Judgment No. HB 54/15

                                                                                                               Case No. HCA 566/13

DAVID SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA & MOYO JJ

BULAWAYO 19 JANUARY & 19 MARCH 2015

C. Dube for the appellant

Ms A. Munyeriwa for the respondent

Criminal Appeal

            MOYO J:       The appellant is a 38 year old man who was convicted after a full trial of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  He was sentenced to 18 months imprisonment of which 4 months imprisonment was suspended on the usual conditions.  This left him with 12 months effective.  Dissatisfied with the sentence the appellant then approached this court.

            At the hearing of the appeal on 19 January 2015, we delivered an ex tempore judgment and dismissed the appeal.

            The appellant has requested for written reasons, here are they.  The grounds of appeal are as follows:-

1. The effective sentence of 12 months imprisonment was manifestly excessive and induces a sense of shock.
2. The learned magistrate erred by failing to give due weight to the mitigatory factors advanced by the appellant in respect of circumstances relating to the commission of the offence such as that the appellant was fighting with other people and that he did not intentionally cause harm on the complainant.
3. The court a quo erred in failing to give due weight to the undertaking by the appellant’s family to compensate the complainant for the medical bills and damages suffered by paying a beast.  Such an undertaking by an accused person is taken as highly mitigatory.
4. The court a quo erred in passing a deterrent sentence without taking into account the appellant’s personal circumstances as is required by law.

The appellant is a family man who is married with 5 children, 4 of which are going to school, looks after 3 orphaned children from his extended family and his terminally ill mother.  If the court a quo had taken into account all these personal circumstances and not paid lip service to same a custodial sentence would not have been imposed.  By passing a deterrent sentence the court a quo erred in sacrificing the interests of the appellant in order to set an example to society at large.

1. the learned magistrate erred by disregarding the option of a fine or community service and considering it trivial punishment in the circumstances of the case yet such punishment is considered highly suitable for first offenders and where an individual is sentenced to an effective term of imprisonment of less than 12 months and below.

The facts of this matter are basically that there was an altercation between appellant and the complainant’s group.  That the accused’s version is that he joined the altercation in a bid to restrain others from fighting.  Appellant struck complainant with a broom at the 1^st instance in error as he had attempted to strike complainant’s brother, Freedom instead.  This altercation allegedly occurred at the accused’s shop as complainant and his group had gone there to look for a lost phone.  The altercation resulted in complainant’s group fleeing and going to where their bus was parked.  One Nkosilathi followed complainant’s group to the bus and started wrestling with Freedom.  Complainant tried to stop Nkosilathi and Freedom from fighting.  It is at that juncture that appellant arrived armed with an axe.  He intended to strike Freedom with the axe but Freedom fled.  Appellant struck the axe towards the complainant.  Complainant tried to run away but appellant got to him and hit him twice on the left arm with the axe.  The medical report which forms part of the exhibits shows that the complainant had a “double fracture of left ulnar bone”.  It also shows that the degree of injuries sustained is very severe.  It further states that disability is likely because if the bones that fractured do not unite properly he may end up with a deformed left arm.

Looking at the medical report this is a serious assault wherein the victim had a double fracture of the bone of the arm.  The weapon used is a dangerous one being an axe.  The doctor classified the injuries as being very severe.  The doctor also stated that there was a possibility of a disability in the form of a deformed arm if the bones did not heal properly.  It is important to note that this form of assault is the one that would previously be classified as assault with intent to cause grievous bodily harm.  It is not that kind of assault that would be classified as common assault.

In the case of S vs Sibanda HB-37-10 the facts of the matter were that both accused and complainant were drinking beer at a bottle store.  When accused confronted complainant and grabbed him, hitting him with a stone on the temple (forehead).  The medical report in that case showed that the injuries were severe and that there was a possibility of permanent injury.  Accused had been convicted and sentenced to 15 months imprisonment of which 7 months imprisonment was suspended for 5 years on the usual conditions.  A further 8 months was suspended on condition accused did community service.  Upon perusal of the record the reviewing judge held the view that the sentence was lenient.  He requested the trial magistrate to explain this and the magistrate responded by saying that he had considered that accused was a 1^st offender, the extent of congestion at Gwanda Prison and that the option of community service would be rehabilitative of the offender.  The learned judge in that case commented thus:-

“It is trite law that, decisions regarding sentences of the inferior courts are discretional and can only be interfered with by superior courts when they are of the view that the said courts have not exercised their discretion judiciously.  EBRAHIM JA in the case of S v Mugwenhe & Another 1991 (2) ZLR 66 (SC) stated that:-

“An examination of assault with intent to cause grievous bodily harm lead me to the conclusion that a term of imprisonment is invariably imposed particularly where the assault causes serious injury and/or disfigurement …”

In the S vs Sibanda case (supra) the learned judge went on to state that the assault on another poses serious danger to both life and limb and that it is for that reason, that, invariably a custodial sentence is imposed in serious cases.  The learned judge in that case stated further, “As a way of a guideline I urge the courts to pay particular attention to doctors’ reports as it is through their findings that a court can make an informed assessment of the severity and consequences of the assault on the complainant.”

The learned judge went further and stated thus:-

“The principle of keeping 1^st offenders from prison is not a be-all-and-all procedure.  It is in fact a guiding principle which should always be applied with caution.  It is not only first offenders who should be kept out of prison as to do so would not do justice to particular cases which demand nothing other than an effective term of imprisonment.”

In the case of S v Dangarembwa HH-123-03, the learned judge in a criminal review judgment also stated that cases of assault with intent to cause grievous bodily harm often attract a term of imprisonment.  In the Mugwenhe case (supra) it was held that in order to exercise its discretion properly, the trial court in sentencing the accused must be guided by such factors as the weapon used, the seriousness of the injury, the nature and degree of violence and the medical evidence.

In the case of S v Mlaudzi HB-139-03 the facts were that appellant assaulted complainant with a log following a dispute over the occupation of a farm.  The complainant sustained injuries and the medical report revealed that the injuries were serious and that there was a likelihood of permanent disability.  Appellant was convicted of assault with intent to cause grievous bodily harm.  He had pleaded guilty.  He was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended on the usual conditions.  He was then appealing against that sentence.  The learned judge in that case referred to the case of S v Ngwenya HB-174-88 where BLACKIE J stated thus at page 3:

“The courts have it clear that where there is mindless and vicious assault, particularly with a dangerous weapon, even first offenders will be given effective gaol sentences.”

In the Mlaudzi case (supra) the learned judge on appeal found no misdirection on the part of the trial magistrate.  The facts before us show that although there was an altercation the accused followed the complainant’s group outside and this time he was armed with an axe.  Why introduce this dangerous weapon?  An axe is a lethal weapon.  Appellant struck complainant twice with it.  The medical report shows a double fracture, that the degree of injuries was very severe and that there is a likelihood of disability if the fractured bones do not unite properly as complainant may end up with a deformed arm.  The aforesaid cases show that in such cases, a term of imprisonment is appropriate.  Community service is not to be given in all sentences below 24 months as a thumb rule, but there are certain cases which even if they fall within the ambit of those sentences where community service would be considered, a lot of other factors would come into play either so as to confirm community service as appropriate or to exclude it as inappropriate.  The state had conceded to the appeal against sentence.  We did not accept the concession for the afore-stated reasons. 

We accordingly dismiss the appeal as we found no misdirection on the part of the trial magistrate.  We held the view that the sentence fitted the circumstances of both the offender and the offence.

We accordingly dismiss the appeal entirely.

                                                Kamocha J …………………………. I agree

Mcijo, Dube & Partners, appellant’s legal practitioners

Prosecutor General’s Office, respondent’s legal practitioners