State v Shingirai Dzvimbo

### Preamble
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HH431-12
CRB 466/12
STATE
versus
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STATE
versus
SHINGIRAI DZVIMBO

HIGH COURT OF ZIMBABWE
UCHENA and CHITAKUNYE JJ
HARARE 12 November 2012

Criminal Review

UCHENA J: The convicted person pleaded guilty to assaulting a police officer in contravention of s 176 of the Criminal Law (Codification and Reform) Act [Cap 9:23] (Assaulting a Peace officer). He was convicted and sentenced to $200-00 in default of payment 90 days imprisonment.

The trial magistrate proceeded in terms of s 271 (2) (a) of the Criminal Procedure and Evidence Act (Cap 9:07).

The record of proceedings was forwarded to the Regional Magistrate who raised issue with the sentence imposed being incompetent for proceedings in terms of s 271 (2) (a) of the CP&E Act. The trial magistrate conceded.

Section 271 (2) (a) provides as follows;

(2) Where a person arraigned before a magistrate’s court on any charge pleads guilty to the offence charged or to any other offence of which he might be found guilty on that charge and the prosecutor accepts that plea—

(a) the court may, if it is of the opinion that the offence does not merit punishment of imprisonment without the option of a fine or of a fine exceeding level three, convict the accused of the offence to which he has pleaded guilty and impose any competent sentence other than—

(i) imprisonment without the option of a fine; or

(ii) a fine exceeding level three;
or deal with the accused otherwise in accordance with the law;
 Where a magistrate convicts an accused person in terms of s 271 (2) (a) he can not impose a fine exceeding level 3. In terms of the first schedule to the Criminal Law (Codification and Reform) Act, a fine not exceeding US$20-00 should have been imposed.

A fine not exceeding level 3 would be a mockery of justice for assaulting a police officer during the performance of his duties. The sentence imposed by the trial magistrate is also inadequate as the Legislature prescribed a fine not exceeding level 12. According to the Code’s first schedule level 12 carries a fine not exceeding US$2000-00. We are therefore dealing with an incompetently passed sentence because the court had proceeded in terms of s 271 (2) (a), which is also inadequate for the offence charged.

The prosecutor misled the trial magistrate by accepting the accused’s plea in terms of s 271 (2) (a). Section 271 (2) does not authorise the prosecutor to choose the procedure to be followed. It only allows him to accept the accused’s plea. It is the magistrate who decides which procedure should be followed guided by the punishment the offence merits. He should have declined to proceed in terms of s 271 (2) (a). It is the opinion of the court on the appropriate sentence for the offence charged which determines how the case should proceed. Section 271 (2) (a) provides that;

“(a) the court may, if it is of the opinion that the offence does not merit punishment of imprisonment without the option of a fine or of a fine exceeding level three, convict the accused of the offence to which he has pleaded guilty and impose any competent sentence other than—

(i) imprisonment without the option of a fine; or

(ii) a fine exceeding level three; or deal with the accused otherwise in accordance with the law;”

The magistrate was therefore not bound by the prosecutor’s acceptance of the accused’s plea in terms of s 271 (2) (a). He should have thought about the appropriate sentence and decided whether or not to proceed in terms of s 271 (2) (a) or 271(2) (b).

The convicted person will get away with an inadequate sentence if I merely decline to certify these proceedings as being in accordance with real and substantial justice, or remit the case back to the magistrate for him to pass a sentence not exceeding level 3. Such a sentence will send wrong signals as to the courts’ attitude to the seriousness of this offence. Section 176 of the Code provides for a sentence not exceeding level 12 or imprisonment for a period not exceeding ten years or both. It provides as follows;

“Any person who assaults or by violent means resists a peace officer acting in the course of his or her duty, knowing that he or she is a peace officer or realising that there is a risk or possibility that he or she is a peace officer, shall be guilty of assaulting or resisting a peace officer and liable to a fine not exceeding level twelve or imprisonment for a period not exceeding ten years or both.”

The sentence prescribed by the legislature is indicative of the seriousness of this offence. It is indeed, a serious offence which has the effect of defeating the justice system through the use of force and violence against a law enforcement officer while he or she is enforcing the law. Allowing the conviction to stand and setting aside the sentence and remitting the case for sentencing afresh to a sentence impossible under s 271 (2) (a) would have the effect of encouraging offenders to resist the law which the courts should be striving to enforce

I am satisfied that a substantial miscarriage of justice has occurred. The convicted person’s conviction and sentence should be set aside and the case be remitted back to the magistrate’s court for trial de novo before a different magistrate.

The convicted person’s conviction and sentence are set aside. The case is remitted back to the magistrate’s court for trial de novo before a different magistrate.

CHITAKUNYE J concurs---
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