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.
Lastly, in the case of S v Magaisa CRB C793/10,
a sentence of 6 months imprisonment with 2 months suspended on condition of
good behaviour and the remainder of 4 months on condition of community service
would have been appropriate.
