CRB REG 491-11
FRANCISCO JOSE KINNAIRD
MPUMELELO BUTHOLEZWE SIBANDA
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 30 APRIL 2015
MUTEMA J: The two accused persons were correctly convicted of attempted murder in contravention of section 47 (1) as read with section 189 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] following a contested trial in the regional court of the Western Division at Bulawayo.
The two accused persons aged 37 years and 27 years respectively brutally assaulted the complainant one Clint Harness following a misunderstanding whose nature all concerned could not clearly ventilate save to aver that insults were uttered. Despite the brutality of the assault and the severity of the resultant injuries inflicted upon the complainant, issues which I shall advert to in due course, the learned trial regional magistrate sentenced the two accused persons as follows:
5 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition the accused person does not during this period commit any offence involving assault or assault with intent to kill for which if convicted accused person is sentenced to a term of imprisonment without the option of a fine. The remaining 2 years imprisonment is suspended on condition the accused person completes 840 hours of community service at Ingutsheni Hospital.
3 years imprisonment of which 1 ½ years imprisonment is suspended for 5 years on condition the accused person does not during this period commit any offence involving assault or assault with intent to kill for which if convicted accused person is sentenced to a term of imprisonment without the option of a fine. The remaining 1 ½ years imprisonment is suspended on condition the accused person completes 600 hours of community service at ZRP Donnington Police Bulawayo.”
When the record of proceedings landed on my desk on automatic review, on account of the fact that accused 2, unlike accused 1, was not legally represented, I considered the sentence, particularly the aspect of community service disturbingly inappropriate. Despite the learned trial regional magistrate’s attempt to justify her sentence, this case clearly cried out for an effective custodial sentence after weighing the mitigatory factors against the aggravatory ones.
Punishment is the authoritative imposition of a sanction upon an individual, in response to a particular errant behaviour that is deemed criminal and has been defined and promulgated as such. Justification for punishment in the realm of the criminal law resides in theories of punishment which include retribution, deterrence, rehabilitation and prevention or incapacitation. It is often said that punishment must fit the triad of the offender, the offence and the interests of justice which latter notion is represented by societal interests/expectations/the legal values or convictions of society. Punishments differ in their degree of severity depending primarily on the gravity of the crime.
While current trends in sentencing place emphasis on the rehabilitative theory of punishment this can be categorised as the general rule and sight must not be lost of the fact that to every general rule there are exceptions. There exists a school of thought whose argument is that in so far as the different theories of punishment are answers to questions about the meaning of punishment, only the retributive theory is a possible one for there is no conceptual connection between punishment and notions like those of deterrence, prevention and reform, for the latter theories look to the future in deciding what to do with the present, their shared goal being crime prevention.
Whilst there is nothing wrong with crime prevention it sometimes so necessarily happens that the nature of a given crime, the modus operandi of its perpetration, the motive as well as the resultant harmful effect (s) the crime causes to both the victim and the society, no other theory of punishment except retribution will meet the justice of the case.
Now applying the above observations to the case at hand, attempted murder is a grave crime. It poses a serious threat to the sanctity of human life. No wonder the legislature deemed it fit to provide in section 47 (3) of the Criminal Law (Codification and Reform) Act to provide for a punishment of death or imprisonment for life or any shorter period.
Both accused persons were not married at the time of sentence. They were first offenders and were voluntarily moderately drunk when they committed the offence. While the crime was committed in July, 2009, the trial only commenced in March 2012 and was concluded in February, 2015. The learned trial regional magistrate stated that the delay in finalising the matter was occasioned by her transfer from Bulawayo to Masvingo as well as the fact of accused 2 being medically examined and referred for psychiatric examination. She went on to consider in accused 2’s favour that his pre-trial incarceration was about five years while accused 1 was out of custody, hence the disparity in the sentences. The record does not ventilate when she was transferred to Masvingo. However, it was a misdirection on her part to give credit of pre-trial incarceration to accused 2 for that was self-inflicted by his feigning mental illness – the psychiatrist’s report (exhibit 2) clearly shows that this accused was feigning mental illness. The delay and pre-trial incarceration were therefore self-inflicted and no credit should have been accorded him in the premises.
Although the accused persons used booted feet and fists in attacking the complainant, the attack was brutal and seemingly a motiveless one. Once the complainant collapsed in the trench and lay unconscious the accused continued to pulverise him. They went on to cover the prostrate complainant with grass which they set fire to. Had it not been for Antony Malony who put off the fire the complainant would have been burnt to death. As if that was not enough the accused stripped the complainant of his clothes in an attempt to stage a robbery and those clothes were never recovered.
The brutality and heinousness of the attack upon the complainant is corroborated by exhibit 1 – the medical report – as well as the complainant’s physical state when he testified some two years later. Doctor Magara medically examined the complainant on the very day he was brutalised. He observed the following: facial bruises, decreased level of consciousness, G.C.S. (a form of scale used to determine the level of alertness of a patient with head injuries) was 11/15 (highest level is 15 and lowest is 3), the C T scan that was done revealed that complainant had bruises on the brain and that the brain had shrunken in size. He opined that a blunt instrument wielded with severe force was used to inflict the very serious injuries noted. The injuries posed potential danger to life with permanent disability likely to occur to the complainant in the form of permanent neurological disability, hence complainant’s limping months afterwards when he came for review and two years later at trial. The complainant himself came to testify walking with the aid of a stick and had episodes of memory loss.
The foregoing injuries and their effect upon the complainant are a clear testimony of a brutal attack upon him. The attempted murder left him on the verge of being a cabbage while the perpetrators remained intact with no loss of any life amenities. It is not likely that even if he sued complainant would recover anything since their mitigation reveals the accused persons to be paupers.
This was a brutal, mindless, heinous and sustained attack on a defenceless complainant by determined gangsters who exhibited zero remorse during the attack as well during the trial. They had the effrontery to plead not guilty to the charge alleging that they never touched the complainant or were never at the scene when they well knew that they were guilty.
Clearly the two accused did not deserve the lenient sentence that was meted out to them. This was a clear case where a retributive punishment in the form of an effective custodial sentence was inescapable in the circumstances.
In the event, in view of the leniency of the sentence imposed I am unable to certify the proceedings as being in accordance with real and substantial justice and accordingly I withhold my certificate.