Review
Judgment
MWAYERA
J:
The
review judgment deals with four records which are presided over by
the same magistrate at different sittings.
In
the four records the accused persons were charged with assault as
defined in section 89 of the Criminal Law Codification and Reform Act
[Cap 9:23].
The
four records of proceedings which were dealt with by the same
magistrate raise the same issue hence for expediency we have decided
to issue one review judgment. The sentences imposed were outrageous
and too severe given the nature and extent of assault. They must be
set aside and substituted with those in keeping with precedent.
Simbarashe
Chaendera
a 20 year old youthful offender had a misunderstanding with the
complainant at a Take Away shop. The accused alleged the complainant
had pushed him and he then assaulted the complainant with open hands,
booted feet head butt and an iron bar.
No
medical report was obtained and thus at the time of the plea the
extent and nature of injury was not given.
He
was sentenced to 3 years imprisonment of which 6 months imprisonment
is suspended on usual condition of future good conduct.
Timothy
Chomera
a 19 year old youthful offender assaulted the complainant and queried
why the complainant did not respect him yet he was married to the
accused's sister. The accused then struck the complainant with a
stone on the mouth causing a swollen mouth.
The
accused was sentenced to 3 years imprisonment of which 1 year was
suspended for 5 years on the usual conditions of good behavior.
There
is no medical report attached to the record.
Collins
Bindu
a 24 year old youthful offender had a misunderstanding on two
occasions with the complaint over a friend's girlfriend. On the
first occasion the accused struck the complainant with a small axe
and complainant managed to block the attack and thus did not sustain
injuries. On the second occasion accused struck complainant with
fists twice and the complaint did not sustain injuries.
There
is no medical report attached.
The
accused was sentenced to 18 months of which 6 months were suspended
for 5 years on conditions of good behavior.
Gift
Mulila and Tinashe Mapirawana
aged 30 and 24 respectively were at a beer drink when they had a
misunderstanding with the complainant which culminated in the two
assaulting the complainant with booted feet on the face. The
complainant sustained a cut on the cheek.
The
nature and extent thereof was not given again because there is no
medical report.
The
two were sentenced to each 16 months imprisonment of which 6 months
is suspended for 5 years on the usual conditions of good behavior.
Of
interest in respective of the four records is the fact that the trial
magistrate imposed imprisonment terms for assault whose nature and
extent of seriousness was not medically supported.
In
fact going by the nature of assaults and described injuries none of
the cases can lead one to deduce potential danger to life having been
occasioned by the assaults.
Community
service or fines ought to have been considered.
In
our view the sentences imposed were too severe and out of sync with
sentences imposed by this court on review in kindred offences. Cases
decided in this court have discouraged the tendency to regard all
cases of violence as deserving of imprisonment. See The S v
Dangarembwa 2003 (2) ZLR 87H.
In
S v Chitsu HH429/87 the accused hit a fellow patron in a night club
on the head with a beer bottle. The sentence of 6 months imprisonment
imposed was reduced to a fine of $150-00 or in default of payment 28
days in imprisonment. With an additional wholly suspended sentence of
3 months imprisonment.
Also
S v Matiza HH599/08 the accused hit the complainant on the head with
an empty 750ml cooking oil bottle. The sentence of 6 months
imprisonment of which 4 months was suspended was reduced on review to
a fine of $50 or 1 month imprisonment. In addition 4 imprisonment was
suspended on appropriate conditions of good behavior.
In
S v Hondokanayakunda and Ors HH58/89, one of the 4 accused persons
Fernando Chakona struck the complainant with the beer bottle on the
forehead for proposing to his wife. The complainant sustained a long
cut on the forehead, which was stitched in hospital. The sentence of
12 months of which 3 months was suspended was substituted on review
with of $300-00 or 30 days imprisonment plus an additional 2 months
wholly suspended for 3 years on conditions of good behavior.
It
is instructive to note from the approach of this court in the few
examples of cases given is that it does not necessarily follow that
every case where there is use of violence on another imprisonment is
appropriate.
The
nature of assault, whether there was a weapon used, the degree and
extent of force and the part of the body to which the assault was
directed together with the nature and extent of injury are quite
pivotal in considering the appropriate sentence.
The
sentences imposed in respect of the cases which form the subject of
this review are certainly out of line with sentences imposed by this
court for offences of a similar nature and must be set aside for they
are excessively harsh. The sentences imposed are accordingly set
aside and substituted with the following;
Simbarashe
Chaendera:
$400-00 or 2 months imprisonment. In addition 2 months imprisonment
is wholly suspended for 3 years on condition the accused does not
within the period commit any offence involving the use of violence on
the person of another for which he is sentenced to imprisonment
without the option of a fine.
Timothy
Chomera:
$200-00 or 1 month imprisonment. In addition 2 month imprisonment
wholly suspended for 3 years on condition the accused does not within
that period commit any offence involving the use of violence on the
person of another for which he sentenced to imprisonment without the
option of a fine.
Collins
Bindu:
both counts as one for sentence, $400-00 or 2 months imprisonment. In
addition 2 months imprisonment wholly suspended for 3 years on
condition the accused does not within that period commit an offence
involving the use of violence on the person of another for which he
is sentenced to imprisonment without the option of a fine.
Gift
Mulila and Tinashe Mupirawana:
each $400-00 or in default of payment 2 months imprisonment. In
addition 2 months imprisonment wholly suspended for 3 years on
condition accused does not within that period commit any offence
involving the use of violence on the person of another for which he
is sentenced to imprisonment without the option of a fine.
All
the accused have been in custody for more than 2 months and as such
are entitled to their immediate release. We have accordingly issued
warrants of their liberation.
The
Registrar is directed to bring this review judgment to the attention
of the Chief Magistrate.
MWAYERA
J ……………………………………
MUSAKWA
J agrees ………………………………
