S v Chinyemba (846 of 2022) [2022] ZWHHC 846 (21 November 2022)

1 HH 846-22 CRB 2772/22 THE STATE versus VITALIS CHINYEMBA HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 21 November 2022 Criminal Review MUSITHU J: This review matter came by way of referral from the Regional Magistrate, who after scrutinizing the proceedings of the trial court was of the view that the sentence meted out on the accused person was too lenient, considering the circumstances surrounding the commission of the offence. The accused person was charged with two counts of “physical abuse as defined in s 3(1)(a) of the, as read with s 4(1) of the Domestic Violence Act [Chapter 5:16]” (hereinafter referred to as the Act). The circumstances in respect of the two counts were as follows: Count 1: “In that on the 7th of May 2022 around 11:30 hours and at 11B 24th Street Joberg Lines Mbare, Harare, Vitalis Chinyemba committed an act of domestic violence upon Chipo Kamukosi with a golf stick by hitting her on the head.” Count 2: “In that on the 7th of May 2022 around 11:30 hours at 11B 24th Street Joberg Lines, Mbare Harare Vitalis Chinyemba unlawfully committed an act of domestic violence on Tracy Kamukosi by hitting her with a golf stick on the head.” The complainants and the accused person stay at the same house. In count 1, the complainant Chipo Kamukosi claimed that she saw the accused person’s brother assaulting her young sister, Nyarai Maritinyu. Nyarai was pregnant. The complainant tried to intervene in order to stop the assault, at which point she was struck on the head with a golf stick by the accused. She sustained injuries which required medical examination. The complainant in count 2, Tracy Kamukosi is grandmother to the complainant in count 1, as well as to Nyarai Maritinyu. She tried to restrain the accused person from assaulting Chipo Kamukosi and Nyarai Maritinyu. The accused person stopped assaulting the two and charged towards the elderly woman. He struck her with the golf stick once on the head and she fell down unconscious. She also sustained injuries that required her to be medically examined. HH 846-22 CRB 2772/22 On his part, the accused person denied any wrong doing claiming that he saw the complainant in count 1 and Nyarai assaulting his brother. He further claimed that a relative of the two women came running wielding a golf stick intending to assault his brother. He took away the golf stick and assaulted the complainants in self defence. The accused person was however convicted after a full trial and sentenced as follows: “Both Counts treated as one for Sentence: 12 months imprisonment of which 5 months imprisonment is suspended for 5 years on condition the accused does not during that period commit an offence involving violence on the person of another and for which upon conviction he is sentenced to imprisonment without the option of a fine. The remainder of 7 months imprisonment is suspended on condition each accused completes 245 hours of community service at Mbare Magistrates Court…..” It is this sentence that the learned Regional Magistrate found to be lenient. He expressed his views as follows: “It is the sentence I believe is too lenient given the circumstances surrounding the commission of the offence. In both counts accused used a golf stick aiming it on the head of complainants inflicting severe injuries on both instances. His aim being to inflict grievously bodily harm. The weapon used and the part of the body aimed show he intended to inflict great harm. The accused was not under attack but he was the aggressor. The second complainant is aged 65 years.” In her reasons for sentence, the Trial Magistrate, while acknowledging that the accused person used a weapon and there was need for a deterrent sentence, nevertheless concluded that a custodial sentence would be too harsh, having weighed the mitigatory circumstances against the gravity of the offence. The court further determined that the injuries sustained by the complainants were moderate and not permanent. I note at the very outset that it is not clear from the circumstances of the case why a charge of physical abuse was preferred, instead of assault as defined in s 89(1)(a) of the Criminal Law (Codification and Reform) Act1. The preamble to the Act states that it is “an Act to make provision for the protection and relief of victims of domestic violence and to provide for matters connected with or incidental to the foregoing.” The significance of the physical abuse charge was considered by HUNGWE J (as he was then), in S v Madyambudzi2, where the court stated as follows: 1 [Chapter 9:23] 2 HH 333/17 HH 846-22 CRB 2772/22 “The second point to make is that unless there is an allegation of a pattern of violence in its various forms against the victim, a single incident ideally, should only be charged as an ordinary assault. The rationale behind the Act is to give the courts a wider latitude to impose stiffer penalties because of repeated incidence of the abuse. It could not have been the intention of the legislature to substitute the offence of common assault with the more serious one of domestic violence. Unless this is borne in mind, the danger is that the police (or victim for that matter) would prefer this offence where in fact only an assault would have met the justice of the case for various reasons least of which is sheer lack of knowledge. See S v Shonhiwa 2015 (2) ZLR 436 and the observations which I make therein.” The trial court, being the court of first instance in the prosecution must always be cautious about the dangers of convicting and sentencing an accused person on the basis of the wrong charge. While the facts state that the accused person and the victims stayed at the same premises, it is however not clear if there is a history of domestic violence involving the same parties herein. It is equally incumbent upon the State to establish these key factors at the vetting stage in order to determine whether the police preferred the proper charge. Coming back to the issue of sentence, it is common cause that the accused person struck both complainants on the head with a golf stick. The two were defenceless. The second complainant was a grandmother to the first complainant and her sister Nyarai. She was aged 65 years at the time of the assault. The accused person was only 23 years at the time of the assault. That made him young and energetic as compared to the two defenceless woman. He had no use for a golf stick, which by its nature is a lethal weapon. The blows were deliberately aimed on the head, which is a very delicate part of the human anatomy. A single blow to the head by such a weapon could result in instant death. In the court’s view, it is quite clear that the applicant intended to inflict grievous bodily harm. If his intention was simply to break up an assault which was being carried out on his brother, then he had no reason to use the golf stick against two defenceless and unarmed women. Unfortunately the medical reports are not clearly legible for one to make out the nature of the injuries observed by the examining medical practitioner. However, on the approximate number of blows, the report shows that only one blow was applied in respect of each complainant. The injuries sustained were said to be moderate, and the possibility of permanent injuries were said to be unlikely in both instances. HH 846-22 CRB 2772/22 In S v Modekayi Ncube3, TAKUVA J held that cases of assault will invariably lead to a term of imprisonment being imposed, if the assault causes serious injury or disfigurement. That matter involved three blows to the head inflicted by a log. The accused person was convicted on his own plea of guilty and was sentenced to 18 months imprisonment of which six months imprisonment was suspended for five years on the usual conditions. The effective sentence was 12 months imprisonment. On review the court, declined to certify the sentence as being in accordance with real and substantial justice. The accused had already served one month of the effective 12 months and the court substituted a sentence of three months imprisonment of which two months imprisonment was suspended for five years on the usual conditions. In evaluating the appropriate sentence, the court considered that the degree of force used in the assault per the medical report was “moderate”. The weapon used was described as “a sharp object”. Although injuries were described as “serious” there was no potential danger to life. The injury to the head was categorized as “mild”. In view of the foregoing observations, the court sees no reason to interfere with the decision of the court a quo. CHITAPI J: Agrees……………………………..…………… 3 HB 86/16