S v MPOFU 1992 (2) ZLR 68 (H)

Flynote

Criminal procedure — unrepresented accused — duty of court to investigate possible mitigatory factors.

Criminal procedure (sentence) — pregnant woman — undesirability of sentencing to imprisonment — imprisonment not invariable sentence for assault with intent to do grievous bodily harm

Headnote

A married woman pleaded guilty to a charge of assault with intent to do grievous bodily harm. She had seriously injured a woman whom her husband had brought home as a second wife by pouring boiling water onto her face and arm. She was eight months pregnant at the time of her trial. On appeal:

Held, that the trial court had misdirected itself by failing to investigate the possibility that the complainant's behaviour had been provocative. Although the onus is on the accused to establish mitigatory features, where the accused is unrepresented, the trial magistrate should ensure that he has the correct facts before him to make a proper assessment of sentence.

Held, further, that the trial court had also misdirected itself by paying no regard to the fact that the appellant was pregnant. It is not desirable to imprison a pregnant woman even where a term of imprisonment may be otherwise appropriate for the offence in question.

Held, further, even had there been no misdirection the sentence imposed was unduly harsh. Although assault with intent to do grievous bodily harm, especially where it results in serious consequences, often attracts a term of imprisonment, even for first offenders, this is not invariably the position. In the present case a fine and a suspended prison sentence was appropriate. Apart from her pregnancy, the appellant has six children and is the breadwinner for the children. She acted on impulse and without premeditation. Even if the complainant's behaviour had not been provocative, the appellant had been put under strain by her husband without any forewarning bringing another woman into the house.