Renius Mutambara v The State

### Preamble
1
HH 471-13
CA 892/13
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RENIUS MUTAMBARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU, MUREMBA JJ

HARARE, 21 November 2013 & 4 December 2013

Criminal Appeal

S. Chikotora, for the appellant

E. Mavuto, for the respondent

MUREMBA J: The appellant was charged with assault as defined in s 89 (1) (a) of the Criminal Law (Codification and Reform) Act [Cap9:23].

The facts of the case are that on 8 May 2013 at 9.30 hours the complainant met the appellant who was in the company of two accomplices. The trio accused the appellant of having absconded the Chief’s Court. Before the complainant could explain that he had not absconded but was on his way there, the trio handcuffed him and started assaulting him with clenched fists and booted feet all over his body. They then took him to the Chief’s Court where they tied him to a tree outside the court room for 4 hours. He was still in handcuffs. Upon untying him he fell badly from the tree to the ground. The complainant sustained injuries on the neck and upper limbs and general body pain. The medical report shows that the injuries were very serious and severe force was used to inflict them. There was no potential danger to life though.

Theappellant was convicted on his own plea of guilty when he appeared before a Senior Magistrate sitting at Mutare Magistrates’ Court. The conviction is proper and it is hereby confirmed.

The appellant was sentenced to 24 months imprisonment of which 9 months imprisonment was suspended on condition of good behaviour. He was left with an effective 15 months imprisonment. He appeals against the sentence. He was granted bail pending appeal 10 days after he had been sentenced.

The appellant’s grounds of appeal are that the trial magistrate failed to give due weight to various mitigatory factors and this resulted in him imposing an unduly harsh sentence which induces a sense of shock. It was submitted that the trial magistrate ought to have given weight to the following factors.  The appellant is aged 23 years. He pleaded guilty and he is a first offender. The complainant did not suffer permanent injuries due to the assault. There was no use of a dangerous weapon. The complainant had not attended the chief’s court and the appellant was acting on the chief’s instructions to arrest him and bring him to the chief. It was argued that had the trial magistrate considered all these factors he would have imposed a non-custodial sentence. It was submitted that as a first offender, the appellant ought to have been spared an effective custodial sentence considering that the relevant penalty provision provides for a fine. The appellant’s counsel argued that this case is not a bad case of assault which can be categorised as a serious assault deserving an effective custodial sentence.

The appellant’s counsel argued that two of the appellant’s accomplices who were tried after the appellant for the same offence were sentenced by a different magistrate to $300 in default of payment 3months imprisonment. They had another 3 months which was wholly suspended on condition of future good behaviour.

The respondent does not oppose the appeal. The respondent’s counsel agrees with the appellant’s counsel’s submissions. He also submitted that had the trial magistrate given due weight to the mitigating factors enumerated by the appellant’s counsel he would have sentenced the appellant to community service and spared the appellant an effective custodial sentence. He further submitted that having imposed a prison sentence of less than 24 months the trial magistrate ought to have considered community service.

In sentencing the appellant the trial magistrate stated among other things that,

“.......Only a jail term will meet the justice of the case so as to deter you as an individual and also to provide general deterrence.’’

The trial magistrate did not mention why he did not think that community service wasappropriate considering that the sentence he imposed is below 24 months imprisonment. This was a misdirection. With the advent of community service imprisonment should be a measure of last resort. We need not emphasise that imprisonment is a severe and rigorous form of punishment. Judicial officers need to realise that the problem of crime cannot be solved by incarceration alone. Community service provides an alternative to imprisonment and is particularly beneficial to youthful and first offenders. See S v Antonio & others 1998 (2) ZLR 64 (H) and S v Cleto Chireyi & 2 others HH 63/11

It would appear that the trial magistrate later realised that he had punished the appellant excessively. In granting him bail pending appeal he remarked that, “----- I am of the view that the High Court may find in favour of the accused and rule that the accused was excessively punished.......... Considering the lengthy delays ordinarily experienced before  an appeal is heard, if he is denied bail, he may have completed serving by the time the appeal is heard, only for the High Court to set aside the sentence and substitute with a non-custodial one.’’

The remarks by the magistrate show that at the time of sentencing the appellant, he did not consider the option of a non-custodial sentence. As correctly submitted by both counsels this is not a serious case of assault which deserves effective imprisonment. Unfortunately it dawned on the trial magistrate when he had already passed sentence.

The other error that the trial magistrate made was not to ascertain in what capacity the appellant and his accomplices were acting. The record is silent on that aspect. It is only in the notice of appeal that it is mentioned that the appellant was acting on instructions from the chief to bring the complainant to his court.

In view of the misdirection by the trial magistrate this court is now at large to impose a sentence it deems appropriate. The appellant’s counsel prayed for a wholly suspended prison term or alternatively community service. He never prayed for a fine which probably means that the appellant is not capable of raising it. However,theappellant’s counsel could not justify his prayer for a wholly suspended prison sentence and as such we are not persuaded to impose it. Instead, we will impose a custodial sentence which we will suspend on condition of good behaviour and performance of community service. In determining the appropriate term of imprisonment we will take into account that his accomplices were sentenced to a total of 6 months of which 3 months were suspended on condition of payment of a fine of $300. Another 3 months were suspended on condition of future good behaviour. We do not see why we should treat the appellant differently although he is not capable of paying a fine.

The sentence by the trial magistrate is set aside and substituted with the following:-

‘’6 months imprisonment of which 3 months imprisonment is suspended for 5 years on condition that appellant does not within that period commit an offence involving violence on the person of another and for which upon conviction he is sentenced to imprisonment without option of a fine.

A further 3 months imprisonment is suspended on condition the appellant performs 105 hours of community service at Marange High School with effect from 14 January 2014.

The community service shall be performed every Monday to Friday excluding public holidays and weekends between 8am to 1pm and from 2pm to 4pm. It shall be performed to the satisfaction of the person in charge of the said institution who may for good cause shown grant the appellant leave of absence during certain hours or certain days but such leave of absence shall not count as part of the community service to be performed.

TAGU J Agrees __________________________________

Chibaya& Associates, appellant’s legal practitioners

Attorney- General’s office, respondent’s legal practitioners