THE State V Plaxedes Sinoa

### Preamble
1
HB 79/21
HCAR 461/21
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THE STATE

Versus

PLAXEDES SINOA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 27 MAY 2021

Criminal Review

MAKONESE J:	The offences of malicious damage to property and assault are two distinct offences whose essential elements are separate and dissimilar.  The penal provisions for the two offences are not the same.  The offences are not similar in nature.  Trial magistrates must treat these distinct offences separately with regards sentence.  It is clearly incorrect to treat the charges of malicious damage to property and assault as one for the purposes of sentence, even in circumstances where the offences are closely linked in terms of time.  A globular sentence is inappropriate for these offences.

On 30th November 2020 the accused appeared before a magistrate at Tsholotsho facing one count of malicious damage to property in contravention of s140 of the Criminal Law Codification and Reform Act (Chapter 9:23).  On the second count the accused was charged with assault as defined in s89 of the Criminal Code.  The accused pleaded guilty to both counts and was duly convicted and sentenced to pay a fine of Z$2 000, in default of payment 6 months imprisonment.  9 months imprisonment was wholly suspended on the usual condition of future good conduct.

The brief facts are that the 29 year old accused was at stand 19 Fountain Village, Nyamandlovu where complainant was attending a party together with his colleagues.  Accused asked for transport to go back to her place of residence at nearby Ngoma Township. Thulani Ndlovu refused to give her transport.  This infuriated the accused who exchanged harsh words with the complainant.  Accused grabbed a brick and smashed the rear windscreen of a Honda Fit motor vehicle, belonging to the complainant.  The value of the  windshield was $8 200.  When complainant heard the sound of the breaking windscreen he rushed to his motor vehicle and found the accused holding an empty beer bottle. Accused struck the complainant once on the chin and chest with the beer bottle.  The complainant sustained a laceration on the chin and a deep laceration on the thorax region and chest.  The medical report reflects that the injuries suffered by the complainant were serious.

On these facts, the learned trial magistrate in the court a quo convicted the accused on both counts and treated both counts as one for the purpose of sentence.

The scrutinising Regional Magistrate queried the sentence, pointing out that malicious damage to property and assault were two distinct offences and that the sentences could not be treated as one for the purposes of sentence.  The trial magistrate defended his approach to sentence and cited the decision of CHINHENGO J in the case of S v Chayiswa 2004 (1) ZLR 80 (H) at page 83, where the learned judge stated as follows:

“In deciding to pass a globular sentence therefore a judicial officer must be guided by the following factors which are not exhaustively stated:-

the offences are the same or of a similar nature;

the offences are closely linked in time; or

the offences arise out of the same transaction …”

The offences of which the accused was convicted in the present case do not meet the criteria required for the two counts to be treated as one for the purpose of sentence.  The first offence relates to malicious damage to property. The essential elements of this particular offence are separate and distinct from the essential elements on the second count of assault.  Although the offences were committed at the same time and are closely linked respect of  time, the two offences are not similar in nature.

The trial magistrate reasoned as follows to the query:-

“In the case at hand the trial court held a considered view, after reading, the state facts that accused committed two crimes both of which has  got a violent element.  It was only that there was a distinction of violence against the body of a person and also against property.  This is what made the court to hold the view that the offences were of a similar nature.  Both counts were also closely linked in that as they were both committed on the same date, same place and time consecutively one after the other”.

The approach taken by the learned trial magistrate is patently incorrect.  Malicious damage to property is a distinct offence whose penal provision is not the same as a charge of assault.  In the event that the matter is taken on appeal, and one of the counts is set aside, the obvious anomaly is that one cannot separate these sentences.  The two offences are dissimilar.  In S v Damba HH-69-04 MAKARAU J (as she then was) held as follows:

“The approach that a sentencing court should take in a case where the accused stands convicted of multiple counts has been dealt with extensively by this court.  The position was spelt out in S v Chawasarira 1991 (1) ZLR 67 (HC) at p69 by SMITH J in the following words:

“ separate punishments should serve in exceptional cases, be imposed for each separate charge.  One globular sentence for two or more offences should only be considered where the offences are of the same or similar nature and are closely linked in point of time.  If these two requirements are not satisfied then a separate sentence must be imposed in respect of each offence”.

A single sentence for desperate offences is undesirable and improper as it does not give the relevant importance to each transgression and may bring the administration of justice into disrepute.  A further practical problem in taking the two separate accounts as one for sentence is in suspending a portion of the sentence on account of good behavior.  It would be difficult to frame the condition upon which to suspend a portion of the sentence where the accused stands convicted of two different offences.

I note that malicious damage to property is a fairly serious offence, and in certain circumstances imprisonment is appropriate.  The essential elements for the offence are substantially different from the charge of assault.  The fact that violence is an element in both counts does not in my view, lead to a conclusion that the offences are of a similar nature. An assault on the person and damage to property are totally different and distinct offences.

See also, S v Sawyer 1999 (2) ZLR 390 (H) and S v Mudzingwa 1999 (2) ZLR 225 (HC).

By treating the two counts as one for the purposes of sentence the learned trial magistrate blurred the relative degrees of gravity of each offence.  The approach adopted by the court a quo is improper.  I do not consider it prudent though, to re-sentence the accused person.  The overall sentence is not so outrageous as to warrant interference by this court.

In the circumstances, I decline to certify the sentence as being in accordance with real and substantial justice.