State v J Zhanota

### Preamble
1
HH 681-18
CRB MTK 381/18
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STATE

versus

J ZHANOTA

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 18 October 2018

Criminal Review

MANZUNZU J: This matter was placed before me for review as far back as May 2018. Initially I had a problem in reading the trial magistrate’s hand writing and I requested that the record be transcribed. That was done in July 2018.

The accused, a 32 year old man, was charged on two counts for contravening s 4 (1) as read with s 3 (1) (a) of the Domestic Violence Act, [Chapter 5:16]. The two complainants are the accused’s niece and father.

The brief facts are that the accused assaulted his niece with a stick and kicked her with booted feet. He also assaulted his father with an iron bar. Both complainants suffered certain injuries as defined in the medical reports. The court correctly convicted the accused of the two counts on his own plea of guilty.

The record shows that while the State alluded that the accused had previous convictions, the State failed to prove such, hence the court correctly noted that the accused was to be treated as a first offender.

The court treated both counts as one for the purposes of sentence and sentenced the accused to 30 months imprisonment of which 5 months were suspended for 5 years on the usual conditions. The accused is serving an effective term of 25 months imprisonment. Despite having admitted that the accused was to be treated as a first offender, the trial magistrate in his reasons for sentence said;

“Accused is not a first offender. He was once given a custodial sentence over a similar offence. So he has the propensity to commit similar offences.”

This can certainly not be true. The record does not support this averment by the trial magistrate.

On 16 August 2018 I raised two queries with the trial magistrate. The first one was why he did not treat accused as a first offender in his consideration for sentence. The second one was whether the trial magistrate had sentencing jurisdiction of up to 30 months.

In his response the trial magistrate admitted that he fell into error when he did not treat the accused as a first offender. He said he assumed that he was a senior magistrate by virtue of appointment to resident magistrate in charge of a station

Section 50 of the Magistrate Act, [Chapter 7:10] lays down the ordinary sentencing jurisdiction of magistrates. An ordinary magistrate’s jurisdiction is up to two years imprisonment. Surprisingly, the trial Magistrate was not certain about his grade. The position had to be clarified by the Chief Magistrate who confirmed the Magistrate was still at ordinary magistrate grade.

In the present case, it is clear the trial magistrate exceeded his jurisdiction when he treated both counts as one and sentenced the accused up to 30 months when his limit is 24 months. Although the trial magistrate erred in not treating accused as a first offender, accused’s conduct warrants imprisonment particularly in the second count where he assaulted his 73 year old father with an iron bar after accusing him of witchcraft. He fractured his leg following the application of severe force causing permanent injury.

In terms of the powers vested me in terms of s 29 of the High Court Act, while I confirm the conviction, I find that the sentence is not in accordance with real and substantial justice. I therefore set aside the sentence and make the following order:

Conviction is confirmed.

The sentence is set aside and substituted with;

“24 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving physical abuse or violence and for which upon conviction he is sentenced to imprisonment without the option of a fine.”

CHATUKUTA J agrees …………………