On 4 November 2016, the appellant, who at the time was a teacher at Simana Primary School in Silobela, must have seen people sleeping at a Bank queue outside CABS Building in Gweru and lost his senses in anger.As the complainant, a police officer, was passing by, and in police ...
On 4 November 2016, the appellant, who at the time was a teacher at Simana Primary School in Silobela, must have seen people sleeping at a Bank queue outside CABS Building in Gweru and lost his senses in anger.
As the complainant, a police officer, was passing by, and in police uniform, the appellant vented his anger on him.
He grabbed the police officer from behind, and, when the officer turned, he held him by the collar while saying a few unkind words. For his troubles the appellant was charged with assaulting a Peace Officer in contravention of section 176 of the Criminal Law Code [Chapter 9:23].
When he appeared before a magistrate at Gweru, on 10 November 2016, he had already apologized to the complainant who had then submitted an affidavit withdrawing charges against the appellant.
The State, and indeed the trial magistrate, would have none of it. They proceeded with the criminal prosecution of the appellant as if nothing had happened.
He pleaded guilty to the charge. Upon conviction, the appellant was sentenced to 12 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition of future good behaviour, leaving him with an effective imprisonment term of 6 months.
Even after settling for that term of imprisonment the trial magistrate did not see the wisdom of conducting an inquiry into the suitability of community service. In fact, the phrase “community service” does not appear anywhere in the record and is only mentioned for the first time in his response to the grounds of appeal.
The appellant has appealed against the sentence on the grounds, inter alia, that the sentence is manifestly excessive and induces a sense of shock, the court a quo overlooked the fact that the penal provision for such an offence provides for the imposition of a fine and that the court a quo paid lip service to the weighty mitigating factors that existed.
The State has conceded that the sentence was inappropriate and that it should be interfered with giving valid reasons.
This is a case in which the trial magistrate got completely carried away, allowed emotions to get the better of him and to cloud his judgment, and, in the process, the dispassionate, and indeed, objective approach to sentencing expected of him as a judicial officer became the biggest causality.
This is what he said as he succumbed to flights of fancy;
“However, in aggravation, I will consider that this offence is on the increase and there is need for personal and general deterrence. Police are becoming targets of citizens' pent up unjustified provocation. The complainant was in police uniform. He was ridiculed and impaired his dignity and self-esteem in public. Accused knew he was a police officer but throttled him. It should be a taboo to our citizens that police officers should not be targets for assault as they have become endangered species at the instance of restless citizens who are intoxicated not only with liquor but unjustified anger.”
Don't ask me where the magistrate got the notion that assaults on police officers is on the increase, or that they are becoming targets of unjustified provocation, or, indeed, that police officers are now an endangered species because I also do not know.
It is certainly not in the record, and it is not a matter that is in the public domain. In fact, it may be safe to say that those are factors stored in the mind of the court itself.
In addition, the allegation that the citizens of this country are restless is something the court may have done well to explain and justify before using it against the appellant.
I am also unable to reconcile the aspect of holding a person by the collar and throttling. If that was the court's understanding of the facts perhaps it should have called for evidence to be led by the witnesses in order to gather sufficient pre-sentencing information instead of using imagination to fill in gaps that existed in the State Outline.
Whichever way, it is accepted that a judicial officer is entitled to express disapproval of an accused person's conduct in assessing an appropriate sentence, but, that must not only be guarded, it must always be relevant and based on substantive facts not imaginary circumstances. The kind of extravagant and emotional language employed by the trial court is certainly inconsistent with the dispassionate and objective approach to sentencing expected of a court of law; see S v Mahati 1988 (1) ZLR 190 (H).
More importantly, it betrays a glaring misdirection calling for interference with the sentence because, clearly, the appellant was subjected to an injustice when the court exaggerated the seriousness of the offence and then imposed a sentence that was disproportionate to the offence.
Apart from that, it is the sentencing policy of the courts in this jurisdiction that where the court settles for a sentence of imprisonment which is 24 months and below, the court is required, as a matter of principle, to conduct an inquiry into the suitability of community service as an option. This has been stated on times without number but magistrates always turn a blind eye to it. The sooner magistrates appreciated that they have no discretion in that regard the better for everyone. See S v Antonio and Others 1998 (2) ZLR 64 (H); S v Mbizvo and Others HB258-16; S v Mpofu HB45-17.
It is a misdirection not to consider community service in those circumstances.
Further to that, it has also been stated over and over again that where a statute provides for a sentence of a fine, or, alternatively, imprisonment, the court must give serious consideration first and foremost to the imposition of a fine and reserve imprisonment for the most serious infractions or repeat offenders. See S v Chawanda 1996 (2) ZLR 8 (H)…,.; S v Zuva 2014 (1) ZLR 15 (H)…,.; S v Sikhosana and Others HB25-17.
This cannot be said to be one of those serious offences of assaulting a police officer.
The appellant only held him by the collar. Whatever injury he suffered must have taken the form of injuria or wounded pride and nothing more. Therefore, the infraction could not possibly attract a prison term. A moderate fine would meet the justice of the case.
In the result, it is ordered that:
(1) The appeal against sentence is hereby upheld.
(2) The sentence of the court a quo is set aside and substituted with the following sentence:
“A fine of $50, or, in default of payment, 1 month imprisonment. In addition, 2 months imprisonment which is wholly suspended for 3 years on condition the appellant does not commit an offence involving assaulting a police officer for which, upon conviction, he is sentenced to imprisonment without the option of a fine.”
