfere
with the sentence.
The
court was satisfied that the appellant's aggravatory features far
outweighed his mitigatory features. He perpetrated a brutal assault
on the complainant. He was properly sentenced therefor. That is so as
the appellant's conduct was not only vicious but also not
warranted. The trial court did not, in our view, misdirect itself at
all. The sentence which it imposed does not induce a sense of shock
in us. It was properly considered as well as passed. The
court is satisfied that the appellant did not discharge the onus
which
rested upon him. He did not show, on a balance of probabilities, that
the sentence which the court a
quo
imposed should be disturbed.
The
appeal is, in the result, dismissed.
