S v Mguni (HB 21 of 2017; HCAR 2307 of 2016) [2017] ZWBHC 21 (2 February 2017)

1 HB 21/17 HCAR 2307/16 THE STATE Versus BEKEZELA MGUNI IN THE HIGH COURT OF ZIMBABWE TAKUVA J BULAWAYO 2 FEBRUARY 2017 Review Judgment TAKUVA J: This matter was referred to my chambers by the scrutinizing Regional Magistrate, Bulawayo with the following comments: “… The accused person pleaded guilty to contravening section 89 of the code, He was convicted and sentenced to 12 months imprisonment. He is married with one child. The Regional Magistrate is of the opinion that the sentence is too severe taking into consideration that accused pleaded guilty and he is a first offender. His plea has not been taken into consideration by the trial magistrate as there is no sentence suspended for that or worse still there is no suspension for good behaviour. The fact that accused was sentenced to less than 24 months imprisonment. The Regional Magistrate opines that accused deserved even to be given community service in the circumstances instead of imprisonment taking into consideration that the complainant was the aggressor. I however stand guided.” Before I delve into the matter I must point out that according to the statement of agreed facts in paragraph 5, it is the accused who went to where complainant was seated drinking beer and “held him by the collar and hit him once on the mouth with an unknown object and he fell on the ground.” The correct factual position is that this was an attack on the complainant by the accused who claimed in mitigation that he was retaliating for an earlier assault on his person by the complainant. Having said that, I however agree with the learned Regional Magistrate that the trial magistrate still fell short of the need to consider the suitability of community service as the sentence imposed is within the general limit of effective 24 months imprisonment. No cogent HB 21/17 HCAR 2307/16 reasons were given as to why community service is inappropriate. This constitutes a serious misdirection. See S v Antonio & Ors 1998 (2) ZLR 64 (H); S v Chireyi & Ors 2011 (1) ZLR 254 (H); S v Chinzenze & Ors 1998 (1) ZLR 470 (H). In assessing an appropriate sentence in assault cases, the court should seek guidance from the provisions of s89 (3) of the Criminal Law (Codification and Reform) Act Chapter 9:23. It provides thus: “89. Assault (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) …” Taking into account the totality of the circumstances surrounding the commission of the offence coupled with the medical evidence placed before the court, I am of the view that imprisonment was appropriate. The accused kicked the complainant all over his body with booted feet. This is confirmed by the medical report in that it shows that the injuries could have been caused by a blunt instrument. Also according to the medical report, the degree of force used was severe and the injuries were serious. Although there was no potential danger to life, permanent disability was likely to occur since complainant lost multiple upper teeth as a result of the assault. The value of medical evidence is critical in assessing an appropriate sentence in assault cases. See CHINHENGO J’s views in S v Reze & Anor HH-2-04. HB 21/17 HCAR 2307/16 In casu, the accused was sentenced on 10 November 2016 to 12 months imprisonment. As pointed out above, this sentence is so severe that it induces a sense of shock. I note that the accused has already served a period of almost 3 months in prison. Taking into account the fact that he is a first offender who pleaded guilty and has a family to look after, I would make the following order: (1) The sentence imposed by the court a quo be and is hereby quashed. (2) The accused is sentenced to 6 months imprisonment of which 3 months imprisonment is suspended for 3 years on condition the accused is not within that period convicted of any offence involving assault for which upon conviction he will be sentenced to imprisonment without the option of a fine. (3) The accused is entitled to his immediate release and a warrant for his liberation should be issued. Moyo J …………………………………….. I agree