HIGH COURT OF ZIMBABWE
HARARE, 27 February 2015
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 were 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 HH 599/08 and S v Hondokanayakunda & Ors HH 58/89, S v Simbarashe Chaendera & Ors HH 114/14.
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.