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:
3 months imprisonment of which 2 months
imprisonment is suspended for five years on condition the accused is not
convicted of an offence involving an assault upon the person of another and for
which, on conviction, is sentenced to imprisonment without the option of a
fine.
