THE State V Peter Huche

### Preamble
1
HH 622-18
CRB CHTP 1630/18
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THE STATE

versus

PETER HUCHE

HIGH COURT OF ZIMBABWE

TSANGA & CHITAPI JJ

HARARE,  3  October,  2018

Review Judgment

CHITAPI J:  The accused was charged with the offence of physical abuse as defined in section 4 (1) as read with section 3 (1) (a) of the Domestic Violence  Act, (Chapter 5:16).  The accused pleaded guilty to the charge that on 13 April, he unlawfully assaulted the complainant who was his wife with fists, hit her head against the wall and bit her on the ear.  The agreed facts were that the accused and the complainant quarrelled and had a misunderstanding.  The cause of the altercation was that the complainant accused the accused  person of having a girlfriend. The accused did not take lightly to the accusation and turned violent against the complainant, hence the charge as already outlined.  The agreed facts clearly state that the complainant was not medically examined.  The accused was sentenced to 30 months imprisonment with 6 months of that sentence suspended for 5 years on condition of future good behaviour.  The accused is therefore serving an effective 24 months or 2 years imprisonment.

The conviction presents no issues and is confirmed.  The same cannot be said of the sentence which in all the circumstances of the case is so disturbingly and shockingly excessive given the facts of the matter.  The magistrate was also misdirected in the assessment of sentence in that she perfunctorily assessed the sentence without considering all the relevant facts which ought to have been taken into account in exercising the magistrate’s discretion as to sentence.

The reasons for sentence show that the magistrate took into account that the accused pleaded guilty and was a first offender.  She also indicated that the accused’s family would suffer if he was imprisoned.  In the same breath the magistrate took into account that the accused was not employed.  One can only surmise that the suffering which the accused’s family would suffer was the loss of consortium caused by his incarceration.  I surmise so because the magistrate did not ascertain whether despite the fact of the accused being unemployed he was nonetheless the bread winner for the family.  The magistrate considered that the offence committed by the accused was prevalent such that the court had a duty to deter offenders from committing offences of a “similar nature”

The issue of prevalence calls for comment.  Prevalence connotes that the offence is widespread or has become all too common.  The magistrate, because she presides over various types of cases is entitled to take judicial notice of the prevalence of certain types of cases.  Prevalence is a legitimate factor to take into account in assessing sentence because the purpose of punishment is inter alia to deter the offender and society at large.

There is a school of thought that holds that prevalence as an aggravating factor amounts to punishing an accused person for the wrongs of others.  From a jurisprudential consideration, there is substance in the argument because what the court considering prevalence will be saying in essence is that, because of the many cases being committed of which the accused is not part, the accused should be punished harshly. In punishing the accused person harshly, the court will be seeking to use the accused to protect society through general deterrence. Considerations of prevalence and the weight to be given to it remain in all fairness a moot point. Debate on the issue must be encouraged.

Apart from the prevalence which I have commented upon, the magistrate considered that the accused’s moral blameworthiness was very high. She also considered that the complainant sustained serious injuries and that there was a possibility of permanent injury. She commented that it was aggravatory that the accused took (sic) the complainant’s ear and they (sic) is no ear to talk about….” She then stated “The court saw to it that imprisonment will do justice to the case”. I am not persuaded that the magistrate placed herself in a position to properly exercise her discretion on sentence because of the paucity of information that informed her decision. It was stated in S v Sierbert 1998 (1) SACR 554 (SCA) at 558 (1) -559 (a) follows:

“Sentencing is a judicial function sui generis. It should not be governed by 	considerations based on notions akin to onus of proof. In this field of law, public interest 	requires the court to play a more active inquisitorial role. The accused should not be 	sentenced until all the facts and circumstances necessary for the responsible exercise of such 	discretion have been placed before the court.”

In casu, the magistrate did not enquire as to the details of the misunderstanding and who was the aggressor. It was necessary to determine the proximate cause of the assault. What words were exchanged? Was there some provocation which preceded the assault? These and other questions were relevant to be enquired into. The other issue concerns the magistrate’s finding that the complainant sustained serious injuries and that there was a possibility of “permanent injury”. It is not apparent from the record as to what evidence the magistrate relied upon to make such a conclusion. The admitted facts were that the accused was not medically examined. The record at the end of the plea recording is endorsed;

“PP- State would like to produce medical affidavit as an exhibit.” This is followed by the recording “Verdict- Guilty as pleaded.” No medical report forms part of the record.

I can safely review this case on the basis that no medical report was produced because not only is it not part of the record but there is nowhere on record to indicate that the court admitted it in evidence nor used it in assessing sentence. There is no reference to it by the magistrate in the record. In the absence of the medical report, it is not clear as why the magistrate concluded that the complainant suffered serious injuries with a possibility of permanent disability or injury. The nature of the possible permanent injury was not spelt out. In this regard, I would remind judicial officers that whilst it is their function to come to a conclusion on any issue which arises for consideration and determination during the trial of the accused, an informed conclusion should only be reached upon a consideration of the available evidence. Where expert evidence is called for, it must be made available before the judicial officer reaches a conclusion on a matter of expertise like the medical field. In casu, the court was not well equipped to make a finding that the complainant sustained serious injuries with a possibility of permanent injury without opinion evidence of a medical expert. The medical evidence was necessary and required to supplement the magistrate’s assertions. I am unable therefore to hold that the magistrate was properly directed to sentence the accused by taking into account unproven facts.

I was also not clear as to what the magistrate meant by stating that “Accused took of (sic) the complainant’s ear.  They (sic) is no ear to talk about its aggravatory”. Presumably the complainant’s ear was bitten of in whole or in part. This however remains conjecture and I cannot hold it as fact. The magistrate had he been properly advised should have described the complainant ear as observed by her and sought an explanation on what happened to the ear. If the explanation was that the missing ear resulted from the assault, the issue should have been put to the accused to admit or deny liability for the injury. As this was not done, the magistrate committed a misdirection by taking into account as aggravatory facts which were not common cause.

Having found that the magistrate was misdirected in assessing sentence, the sentence cannot be said to accord with real and substantial sentence. A substantial miscarriage of justice occured. The sentence should accordingly be set aside. It is competent for the court to impose a reduced sentence and such course commends itself as the most appropriate one in this case because the material facts are available to me to assess sentence. The mitigatory and aggravatory factors have been touched upon. The domestic violence followed from a misunderstanding between the accused and the complainant. In the ordinary course of things, quarrels between couples arising from accusations of infidelity on the part of one of the parties are common place. This notwithstanding, courts and society do not countenance violence in dispute resolution. The use of violence has the potential to cause serious injury or death. Physical violence violates the constitutional right of every person, married couples included to personal security. It also amounts to cruel, inhuman and degrading treatment. Courts should pass sentences which show society’s abhorrence for violence in all its forms.

When sentencing an offender charged for a statutory offence which provides for the competent sentence to be imposed, the courts must give effect to the legislative intent. The penalty section for the offence in issue in this review provides for a fine of up to level fourteen or imprisonment not exceeding 10 years or both. The fact that the offence is punishable by up to the maximum level of fine permissible and a lengthy prison term underlines the seriousness with which the offence must be viewed. In S v Allen Gudyanga HH 167/15, Chigumba J laid down factors which inter-alia should be taken into account in sentencing offenders convicted of domestic violence under the Domestic Violence Act. The case provides a useful guide for judicial officers and magistrates dealing with cases of domestic violence are advised to keep that case to hand for reference and direction. The magistrate in this review did not consider and discount other sentence alternatives before imposing effective imprisonment which as I have stated was not informed upon an investigation of the circumstances surrounding the commission of the offence.

On the facts of the case, the following order will be made.

The conviction of the accused is confirmed.

The sentence is set aside and substituted with the following sentence:

“12 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition that the accused is not within that period convicted of any offence of domestic violence as defined in the Domestic Violence Act, [Chapter 5:16] and is consequent upon such conviction sentenced to serve a term of imprisonment without the option of a fine.

TSANGA J agrees………………..