MWAYERA
J:
The
accused was initially charged with murder as defined in section 47 of
the Criminal Law (Codification and Reform) Act [Chapter
9:23].
It
is alleged that on 7 June 2017 and at Ratelshoek Tea Estate,
Chipinge, the accused unlawfully and with intent to kill or realising
that there was a real risk or possibility that his conduct might
cause death and continued to engage in that conduct despite the risk
or possibility shot Tinashe Gwiza in the head with a 12 Bore Pietro
Beretta shotgun once thereby inflicting injuries from which the said
Tinashe Gwiza died.
The
accused pleaded not guilty to murder but admitted to having
negligently caused the death of the deceased. The accused tendered a
plea of guilty to culpable homicide as defined in section 49 of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
State accepted the limited plea of guilty to culpable homicide. A
Statement of Agreed Facts was tendered as an Annexure “A”.
It
was apparent from the statement of agreed facts that on the fateful
day the deceased together with 5 others connived to go and steal
irrigation polythene pipes at Ratelshoek Tea Estate. The deceased and
company proceeded to the Estate with a one and a half ton truck and
stole 14x100m rolls of polythene irrigation pipes. As they were
making good their escape from the farm the security guard on duty
alerted the accused who then teamed up with the Estate Manager to
follow up on the intruders.
The
accused armed himself with a shotgun with five bores. The accused and
the Estate Manager who were using a Ford Ranger Twin Cab truck
managed to intercept the truck in which the loot, accused and
colleagues were in.
The
truck and the Ford Twin Cab were involved in an accident as they side
swapped at an intersection. This caused the truck to stop. The
accused then fired two warning shots into the air and another shot in
the direction of the now deceased and shot him in the head.
The
accused discovered the deceased lying on the ground bleeding
profusely. The deceased was about 4 metres away from the truck. He
was rushed to Chipinge Hospital where he passed on the following day
the 8th
of June 2017.
The
remains of the deceased were examined and cause of death was
established as skull fracture secondary to bullet injury.
The
State tendered in evidence the post mortem report, ballistic report
relating to the firearm and spent cartridges and also the firearm in
question.
Further,
the State produced a sketch plan drawn at the scene by the attending
police details. All the exhibits were tendered by consent.
The
accused admitted to having negligently caused the death of the
deceased by firing a shotgun in the direction of the deceased. He
admitted having been negligent by failing to realise that death might
result from his conduct resulting in injuries from which the deceased
died.
We
convicted the accused on his own plea of guilty to culpable homicide.
Having
been addressed in mitigation and aggravation we proceeded to sentence
as follows:
Sentence
In
passing sentence, we have considered all mitigatory factors and
aggravatory circumstances submitted by both Mr Mhungu
for the defence and Mr Chingwinyiso
for the State respectively.
The
accused is a fairly old man of 63 with family responsibilities in the
form of a wife, 4 minor children, and 5 grandchildren.
The
accused pleaded guilty to the offence thereby showing remorse and
genuine penitence. As correctly observed in cases cited, the plea of
guilty should be rewarded although that does not reduce the criminal
liability.
The
accused did not raise spurious defences and thus assisted in the
smooth administration of justice.
In
the case of S
v Fergas
(1) ZLR 487 at 493B the Supreme Court had this to say:
“A
plea of guilty must be recognised for what it is, a valuable tool for
smooth administration of justice while not absolving it will be
rewarded.”
Also
see S
v Makumbe
HH39/2013 Mavangira
J
(as she then was) and Hungwe
J
reiterated the need to reward a plea of guilty when assessing
sentence.
The
accused in the present case ought to be rewarded for his plea of
guilty to culpable homicide.
We
have also taken note of the fact that although the accused was only
incarcerated for a week before being admitted to bail this matter has
been hanging on his head for a period of about 1 year. The trauma and
anxiety that goes with suspense cannot be understated, it is huge.
The
accused and his family will live with the stigma of having caused the
death of the deceased.
We
were referred to some cases decided by this court as a way of giving
guidance on sentence. The cases although not on all fours with the
present case were quite useful.
Mr
Mhungu
stressed a central principle in sentence for culpable homicide, that
an offender is not being punished for intention because in the first
place he does not have the intention but will be punished for his
carelessness. See S
v Richards
(1) ZLR SC 2001 129 where the Supreme Court in deciding on an
appropriate sentence for a conviction of culpable homicide clearly
stated pertinent remarks on page 132 as follows:
“The
function of crime of culpable homicide is not so much to punish evil
doers as to incalculate caution in the citizenry and encourage
attentiveness to the safety of others. In short, the function of
culpable homicide is as much educative as it is coercive.”
The
accused in this case ought to be punished for his failure to comply
with the expected social norms of care which a reasonable man placed
in his position ought to have exercised. The accused armed himself
with a shotgun which is a lethal weapon. He was in pursuit of
intruders, human beings and was aware these same people upon bringing
their truck to a halt by virtue of the impact with accused and
manager's vehicle would escape. The accused fired at close range in
the direction of people. The accused was negligent in the manner he
fired the dangerous weapon in circumstances where he ought to have
foreseen the risk or harm to the human beings who were fleeing.
It
is for that carelessness that an appropriate sentence has to be
considered.
This
then brings us to the other aggravatory circumstances that cannot
escape our attention. The accused negligently caused the death of the
deceased by firing in the general direction of the deceased. The
accused having been a security guard for 34 years ought to have been
trained in the use of a firearms.
His
conduct on the night in question boarders on recklessness.
After
the accident the truck of the intruders having side swapped with the
accused and manager's vehicle stopped and the loot remained at the
farm. The overzealous display of power was not necessary. He knew the
shotgun would discharge pellets in different directions and that
there were people making good their escape but nonetheless he fired
shots in the direction of the people.
The
accused's moral blameworthiness is high given the property he
sought to protect had been abandoned as the truck with the loot had
come to a halt.
Further
in aggravation is the fact that the sanctity of human life is clearly
spelt out in the Constitution. It is a God given right which no one
has a right to take. A young 20 year old man was robbed of his life
at a prime age of his life. The accused an old man of experience as a
security guard ought to have done better and not use a lethal weapon
on a human being.
We
were also referred to cases by the State counsel in which a knife and
okapi knife respectively were used. Although the circumstances are
not similar to the present case, the cases are relevant in so far as
they show that use of lethal weapons occasioning death albeit
negligently ought to be appropriately punished. See S
v Mafunde
HB32/13; S
v Mabhena
HB148/13.
In
our endeavour to pass sentence we are alive to the principle that the
court has to strike a balance between the offence, offender and
societal interests while at the same time tempering justice with
mercy; see S
v Rubie
1975 (4) SA @ 620. The courts should not make the community lose
confidence in the justice delivery system by letting those who caused
loss of precious human life go unpunished. The right signal has to be
sent to those in authority and power that they should refrain from
exerting force and unnecessarily shoot to kill under the realm of
protecting property.
At
the same time the message has to be sent loud and clear that a
progressive society like ours emphasises the need for the rule of law
to be observed. Arrests do not mean killing, the law should be
allowed to take its course.
The
sentence should also reflect that the courts frown at lawlessness.
The
deceased and company had gone to this farm for purposes of stealing
and this caused the unfortunate loss of precious human life. The fact
that the accused has been a security guard for 34 years and that
despite the miserable low salary or wage of ±$300.00 went out with
full force to protect his employer's property is indicative of his
loyalty. We have found this to be highly mitigatory and it further
reduces his moral blameworthiness.
The
defence counsel also went into lamentations like the “biblical
Jeremiah” urging the court to temper justice with mercy.
Having
considered all the submissions by both counsel and given the
circumstances of the offence it is our considered view that the
offence is deserving of a custodial term. We will not trivialise
negligent killing of another with a firearm in protection of property
in circumstances where it was not necessary and could have been
avoided.
Given
the degree of negligence exhibited in this case which can be
described as high, it would be a mockery of the justice delivery
system to impose a fine where an experienced security personnel
negligently fired at close range and in the range of head causing
death of the deceased.
We
are however, persuaded by the personal and mitigatory circumstances
highlighted by the defence counsel to suspend a large portion of the
prison term.
The
accused is sentenced as follows:
3
years imprisonment of which two and a half years is suspended for 5
years on condition accused does not within that period commit any
offence involving unlawful use of a firearm and/or violence on the
person of another for which he is sentenced to imprisonment without
the option of a fine.
National
Prosecuting Authority,
State's legal practitioners
Mhungu
& Associates,
accused's legal practitioners
