Criminal
Trial
MAKONESE
J: The
accused is a female adult aged 54 years old. She appears in this
court on a charge of murder. It is alleged that on the 18th
March 2015 at Coolmoreen Farm Gweru accused unlawfully and
intentionally caused the death of Rejoice Moyo a female aged 3 years
by striking her all over the body with a switch or other similar
object thereby causing her death.
The
accused denies the allegations of murder. She tenders a limited plea
of guilty with respect to the lessor charge of culpable homicide.
The
state accepts the limited plea.
The
agreed facts are that accused was aged 48 years at the time of the
commission of the offence. On 18th
March 2015 and at around 0600 hours the deceased and her brother
Ishmael Moyo were asleep when accused wake them up so that they could
go and relieve themselves. The deceased messed her clothes. This
infuriated the accused who took a switch and assaulted the deceased
all over the body. The accused cried in agony as she was being
assaulted.
At
around 0730 hours the deceased collapsed and died. She had succumbed
to injuries sustained in the assault.
The
matter was reported to the police leading to the arrest of the
accused.
The
body of the deceased was conveyed to United Bulawayo Hospital for a
Post Mortem examination. A pathologist Doctor I Betancourt examined
the remains of the deceased and concluded that the cause of death
was:
(a)
subdural haematoma;
(b)
skull fracture;
(c)
severe head trauma due to beating injury;
On
marks of violence the doctor observed multiple bruises and abrasions
on the back and thoracic and abdominal regions, on both legs and
thighs. There were lacerations on the face and upper lip. An
examination of the skull revealed a fracture on the parietal region
and subdural haematoma on both parietal lobes.
A
confirmed warned and cautioned statement recorded from the accused on
the 21st
March 2015 is in the following terms:
“I
admit that I assaulted the child a day before yesterday after she ate
at a neighbour's place. I assaulted her on the legs using a
switch.”
It
is clear that accused admits assaulting the juvenile using a switch.
Accused does not deny that the deceased died as a result of injuries
sustained in the assault.
On
the evidence placed before this court, we are satisfied that accused
acted negligently in causing the death of the deceased.
Accordingly,
the accused is acquitted on the charge of murder. Accused is
convicted of the lessor charge of culpable homicide.
Sentence
The
accused is 54 years old. She has been convicted of a serious offence.
The court shall take into consideration the weighty mitigating
features of the case as outlined by accused's legal counsel.
The
accused is a first offender who has pleaded guilty to culpable
homicide. The accused has shown genuine remorse and contrition. She
has taken full responsibility for her conduct. She has not sought to
deny the charges even when she was aware that state witnesses were
not readily available in this matter.
The
court takes into account the fact that this case has taken an
inordinate period of time before it was finalised. The delays are
entirely not the fault of the accused person.
The
court will not however, lose sight of the fact that a juvenile aged 3
years lost her life.
The
accused acted violently against a young child. Even if the court
were to accept that the accused acted out of anger and not sheer
vengeance it is difficult to understand the accused's conduct.
The
deceased was helpless. She was subjected to a brutal and sustained
attack that left her with a skull fracture and subdural haematoma.
There
is clear evidence that excessive force was used in the assault.
Parents
stand in loco
parentis
to their children. The accused was expected to have protected the
minor child and not to brutalise her. Accused's conduct is most
reprehensible.
Had
it not been that accused is elderly and suffers from high blood
pressure, a custodial sentence would have been appropriate. See State
v Agnes Chipika
HB129/17 and State
v Sibanda HB67/15.
The
remarks I made in those cases are relevant in the present case.
However,
as I mentioned in the case of State
v Mutopa
HB127/17, nothing would be achieved by sending an elderly female
first offender to prison.
In
State
v Agnes Chipika
and State
v Sibanda, (supra)
the accused persons were aged 36 years and 23 years respectively. The
court found it appropriate to impose custodial sentences in those
case after considering the ages of the accused.
In
this matter we find that an effective custodial sentence would be
inappropriate.
The
sentence imposed in every case must fit the offence and the offender.
The sentence must meet the ends of justice.
In
the result, and accordingly it is ordered as follows:
“Accused
is sentenced to 36 months imprisonment of which 24 months
imprisonment is suspended for 5 years on condition accused does not
within the period commit an offence involving violence and for which
upon conviction accused is sentenced to imprisonment without the
option of a fine.
A
further 12 months imprisonment is suspended on condition accused
completes 420 hours community service at Batanai Old Peoples' Home,
Gweru on conditions set out by the Probation Officer.”
National
Prosecuting Authority,
state's legal practitioners
Dzimba,
Jaravaza & Associates,
accused's legal practitioner
