1 November 2016
. . . medical doctor’s report questioned
. . . experts call for appeal
LEGAL experts say the sentence imposed on the shebeen master who battered a woman over a US$6 debt was not consistent with the manner in which he violently attacked her.
The legal practitioners also questioned the medical doctor’s competence considering the manner in which the woman was injured following the attack.
Sheeben master Kumbirai Musariri, of Budiriro was fined US$50 or 10 days in jail if he fails to pay the fine on or before October 28.
He had assaulted Robinah Makumbire of Glen View.
Magistrate Gladys Moyo also slapped Musariri with a wholly suspended two-month jail term for five years on condition that he does not commit a similar offence.
The State, led by Lawrence Gangarahwe, had it that Robinah owed Musariri US$6 which accrued from a social group commonly referred as ‘marounds’ in street lingo.
A misunderstanding ensued ending up with Musariri brutally attacking the woman.
Robinah took the matter to the police leading to Musariri being hauled to Mbare magistrates’ court where he pleaded to the offence before being fined US$50.
Magistrate Moyo in passing her sentence took into account that Musariri was a first offender who did not waste court’s time by pleading guilty to the offence.
The court also took into account that the medical affidavit produced by the state had shown that Robinah had sustained slight injuries with TWO BLOWS having landed on the woman.
And there was no possibility of permanent injuries according to the affidavit.
“However, the accused must be fined so that he would resort to resolving disputes amicably and not to resolve using violence,” said magistrate Moyo when passing her sentence.
Musariri told the court that anger forced him to attack the woman in the manner in which he did.
“I was angry and became emotionally offended,” he said in his mitigation.
Members of the public who witnessed the incident then took a video of Musariri attacking Robinah which went viral on social media raising outcry over the punishment which the shebeen master got after appearing in court.
Questions which remain hanging on the lips of many after the sentence were:
Was the sentence proper under those circumstances?
What legal actions can the woman take in the event that she feels justice was not done?
And is there a possibility of having another trial over the same matter?
LAWYER EDWIN HAMUNAKWADI
The video evidence is not consistent with the medical report which is expert evidence.
The court considers available evidence and other mitigatory factors such as being a first offender and seriousness of the offence, among others in assessing an appropriate sentence.
This matter was concluded by the trial court and cannot be heard denovo unless if the High Court upon review or appeal directs that it be heard denovo.
If the prosecution in this case is not satisfied with the sentence, it can take up the matter with the High Court.
LAWYER OSCAR GASVA
The sentence was improper as it was too lenient.
However, the issue is about what evidence was led in court.
Was a medical affidavit produced in court and was the video doing the rounds on social media produced in court?
On the other hand, the matter will be automatically scrutinised by a Regional Court to see whether the sentence is justified under the circumstances.
Then it therefore raises issues with regards the competence of the doctor who examined the complainant.
The prosecution was supposed to lead aggravating evidence.
LAWYER SIMON CHABUKA
The greatest betrayal is the medical affidavit and that the court did not see the video.
If the court had seen the video maybe it would have come to another decision.
It appears as the court came to view it as a common assault where one would be just slapped and the court under those circumstances is likely to impose a fine.
But if the other parties feels aggrieved they could appeal against the sentence.
LAWYER TUNGAMIRAI MUGANHIRI
The State has duty to appeal the sentence if they are aggrieved.
I think the magistrate might not have seen the video.
LAWYER STEADY KACHERE
Legally it is only the Prosecutor General that can appeal against the sentence imposed.
My opinion is that the sentence is fair, being a first offender and also the relationship between the parties a custodial sentence is a little too harsh.
As long as there is a suspended sentence imposed to restrain him from further offending because the purpose of the Domestic Violence Act is to ensure parties stay in harmony.
LAWYER JIVAS MUDIMU
It was the duty of the State to produce the video in court for sentencing purposes.
State did not aggravate by not producing the video.
Magistrate used what was before the court.
LAWYER FARAI NYAMAYARO
That is attempted murder not assult.
The State can appeal against sentence and there is no need for retrial since conviction was secured.
The medical affidavit is the problem here and the magistrate could be right.
LAWYER KNOWLEDGE MAERESERA
To me community service would have been appropriate.
I am sure the magistrate exercised his/her sentencing judiciously.
A superior court does not lightly interfere with the discretion of the sentencing court merely on the ground that it might have passed a different sentence.
If the magistrate exercised his/her sentencing judiciously then the appeal court will not interfere.
In any event the decision on whether or not to appeal lies with the National Prosecuting Authority.
LAWYER BARBRA NDORO
The video should have been tendered as evidence as well as the continued assault on a defenceless woman who was running away and people trying to stop him are all aggravating.
I fail to understand why the State didn’t aggravate for a stiffer sentence.
The sentence trivialises the offence. So everyone can now assault people and get away with it.
She probably could have suffered severe injuries and the humiliation.
The State can appeal against sentence. Look at the Oscar Pistorious case where the State appealed against sentence.
LAWYER AURTHUR GURIRO
The nature of the assault as can be seen from the footage was extreme and the assailant continued to relentlessly assault the defenseless complainant severely.
Despite bystanders trying to restrain him he chose to continue.
I think the court was lenient though to say so without looking at mitigatory factors and any aggravation available would be unfair to court.
The aspect of sentencing is always in the discretion of the court. If for instance the assult was such that no serious injuries suffered and that there was provocation then the court might be lenient
LAWYER ARSHIEL MUGIYA
The procedure under the circumstances will be for the State to appeal against the sentence on behalf of the aggrieved complainant.
Yes there are similar cases where the State through the National Prosecuting Authority has appealed against acquittals or sentences of accused persons to the High Court in some cases they were successful with the High Court imposing stiffer sentences that magistrates’ court.
Retrial can be done only if there are some procedural irregularities involved.
MUSASA DIRECTOR NETTY MUSANHU
That man literally went on top of her yet this violence has been normalised. Nothing seems to induce a sense of shock in whoever presided over this case and the least the magistrate could have done was considering seeing this video.
I’m sure a livestock thief let alone someone who steals a goat could have got a stiffer penalty. This just shows what kind of a nation and the type of laws that we have. We have laws that protect livestock more than human life.
Surely such a paltry sentence for someone who committed such a heinous act is disturbing to say the least. This man from what I saw on that video, wanted to kill. Who does that?
I’m sure that woman did sustain serious internal injuries unfortunately because she is too poor to afford the scan, the doctor at Harare Central Hospital just used a naked eye to assess the degree of injuries.
Obviously if she was battered for a US$6 which she failed to pay, then there was no way she could afford to foot for medical bills say for scans and all. So in the absence of all these services, how did the doctor ascertain the extent of the injuries this woman sustained?
The system has made victims of violence more vulnerable.
If he can do that in public space, what can he do behind closed doors? I believe this is a very violent man who even abuses his woman. I think he is a monster and if his wife is to be honest, she has been battered by this very same man.
This is quite disturbing as we get in the mood of spurring action to end violence against women and girls.
TAG A LIFE INTERNATIONAL TRUST (TALI) NYARI MASHAYAMOMBE
This is so disappointing. How can a woman be beaten in the streets, pass out and then have the perpetrator let out and roaming the streets?
It’s a disappointment to our community and an encouragement of violence. I’m extremely sad in our justice system. We demand that this case be revoked and appropriate punishment of imprisonment be established, and the courts should charge for compensation for all the harassment and losses the woman incurred for her business.
It’s a trauma she will endure all her life, the harassment to the woman, her children and husband. What will other men learn about harassing women in public if they can get away with US$50?