CHITAPI
J:
The
accused was charged with murder as defined in section 47 of the
Criminal Law [Codification & Reform] Act [Chapter
9:23].
It
was alleged against the accused that on 24 December 2015 at
Muringamombe Primary School, Shamva, he unlawfully assaulted Meggie
Mariko with open hands, pushed her against the wall and strangled her
resulting in her death.
When
the charge was put to the accused and the court thereafter asked him
whether he understood it, he responded as follows;
“Yes,
but it was not my intention to kill her”.
The
court entered a plea of not guilty.
Ms
Evans
for the accused tendered on behalf of the accused a guilty plea to
the lesser offence of culpable homicide which is also a competent
verdict on a charge of murder. Ms Zacharia
accepted the tendered plea of guilty to culpable homicide.
Both
counsel advised the court that they had crafted a statement of agreed
facts which they tendered to the court. The statement of agreed facts
was read into the record and accepted as Annexure A.
The
court sought and received confirmation from Ms
Evans
that she had explained the elements of the charge and the agreed
facts to the accused and his agreement with the same.
The
court formally convicted the accused of culpable homicide as defined
in section 49(a) of the Criminal Law (Codification and Reform) Act.
In
addition to the Statement of Agreed Facts, the State also produced
with the consent of the accused person given through his counsel the
autopsy or post-mortem report compiled by the doctor after examining
the remains of the deceased.
The
post-mortem report was produced in terms of section 278(1) of the
Criminal Procedure & Evidence Act [Chapter
9:07].
The
report which the court accepted in evidence as exhibit 1 was prepared
by Doctor T Jabangwe following his examination of the remains of the
deceased on 20 February 2016 at Parirenyatwa Hospital. The request
for examination was made by Zimbabwe Republic Police officers from
Shamva Police Station and deceased's family members who identified
the remains of the deceased. The doctor is employed as Registrar,
Pathology. The highlights of the doctor's report are that:
(i)
the deceased's body was wrapped in 3 layers of sheets tied with a
rope 3x1cm in thickness.
(ii)
the body parts were in various degrees of decomposition with maggots
coming out of the body and also moving round the sheets.
(iii)
the elbow bone was exposed with the skin eaten up by maggots.
(iv)
the skull bones were exposed and there was no bleeding from the
skull.
(v)
the cause of death was indeterminate because of the advanced state of
decomposition of the remains.
The
material facts of the case which arise from the Statement of Agreed
Facts can be summarized as follows:
1.
The accused and the deceased were of about the same age (32 years).
The accused was unemployed whilst the deceased was a student teacher
at Maringamombe Primary School, Shamva. The two stayed together at
the school and were husband and wife with the latter being heavy with
child and in her eighth month of pregnancy.
2.
On 24 December 2015 the couple had a domestic altercation which
started around 5:00pm and continued during the night extending into
the morning of the following day. What triggered the dispute was not
quite disclosed to the court even when it put questions to the
accused during mitigation and aggravation.
3.
Albeit the trigger of the domestic quarrel not having quite been
established it was accepted in the agreed facts that in the course of
arguments between the couple, the deceased accused the accused of
being infertile. The accusation infuriated the accused who all along
held the belief that he was responsible for the deceased's
pregnancy and was looking forward to fatherhood of his first child.
4.
Following the verbal exchanges, the accused decided to take leave of
the house and the deceased and started to pack his clothes. The
deceased then ordered him not to remove any clothing from the house
since the clothes had been bought by her as the accused was
unemployed.
5.
In a fit of anger, the accused then turned physical on the deceased.
He assaulted the deceased with open hands and threw her against the
wall. When she hit against the wall, the deceased fell down. When she
had fallen down the accused throttled her on the neck until she was
still. He then left her lying on the mattress.
6.
The accused proceeded to the local business centre and spent the day
drinking alcohol. He returned to the couple's house at night and
discovered that the deceased had died. The accused wrapped the
deceased's body in sheets and secured the wrapping using a rope. He
carried the deceased's body out of the house and buried it in
shallow grave which he dug some 80–100 metres away from the house.
7.
The body of the deceased was discovered by another person on 18
January 2016. Investigations were then carried out and they
culminated in the arrest of the accused on 19 January 2016.
It
was on the basis of the summarized facts above that the plea
bargaining between the State and defence counsels and the grounding
of a plea of guilty of culpable homicide was based and the court
recorded and accepted the facts as such.
In
mitigation the accused's defence counsel submitted that the accused
was a first offender and last born in a poor family of six siblings,
the accused's parents being both alive but above 70 years of age.
The
parents are invalids in that the accused's father suffered a stroke
and the accused's mother suffers from swollen legs.
It
was however not submitted nor suggested that the accused was
responsible for the upkeep and welfare of his parents. In such
circumstances it is the view of the court that the accused's
incarceration would not affect the livelihoods and welfare of the
parents. The accused himself does not have any children of his own
nor other dependants.
It
was further submitted that the accused loved his wife dearly. He was
not a person of violent disposition and was not previously involved
in domestic violence.
It
was submitted that his relationship with the deceased was admirable
and that the accused was sorry for the incident. He blamed his out of
character reaction on provocation and that in assaulting his wife,
death was a consequence that the accused did not contemplate.
When
the deceased lay still after the accused had assaulted her, he
thought that she was feigning her condition. He only panicked when
upon his return, from the beer drink he found the deceased in the
same position that he had left her. He then in that state of panic
wrapped up the deceased, carried her out of the house and buried her
in a shallow grave.
It
was also submitted on the accused's behalf that the accused was
sorry and remorseful. He was suffering psychological trauma. He had
hoped to be a father to his first child but his dreams had been
shattered. He has been in custody since his arrest in January 2016.
He however had requested his family members to approach his in laws
and try and make peace between the families. His family and himself
were persons of poor backgrounding and efforts to compensate the
deceased's family were hampered by poverty. The accused however
wished for forgiveness from his in-laws.
The
accused's counsel whilst acknowledging the sanctity of human life
submitted that a proper sentence would be one which should
rehabilitate the accused.
It
was also submitted that the accused was HIV positive.
It
was also argued that a rehabilitative sentence would afford the
accused a timely release from prison so that he makes peace with his
in-laws.
The
accused's counsel referred the court to the following decided cases
in this jurisdiction: S
v Mbano
HB114/2015; S
v Makombe
HB110/2015; S
v Nkomo
HB68/2015; S
v Sibanda
SC245/13; and S
v Siluli
SC1/2016.
Counsel
for the accused advocated for a prison term of 3 – 4 years as
befitting in this case.
Ms
Zacharia
for the State submitted in aggravation that the accused had committed
a very serious offence of taking away his wife's life unlawfully.
She argued that the accused failed to behave as a gentleman or to
keep his emotions under control.
Although
the accused was a first offender, he had started at the deep end.
Counsel
submitted that the accused's degree of moral blameworthiness was
high because he tried to conceal the offence and buried the deceased
in a shallow grave. Counsel further submitted that the negligence of
the accused did not only manifest itself in the manner of assaulting
the deceased but in not taking steps to satisfy himself whether or
not the deceased needed medical attention. He just abandoned the
deceased after she had fallen down from the assault and was lying
still.
Counsel
urged the court to impose a custodial sentence on the accused, such
sentence being in the range of 10 years as a mark of disapproval of
people who resolve disputes through violent means. Counsel referred
the court to the cases of S
v Ncube
HB162/2015 and S
v Sibanda
(supra)
cited by defence counsel.
After
the State counsel had rested her submissions in aggravation, the
court considered it necessary for purposes of gathering more
information which would assist it to properly assess sentence to put
questions to the accused. Such a procedure is provided for in section
271(5) of the Criminal Procedure and Evidence where an accused has
been convicted of an offence following a guilty plea. The section
provides as follows;
“271(5)
where an accused has been convicted in terms of this section, the
prosecutor and the court may, whether or not he gives evidence,
question him with regard to sentence and, if the accused is
represented by a legal practitioner, his legal representative may
thereafter question him subject to the rules applicable to a party
re-examining his own witness.”
Note
must be taken that the questions which the prosecutor and the court
may put to the accused in terms of this section must be relevant to
sentence and not conviction.
The
provisions of this section must be used sparingly and only in
circumstances where the prosecutor or the court hold the view that
there are pertinent facts relative and material to the assessment of
sentence which the accused needs to shed light on. If not properly
invoked and utilized, there is a danger that the procedure may
degenerate into a mini trial and some questions if not properly
measured may solicit answers which may lead the court to reconsider
its verdict as the answers may raise a defence.
It
is also admissible where the accused is represented to elicit the
relevant facts which need filling up by directing questions to the
accused's counsel who can always be approached by his counsel with
the leave of the court to solicit the answers.
Lastly
where the provisions of the section have been invoked and the accused
as in
casu
is represented, defence counsel should strictly be guided by rules
relating to re-examination.
The
questions which defence counsel may ask the accused should arise from
questions by the prosecutor or the court as the case may be by way of
clarifying any points or facts adduced during questioning by the
prosecutor or the court. The procedure is not designed to give the
accused's defence counsel a second bite of the cherry to mitigate
on sentence or elicit from the accused new facts in mitigation save
as the same may arise from questions put to the accused by the
prosecutor or the court.
In
casu,
the court exercised its discretion to put questions to the accused
and he did respond whilst on oath.
In
answer to questions by the court the accused stated that he married
the deceased in terms of the Marriage Act [Chapter
5:11]
and the marriage was solemnized by the magistrate on 31 October 2014.
He went to school up to O – Levels which he completed in 2001. He
did not attain any post O–level qualifications.
Asked
to shed light on what triggered the altercation between him and the
deceased, the accused stated that the two had been scheduled to spend
Christmas day at his in-laws place by invitation of the in laws. The
deceased woke up very early whilst it was still dark and wanted to
start off for her parents' home. The accused tried to persuade her
to wait until it was light but the deceased insisted on leaving. This
argument then degenerated into further arguments during which the
accusations of infertility of the accused were made as well as the
allegation that the pregnancy which the deceased was carrying was not
fathered by the accused.
Asked
to clarify why he buried the deceased instead of simply owning up to
other persons since death was unintended, he blamed his actions on
fear of his parents, deceased's family, the community and he also
blamed his actions on the beer which he had imbibed at the township.
He said that he was confused.
He
only owned up following the discovery of the body by a third party.
He
said that he used a hoe to dig the shallow grave and buried the
deceased's body at night. The defence counsel asked the accused to
tell the court what he had to say about his behavior and he said that
his actions were unexpected and he needed to compensate the
deceased's family.
The
sad facts of this case present yet another addition to the endless
list of homicide cases arising from domestic violence. Such cases are
becoming frequent in this court.
On
26 February 2007, the legislature gazetted the Domestic Violence Act
[Chapter
5:16].
The rationale for enacting the said Act was to protect and also
afford relief to victims of domestic violence following the upsurge
in such cases.
In
this court's view, legislation and the courts alone cannot stop or
tame the tide of domestic violence. Domestic violence consists in a
behavioral pattern of assertive or coercive behaviors that intimate
adults employ against each other as a show of power and/or authority
in a relationship. This is done through physical, sexual, emotional,
and economic abuse among other manifestations.
It
is this courts view that our society must strive towards achieving a
zero tolerance for domestic violence. To achieve this goal
communities and institutions across the divide should preach against
domestic violence. There should be respect for our cultural values.
Spiritual and community support is invaluable as is promotion of
counselling and mediation as instruments of dispute resolution. One
can end up writing a treatise on domestic violence as it is a topical
and varied topic. The bottom line is, in the view of this court,
respect for one another and keeping emotions in check.
The
death of the deceased and the unborn 8 months foetus was tragic in
this case and quite unnecessary.
The
nature of the quarrel between the accused and the deceased though
touchy did not call for the use of violence on the part of the
accused. The deceased's verbal outburst that the accused was
infertile cannot have been a whole hearted accusation given that the
parties were married and had been staying together for a long while.
The parties had married officially in October 2014. An accusation
that the accused was infertile must have been uttered to simply hurt
his ego because it would have been tantamount to confessing that the
deceased had an extra marital relationship.
Such
a confession is not easily made by any sane woman who is married.
The
deceased also further hurt the accused's ego by demanding that he
should not take away any items of clothing because he did not buy the
clothes as he was unemployed.
The
deceased did not chase away or order that the accused should leave.
This can only mean that she still was interested in the continuance
of the relationship.
The
accused's use of force was not only uncalled for. It was not
measured because he even threw the deceased against the wall. As if
this was not enough, he went on to throttle the deceased. Throating a
person causes such person not to breathe. The deceased after being
throttled became helpless and lost consciousness.
The
accused thought that the deceased was playing up feigning
unconsciousness. It was grossly negligent on the accused's part to
think that the deceased was feigning unconsciousness yet the accused
had throttled the deceased. It is arguable that the deceased could
well not have been convicted of murder as defined under section
47(1)(b) on the basis that he ought to have realised that by engaging
in an assault upon the deceased in which he used his hands, threw the
deceased against the wall and proceeded to throttle her, that death
could result from his conduct and proceeded in so acting.
The
nature of the provocation which the accused alluded to as having made
him assault the deceased was not in the circumstances such as should
have made him lose his head. In fact he only lost his head it would
appear after the deceased had ordered him not to pack his clothes as
he had not bought them. His reaction to the accusation of infertility
was to decide to take leave of the house which was reasonable. The
court will however accept that the totality of the provocative acts
or utterances by the deceased would have had a cumulative effect.
The
circumstances of this case nonetheless remain borderline between
murder and culpable homicide and the accused benefited from the
doubt.
Section
48 of the Constitution prescribes that the right to life is a
fundamental human right and such right is the first of several
fundamental human rights listed in the section. Section 49 of
Criminal Law (Codification and Reform) Act complements the importance
attaching to the fundamental right to life by providing stiff
sentences for culpable homicide. The sentence for culpable homicide
ranges from imprisonment for life or any period and includes the
imposition of a fine which is up to or exceeds level 14 or both a
term of imprisonment and a fine. The offence is therefore viewed
seriously by the legislature and it indeed is. A lost life cannot be
salvaged once lost. It is therefore important to respect the sanctity
of human life.
The
court has been referred to several cases by counsel and been urged to
use the cases as a guide. The cases have been considered but they
deal with different circumstantial scenarios. The court's view is
that there is no straight jacket formula for sentencing a convicted
person for an offence like culpable homicide. This is why the
legislature provided a range which however prescribes a maximum
penalty being imprisonment for life. The conventional or comparative
approach to sentence does not in cases of this nature provide a
useful guide. The court is of the view that the comparative approach
is more suited to offences of dishonesty like thefts, frauds and
kindred offences where value of loss is quantifiable.
In
the present case, the court considers that the combination theory in
the assessment of sentence will best serve the interests of justice.
The
combination theory connotes a consideration of the offence, the
offender and the interests of society. See S
v
Zinn
1969 (2) SAS 537A.
In
considering the offence, it is clear that the offence is a serious
one. The court has considered the accused's degree of culpability
in committing the negligent act. The extent of his deviation from
societal norms of reasonable conduct in the circumstances of the case
was gross.
He
beat up his defenseless wife, threw her against the wall and
throttled her. He left the deceased helpless or unconsciousness.
Apart from the beating, the accused did not do anything to ascertain
whether the deceased had not been seriously injured. The accused did
nothing to prevent the consequences of his conduct.
It
for this and other reasons that the court considered that the
accused's degree of culpability or negligence was gross. Relevant
to this finding is the fact that such gross negligence necessarily
connotes the extent of the accused's deviation from the norms of
reasonable conduct in the circumstances and the foreseeability of the
consequences of the accused's negligence.
The
accused himself was said to be traumatized by the offence. He is HIV
positive. Fortunately medicine has now made inroads and there is
medication which controls the condition. Being HIV positive is no
longer a sure death sentence as it used to be.
The
accused pleaded guilty and desires to make peace with his in laws. He
acted in a very callous manner through. He conducted a private burial
of the deceased's body and lied about the incident including
reporting that the deceased had visited the accused's sister to
collect preparatory clothes for the expected baby. The accused at 32
years still has years of life before him everything being equal. He
should be given a chance to reintegrate into the society and
hopefully mend his errant behavior.
With
regards to societal interests, it must be borne in mind that to a
large extent criminal law exists as a body of law which performs the
function of being a vehicle to coerce or cajole members of society to
abstain from engaging in conduct which injures societal interests.
Society expects crime to be investigated, prosecuted and adequately
punished.
The
offence of culpable homicide being based in gauging accused's
negligent conduct being measured against what the society would
regard as reasonable must of necessity present itself as an offence
of public interest. A proper sentence for culpable homicide depending
on the circumstances of each case must not be unduly lenient nor
unduly harsh. It must mirror the society's abhorrence or
disapproval of the accused's conduct. The sentence should be one
that reflects that negligent transgressions in the conduct of members
of society gets punished adequately.
Sentencing
fairly and appropriately in cases of culpable homicide presents a
headache for the sentencer because culpa may have been slight yet it
results in irreversible harm - being death. Whilst punishment should
acknowledge the sanctity of loss of life which is inherently an
aggravating feature, this should not overlook the fact that it is
really the degree of negligence exhibited by the accused rather than
the consequence which must fall for censure.
Those
who have lost a relative will always demand retribution. The court
whilst sympathizing with them must perform its duty nonetheless of
achieving a proper balance between conflicting interests.
The
accused's conduct was deliberate. The deceased's death did not
come about through the consequences of oversight or carelessness on
the part of the accused. The deceased met her death in the course of
the unlawful attack perpetrated upon her by the accused. The accused
assaulted the deceased with open hands threw her against the wall and
choked her. Deceased did not fight back.
As
already indicated, there is an upsurge of cases of domestic violence
resulting in death. The cases concern men as much as they concern
women behaving violently. The courts in such circumstances should be
seen to be passing deterrent sentences.
Considering
the accused's degree of culpability or level of negligence which
has been found to be gross and taking into account all the
circumstances of the case involving mitigating and aggravating
circumstances and societal interests, an appropriate sentence in this
matter is as follows:
The
accused is sentenced to 12 years imprisonment of which 4 years
imprisonment is suspended for 5 years on condition that the accused
is not within that period convicted of an offence involving the
unlawful taking away of another person's life for which he is
convicted and sentenced to imprisonment without the option of a fine.
National
Prosecuting Authority,
for the State
Mabuye
Zvarevashe,
accused legal practitioners pro
- deo
