Review
Judgment
MWAYERA
J:
The
record was referred for review by the Regional Magistrate who held
the opinion that the sentence imposed by the trial magistrate was too
lenient for the offence of assault where an axe was used.
The
accused was properly convicted on his own plea by the trial
magistrate.
The
accused was charged with assault as defined in section 89(1)(a) of
the Criminal Law Codification and Reform Act [Chapter
9:23].
It is alleged by the State that on 7 November 2014 at Chinditi
Village in Gutu, the accused unlawfully struck Sinodia Mugauri once
with an axe on the left hand palm intending to cause bodily harm or
realizing that there was a real risk or possibility that bodily harm
might result.
It
is apparent from the Statement of the Agreed Facts that the accused
is a son in law to the complainant. It is common cause that on the
day in question the accused who had partaken of alcohol was
argumentative. He did not set out primarily to attack his mother in
law but that when he failed to catch up with Olonzia Maguira and
Tafadzwa Shata who was trying to restrain him that is when he struck
the complainant who was standing on the door way in the palm.
Given
the circumstances of the case, the fact that accused pleaded guilty
and the part of the body struck the trial magistrate correctly
considered mitigatory factors.
What
is outstandingly aggravatory in this matter is the fact that the
accused struck his mother in law for no apparent reason and that he
used a lethal weapon an axe. Also as per the medical report although
it was one blow the force was severe and the complainant sustained
severe permanent injuries.
Given
these aggravatory factors and mitigatory factors I find no fault in
the exercise of sentencing discretion by the trial magistrate. Indeed
a custodial term was called for.
The
trial magistrate sentenced the accused to eight months imprisonment
of which three months imprisonment was suspended for 5 years on the
usual conditions of good behavior. This leaves an effective sentence
of five months imprisonment.
The
Regional Magistrate opinioned that the sentence is too lenient.
I
must hasten to point out that only when the sentencing discretion is
improperly exercised should the trial court's decision be tempered
with.
In
the circumstances of this case where the accused in a drunken state,
struck his mother in law once because the person he was chasing had
fled and the accused pleaded guilty showing contrition, I find no
reason for implying misdirection on the sentencing discretion by the
trial court.
The
trend of this court has been to discourage the tendency to regard all
cases of violence as deserving of imprisonment. See the State
v Dangarembwa
ZLR (2) 2003 @ 87; S
v Matiza
HH599/08;
and S
v Hondokanayakunda & Ors
HH58/89;
S
v Simbarashe Chaendera & Ors
HH114/14.
It
is important to note that in cases where there is use of violence on
the person of another the sentencing court has to inter alia consider
the nature of assault, whether or not there was a weapon used, the
degree and extent of force, the part of the body to which the assault
was directed together with the nature and extent of injury.
In
the present case the distinguishable aspect is that a lethal weapon,
an axe was used albeit blow was directed on the palm. The injuries
were serious and the offence indeed deserving of a custodial term.
The trial court properly weighed the mitigatory and aggravatory
factors to come up with an appropriate sentence.
In
any event given the totality of the circumstances of the matter the
courts in administering justice should not be seen to further widen
the gap in relationships which ought to be cordial. The accused and
complainant are son in law and mother in law respectively. Room for
forging ahead has to be given.
The
trial magistrate properly weighed the nature of offence, the
offender, the societal interests and the interests of justice. The
sentencing court should endeavor to rehabilitate an offender as
opposed to breaking him.
The
other issue raised by the Regional Magistrate is that of record notes
show the complainant was to be called. It is not endorsee what
happened thereafter to the request. That portion leaves one to
speculate.
The
central question to be asked however, is whether or not the
complainant's being called would change the complexion of the
matter. The accused pleaded guilty after essential elements were
properly canvassed. He mitigated and was duly sentenced. The trial
magistrate ought to have recorded his observations and enquiries with
complainant if he did or if he abandoned the idea he ought to have
written that down for completeness of the record. The omission is
however not fatal to the proceedings. The accused pleaded guilty and
was properly convicted. The other mitigatory enquiries were carried
out and the accused was properly sentenced.
I
find no reason to interfere with the trial court's decision. The
proceedings are in accordance with real and substantial justice and
are accordingly confirmed.
