BERE
J: This matter has taken an unusually long period of time to be concluded. It has
been a long walk to justice on the part of the accused person and all those
involved.
Having been
convicted of having committed the crime of murder with actual intend by my brother
Judge BLACKIE J on 16 July 2002, we were only able to reconvene on 16 November
2010 to deal with the existence or non-existence of extenuating circumstances
before sentencing the accused person.
Dealing with the issue of extenuation
I feel more inclined to lean on the views of HOLMES J
when the learned Judge stated:
" Extenuating
circumstances have more than once been define by this Court as any facts,
bearing on the commission of the crime, which reduce the moral blameworthiness
of the accused, as distinct from his legal culpability. In this regard the
trial Court has to consider;-
(a) whether
there are any facts which might be relevant to extenuation, such as immaturity,
intoxication or provocation ( the list is not exhaustive)
(b) whether such facts, in their cumulative effect
probably had a bearing on the
accused's state of mind in doing what he
did.
(c ) whether
such bearing was sufficiently appreciable to abate the moral
blameworthness of the accused in doing
what he did.
In deciding (c) the trial court exercises a
moral judgment. If its answer is yes, it expresses its opinion that there are
extenuating circumstances."
It is important to
emphasise that the enquiry to extenuation is critical in a murder conviction.
It is upon the conclusion of this enquiry that the Court is then enjoined to
exercise its discretion to either "take the drastic step of ordering" the
accused to forfeit his life or to consider some other competent alternation
sentence.
It will be noted that after the accused had led evidence in extenuation
of sentence the state counsel conceded that indeed extenuating circumstances
existed. The Court expressed the view that it was not bound by that concession
and the defence appeared to have been raffled by the position taken by the
court. The defence counsel's contrary view was that once the state had made
this concession the Court was "harmstring" from making a finding to the
contrary. Counsel could not provide authority to back up his argument. The Court was certainly not impressed by the
position blindly adopted by counsel.
The Court's position which I feel inclined to emphasise is that the Court
can never be held hostage by the concession made by the State as happened in this
case. There may be so many reasons why
the defence and the prosecution may come to any agreement including but not
limited to for example, a conspiracy to mislead the court for whatever
reason. The Court must not be bound by
such concessions and must retain its discretion to arrive at a properly
informed or judicious decision taking into account the evidence tabled before
it. The final decision must remain the prerogative of the Court.
Coming back to the issue at hand the enquiry
on the accused's mental and emotional state at the time of the offence largely
zeroed on two fairly detailed psychiatric reports coupled with the viva voce evidence of Dr D.
Chibanda and Dr Munyaradzi Madhombiro, two fairly experienced pschiarists.
The evidence presented by
the two doctors was quite revealing in assisting the court in its quest to
determine the existence or non-existence of extenuating circumstances in this
case.
Both psychiastrists examined
the accused person on different occasions. Both concluded the accused showed an
abnormal E E G (electro encephalogram). Dr Chibanda indicated in his report
that the abnormality on the E E G scan suggested Temporal Lobe Epilepsy on the
part of the accused. He recorded that on
interviewing the accused, the accused revealed to him that he was on occasions
having visual and auditory hallucinations associated with a sensation of
smelling things. The accused further
revealed to the doctor that at one stage before this murder occurred, he was
taking steroids to enhance his body building exercises. Dr Chibanda was unable
to gather the accused's collateral history to support his psychiastric
examination of the accused hence he recommended that a second opinion be
obtained from another qualified psychiatrist hence the coming into the picture
of Dr Madhombiro.
Dr Madhombiro was able to
gather the accused's collateral history from the accused's mother, father and
accused's former workmate. The information gathered from the mother was
particularly revealing. The doctor recorded that the accused's mother revealed
to him that the accused had what appeared like " fits, " medically referred to
as 'febrile convulsion' which he reasoned are a precursor to complex partial
seizures in adults.
In addition, the accused
also told the doctor of his use of anabolic steroids between 1999 and
2000. His examination concluded that the
accused suffered from Temporal Lobe Epilepsy.
The court found the
following extract from Dr Madhombiro's report to be particularly of assistance.
"INDICATIONS OF TEMPORAL LOBE EPILEPSY IN THE ACCUSED"
16. Accused is an adult of 32 years of age. When the accused was young,
he was reported to have had what appeared like "fits" medically known as
febrile convulsions. These are a precursor to COMPLEX PARTIAL seizures in adults.
17. Accused admits using drugs, anabolic steroids between 1999 and
2000. I reiterate
that often patients with
temporal lobe epilepsy often abuse drugs as an
unconscious form of
medication to fight sublime depression.
18. In this case, the condition could have been worsened by the stress
that the accused
was going through as he
genuinely believed that he was being falsely implicated
to be responsible for the
pregnancy of the deceased and this could have definitely
triggered the seizure.
19. I aver that it is my opinion that any one of these factors may have
triggered
temporal lobe epileptic
seizures on the day the accused stabbed the deceased.".
There was no evidence led to try and
controvert the medical evidence which tended to show some form of diminished
responsibility on the part of the accused at the time he committed the offence.
If anything, the
reckless manner in which he used the knife would seem to suggest that something
had gone terribly wrong with the him.
The Court fully appreciates that the
psychiatric examinations were only conducted almost 9 years after the murder
itself and the results of such an examination
may not accurately portray the state of the accused's mind at the time of the
murder itself. We have agonized over
this as a Court but concluded that we grant the accused person the benefit of
doubt and accept that at the time the behaviour of the accused must have been
triggered by Temporal Lobe Epilepsy.
At the time of this offence the
accused was aged 21 years and a youth leader in his church and his parents appear
to have been active members of the church.
Youthfulness as
a factor in extenuation has not escaped our minds. The responsibility associated with the
accused being a youth leader and the usual high expectations from the church
must have weighed heavily against the accused person when he had to deal with
the pregnancy of the deceased.
The stress and anxiety which the accused
person as a 21 year old must have gone through at the time cannot be
overemphasized.
The immaturity and desperation on the
part of the accused person manifested itself in the manner in which he sought
to get himself out of this mess. He
sought to take the pregnant deceased to her former boyfriend to try and resolve
the pregnancy of the deceased. How that
would work out remains anybody's guess but in our view it demonstrates irrational
behaviour which cannot be separated from the accused's youthfulness at the
time.
Cumulatively we are unanimously agreed that the accused's mental
state ( as explained by the two psychiatrists ) and the youthfulness and how he
sought to extricate himself out of the mess he had himself created must amount
to extenuating circumstances which tend to reduce the accused's moral
blameworthiness as distinct from his legal culpability.
Sentence
Some jurists
have commented that sentencing is the blind end of justice. There is no mathematical
formula which the Court has to lean on in coming out with what it perceives to
be an appropriate sentence. At the end of the day it is no more that a value
judgment leaning heavily on the factors in both mitigation and aggravation.
In mitigation we have considered that
at the time of this offence the accused was barely 21 years old and as already
highlighted there was an element of immaturity on his part.
The responsibilities that the accused
carried and the subsequent pregnancy of the deceased must have weighed heavily
against the accused. The evidence of the two psychiatrists suggest that the accused
suffered from some form of diminished responsibility.
The confession that the accused made,
though in the aftermath of his conviction, does in our view show remorse on his
part. We comment the accused for that as we believe it has laid to rest many
unanswered questions surrounding the death of the deceased.
The accused is being sentenced 10
years after conviction. It is a record time. However we have not lost sight of
the fact that the accused also contributed to the delay by among other things
mounting a Supreme Court application to assert his liberty when he knew very
well that he had committed the offence.
In aggravation we find it particularly significant that despite the
accused being fully aware that he had committed this offence he demonstrated a
stout effort to lie his way out of trouble. The accused crafted a defence that
sought to lay the blame for the murder on an innocent person, the deceased's former
boyfriend and in so doing further delayed the finalization of this case.
It
is aggravatory that the accused murdered the deceased in a desperate effort to
avoid responsibility for the pregnancy that he had caused her.
Not only did the accused
murder the deceased but also the unborn innocent life that was between 10-12
weeks old.
The murder itself was premeditated and callous. The post mortem external
examination conducted on the deceased revealed that the deceased had multiple
stab wounds-five stab ouvex shaped wounds on the front part of the body, three
wounds on the neck, 4th wound above the colar bone and 5th
below and at the rib cage.
We have no doubt that if the accused had
been sentenced immediately after conviction, the sentence would have been
probably more severe than it will be now.
Having considered all
the submissions made on behalf of the accused and against him. We believe a
term of 15 years imprisonment would be appropriate.
The accused is accordingly sentenced to undergo 15 years imprisonment
The Attorney General's Criminal Division, for the state.
Gill, Godlonton &
Gerrans, legal practitioners, for the accused.
