The State v Admire Tsiga

The accused appeared before the Mutawatawa magistrate on 27 April 2018 facing two charges. On Count 1, he was charged with assault under s 89(1)(a) of the Criminal Law Codification and Reform Act for assaulting a complainant at Chivore business centre on 18 April 2018 around 2000 hours. The accused clapped the complainant three times on the cheek and struck him with fist blows, causing a swollen ear and bruises. On Count 2, he was charged with assaulting a peace officer under s 176. When police tried to restrain him from the first assault, he struck a police officer on the face, bit him on the left hand, and pushed him to the ground. The complainant sustained teeth bite wounds on the left wrist and right thigh, and tenderness of the lower back. The incident occurred at a business centre following an independence day celebration, and the accused was intoxicated. A mob demanded the accused's release, and police initially released him. The accused was a first offender. The magistrate sentenced him to 12 months imprisonment (6 months suspended) on Count 1 and 24 months imprisonment (6 months suspended) on Count 2, without indicating whether sentences were concurrent or consecutive.

• Whether the conviction was proper despite questionable contents in the medical affidavit
• Whether the magistrate should have directed the clinical officer to clarify the medical affidavit
• Whether the sentences imposed were disturbingly and shockingly excessive
• Whether the trial court properly considered the circumstances surrounding the commission of the offences
• Whether voluntary intoxication should be considered as a mitigating factor
• Whether separate sentences should be imposed for what constituted one course of conduct

The convictions on both counts were confirmed. The individual sentences imposed on Counts 1 and 2 were set aside and substituted with the following: Both counts treated as one for purposes of sentence. The accused was sentenced to 12 months imprisonment of which 4 months suspended for 5 years on condition that the accused is not convicted of any offence of which assault is an element or any offence involving a contravention of s 176 of the Criminal Law Codification and Reform Act for which he is sentenced to imprisonment without the option of a fine. Effective sentence: 8 months imprisonment.

When reviewing sentences on review, a sentence will be set aside as disturbingly and shockingly excessive where the trial court fails to: (1) properly consider and place due weight on the circumstances surrounding the commission of offences; (2) consider the mitigatory effect of voluntary intoxication as required by s 221(1) of the Criminal Law Codification and Reform Act for offences requiring proof of intention (actual or constructive); (3) treat offences constituting one course of conduct as one for sentencing purposes; and (4) strike a proper balance between the interests of the accused, the interests of society, and the seriousness of the offence. Such failures constitute a misdirection of such magnitude that vitiates the sentence imposed, even where the offences are serious and involve violations of constitutionally guaranteed rights.

The court made several observations: (1) Medical affidavits should contain only proof of injuries observed, treatment administered, opinion on force used, seriousness of injuries, and whether permanent disability is likely to result - hearsay evidence (such as about torn uniform left at home) is inadmissible. (2) A conclusion that back pain would "likely" result does not, without more, qualify as permanent disability. (3) When the contents of a medical affidavit are questionable given the circumstances of the offence, it is advisable for the magistrate to call the clinical officer to clarify the contents rather than accepting them wholesale. (4) Assaults on police officers executing their duties call for deterrent sentences to punish the accused and deter like-minded persons. (5) The offences constituted violations of constitutionally guaranteed rights to personal security, human dignity, and the right not to be subjected to cruel, inhuman and degrading treatment. (6) In the absence of a direction under s 343 of the Criminal Procedure & Evidence Act as to whether sentences are concurrent or consecutive, it is assumed the accused must serve both sentences separately.

This case is significant in Zimbabwean criminal sentencing jurisprudence as it demonstrates the review function of the High Court in correcting excessive sentences. It emphasizes the importance of: (1) considering voluntary intoxication as a mitigatory factor under s 221(1) of the Criminal Law Codification and Reform Act; (2) treating offences forming part of one course of conduct as one for sentencing purposes; (3) balancing the interests of the accused, society, and the seriousness of the offence; (4) considering the full circumstances surrounding the commission of offences, including context and the accused's state of mind; and (5) imposing sentences that accord with real and substantial justice. The case also addresses the admissibility and weight to be given to medical affidavits, noting that courts should call medical officers to clarify questionable contents rather than accepting them wholesale.