The accused was sentenced to three months imprisonment and was unrepresented.

The misdirection I have noted relates to how the trial magistrate approached the question of sentence. It is very clear that the trial magistrate ignored almost all the basic principles of sentencing when the accused was slapped with a term of three months imprisonment with no portion conditionally suspended.

The custodial sentence imposed by the trial magistrate is not only too severe but offends the basic notions and principles of justice.

No inquiry into the suitability of community service was held, and no reasons were given why community service was deemed inappropriate. This is not a proper case in which the accused should have been sentenced to a custodial sentence at all.

I have discussed this matter with my brother MUSAKWA J, and we share the view that a fine is appropriate in this case. Since the accused is on bail pending appeal there is no need to order the accused's release from custody. The accused has been able to raise money to deposit as part of the bail conditions, and, therefore, should be able to raise a reasonable amount of money as payment of a fine.

In the circumstances, the conviction is confirmed, and the sentence of three months imprisonment is set aside and substituted as follows -

The accused, a first offender, who had had his maize crop nibbled by the 38-year old female complainant's goats had simply clapped her once on the cheek.

The accused is married with three children. He was sentenced to a whooping twelve months imprisonment of which three months were suspended for five years on the usual condition of future good conduct.

This constitutes the second misdirection by the trial magistrate.

Regarding the sentence itself, given the mitigatory features that obtained, to sentence the accused to twelve months imprisonment, even with three months thereof suspended, for a single clap on the cheek, offends against all known tenets of civilized justice. Such a sentence definitely induces a sense of shock, not only to the convict but to society as a whole including the complainant herself.

In his reasons for sentence, the trial magistrate said the accused's plea of guilty should be rewarded.  However, it is clear that the trial magistrate did not actually give sufficient weight to this for he went on to say “…, the court did not wish to consider community service or option to pay a fine…, for to do so would sort of trivialize the seriousness of this particular offence. Accused had wasted the court's valuable time by trying to enter into trial and to change his plea midway on noticing overwhelming evidence against himself.” 

After hearing the parties' legal practitioners, we ordered that the appeal against sentence should succeed in part and set aside the sentence of 36 months imprisonment (with 6 months suspended) imposed by the trial court. We substituted the sentence with one of US$50=, or, in default of payment, one month imprisonment. We indicated that our reasons for doing so will follow in due course. 

These are our reasons….,.

At the hearing, counsel for the respondent conceded that an effective custodial sentence was not called for. She suggested that the custodial sentence be suspended on condition of performance of community service by the appellant.

The appellant pleaded guilty and this is a mitigatory factor that should have been accorded due weight – S v Bhuka 1995 (2) ZLR 130 (S) and S v Munechawo 1998 (1) ZLR 129 (H). This was not done by the trial magistrate. The appellant is a first offender. According to the medical report, the degree of force used to inflict injuries on the complainant was “slight”. The injuries were not life- threatening.

According to the State Outline, the complainant sustained swollen face, mouth and eyes. In his scant reasons for sentence, the learned Provincial Magistrate stated; “there are more aggravating factors than mitigating factors in this case.” He did not explain why he arrived at that finding. We agree that the moral blameworthiness of the appellant does not warrant a prison sentence. 

We accordingly reduce the sentence to a fine indicated above.

The accused pleaded not guilty but was committed and sentenced as follows:

“15 months imprisonment of which 7 months imprisonment is suspended for 5 years on condition the accused is not convicted of any offence of which an assault on another is an element committed within that period for which he is sentenced to imprisonment without the option of a fine.

A further 8 months imprisonment is suspended on condition the accused completes 280 hours of community service at Thselanyemba Hospital on the following conditions: the community service starts on the 26 November 2009 and must be completed within 8 weeks of that date. The community service be performed between 0800am -1300pm and 1400pm-1600pm each Monday – Friday which is not a public holiday to the satisfaction of the person in charge who may, on good cause, grant accused of absence which leave shall not count as part of community to be completed.”

Upon perusal of the record, I formed the impression that the sentence was on the lenient side and I asked for the trial magistrate's comments. He responded and commented as follows:

“Kezi Magistrates Court

Bag  506

KEZI

23 March 2010

Judge's Chambers

P O Box 579

BULAWAYO

RE: THE STATE VS MTHUKUTHELI SIBANDA: CRB K195/09

 The above record refers.

The trial magistrate did not impose a custodial sentence bearing in mind that:

(a) The accused was a first offender.

(b) The extent of congestion at Gwanda Prison

(c) The option of community service would have a rehabilitative effect on the offender.

Be that as it may, I agree with the learned Judge's observation that this was a serious assault warranting a term of imprisonment although I leaned towards giving the offender a second chance.

I stand guided by the learned Judge's direction.

(Signed)

Philemon LL

Senior Resident Magistrate

Matobo Jurisdiction.”

….,. Assault on another poses serious danger to both life and limb. It is for that reason, that, invariably a custodial sentence is imposed in serious cases. There are numerous cases which buttress this point.

In S v Dangarembwa 2003 (2) ZLR 87 H CHINHENGO J, while emphasising this point, the learned Judge referred to the following cases with approval;

“S v Ndhlovu HB57-83 - a young man attacked his mother with an axe resulting in fairly severe injuries but no permanent disability – effective two years' imprisonment appropriate;

S v Lambe and Another HH374-84 - accused assaulted his wife with hands and fists and burnt her arm and punched another woman; in the absence of provocation, 12 months of which three were suspended was appropriate;

S v Sparks HH235-85 - accused assaulted a wife viciously with fists, towel rail and heavy object, fracturing both wrists and lacerating forehead - 18 months' imprisonment of which nine months suspended appropriate;

S v Ncube HB19-86 - unprovoked and prolonged attack by accused on young girl with fists, resulting in laceration and loss of tooth - six months' imprisonment with two months conditionally suspended appropriate;

S v Horwe HH311-86 – brutal and unprovoked attack on woman- accused first offender, throttling girlfriend by (sic) kicking her head, knocking out two teeth - four months' imprisonment with one month conditionally suspended appropriate;

S v Mwembe HB151-86 - accused struck woman on head and arm with hoe handle and fractured her arm – a short prison sentence appropriate;

S v Donga and Others HB37-87 - deliberate assaults by the accused causing serious injuries which necessitated hospitalisation of the complainants - effective prison term rather than a fine appropriate;

S v Sibanda HB62-87 - accused severely assaulted girlfriend with a stick after beer drink causing a broken arm, two scalp lacerations and multiple bruising – effective nine months' imprisonment appropriate;

S v Ndlovu HB197-87 - accused stabbed his ex-girlfriend with a knife in the stomach with severe force causing serious injuries – effective six months' imprisonment appropriate;

S v Razawu HH257-87- accused drunk and provoked. Stabbed his wife in the face and side, but, did not cause serious injuries – eight months' imprisonment of which four months were conditionally suspended.”

As a way of a guideline I urge the courts to pay particular attention to doctors' reports as it is through their findings that a court can make an informed assessment of the severity and consequences of the assault on the complainant. In as much as the court is entitled to form its opinion bearing in mind the mitigatory features of the accused, such opinion is in danger of being off-the mark as the courts lack the requisite training and expertise necessary in the assessment of medical findings.

The three reasons for a non-custodial sentence proffered by the learned trial magistrate are far from convincing any reasonable scrutiny magistrate or reviewing Judge…..,.

With regards to giving the accused a second chance, this indeed is a noble idea, but, however, this objective can be achieved by suspending part of the sentence, but, still impose a custodial sentence.  This, in my view, is the only way justice would not have been done but would have been seen to have been done.

The sentence imposed is so manifestly lenient, so as to induce a sense of shock to all reasonable and fair minded people. In view of this, it will be a serious indictment on our judicial system to confirm these proceedings as being in accordance with real and substantial justice.

Navigating the way to the sentence that was imposed the trial magistrate reasoned as follows:

“Accused person is a first offender who pleaded guilty to the charge hence did not waste the court's valuable time. In passing an appropriate sentence, I took into consideration that the accused person assaulted the complainant once by headbutting him, the medical report indicates the force used was moderate but this has resulted in complainant's teeth shaking and the possibility of loosing (sic) those teeth is high, showing that when accused inflicted the assault upon the complainant he had the intention to seriously injure the complainant as he appreciate that the mouth region is a very sensitive area. I did take into consideration that the complainant is a family man with responsibilities. However, I was also concerned that you assaulted the complainant for a debt of $1=. If you could assault someone with such force over a $1= how much more force would you use if something more serious is done.

A fine as well as community service will trivialise this offence and a custodial sentence deemed proper.”

It is not clear where the magistrate got the notion that the complainant's teeth were shaking, that there was a possibility of losing the teeth or indeed that he had the intention to seriously injure the complainant when the medical affidavit does not say so and no other evidence was adduced.

Clearly, this is a classic case where the court paid lip service to the mitigating factors of the matter and exaggerated the injuries sustained by the complainant - even as the State had nothing to submit in aggravation. This was a misdirection as a result of which the magistrate came up with a disproportionate sentence.

This is a case in which the court should have imposed a non-custodial sentence of say a fine or a wholly suspended sentence. As the accused has already served a term of imprisonment not much can be done to regularise the issue other than to alter the sentence to fit the time he has served.

In the result, it is ordered that:

1. The conviction of the accused is hereby confirmed.

2. The sentence of 5 months imprisonment with 2 months suspended is hereby set aside and in its place is substituted the sentence of 70 days imprisonment.

It is disheartening to note that the Senior Magistrate, who should be fairly experienced on the bench, disregarded all the basic principles of sentencing and imposed custodial sentences, which, in all respects, induce a serious sense of shock.

The first misdirection I noted in all the three matters is the failure by the trial magistrate to fully inquire into and understand the facts of each case in relation to the circumstances surrounding the commission of the offences. The need for such a prudent approach was aptly captured by SMITH J in S v Cephas Myakuna HH87-86..., as follows:

“In addition, the magistrate should have investigated the cause of the altercation between the accused and the complainant, whether either or both of the parties were intoxicated, whether or not there was any provocation and the precise circumstances in which the blow was struck. All these factors would have been relevant in determining the intention of the accused and for the purpose of assessing sentence.

Furthermore, the magistrate should ascertain all the circumstances of the case in order to be able to impose an appropriate sentence.”...,.

Let me briefly revert to the summary of the proceedings in each case to illustrate this point and other issues...,.

1. THE STATE v            1) CLETO CHIREYI CRB 772-5/10

                                     2) SHADRECK CHADIDA CRB 772-5/10

                                     3) PEDZISAI DUBE CRB 772-5/10

                                     4) JAISON ZVINOIRA CRB 772-5/10

The material facts in their case are that all the four accused persons were employed by Arda Nandi Estates in Chiredzi as security guards. On 30 July 2010 all the accused assaulted the complainant with a baton stick below the feet. The reason for the assault is unclear but it is said this was after the complainant was allegedly accusing them of violence and fights within the compound (sic). The complainant reported the matter to the police leading to the arrest of the accused. It is not clear as to when the report was made. Apparently the complainant was not medically examined hence no medical evidence was placed before the court. It is, however, said the complainant did not sustain visible injuries.

All the four accused are first offenders.

After entering a verdict of guilty in respect of all the four accused the following mitigation was recorded in respect of each of the accused.

“Accused 1: 40 years, married with 2 children, earns $43= per month. US$10= saving. No assets. Erred.

Accused 2: 35 years, married with 2 children, earns $43= per month. US$10= savings. No assets. Erred.

Accused 3: 30 years, married with 2 children. US$40= salary, US$9= on person, no assets. Erred.

Accused 4: 38 years, married with 4 children. US$50= per month, US$10= on person, no assets, erred.”

The brief reasons for sentence given by the trial magistrate are in notes form in all the three matters. After noting that all the four accused persons are first offenders and pleaded guilty to the charge the trial magistrate indicated that the offence was serious as it was a gang assault and that offences of that nature wherein game scouts and security guards assault suspects in their custody are very prevalent in Chiredzi (the magistrate puts it at three cases daily dealt with in court). However, it is not clear why the complainant in this case could be deemed to have been a suspect in the custody of the accused(s). No such facts were disclosed.

Each of the accused was, on 18 August 2010, sentenced to 18 months imprisonment of which 6 months imprisonment were suspended on the usual conditions of good behaviour leaving each accused with an effective sentence of 12 months imprisonment.

In this case, the statement of agreed facts is unhelpful in outlining the circumstances relevant to the assault. In fact, the reason for the assault is unclear and incomprehensible. The trial magistrate did not seek to inquire from the accused persons the reasons for their conduct. This, in my view, should have been obvious to the mind of the trial court. The manner of the assault is not explained. Did the accused take turns to assault the complainant? Did they use one baton stick? What was the degree of force used and the possible number of blows inflicted by each or all of the accused. No attempt was made to deal with these pertinent issues.....,.

2. THE STATE v EDSON MUNAKI CRB C810/10

In the absence of a proper inquiry into the circumstances of this case the facts of this matter remain incomprehensible and bizarre. In fact, one may suspect that the accused is either mentally unstable or was heavily intoxicated.

The complainant is a member of the Neighbourhood Watch Committee, and, on 18 August 2010, at about 2150 hours, he was at Mufakose beerhall in Triangle when he left the beer hall to buy bread at a nearby tuckshop. The accused was just outside the beerhall and without saying a word struck the complainant with an empty pint of beer bottle on the right side of the face near the eye and fled from the scene. The complainant sustained a deep 3cm long cut below the right eye and a swollen and bruised right cheek. Apparently one blow was delivered. The medical report indicates that severe force was used and the injuries are described as serious and likely to cause permanent injuries (although this is not explained how). The doctor was not called to explain this aspect neither was the complainant asked to shed light on his current state of health vis-a vis the injuries he sustained.

The mitigation recorded is very brief:

“23 years old. Married wife pregnant, unemployed. $10= on me no assets.”

The trial magistrate did not adduce anything further from the accused even the reason why the accused attacked the complainant in such a rather bizarre and unprovoked manner. No attempt was made to ascertain if the accused was intoxicated or had been provoked by the complainant.  In other words, the trial magistrate proceeded to assess the appropriate sentence without ascertaining all those issues.

The reasons for sentence are in note form and equally brief. Two factors were considered in mitigation; that the accused is a first offender and that he pleaded guilty to the charge. In aggravation, the offence was deemed serious as the accused used a bottle to hit the complainant “on the eye” with the possibility of inflicting permanent injuries. Community service was deemed inappropriate without giving reasons. The accused was, on 25 August 2010, sentenced to 18 months imprisonment of which 6 months imprisonment were suspended on the usual conditions of good behaviour leaving an effective term of imprisonment of 12 months.

3. THE STATE v STEVEN MAGAISA CRB C 793/10

In this case, both the accused are employed. On 16 August 2010, while at their house, at about 1700 hours the accused alleged that the complainant wanted to leave him for another man. The accused proceeded to assault the complainant with open hands and booted feet all over the body several times. The complainant sustained a swollen left eye, swollen and tender neck and upper chest. The medical report indicates that several blows were delivered with severe force inflicting injuries described as serious.

It is not clear why the accused laboured under the impression that a rival suitor was about to snatch his wife away. The trial magistrate did not seek to inquire into this aspect, even the basis for such a misapprehension.

The mitigation recorded is as follows:

“26 years. Married to the complainant, 1 child, earns $120= per month. US$30= savings, 2 goats.”

The reasons for sentence, as per the habit of the trial magistrate, are in note form. The court considered two factors in the accused's favour - pleading guilty and being a first offender. A fine was deemed inappropriate as the offence was viewed as serious as it caused potential danger to life. Community service was not even considered. On 23 August 2010, the accused was sentenced to 24 months imprisonment of which 6 months imprisonment were suspended on the usual conditions thus leaving an effective term of imprisonment of 18 months.

To my mind, it is clear that the trial magistrate did not ascertain at all the circumstances of each of the three cases in order to properly assess and impose an appropriate sentence.

The trial magistrate did not even seek guidance from the provisions of section 89(3) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] which provides as follows:

“89 Assault

(1) ...,.

(a) ....,.

(b) ...,.

(2) ...,.

(3) In determining an appropriate sentence to be imposed upon a person convicted of assault, and without derogating from the court's power to have regard to any other relevant considerations, a court shall have regard to the following-

(a) The age and physical condition of the person assaulted;

(b) The degree of force or violence used in the assault;

(c) Whether or not any weapon was used to commit the assault;

(d) Whether or not the person carrying out the assault intended to inflict serious bodily harm;

(e) Whether or not the person carrying out the assault was in a position of authority over the person assaulted; and

(f) ....,.”

The above list is not exhaustive but gives useful guidelines in how to assess an appropriate sentence in an assault case. This is in addition to a plethora of case law on the assessment of sentence in such cases even before the promulgation of the Criminal Law (Codification and Reform Act) [Chapter 9:23] when the offences were not codified but categorised as assault (common) and assault with intent to cause grievous bodily harm. See S v Melrose 1984 (2) ZLR 217 (S); S v Dube 1991 (1) ZLR 218 (S); and Sindura & Anor v S HH104-04.

Each of the factors (in addition to others) listed in section 89(3) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] should be carefully weighed in deciding whether to impose a custodial or a non-custodial sentence in cases of assault.

This reasoning process should be evident from the trial magistrate's reasons for sentence.

In all the three matters, the trial magistrate failed to first consider whether imprisonment was appropriate in all the matters. Superior courts have always reminded magistrates that imprisonment is a rigorous form of punishment and should be resorted to as the last resort. See S v Mugwenhe & Anor 1991 (2) ZLR 66 in which EBRAHIM JA...., made reference to the case of S v Scheepers 1977 (2) SA 154...,.

“Apart from the fact that prisons are overcrowded and that the upkeep of prisons and maintenance of prisoners place a tremendous economic burden on the State, there are also other disadvantages 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 purposes in regard to the nature of the offence and the interest 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 alternative punishments..., imprisonment is only justified if it is necessary that the offender be removed from society..., if the objects striven for by the sentencing authority cannot be attained by any alternative punishment.”

In casu, in CRB C772-5/10 and CRB C793/10, the accused persons are family men and were gainfully employed. They have now lost their jobs and the ability to fend for their families. In my view, it is wrong to regard imprisonment as the only punishment which is appropriate for retributive and deterrent purposes. Our courts have, with the advent of the concept of community service, long departed from this notion....,.

The difficulty I have encountered in all the three matters is that there is insufficient relevant information to assist this court to assess, in a deserving manner, the appropriate sentence in each case.

There was no inquiry into the circumstances of the assault in each case, that is, the reason, and, at times, the manner of the assault. The medical evidence placed before the court is again not helpful. See Reze & Anor v S HH02-04 in which CHINHENGO J emphasised the value of medical evidence in assessing sentence. It would be prejudicial to all the accused in all the three matters to refer the matters back to the trial magistrate for purposes of carrying out a proper pre-sentence inquiry and assessment of appropriate sentences. In all the three cases, the accused were sentenced in August 2010 and all have served at least 6 months of their sentences. At most, I do not believe that any of the accused in the three matters under review should have been sentenced to a period in excess of 6 months imprisonment. Again, my view is that none of the accused, even after having been sentenced to 6 months imprisonment should have served an effective term of imprisonment, but I would have suspended part of the 6 months imprisonment on condition of good behaviour and the remainder on condition of community service (unless good cause was shown).

In my view, in the case of S v Cleto Chireyi & 3 Ors CRB C772-5/10, a sentence of 4 months imprisonment of which 2 months imprisonment are suspended on condition of good behaviour and the balance of 2 months on condition each accused performs community service would be appropriate.

In the case of S v Munaki CRB C810/10 it is extremely difficult to assess the appropriate sentence given the lack of useful information. Be that as it may, a sentence of 6 months imprisonment with 3 months suspended on condition of good behaviour and the balance of 3 months on performance of community service would be in order.

The accused was sentenced as follows:

“7 months imprisonment of which 2 months imprisonment is suspended for 5 years on condition accused does not during that period commit any offence involving assault and for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining 5 months imprisonment is wholly suspended on condition accused completes 175 hours of community service at Beitbridge Magistrates' Court. The community service shall commence on Monday to Friday excluding public holidays between the hours of 8am to 1pm and 2pm to 4pm and to the satisfaction of the person in charge at the institution. The performance shall commence on 07 September 2010 and must be completed within 5 weeks of that date.”

Nothing turns on the conviction, but, it is the sentence which needs close scrutiny.

The scrutiny Regional Magistrate observed that the medical report was produced after conviction and immediately before mitigation. When he raised this with the trial magistrate his response was that the medical report can be produced anytime before sentence in view of the fact that the offence is now covered by the Criminal Law (Codification and Reform) Act [Chapter 9:23].

With all due respect to the learned trial magistrate, the court should have all the information regarding the commission of the offence before conviction, and this includes production of the weapon, if any, and opinion of a professionally trained person to determine the injuries of the complainant and advise as to the possibility of a disability or some such consequences which may flow from the injuries sustained by the complainant. It has always been these courts' position that magistrates are not properly qualified to form an opinion on matters outside their discipline, more particularly medical matters which is a science discipline for which a good pass in a science subject at 'A' level is a pre-requisite. Such opinions should be entirely left with the medical practitioners who are science-oriented. See S v Sibanda and Another HB65-92…, where CHEDA J…, stated;

“…, in the absence of any medical reports, the magistrate was wrong in convicting the accused of assault with intent to do grievous bodily harm.”

The accused has already served his sentence which was unfair and unjust….,.

The following order is made:

Order

(1) The conviction is quashed and is substituted by the conviction for common assault.

(2) The sentence is confirmed.

The appellant was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of future good behaviour. This left him with an effective sentence of 18 months imprisonment….,.

Unhappy with the sentence, the appellant launched this appeal against sentence on the following grounds:

“(1) The above sentence induces a sense of shock considering the age of the accused. Accused is 52 years old.

(2) In her reasons for sentence, the learned magistrate put too much emphasis on the age of the complainant as being 70 years of age yet the complainant is actually 60 years.

(3) The learned magistrate also erred in her view that the accused assaulted the complainant for no reason yet it is clear from the State Outline that the assault was as a result of a misunderstanding between the accused and the complainant. The assault was not premeditated. The courts, in such cases, have been leaning towards a non-custodial sentence. S v Dangarembwa 2003 (2) ZLR 87 (H).

(4) The appellant was a first offender and thus deserved to be treated as such. However, 24 months imprisonment does not reflect that the accused was a first offender.

(5) The court failed to give due weight to other mitigatory factors as follows, that:

(i) Appellant is married.

(ii) The appellant pleaded guilty to the offence thus did not waste the court's time.

(iii) The attitude of the complainant in light of the sentence that was to be given to the accused.   Complainant forgave him and wanted the court to let him go home.

(iv) Appellant was remorseful.”

In terms of section 89(1)(a) of the Criminal Law Code [Chapter 9:23], under which the appellant was charged;

“Any person who commits an assault upon another person intending to cause that other person bodily harm or realising that there is a real risk or possibility that bodily harm may result, shall be guilty of assault and liable to a fine up to or not exceeding level fourteen or imprisonment for a period not exceeding ten years or both.”

Among the factors that the court has to take into account in determining an appropriate sentence, as set out in section 89(3) of the Criminal Law Code [Chapter 9:23], are the age or physical condition of the person assaulted, the degree of force or violence used in the assault, whether or not any weapon was used, and whether or not the assailant intended to inflict serious bodily harm.

All the foregoing factors were taken into account in assessing sentence.

The complainant was a fairly old person aged 60. Counsel for the appellant made a meal out of the fact that in her reasons for sentence the trial magistrate cited the age of the complainant as 70 instead of 60. I am of the view that it really does not change anything. The fact remains that the complainant was an old man and the court a quo took that into account.

The degree of force used by the appellant was severe and a weapon was used under circumstances suggesting that the appellant intended to cause serious bodily harm. One does not attack an old man with a one metre long log on the head with such severe force as to cause a fracture of the skull and unconsciousness without intending to inflict serious injury. In fact, such injury resulted and the consequences of the appellant's actions were there for the court to see.

SENTENCE

In assessing sentence, the court takes into account that the offence was committed during a drunken brawl in which the two accused vented their anger on their long standing enemy. Both accused persons are youthful first offenders. They are married and have attendant family responsibilities.

The court will, however, not lose sight of the fact that offences of this nature are prevalent and on the increase. People must not hide behind beer so as to commit unnecessary assaults which may lead to fatal consequences. In this case, the two accused persons were fortunate that no link could be proved between the assaults which they perpetrated and the cause of death. But, nevertheless, this court has a responsibility to protect society from that type of conduct. Reference has been made to the recent case over which I presided of Mukomba in which the accused, in a bid to commit suicide, exposed his own child to the poison in which he intended to take with fatal consequences. That is totally different from what happened in this case because in the Mukomba case it was a question of negligence. In this case, it is a question of one person deliberately assaulting another. In this case there is need to pass a deterrent sentence so that the accused will be reminded to keep the narrow and straight path whenever they are drinking.

After being duly convicted, in CRB MBE 287/16 (CA 9/16), the appellant begged for a non-custodial sentence.

In mitigation, the appellant, who was a first offender, revealed that he has six (6) children and that he survives on gold panning (most likely illegal). The appellant had US$70= and owned 6 goats and 3 beasts as assets.

The trial magistrate was not persuaded that the appellant deserved any measure of leniency, let alone a non-custodial sentence. The trial magistrate reasoned that the appellant's conduct was intolerable and deserved what he or she called an exemplary sentence. The appellant was sentenced to 9 months imprisonment of which 3 months imprisonment were suspended for 3 years on the usual conditions of good behaviour, leaving the appellant with an effective term of 6 months imprisonment….,.

Nature of the appeal

The appeal in respect of CRB MBE 287/16 (CA 9/16), which relates to the offence of assault, is in respect of sentence only….,.

Broadly, the grounds of appeal in respect of CRB MBE 287/16, which are just repetitive, are that the court a quo should have considered a non-custodial sentence, and, at most, impose the option of community service….,.

We…, turn to the appeal against sentence in both CRB MBE 286/16 and CRB MBE 287/16 which relate to assault.

Ordinarily, in cases of assault, the appropriate sentence depends on the severity of the assault. See S v Pedzisai 2002 (2) ZLR 560 (H)…,.

The appellant's contention is that the court a quo should have considered a non-custodial sentence in both matters, and, at most, impose the option of community service.

In the case of S v Dangarembwa 2003 (2) ZLR 87 (H), CHINHENGO J, with the concurrence of UCHENA J…, stated that in order to properly exercise its discretion in assessing the appropriate sentence in assault cases, a court should, inter alia, consider the weapon used, the seriousness of the injury inflicted, the nature or degree of violence, and the medical evidence. This should be juxtaposed with the mitigatory factors.

In both matters, the appellant perpetrated the assault using his hands and the injuries inflicted on both complainants are not very serious and were not life-threatening.

Indeed, the appellant is a first offender.

If one was to consider the assault in CRB MBE 287/16 in isolation, indeed, it may be true that the sentence imposed by the court a quo, of 9 months imprisonment, is unduly harsh. However, since the appellant sought to have both matters consolidated, this Court is now enjoined to assess the overall moral blameworthiness of the appellant in both matters. The impression one gets is that the appellant is a person of violent disposition and a village bully.

The other practical problem is that it is now not feasible to order the appellant to perform community service in respect of CRB MBE 287/16 even if we are of the view that an effective custodial sentence is appropriate on CRB MBE 286/16….,.

The general approach is that the courts should take a dim view where an assault is carried out for purposes of resisting arrest and with the clear intention to intimidate law enforcement agents.

In the absence of special mitigatory factors, such conduct richly deserves a custodial sentence. See S v Masango HH196-86 in which an assault upon a policeman in uniform with a clenched fist, on the chest, in public, attracted a penalty of 3 months imprisonment….,.

The views expressed by KORSAH JA in S v Chipere 1992 (2) ZLR 276 (S)…., are apposite, wherein the learned Judge of Appeal said;

SENTENCE

(Reasons given ex tempore)

The appellant was sentenced to 12 months imprisonment, 4 months of which were suspended on the usual condition of future good conduct leaving the appellant to serve an effective prison term of 8 months….,.

In respect of the sentence, the appellant averred that the sentence is rigorous and it induces a sense of shock. He prayed for an order for community service….,.

As regards the sentence, the respondent was of the view that community service was appropriate given the fact that members of the public who arrested the appellant assaulted him….,.

Although the respondent conceded that the court a quo may have over-emphasized the aggravatory features of the case and ought to have considered that the appellant was seriously assaulted by members of the public who meted out instant justice, the appellant deserved it. It was aggravatory that the appellant attacked an old married woman with a knife merely because his love proposal was turned down.

Although an effective sentence of 8 months imprisonment falls within the range for community service, failure to impose it due to the seriousness of the offence is not a misdirection warranting this court to interfere with it. The trial court judiciously exercised its discretion. The sentence is not so harsh as to induce a sense of shock.

The accused was sentenced to 18 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition the accused does not within that period commit any offence involving violence upon the person of another and for which, upon conviction, is sentenced to imprisonment without the option of a fine….,.

The accused is a 63 year old first offender, married with 5 children. He is a pensioner earning $180= per month and had $40= on his person. He pleaded guilty to the charge showing contrition. On the aggravating factors, the court a quo found that the offence was serious in that a “dangerous weapon” was used resulting in the complainant sustaining serious injuries. For these reasons, the court a quo concluded that 'a deterrent sentence is called for.'

In S v Mugwenhe & Anor 1991 (2) ZLR 66 (S), EBRAHIM JA…, said;

“The tendency to regard all cases of violence, and, in particular, those of assault with intent to do grievous bodily harm as falling within the scope of those offences where prison sentences are desirable must be avoided: see S v Kulati 1975 (1) SA 5576 (E); S v Makalela 1975 (3) SA 788 (C).

There is also a tendency to regard 'deterrent sentences' and 'exemplary sentences' as being just: the view being that it is more equitable to make an example of someone by punishing him more severely than he deserves so that others will be persuaded to desist from emulating him: see also S v Khulu 1975 (2) SA 518 (N); S v Matoma 1981 (3) 838 (A). Not only is the argument specious and fallacious; it is doubtful whether the claims supporting its efficacy are justified at all. This is not to say judicial officers are to throw up their judicial arms in exasperation and do nothing more. All that is being suggested is that judicial officers exercise their discretion to the full and acknowledge, where necessary, the shortfalls of existing penal policy. The dynamism necessary for this approach is not achieved by reference to alleged 'tariffs' of sentences for specific categories of offences. Invariably, when dealing with sentences, the court refers, or is referred to inumerable cases which purportedly lay down the limits of the range of appropriate sentences for the case actually before it.”

In S v Dangarembwa 2003 (2) ZLR 87 (H), CHINHENGO J…, repeated the warning in the following words:

“The tendency to regard all cases of violence, and, in particular, those of assault with intent to cause grievous bodily harm as falling within the scope of those offences where prison sentences are desirable must be avoided. In order to properly exercise his discretion in such cases, the judicial officer will often be guided by such factors as the weapon used, the seriousness of the injury, the nature of the degree of violence, and the medical evidence. The factors of mitigation, as put forward by the accused, will also have to be considered. Imprisonment is not the only sentence which can be imposed in such cases.”…,.

While it is accepted that cases of assault invariably lead to a term of imprisonment being imposed, this is particularly so where the assault causes serious injury or disfigurement. See, for example, the following cases:

(a) S v Sibanda HB62-87, where the accused, who severely assaulted his girlfriend with a stick after a beer drink, causing a broken arm, two lacerations on the scalp and multiple bruises, was sentenced to an effective 9 months imprisonment.

(b) S v Ndlovu HB197-87, where the accused stabbed his ex-girlfriend with a knife in the stomach with severe force causing serious injuries, had a six months imprisonment imposed on him.

(c) S v Sparks HH235-85, where the accused assaulted his wife viciously with fists, towel rail, and heavy object, fracturing both wrists and lacerating the forehead, was sentenced to 18 months imprisonment of which 9 months were suspended.

(d) S v Ndlovu HB57-83, the accused, a young man, attacked his mother with an axe resulting in fairly severe injuries but no permanent disability, was sentenced to an effective two years imprisonment.

Quite evidently, from the above cases, imprisonment is appropriate where only the injuries are severe.

The assessment of an appropriate penalty in assault cases is not an uneasy task for a judicial officer.  However, some guidance is contained in section 89(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which codified the common law approach. It states;

“In determining an appropriate sentence to be imposed upon a person convicted of assault, and without derogating from the court's power to have regard to any other relevant considerations, a court shall have regard to the following -

(a) The age and physical condition of the person assaulted;

(b) The degree of force or violence used in the assault;

(c) Whether or not any weapon was used to commit the assault;

(d) Whether or not the person carrying out the assault intended to inflict serious bodily harm;

(e) Whether or not the person carrying out the assault was in a position of authority over the person assaulted;

(f) In a case where the act constituting the assault was intended to cause any substance to be consumed by another person, the possibility that third persons might be harmed thereby and whether such persons were so harmed.”…,.

In casu, factors (b), (c) and (d) are pertinent.

As regards the degree of force used in the assault, the medical report shows that it was 'moderate'. The weapon used is described as “a sharp object.” Although the injuries were described as 'serious' there is no potential danger to life. The injury to the head was categorized as “mild.”

The trial magistrate fell into error, in my view, when he concluded that the accused used a 'dangerous' weapon: without having that weapon described with sufficient particularity.

In an assault case, where a weapon is used, it must be properly described with its dimensions, weight and texture indicated in the State Outline to enable the court to assess not only the intention but an appropriate sentence. This should particularly be done in cases where an accused person tenders a plea of guilt.

The weapon in this case is simply referred to as a “log” in the State Outline. On the other hand, the doctor opined that the injury he observed was caused by a 'sharp' object. I take the view that to describe this weapon as dangerous without any appreciation of its real nature amounts to a misdirection, the effect of which was to over-emphasise the nature of the weapon, resulting in the imposition of a disproportionate sentence.

The second misdirection the court a quo made relates to the fact that although the matter falls within the community service grid, the court failed to consider community service as a sentencing option.

It is trite that this amounts to a serious misdirection. 

The higher courts have stressed that wherever a magistrate is considering imprisoning a person for less than 24 months, he or she should always consider whether to impose a sentence of community service instead of sending the person to prison. This applies particularly to first offenders who plead guilty. See S v Shariwa HB37-03; S v Manyevere HB38-03; S v Chinzenze 1998 (1) ZLR 470 (H); S v Gumbo 1995 (1) ZLR 163 (H)…,.

In view of the misdirection, I am at large as regards the assessment of an appropriate sentence. In my view, the mitigation, as outlined above, outweighs the aggravation. The accused has already served one month of the effective 12 months sentence imposed on 9 February 2016. For this reason, a sentence which will entitle him to immediate release will be appropriate since he has already been subjected to this severe and rigorous form of punishment.

In the circumstances, the accused is sentenced as follows:

The appellants, who are young, first offenders, were charged with, tried and convicted of assault as defined in section 89(1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23].

The appellants were each sentenced to 18 months imprisonment; 8 months imprisonment of which were suspended for 5 years on condition of future good conduct. Each appellant, therefore, remained with an effective sentence of 10 months imprisonment.

The appellants' appeal was against sentence only.

They submitted that, as youthful, first offenders, the court should have sentenced them to community service and not to a custodial term of imprisonment. They submitted that the sentence which the trial court imposed was not only harsh and excessive but also induced a sense of shock.

They made every effort to move the court to set that sentence of imprisonment aside and substitute it with what they said was an appropriate sentence which, in their own words, was commensurate with both the offence and the offender.

The established facts of the present appeal were that on 26 August 2013, and at FF6 Finneran Road, Adbennie, Harare, the appellants, who had a misunderstanding with one Jeshow Zunzanyika, assaulted the latter person with open hands and a wheel spanner. Evidence which is filed of record showed that, on the mentioned date, the complainant and his son, one Peacemark visited the appellants' garage. Their aim was to have the complainant's motor vehicle repaired. A misunderstanding ensued as a result of which the first appellant and Peacemark Zunzanyika started to shove and push each other. Whilst this was happening, the second appellant was head-butting the complainant. When he saw that his father was being assaulted, Peacemark rushed to the complainant's aid. It was at that stage that the first appellant assaulted the complainant on the arm with a wheel spanner, and, in the process, inflicted injuries on the latter's arm.

The medical report which the State tendered, with the consent of the appellants, described the assault as having been a severe one. It stated that the possibility of the complainant having sustained permanent injuries was not a far-fetched matter but a reality.

At the time of their trial and conviction, the first appellant was 20 years of age and the second appellant was 27 years old. There is, therefore, no doubt that both appellants were, or are, youthful offenders who should, for the mentioned reason, have been treated with some measure of leniency in so far as their punishment was concerned.

Both of them, it was established, are self-employed family men whose respective family members stood to suffer by their fairly long incarceration. The fact that they paid the medical bills which pertained to the hospitalisation of the complainant and made a firm commitment to continue doing so until he is fully recovered was an extremely mitigatory feature which the court a quo should have taken into account when it proceeded upon its onerous task of assessing an appropriate sentence. The appellants were, therefore, correct when they insisted that the trial court paid lip service to factors which were favourable to them.

The court experienced some considerable difficulty in its effort to arrive at what it considered to be in the best interests of the appellants. The difficulty was occasioned by the fact that counsel for the appellants and the respondent, cited, in their respective Heads of Arguments, case authorities which referred to such generally known and accepted principles as the following:

(a) First offenders should, as much as possible, be kept out of prison;

(b)…, it is generally accepted that imprisonment is a severe punishment which should be considered as a last resort;

(c) The court a quo erred in imposing a custodial sentence on youthful offenders, etc.

The court mentions, for the benefit of the parties, that where the latter's aim and object are to persuade a superior court to interfere with the sentencing discretion of the lower court, the parties, the appellant in particular, must make every effort to argue their case in a logical sequence supporting it with relevant case authorities which compare favourably with the case which they place before the court for consideration. It is of little, if any, use for a party who takes up a matter on appeal especially against sentence to just state some well-known and accepted principle of law, as the appellants did in casu, and leave it to the court to make up its mind on whether or not to interfere with the sentence which the court a quo will have imposed. It is, therefore, pertinent that legal practitioners who appear for an appellant do examine decided case authorities which have facts which are more or less similar to the cases they are arguing and persuade the court to consider the appeal in terms of such case authorities. What is urged the appellant to do equally applies to the respondent.

The court remains of the single view that what is stated in the foregoing paragraph would be taken heed of in the interests of the attainment of real and substantial justice.

The respondent and the appellants are ad idem on the point that the sentence which was imposed on the appellants was not only harsh but was excessively severe. Given the appellants' circumstances, the court remains of the view that the sentence cannot be allowed to stand. It induces a sense of shock in us and it will, therefore, be interfered with. The court has considered all the circumstances of this appeal.

It is satisfied that the respondent's concession was properly made, and it, in the process, left this court at large as regards the fact of what the court may consider to be an appropriate sentence which must be imposed upon the appellants.

The appeal, therefore, succeeds. It is, in the result, ordered as follows:

(a) That the sentence which was imposed on the appellants be and is hereby set aside.

(b) That the following sentence be and is hereby substituted:

The appellants are each sentenced to a fine of $200=, or, in default of payment, 30 days imprisonment. In addition, each appellant is sentenced to 3 months imprisonment the whole of which is suspended for 3 years on condition that he does not, within that period, commit any offence involving assault for which he is sentenced to imprisonment without the option of a fine.

In the case of Maxwell Mugwenhi and Alick Karande v The State 1991 (2) ZLR 66 (SC), EBRAHIM JA cautioned against the impulsive approach to sentence and took a bold decision which was a complete departure from the then orthodox approach of opting for a prison term whenever one was confronted with group assault cases and settled for a fine coupled with a wholly suspended prison term.

In a case that followed on the robust decision of EBRAHIM JA, ROBINSON J was confronted with an almost similar case involving gang assault in State v Timothy Chivore, David and Willie Chikovero HC-H-208-91…,.

In State v Timothy Chivore, David and Willie Chikovero HC-H-208-91, the gang had attacked the complainant who was alleged to have been having an affair with one of the accused's uncle's wife. The assault was particularly a vicious one. The complainant had been attacked with bricks and stones all over the body resulting in him seeking medical attention. The medical report revealed the following injuries:

“Laceration 1cm right scalp on head, multiple bruises back and a fractured right ulma.”

Having been persuaded by the approach adopted by EBRAHIM JA in Maxwell Mugwenhi and Alick Karande v The State 1991 (2) ZLR 66 (SC), the learned Judge sentenced the accused persons each to $300= or in default of payment one (1) month imprisonment. In addition, each of them was sentenced to two (2) months imprisonment wholly suspended on the usual condition of future good conduct.

The accused was sentenced as follows:

(a)...,.

(b) Count 2 [assault] - 6 months imprisonment;

The prescribed penalty for assault, in terms of section 89[1] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a fine up to, or exceeding level fourteen [$5,000=], or imprisonment for a period not exceeding ten years, or both.

The range is quite wide. The top end is quite steep. But, unquestionably, this is designed to cater for all manner of assaults, from the very minor ones, to those very serious assaults as would cause grievous bodily harm.

SENTENCE – The accused is sentenced to $300= fine, or, in default, 30 days imprisonment.

Both the defence and the prosecution have concurred that in the circumstances of this case the appropriate sentence for assault they propose a fine in the region of $150= to $200=, or a period of imprisonment in the region of 6 months…,.

1….,.

2. The accused is sentenced to a fine of three hundred dollars [$300=], or, in default of payment, 3 months imprisonment.

3. In addition, the accused is sentenced to 12 [twelve] months imprisonment wholly suspended for 5 years on condition that during this period he is not convicted of an offence involving violence for which he is sentenced to a term of imprisonment without the option of a fine.

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.