State v Gibson Vhoko

### Preamble
1
HMA 40/18
CRB CH 97/18
---------


STATE

versus

GIBSON VHOKO

HIGH COURT OF ZIMBABWE

MAFUSIRE J

Masvingo: 6 August 2018

Criminal review

MAFUSIRE J

[1]	The sentence of the court a quo was manifestly excessive. It warrants intervention. The facts were these. The accused pleaded not guilty to a single count of domestic violence as defined by s 3(a), as read with s 4(1)(a), of the Domestic Violence Act, Cap 5:16. After a full trial he was convicted and sentenced to eighteen (18) months imprisonment. Six (6) months imprisonment was suspended for five years on the usual condition of good behaviour. The effective sentence was twelve (12) months imprisonment.

[2]	The crime of domestic violence takes several forms. The one with which the accused was charged is physical abuse. The penalty is a fine not exceeding level fourteen ($5000) or imprisonment for a period not exceeding ten (10) years, or both such fine and such imprisonment. That is a very wide discretion reposed in the courts by the Legislature.

[3]	The accused assaulted his wife, the complainant. At the time of the offence the couple was on separation. The complainant was eight (8) months pregnant, not by the accused, but by another man. He had been working in South Africa. When he came back home he found the complainant pregnant. That was in September 2017.

[4]	The State said when the accused found the complainant pregnant by another man there was a “misunderstanding”.  However, the assault did not happen then. It happened about six months later, in January 2018. After the “misunderstanding” the complainant had gone back to her maiden home.

[5]	Although the accused pleaded not guilty, the assault was common cause. It was just the reason for the assault and the degree thereof, as alleged by the State, that he disagreed with. According to the State, the reason for the assault was that despite her advanced state of pregnancy (8 months) the accused had asked her for sex. The complainant had turned him down. He had beaten her up. He had gone to the complainant’s maiden homestead for reconciliation talks. The assault happened about ten metres away from the homestead when the complainant had been seeing him out.

[6]	According to the accused, the reason for the assault was provocation. He said he had gone to the complainant to get back the R500 that he said he had sent her for the children’s stationery but which she had converted to her own use. He said when he had asked her for the money she had started shouting at him. He had lost his temper.

[7]	According to the State, the accused used booted feet to kick the complainant once in the stomach and twice on the legs. He further used clenched fists and hit her indiscriminately on the face until she fell down. He ran away when the complainant’s aunt came to her rescue.

[8]	But according to the accused, he merely slapped her twice on the face with open hands after which she fell down. He said she might have got hurt in the process. He also said he might have stepped on her stomach as he leapt over her to run away.

[9]	The court a quo rejected the accused’s version and believed that of the complainant. Undoubtedly it was correct. Among other things, that he might have stepped on the complainant’s stomach as she lay on the ground when he ran away was improbable. He was just trying to play down his wrongful conduct.

[10]	The medical report estimated the degree of force as moderate. Among the injuries noted were swollen cheeks and a swollen red eye. The conclusion was that the injuries were serious and that there was some potential threat to life in that the complainant was eight months pregnant.

[11]	The accused was properly convicted. The conviction is hereby confirmed.

[12]	In its reasons for sentence the trial court said it stood guided by the following remarks which were quoted by CHIGUMBA J in S v Gudyanga HH 167-15:

“Cases of domestic violence are on the increase and in some instances, death has resulted. Unless sufficiently deterrent sentences are imposed by the courts as provided by the Domestic Violence Act…the whole purpose of this piece of legislation will never be realized. Men will continue to brutalise their wives and, equally so, some men will continue to be subjected to physical abuse by their spouses in the knowledge that they will go to court and pay a small fine. Whilst each case should be decided on its own merits, in serious cases custodial sentences are appropriate”. See State v Muchekayawa”

[13]	Plainly the trial court took the above passage out of context. It is the headnote to the case of S v Muchekayawa 2012 (1) ZLR 272 by MAKONESE J. In that case the accused had felled his wife in an assault with a log. He further hit her with a stone above the eye as she lay on the ground, causing her a deep cut. The trial court had imposed a paltry $150 fine plus three (3) months imprisonment wholly suspended for three (3) years. The review court said the sentence was disturbingly lenient. It withheld its certificate.

[14]	Even in the Gudyanga case above that the court a quo relied on, the sentence for physical abuse that was confirmed on review was just four [4] months. In fact, two of those months were from a previous conviction which had been brought into effect. Thus, the current sentence had only been two (2) months. The accused had assaulted the complainant, his wife, with open hands for denying him conjugal rights. She had sustained a swollen mouth.

[15]	In S v Tuhwe HH 166-15 the review judge said a sentence in the region of six (6) months with half suspended would have been appropriate for physical abuse.

[16]	In the present case eighteen months imprisonment was way over the top. This was a crime of passion. The accused came back from South Africa to find the complainant pregnant by another man. The court a quo opined that the complainant had done what was morally right by going back to her parents’ home. It also noted that the assault did not happen the time the accused discovered the pregnancy. That might be so. But none of this changes what happened from being a crime of passion. What the complainant did tore at the heart of the marriage relationship. That is not to say a crime of passion is excusable. It is not. It is punishable like any other crime. But in all cases the penalty must fit the crime. All the circumstances surrounding the commission of the crime must be taken into account.

[17]	The accused had forgiven the complainant. The couple had four minor children, the eldest being 14 years old and the youngest 1 ½ years old. The accused appealed for leniency to help look after the children.  He strove to save his marriage. He had gone to the complainant’s maiden homestead to talk reconciliation. His in-laws were sympathetic. They urged the complainant to go back to the matrimonial home. But of course, the complainant had the last word on that. She said no. It was her conjugal right to say no. But that would hardly placate the accused’s emotions. Whilst he would not be excused for assaulting her, nonetheless the sentence should not be one to break him up. Eighteen months imprisonment was meant to break him up, even if six of those might have been suspended on condition of good behaviour.

[18]	The doctor’s conclusion on the medical report that the injuries were serious needed interrogation. It was this that apparently weighed heavily with the court on sentencing. Yet the report made no mention of any injury to the abdomen. So it needed to be clarified in what respect the injuries could be said to be serious.

[19]	Furthermore, there is no indication that the court a quo ever did consider community service as an alternative to imprisonment.  Eighteen months imprisonment fell within the range of sentences for which community service may be considered. This was a misdirection that justifies interference.

[20]	An appropriate sentence in the circumstances of this case should have been six (6) months imprisonment with two (2) months suspended on condition of good behaviour. In the circumstances, the sentence of the court a quo is hereby set aside and substituted with the following:

“Six (6) months imprisonment with two (2) months imprisonment suspended for five (5) years on condition that during this 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 effective sentence is four (4) months.”

[21]	The accused was sentenced on 22 February 2018. Therefore he is entitled to his immediate release

7 August 2018

Hon Musakwa J: I agree	____________________