Patience Molife v The State

### Preamble
1
HH 96-21
CA 406/18
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PATIENCE MOLIFE

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHATUKUTA & KWENDA JJ

HARARE, 23 September 2019 & 10 March 2021

Criminal Appeal

M. K Misihairambwi, for the appellant

F. I. Nyahunzvi, for the State

CHATUKUTA J: The appellant was convicted, on his own guilty plea of contravening s 89 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 24 months imprisonment of which 3 years were suspended on condition of future good behaviour. Aggrieved by the conviction and sentence he appealed against both.

The appellant raised four grounds of appeal against conviction. The first ground was that the court a quo did not assist the appellant who was unrepresented when it was apparent from the state outline that he found the complainant sleeping with his wife. The second ground was that the court erred in relying on a medical report where the appellant was not given the requisite notice of three days before the production of the medical report. The third ground was that the injuries allegedly sustained by the complainant were not as reflected in the medical report. The fourth ground was that the court a quo erred in not making a finding that the fact that the complainant was having an adulterous relationship with accused’s wife amounted to provocation and was therefore a complete defence to the charge of assault.

A summary of the grounds of appeal against sentence is that the court erred by imposing sentence which is not similar to other decided cases. It did not give due regard to mitigating factors, particularly that the appellant was a first offender who had acted in provocation upon finding the complainant committing adultery in his own house.  The court did not take into account the limited plea that no weapon was used to assault the complainant. All this resulted in the court imposing an unduly harsh sentence.

The following facts were common cause. The appellant had an altercation with his wife on 9 June 2018. He decided not to sleep at home. He however later returned only to find the complainant sleeping at his house. Complainant explained that he was a brother to accused’s wife. The appellant was not convinced with the explanation. He severely assaulted the complainant. The complainant received medical attention. According to the medical report, the complainant had soft tissue injury on his left shoulder, lacerations on the face, in the mouth and on the knees, traumatic extraction of the right thumb nail and bleeding teeth marks on the cheek. The doctor concluded that the degree of force used to inflict the injuries was severe. The injuries sustained by the complainant were equally severe. The complainant was likely to suffer permanent disability in that he was likely to suffer from epilepsy and chronic headaches.

During oral submissions the appellant’s counsel only persisted with the ground against conviction that the appellant was acting under provocation having found the complainant in his house with his wife. This amounted to complete defence. However, counsel for the appellant later conceded that provocation is only relevant to sentence. In terms of section 238 of the Code, provocation is not a defence to assault but may be considered by the court in assessing sentence.

In light of the concession by the appellant’s counsel, the appeal against sentence therefore lacks merit.

Turning to sentence, the appellant’s counsel also only persisted with the argument that the court a quo did not consider provocation in arriving at the appropriate sentence. It is glaring from the State Outline that the complainant was found in the appellant’s house and sleeping with the appellant’s wife. The indignation expressed by the appellant is clear that he did not know the complainant who was claiming to be his wife’s brother. There was no explanation by the State why a brother was sleeping with his sister. The court a quo did not refer at all to the fact that the complainant was not known to the appellant and that he was found sleeping with the appellant’s wife. This was central to the charge preferred against the appellant and the cause for the assault. The appellant was motivated by anger and provocation of finding the complainant, a stranger to him, sleeping with his wife. This was clearly a crime of passion. The court, in our view, therefore grossly erred in not considering these circumstances surrounding the commission of the offence which amounted to provocation and were highly mitigatory.

In arriving at its sentence, the court a quo adopted the proper approach of weighing the mitigatory factors against the aggravating factors. It considered that the appellant was a first offender who should spared from a lengthy custodial sentence. He pleaded guilty showing remorse and thus did not waste the court’s time. He was a family man. Only one factor stood out in aggravation, being the seriousness of the injuries sustained by the complainant.

Fault of the court a quo lies in the balancing act, whether the aggravating factors outweighed the mitigating factors and the omission of considering provocation. Assault is a very serious offence particularly where the complainant is likely to result in permanent injury. Whilst he would not be excused for assaulting the complainant and to the extent reflected in the medical affidavit, the mitigating factors in our view which include provocation outweigh the aggravating factor. A sentence of 24 months imprisonment is excessive and induces a sense of shock.

It is accordingly ordered that:

The appeal against conviction be and is hereby dismissed.

The appeal against sentence be and is hereby upheld.

The sentence of the court a quo is hereby set aside and substituted with the following:

“Twelve (12) months imprisonment of which six (6) months imprisonment are suspended for five (5) years on condition that during that period the accused is not convicted of an offence involving violence for which he is sentenced to a period of imprisonment without the option of a fine. The remaining six (6) months is suspended on condition the accused performs 420 hours of community service. ”

The matter is remitted to the court a quo for an inquiry into the modalities of performance of the community service.

Kwenda J concurs ……………………………………

Lawman Chimuriwo Attorneys at Law, the appellant’s legal practitioners

National Prosecuting Authority, the respondent’s legal practitioners