He
was then sentenced to undergo fifteen (15) months imprisonment of which three (3)
months imprisonment was suspended for five (5) years on the customary
conditions of future good behaviour.
As
against sentence, the appellant complained that it induced a sense of shock in
him. This assertion was based on the fact that it was a ...
He
was then sentenced to undergo fifteen (15) months imprisonment of which three (3)
months imprisonment was suspended for five (5) years on the customary
conditions of future good behaviour.
As
against sentence, the appellant complained that it induced a sense of shock in
him. This assertion was based on the fact that it was a direct term of
imprisonment without the option of paying a fine or community service. The appellant
complained that since he was a first offender he should have been kept out of
prison. Only a single blow with a fist was delivered and yet the court treated
the matter as if there had been pre-meditation and as if it was a wanton attack
on the complainant. He went on to complain about the fact that the trial court
took into account that the appellant assaulted a woman and submitted that the
complainant had been wrong in the first place to argue with and struggle with
the appellant who was her sergeant major in charge of discipline. He claimed
that the court ignored his character, age, and social status,that he was
ascending in the administrative ladder within the police force; has a family to
look after and that jobs were hard to come by. His penultimate complaint on
this head was that the court did not give any cogent reasons for dismissing the
other forms of punishment. He then concluded by alleging that all the
mitigatory factors in his favour had not been considered at all, or
objectively, otherwise a non-custodial sentence ought to have been imposed.
The
suggestion by the appellant that the complainant was wrong in the first place
by arguing and struggling with him who was a sergeant major in charge of
discipline is devoid of any merit. It is not true that complainant argued and
struggled with him. She, apart from saying “Sir” did not answer back. She never
struggled with him.
This
court and the Supreme Court have repeatedly stated that assaults by policemen,
soldiers and prison officers and others in authority during the execution of
their duties were grave offences. The trial court was alive to this and cited
the following cases for its guidance. In the case of S v Mashatini HH51-90 the
complainant suffered a swelling on the face after having been assaulted by a
police officer. This court held that a sentence of ten (10) months imprisonment,
with a part of it suspended was in accordance with real and substantial
justice.
In
S v Ngoni SC118-90, a prison officer slapped the complainant in the face and
kicked her in the stomach. The Supreme Court confirmed a sentence of nine (9)
months imprisonment with four (4) months imprisonment suspended. In S v Sibanda
and Others HB112-93, security guards assaulted a woman on her buttocks. This
court confirmed a sentence of twelve (12) months imprisonment with six (6)
months imprisonment suspended on the customary conditions of future good
behavior.
In
S v Mafios and Anor HC20-93 a soldier punched a woman without provocation. A sentence of twelve (12) months imprisonment
with six (6) months imprisonment suspended was deemed to be in accordance with
real and substantial justice.
In
S v Mudimu SC127-94 a police officer with twenty (20) years of unblemished
service and a record of community service, struck two blameless people without
provocation when he was exhausted from long hours of duty and struggling to
find another address. He hit one of the men on the head with a baton, impairing
his hearing (possibly permanently) and punched and slapped the other man.
GUBBAY CJ stated that because the assaults were committed by a law enforcement
officer while on duty, deterrence was paramount, and, despite all personal
circumstances, imprisonment was appropriate.
In
S v Chipare 1992 (2) ZLR 276 a police officer, on duty, assaulted a civilian. A
sentence of eighteen (18) months imprisonment was upheld by the Supreme Court
which went on to state that imprisonment was appropriate in cases where police
officers commit assaults while executing their duties. The Supreme Court labelled
such offences as grave offences.
The
learned trial magistrate having surveyed the above decided cases concluded that
imprisonment was appropriate in casu. He found that the appellant showed no
remorse at all after damaging the complainant's left eardrum causing loss of
hearing.
This
court's view is that a sentence of fifteen (15) months imprisonment with three (3)
months suspended on the customary conditions of future good behavior is not out
of step with sentences usually imposed in cases of this nature. The sentence is
accordingly upheld.
In the result the appeal is dismissed in its
entirety.
