The State v Anesu Agnes Chikerema

The accused, a 21-year-old woman, was the former wife of Talent Masiya, who was now married to the complainant. Talent invited the accused to his mother's place where the accused and complainant met. The two women fought. During the altercation, the accused pretended to leave but turned around, removed boiling water from the stove, and threw it on the complainant who was seated. The complainant, who was heavily pregnant at the time, suffered serious burns with permanent scars on her breast, stomach area, both thighs, and private parts area. The injuries were documented through photographs and a medical report compiled on the day of the incident. The accused did not show remorse or regret for her conduct.

• Whether the conviction for attempted murder was proper given the elements of mens rea and actus reus
• Whether the sentence imposed by the magistrate's court was appropriate given the gravity of the offence and the circumstances of the case
• Whether the sentence adequately balanced the interests of rehabilitation of a first offender against societal interests and the seriousness of the offence

The High Court withheld its certificate and declined to certify the proceedings as being in accordance with real and substantial justice. The Court indicated that an appropriate sentence would have been 24 months imprisonment of which 6 months is suspended for 5 years on condition that the accused does not commit any offence involving assault or violence on the person of another for which she is convicted and sentenced to imprisonment without the option of a fine.

For a conviction of attempted murder under s 189 read with s 89 of the Criminal Law (Codification and Reform) Act, both mens rea and actus reus must be established. The mens rea consists of constructive intent where the accused subjectively foresees the real possibility of death occurring as a result of their actions and recklessly continues despite the risk. Attempted murder is an extremely serious crime that holds human life cheap and differs from murder only in that the intended result did not materialize, with equal moral reprehensibility. While it is desirable to keep first offenders out of prison, courts must not lose sight of the gravity of the offence and societal interests. Sentences must be meaningful, proportionate to the offence, and sufficient to maintain public confidence in the justice system, balancing deterrence, rehabilitation, and retribution.

The Court observed that it was unclear why a current medical affidavit detailing the full extent of the injuries was not tabled before the court, as the initial medical report was compiled on the day of the incident before the complainant's recovery. The Court also noted that the effects of the attack on the unborn child remained unknown. The Court referenced the case of Isaac Bhero & Another v The State, endorsing the principle articulated by Gubbay CJ that attempted murder, save in the most exceptional circumstances, is always treated as extremely serious because it has the effect of holding human life cheap. The Court emphasized that sentences should make would-be offenders realize there is a line which if crossed will result in punishment, while rehabilitating them to be better members of society and instilling respect for the law.

This case is significant in Zimbabwean criminal law as it reinforces the principle that attempted murder must be treated as an extremely serious offence, differing from murder only in that the intended result did not materialize. The case demonstrates the High Court's review function in ensuring that sentences are proportionate to the gravity of the offence and not merely focused on rehabilitation of first offenders at the expense of societal interests and the administration of justice. It clarifies that community service sentences may be inappropriate for serious violent crimes even for youthful first offenders, and that effective custodial sentences are necessary to maintain public confidence in the justice system and to adequately deter such conduct.