MAVANGIRA
JA:
This
is an automatic appeal against the decision of the court a
quo
convicting the appellant of murder in terms of section 47(1) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23]
('the Act') and sentencing him to death.
After
hearing submissions from both counsel, the Court, for reasons to be
availed later, dismissed the appeal against both conviction and
sentence. The said reasons now appear hereunder.
FACTUAL
BACKGROUND
The
appellant and one Taurai Tsikudzawo (also sometimes spelt as
Tsikuzawo in the record of proceedings) were charged with murder as
defined in section 47 of the Criminal Law (Codification and Reform)
Act [Chapter
9:23]
(the Code). The allegations against them were that on the 7th
of December 2010 and at around 2100hrs, the appellant and his
co-accused, while pretending to be customers, entered Zemba Store, a
shop belonging to one Alex Jomboro (the deceased) at Kandeya
Township, Mt Darwin. The deceased was behind the counter when one of
the accused persons jumped over the counter and demanded cash from
him. The deceased failed to produce any money and one of the accused
persons shot him.
Tazvitya
Dzimbire, the deceased's security guard, escaped from the shop
before the shooting happened, leaving the accused persons alone with
the deceased. One Detective Sergeant Mutyambizi who was at Kandeya
Township heard the gun shots and rushed to the deceased's shop. He
found the deceased lying in a pool of blood. The accused persons had
fled. The detective also found two spent cartridge cases from a
pistol. He proceeded to contact and inform the Police (ZRP) at Mt
Darwin of the incident and facilitated the movement of the deceased
to Mt Darwin Hospital where he was confirmed dead on arrival by
Doctor Gwagwa who on 8 December 2010 carried out a post mortem
examination of the deceased's remains.
The
post mortem report recorded that the examination had established
that the deceased had died from a gunshot wound to the head. A
bullet was recovered from the deceased's head and was referred to
CID Forensic Ballistics department for examination. The forensic
examination of the bullet established that it had been fired from a
CZ pistol serial number 9136T which had been stolen from one Bakaris
Kostantinos Costas, the owner of a supermarket in Ruwa on 23 June
2010.
THE
APPELLANT'S ARREST
Sometime
during the period spanning 1 March 2011 to 3 March 2011, the
appellant was arrested together with one Justin Momela, Thembinkosi
Matutu and Taurai Tsikudzawo by the ZRP Criminal Investigation
Department (CID), Harare in connection with crimes of robbery and
murder. The four accused were interviewed by the CID officers and
the appellant confessed to have been in possession of the CZ pistol
serial number 9136T, this being the firearm with which the deceased
was shot and killed.
Evidence
adduced by the State was to the effect that on 3 March, 2011, the
appellant volunteered to lead police details to a place near Ruwa
Rehabilitation Centre where he claimed and indicated that he had
hidden the firearm that had been stolen from the owner of Ruwa
Supermarket during the execution of a robbery.
The
appellant failed to locate the firearm at that place and advised the
police that the firearm may have been taken by Taurai Tsikudzawo who
was with him when he hid it. He thereafter led the police to
Tsikudzawo's residence which was about 20/25 to 30 metres away
from his own. Tsikudzawo was arrested after which he led the police
to a place where he had hidden the firearm after learning of the
appellant's arrest. The place where it was recovered was about
1.5km from their residences which, as already stated, are within 25
to 30 metres of each other.
THE
APPELLANT'S DEFENCE
The
appellant raised the defence of alibi,
claiming that he had spent all his days, including the day of the
deceased's murder, helping his brother, Marvellous Madya, who is a
mechanic, repairing motor vehicles. As to how he became implicated
in this case, his explanation was that one Justin Momela brought a
motor vehicle for repairs to be carried out by the appellant's
brother. Justin Momela was advised that the motor vehicle required
another battery. The appellant then gave Justin Momela a second-hand
battery and in return, Justin Momela gave the appellant a mobile
phone as security, pending payment for the battery. When Justin
Momela failed to pay for the battery, the appellant sold the mobile
phone to one Spencer Muuya. When Spencer Muuya was found in
possession of the mobile phone, he implicated the appellant. He
further stated, significantly, and rather curiously too, that he
only got to know Taurai Tsikudzawo after the latter was arrested
through Justin Momela, who, as it turned out and according to the
appellant himself, is also known as Justin Tsikudzawo. He denied
having led the police to the recovery of the firearm, claiming that
he was only seated in the police vehicle when the police were led by
Taurai Tsikudzawo to the place where the weapon was hidden. He
further averred that he was arrested on the basis that he had had in
his possession a phone which had been stolen during a robbery.
THE
JUDGMENT OF THE COURT A
QUO
The
court a
quo
noted that in his defence outline, the appellant stated that Justin
Momela is also known as Justin Tsikudzawo. The court was of the view
that this meant that the said Justin Momela was probably related to
Taurai Tsikudzawo. The court a
quo
also noted that although the appellant stated in his defence outline
that on the date that the offence was committed he was in Ruwa and
spent the night with his brother Marvellous Madya, the said brother
was not called to testify. In addition, the appellant was, in his
oral evidence before the court, non-committal regarding his
whereabouts or movements on that day, including the evening. After
analysing all the evidence adduced before it, the court a
quo
found:
“that
the accused (appellant) is the one who had possession of the firearm
used to murder the deceased, and that he had hidden it but found it
having been removed by Taurai Tsikudzawo, and that he was able to
lead the police to the person who had changed the place where the
weapon was hidden, the absence of any explanation as to how he came
to be in possession of the firearm renders any suggestion that
another person may have used the weapon to kill the deceased fanciful
and speculative. The court is convinced that beyond reasonable doubt
the case against the accused person has been proved, namely, that he
is the one who unlawfully and intentionally killed Alex Jomboro. In
the result, the accused is found guilty of murder as defined in
section 47(1)(a) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23].”
The
appellant was thereafter sentenced to death.
THIS
APPEAL
This
appeal is against both conviction and sentence and the following
grounds of appeal have been raised:
GROUNDS
OF APPEAL
“1.
The court a
quo
erred in finding that the appellant murdered the deceased as he is
the one who led the police to Taurai from whom the firearm was
recovered. Such circumstantial evidence was improperly admitted as
the fact sought to be proved that the appellant was in possession of
the firearm therefore he is the one who shot the deceased was not
consistent with all proven facts and there are other reasonable
inferences that can be drawn particularly considering that at one
time Taurai was in possession of the gun. The court a
quo
ought to have established if indeed Taurai came into possession of
the firearm and the date thereof against the date on which the
offence was committed so as to determine if the appellant was in
physical possession of the firearm on the date the offense was
committed or it was Taurai Tsikudzawo who allegedly came into
possession of the gun and skipped bail upon arrest.
The
court a
quo
erred in dismissing the appellant's alibi
on the basis that he failed to explain what he was doing around
21:00hrs on the 10th
of December 2010 when the offense was committed. The appellant's
explanation was concrete and the Court ought to have considered the
lapse of time which rendered it difficult for Appellant to recall
what he was doing on a date more than 6 years ago, the Court should
not have relied on the appellant's failure to state exactly what
he was doing on that date and at that particular time in dismissing
his alibi considering the appellant's right to a fair trial within
a reasonable time whilst he still recollect (sic) events time and
dates.
The
court a
quo
erred in exercising its discretion by sentencing the appellant to
death notwithstanding the extenuating circumstances and the
mitigatory factors advanced by the appellant particularly his
youthfulness.”
13.
The relief sought by the appellant was for his conviction to be set
aside and that he be found not guilty and acquitted. Alternatively,
that the sentence of death be set aside and substituted with “any
other custodial sentence the court deems appropriate.”
SUBMISSIONS
BEFORE THIS COURT
The
appellant's submissions
Mr
Nyamayemombe,
for
the appellant submitted that the conviction was not justified,
regard being had to the rules and principles relating to the
assessment and treatment of circumstantial evidence. Reliance was
placed on R
v Blom
1939 AD 188 per WATERMEYER JA and State
v Muyanga
HH79/13 per HUNGWE J. In R
v Blom (supra)
the requirements were formulated in the following manner:
“(a)
the inference sought to be drawn must be consistent with all the
proven facts: if it is not, the inference cannot be drawn.
(b)
the proven facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn: if these proved
facts do not exclude all other reasonable inferences, then there must
be a doubt whether the inference sought to be drawn is correct.”
15.
In State
v Muyanga (supra),
the requirements for a conviction to be justified in a case that
rests upon circumstantial evidence were articulated thus:
“(1)
The circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
(2)
Those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused;
(3)
The circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and no-one
else; and
(4)
The circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation by any other hypothesis than
that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent
with his innocence.”
16.
Counsel
submitted that the court a
quo
erred
in finding that the appellant failed to explain his possession of the
firearm which was used to commit the crime. He argued that the
firearm was recovered in Ruwa on the indications of Taurai Tsikudzawo
and that the appellant had no control of it at the time when the
crime was committed because it had been removed from the place where
he had initially hidden it near Ruwa Rehabilitation Centre.
17.
Counsel maintained that the ballistics report in itself was not
proof of the appellant having been in possession of the firearm at
the time of the commission of the crime. He also submitted that the
appellant denied or disputed the evidence of Detective Assistant
Inspector Mutata, the investigating officer, who testified that the
appellant admitted that he had committed the robbery at Ruwa
Supermarket where a CZ pistol and cash were stolen and also offered
to, and did lead the police officers to the place where he claimed to
have hidden the pistol, at some spot along the pre-cast wall at Ruwa
Rehabilitation Centre. With regards to the appellant's defence of
alibi,
counsel argued that the court a
quo
ought to have appreciated that the appellant had forgotten some of
the events of the day when the crime was committed due to passage of
time.
18.
It was also submitted that as there was no onus
on the appellant to convince the court of any explanation, he ought
to have been acquitted as there was a possibility of his explanation
being true. For this proposition reliance was placed on R
v Difford
1937 AD 370 where it was stated that there is no onus
that rests on the accused to convince the court of any explanation
even if that explanation is improbable. Further, that the court is
not entitled to convict unless it is satisfied, not only that the
explanation is improbable but beyond doubt that it is false. It was
also stated therein that if there is any possibility of the
explanation being true, then the accused has to be acquitted.
19.
The judgment of the court a
quo
was further criticized on the basis that the State ought to have, but
did not place before the court, the court record CRB685/11 which
would have shown that evidence was led to the effect that the
appellant was not charged for the Ruwa Supermarket robbery as he was
exonerated by the other accused persons. The mainstay of the
criticism was that there was a second person who had control over the
firearm and who could have used it on the day of the murder.
Furthermore, that any other person could have used the firearm and
without evidence of the appellant's possession of it prior to the
commission of the murder, it left the evidence “short of the thread
of beyond reasonable doubt.” The court a
quo
was thus criticized for having unfairly dismissed the appellant's
alibi.
20.
With regard to sentence, the contention made on behalf of the
appellant was that the court a
quo
erred by paying lip service to the delay in bringing the appellant to
trial; the trial having commenced and ended in 2017, after a period
of 7 years.
THE
RESPONDENT'S SUBMISSIONS
21.
Per
contra,
Mr Chikosha,
for
the respondent, contended that the court a
quo
did not misdirect itself when it found that, beyond reasonable doubt,
the appellant was the one who unlawfully and intentionally killed the
deceased and as a result, returned a verdict of guilty of murder as
defined in section 47(1)(a) of the Criminal Law (Codification and
Reform) Act.
22.
Counsel for the respondent submitted that the court a
quo
did not err in its finding that the appellant was guilty of the
charge of murder. Counsel argued that the appellant was fabricating
his story as he stated before the court a
quo
that he was not involved in the robbery in Ruwa, denied leading the
police to the place where he hid the firearm and leading the police
to Taurai Tsikudzawo. However, before this Court the appellant
changed his story and stated that he hid the firearm which was later
removed from the place where he had hidden it and that he was only
involved in the robbery in Ruwa and not the murder in Mount Darwin.
23.
It was submitted on behalf of the respondent that the authorities
are clear that 'beyond reasonable doubt' does not mean 'beyond
a shadow of doubt.' It was also submitted that the absence of any
explanation by the appellant as to how he came to be in possession of
the firearm, renders any suggestion and insinuation that another
person may have used the weapon to kill the deceased, fanciful and
speculative. It was also argued that it was significant that the
appellant knew the person who had removed the firearm from a
particular place and was the one who led the police to that person
and consequently, the recovery of the firearm. The other significant
factor was the fact that the appellant's and Taurai Tsikudzawo's
residences are within the same area. Counsel submitted that the fact
that the appellant led the police to Taurai Tsikudzawo showed that he
knew him. Counsel also submitted that the appellant's connection
with the firearm was established by the evidence led before the court
a
quo.
Thus, in the absence of an explanation of his possession of the
firearm, the court properly came to the conclusion that it was the
appellant who fired the shot that killed the deceased.
24.
Counsel submitted that the appellant's testimony could not be
trusted. On the issue of the alibi,
counsel submitted that the appellant ought to have called his brother
to testify at the trial as his brother could have supported his
version of events.
ISSUE
FOR DETERMINATION BEFORE THIS COURT
25.
The issue for determination before this court is whether or not the
court a
quo
erred in finding the appellant guilty of murder in
terms of section 47 of the Act and thereafter sentencing him to
death.
ANALYSIS
Conviction
26.
It is common cause that as there was no direct evidence of the
shooting of the deceased on the night in question, the appellant was
convicted on the basis of circumstantial evidence.
27.
The court a
quo
in convicting the appellant of murder, weighed the totality of the
evidence placed before it.
From a perusal of the court a
quo's
judgment, as confirmed by the record of proceedings, the following
facts are common cause, or stand uncontroverted. That on 7 December
2010, the deceased died as a result of injuries which he sustained
after being shot with a gun; that the persons who shot the deceased
entered his shop at night and demanded money before shooting him;
that the weapon used to shoot the deceased was confirmed by a
ballistics examination to be the one that the police recovered at
Ruwa and that the exact location of the firearm when it was recovered
was pointed out by, or more accurately, with the active participation
of Taurai Tsikudzawo.
28.
The court a
quo
aptly commented:
“What
is in contention is whether the police who were investigating the
issue of the firearm were led to its recovery by the accused person.
If the accused indeed led the police to recover the firearm the next
issue arises, namely, whether the recovery of the firearm through the
indications of the accused person links him to the murder of the
deceased. The evidence of Previous Mutata (the investigating officer)
was that the accused person is the one who led them to Ruwa and when
he failed to locate the firearm at the place where he had hidden it
he then led the police to the residence of his friend, Taurai
Tsikudzawo whom he believed to have removed the pistol to some other
place. Through the involvement of Taurai Tsikudzawo the police were
then able to recover the firearm. That evidence has not been
challenged by the accused person. What the accused sought to do was
to suggest that he himself was not the one who pointed out the place
where the firearm was. The accused person did not dispute that he is
the one who led the police to the residence of Taurai Tsikudzawo. He
states that he was only seated in the motor vehicle when the police
were led by Taurai Tsikudzawo to the place where the weapon was
hidden. That version accords with the evidence of Previous Mutata
insofar as it illustrates that the accused person was indeed present
when Tsikudzawo went with the police to the place where he had hidden
the firearm following the arrest of the accused. The accused suggests
that he was only arrested because he had been given a mobile phone
belonging to Justin Momela to whom he had sold a car battery.”
The
court further noted:
“His
connection to the recovery of the firearm was established by the
evidence led. If he was not the one leading them to Ruwa and Taurai
Tsikudzawo's residence the police officers would have had no reason
to have him in their motor vehicle. He does not explain what he was
doing in that motor vehicle. The accused exhibited so much knowledge
about the other cases involving Justin Momela and Taurai Tsikudzawo,
but
does not explain his connection to them.
The evidence placed before this court shows that his residence is
within the same area as that of Taurai Tsikudzawo. It makes sense
then that he knew Taurai Tsikudzawo, and is the one who led the
police to his residence. It does not matter that he is not the one
who actually pointed out where the firearm had been hidden. He would
not have known that since, as Previous Mutata explained, it had been
removed by Taurai Tsikudzawo. If, as the accused would like the court
to believe, the police had intended to falsely implicate him they
would have simply stated that he is the one who pointed out where the
firearm was to them without involving Taurai Tsikudzawo. The accused
is the one who knew the person who had removed the firearm. He led
the police to that person, and the firearm was recovered. He has not
explained his possession of that firearm or how he came to be
involved with it. The firearm is the weapon that was used to kill the
deceased. The evidence of the Forensic Ballistics Reports was not
challenged. In the absence of an explanation of his possession of the
firearm, the court is entitled to come to the conclusion that the
accused is the one who fired the shot that killed the deceased.”
(the emphasis is added)
29.
The court a
quo
further made the observation that proof beyond reasonable doubt does
not mean proof beyond any shadow of doubt. The
court found that a combination of the following factors pointed to
the appellant's guilt. These are: that the appellant was the one
who had possession of the firearm used to murder the deceased; and
that he had hidden it but found it having been removed by Taurai
Tsikudzawo; and that he was able to lead the police to the person
(Taurai Tsikudzawo) who had changed the place where the weapon was
previously hidden; the absence of any explanation as to how he
(appellant) came to be in possession of the firearm, rendering any
suggestion that another person may have used the weapon to kill the
deceased fanciful, speculative and not worthy of belief. The court a
quo
also rightly noted, against the appellant, that he failed to explain
what he was doing in the police motor vehicle or his connection to
Justin Momela and Taurai Tsikudzawo although he had exhibited so much
knowledge about the other cases involving them.
30.
These factual findings were made by the court a
quo
based on the evidence placed before it. The trial court had the
privilege of watching the witnesses on the stand including the
appellant himself. It had the privilege of assessing their demeanour
and credibility. This Court cannot interfere with the findings of
fact made by the trial court in the absence of gross misdirection
thereof. In IDBZ
v Engen Petroleum Zimbabwe (Pvt) Ltd
SC16/20
the Court held
that:
“It
is a settled principle that the Court will not easily interfere with
factual findings made by a lower court unless the findings are
grossly unreasonable (see ZINWA
v Mwoyounotsva
2015
(1) ZLR 935 (S);
Hama
v NRZ
1996
(1) ZLR 664 (S);
Reserve
Bank of Zimbabwe v Corrine Granger & Anor
SC34/01).”
31.
At the end of the day, the court a
quo
found that the State had proved beyond reasonable doubt the
allegations against the appellant and therefore convicted him
accordingly. To
the court, it therefore did not matter that he was not the one who
actually pointed out where the firearm had been hidden.
Also
of significance was the fact that the firearm was obtained through a
robbery that occurred in June 2010. The appellant confessed that he
was in possession of the firearm thereafter but hid it and Taurai
Tsikudzawo only removed it from where he had hidden it after the
appellant was arrested in March 2011. As already stated earlier, the
court a
quo
finally stated:
“The
court is convinced that beyond reasonable doubt the case against the
accused person has been proved, namely, that he is the one who
unlawfully and intentionally killed the deceased Alex Jomboro. In the
result, the accused is found guilty of murder as defined in section
47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].”
32.
The court a
quo's
analysis cannot be faulted. Its cogency is borne out by the evidence
on record. In attempting to analyse the judgment of the court a
quo,
it is realized that because of its cogency, there is a grave risk of
merely further regurgitating or reiterating the court a
quo's
analysis. That, in the court's view, is not necessary. The
only inference that can be drawn from the totality of the evidence
that was adduced before the court a
quo
is that the appellant committed the offence. The court a
quo
has not been shown to have misdirected itself. The cumulative effect
of the facts elicited from the evidence placed before the court a
quo
is, in the court's view, to show that the respondent managed to
prove, beyond a reasonable doubt, that the appellant indeed committed
the murder as alleged.
The court a
quo's
analysis of the evidence placed before it stands solid and unshaken
even in the face of the scrutiny urged by the grounds of appeal and
submissions made on behalf of the appellant.
33.
It can also be said that the appellant's failure, in
the particular circumstances of this case,
to call his brother to testify as a witness in support of his
alibi,
tends
to negate his defence in the face of the cogent evidence adduced by
the State against him.
34.
The appellant dismally failed in his evidence before the court a
quo,
to give a clear account of where he was on that particular day. In
addition, he did not call his brother to testify or lead any further
evidence to substantiate his defence that he was with his brother on
that fateful day. The court a
quo
was thus left with no other option but to consider the evidence
placed before it and finally coming to the conclusion that culminated
in the conviction of the appellant. In the court's view, the court
a
quo
did not misdirect itself in any way.
More damning for him, the appellant failed to give an explanation on
how he knew where the gun was hidden or who had removed it from that
place. Against all this background, it can safely be said that he led
the police to its recovery.
35.
In S
v Muyanga
HH79-13
the court stated the following:
“The
correct approach is first to determine
what facts are established by the evidence.
The court must then consider all of those
facts together as a whole
and ask whether it can be concluded, from those facts, that the
accused is guilty of the offence charged. If such a conclusion does
not reasonably arise, then the State's circumstantial case fails
because there is no proof of guilt beyond reasonable doubt.
But
if the court finds that such a conclusion is a reasonable one to draw
based upon a combination of those established facts then, before it
can convict the accused, it must determine whether
there is any other reasonable conclusion arising from those facts
that is inconsistent with the conclusion the State says is
established. If there is any other reasonable conclusion arising from
those facts that is inconsistent with the guilt of the accused, the
circumstantial case fails because there is no proof beyond reasonable
doubt
of the accused's guilt.” (my own emphasis)
36.
The appellant's conviction is safe and this court, as an appellate
court, finds no justification for interfering with it. The conviction
is therefore hereby confirmed.
Sentence
37.
The appellant having been convicted of murder in the course of a
robbery, the court a
quo went on to
assess and determine the appropriate sentence in the circumstances.
The court a
quo stated that
“[T]he murder was clearly committed in aggravating circumstances,
as it was committed in the course of a robbery.” It also commented
as follows:
“While
the court accepts that the Constitution of Zimbabwe 2013 gives it a
discretion not to impose the death penalty, and that the law was
subsequently amended to give statutory recognition to that
discretion, the court considers that there are no grounds justifying
the imposition of a penalty less than sentence of death. It would be
an improper exercise of judicial discretion for the court to impose a
sentence less than death in the circumstances of this case.
…..
In
all the circumstances, the court finds that the accused has not shown
good reasons or cause why sentence of death should not be passed upon
him.
In
the result, sentence of death is passed upon the accused.”
38.
While the court a
quo made reference
to the 2013 Constitution and also made an oblique reference to the
General Laws Amendment Act 3 of 2016 which made provision for the
amendment of section 47 of the Act (Criminal Law Code), such was not
necessary. This is so because section 18(9) of the 6th
Schedule to the 2013 Constitution provides as follows:
“(9)
All cases, other than pending constitutional cases, that were pending
before any court before the effective date may be continued before
that court or the equivalent court established by this Constitution,
as the case may be, as if this Constitution had been in force when
the cases were commenced, but —
(a)
the
procedure to be followed in those cases must be the procedure that
was applicable to them immediately before the effective date; and
(b)
the procedure referred to in subparagraph (a) applies to those cases
even if it is contrary to any provision of Chapter 4 of this
Constitution.
(10)
For the purposes of subparagraph (9) —
(a)
a criminal case is deemed to have commenced when the accused person
pleaded to the charge;
(b)
a civil case is deemed to have commenced when the summons was issued
or the application was filed, as the case may be.”
(the
underlining is for emphasis)
39.
In
casu,
the offence having
been committed in 2010, the court a
quo ought
to have relied on the procedure that was applicable as at that time.
The 2013 Constitution and the amendments made to section 47 of the
Act (CL(C&R) Act) and sections 337 and 338 of the Criminal
Procedure and Evidence Act, [Chapter
9:07], had no role
to play in the matter that was before it.
40.
In terms of the applicable law, the court had no discretion but to
pass a sentence of death on a conviction for murder where there were
no extenuating factors. A reading of the facts in this matter leaves
no doubt that there were no extenuating factors attendant on the
murder for which the appellant was convicted. The appellant and his
accomplice who was still at large when the appellant was brought to
trial agreed and planned to commit a robbery. They purposely embarked
on a journey to Mt Darwin where they entered the deceased's shop at
night. They were armed. One of them jumped over the counter, demanded
money from the deceased before callously shooting him at close range
after failing to get the desired response to his demand. The deceased
was minding his own personal and lawful business of running his shop.
The appellant and his colleague brazenly and unashamedly felt
entitled to the proceeds of the deceased's sweat. They showed no
respect for the sanctity of human life. The deceased needlessly and
unfairly lost his life merely because he was working to earn a living
as all law-abiding citizens must do. Undoubtedly, his family was
negatively affected in various ways by this untimely demise. In
current parlance, Zimbabwe is open for business. It is open for
business not only to foreigners but also, if not more so, to
Zimbabwean nationals. The adage that crime does not pay is not a
hollow statement. Money is not snatched from those who have worked
for it; it is earned by hard work. The appellant was at the relevant
time of an age that would normally be expected to have all the energy
to work in order to lawfully earn a living. The deceased who was far
older was terrorised and killed by the appellant in a show of callous
disregard to the deceased's right to life and to property.
41.
In
casu,
the finding by the court a
quo
that
the murder of the deceased was committed in aggravating circumstances
cannot be faulted. The appellant shot the deceased point blank in the
course of a robbery. Murder committed in the course of a robbery has
always been viewed by these courts as murder committed in aggravating
circumstances. The court a
quo
cannot be faulted in viewing it accordingly. The deceased succumbed
to the gun shot. The appellant had pre-meditated this offence by
arming himself with the firearm before entering the deceased's shop
for purposes of committing a robbery.
42.
Before the court a
quo,
the appellant sought, in mitigation, to rely on the fact that he was
25 years of age at the time of the commission of the murder hence his
youthfulness ought to have been taken into consideration. In Norman
Sibanda v The State SC 39/14
counsel for the State successfully argued, and the appellant's
counsel properly conceded, that youthfulness would ordinarily
constitute an extenuating circumstance only if the actions of the
offender are consistent with immaturity. However, in
casu,
the appellant cannot take refuge behind his age.
On the aspect of the appellant having been 25
years old at the time that he committed the offence in 2010, the
court did not accept that at the age of 25 the appellant failed to
appreciate the implications and consequences of his conduct when he
carried a firearm and deliberately shot his victim.
We find no fault in this assessment by the court a
quo.
It is also the court's view that at 25 years of age, a person has
the capacity to decipher wrong from right. In any event, the facts of
this matter are not consistent with immaturity emanating from
youthfulness. To hold otherwise would only serve to create a state of
chaos in society given the prevalence of the commission of offences
by those of youthful age. It
is significant in this regard, that the court a
quo
also noted that there was careful planning and execution of the
murder as the appellant carried the weapon himself to the scene of
the crime. That type of conduct is consistent with adulthood rather
than juvenile immaturity.
43.
In the court's view, the appellant did not succeed in showing that
the sentence imposed by the court a
quo
warranted interference by the appeal court. As has been already
alluded to, this is a case where a robbery escalated to murder in
aggravating circumstances. The appellant's appeal against sentence
thus lacks merit and ought to be dismissed.
44.
No misdirection on the part of the court a
quo
having been shown, this court accordingly issued an order dismissing
the appeal in its entirety, as indicated at the beginning of this
judgment.
GUVAVA
JA: I
agree
BHUNU
JA: I
agree
M.C.
Mukome,
appellant's legal practitioners
The
National Prosecuting Authority, respondent's legal practitioners
