We accept, in this case, as mitigatory that both parties had partaken of alcohol and that must have clouded their ability to think rationally. Both accused have family responsibilities.,. Outside these proceedings, the accused demonstrated some form of remorse by contributing eleven of the fifteen beasts required traditionally to appease the deceased's spirit in accordance with their culture. There is some evidence that they, or their parents, contributed towards funeral expenses at the deceased's funeral. We will not lose sight of the youthfulness of accused two, although against him should be weighed the heavy influence and pressure he must have exerted upon accused one in seeking revenge. Murder, by its very nature, is bound to create a permanent stigma on the part of both accused persons who cut short the deceased's youthful life.

It is aggravating that the two accused ganged up against the deceased, their brother, to punish him for exercising his natural and brotherly authority over accused two. The deceased lost his life for doing nothing really, except to encourage accused two to follow the right path in life. Accused two's moral blameworthiness, in our view, despite his age, is high in that he set in motion the events leading to the demise of the deceased. The two decided to gang up and take the law into their hands by meting out revenge. Punishment must be left to be meted out by those who are trained to do so. The accused are not such persons.

We are satisfied there is no need to differentiate the sentence in this regard. In the result, it is ordered that:

Sentence

There is no specific formula prescribed to the sentencing approach. It is a question of a value judgment borrowing heavily from a given set of facts as coloured by both the mitigating and aggravating factors. These must be carefully balanced to enable the Court to arrive at what it perceives to be an appropriate sentence.

In sentencing the accused, the court accepts that he is a youthful first offender, 17 years of age at the time of the commission of the offence but now is 19 years old.

The accused did not himself mastermind the assault in question and was not in control of the proceedings leading to the assault of the deceased. He is being punished for joining in the assault that led to the death of the deceased.

It is also highly mitigatory that he took the initiative to dissuade his late cousin from continuing with the deceased's assault.

The accused's conduct led to the death of a close relative and we have no doubt this will probably haunt him for the rest of his life. That is some form of punishment.

We accept, in aggravation, that the accused demonstrated no respect at all by assaulting his aunt who was 69 years old at the time - and almost 52 years older than him.

The conduct exhibited by the accused was barbaric to say the least. The elders have invested so much in the youth and the youth are expected to demonstrate a reciprocal obligation by rendering maximum respect.

It is not the responsibility of young persons, like the accused, to mete out punishments on their parents but the inverse is true.

Whilst accepting the accused is a youthful first offender, our concern, as a court, is that it is these youth who are at the centre of committing these violent crimes in our society. The message must go loud and clear that this Court will not fold its hands and allow disorderly conduct out there.

The sentence imposed must send the message to other like-minded youth, and, at the same time, assist in the rehabilitation of the accused person.

It must be stated, and re-emphasized, that it is animals which quarrel and fight but people must find civilised methods of resolving their differences.

The conduct of some of our traditional healers and self proclaimed profits has not escaped our attention. So much confusion and hatred are sometimes as a result of the conduct of such traditional healers.

The issues which led to the death of the deceased should have been handled in a better way than the conduct resorted to by the accused person.

The accused is sentenced as follows:-

8 years imprisonment, 2 years of which is suspended for 5 years on condition the accused does not within this period commit any offence involving violence upon the person of another and for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine.

In assessing the appropriate sentence, the court shall also take into account that the accused is a responsible family man with five minor children to look after. He is the sole breadwinner for the family. He earns about US$1,000= per month as a gold panner. He has pleaded guilty and has shown contrition.

On the other hand, very little can be said in favour of the deceased.  All what the court can say is that human life is precious. It must be preserved at all costs whenever circumstances permit.

The State addressed the court in aggravation and in turn the defence addressed us in mitigation.

The State urged the court to impose a custodial sentence in the region of 10 years and to support that contention cited these cases: State v Bonginkosi Sibanda HB91-12 and State v Lovemore Zulu HB88-12.The State argued that a sentence of 10 years imprisonment was appropriate regard being had to the fact that there was no high degree of provocation.

The defence, on the other hand, placed reliance on cases which, in our view, were not entirely relevant. The case State v Ndlovu 1996 (2) ZLR 1, which was cited, dealt with a case of theft and the facts are on entirely different aspects of the law. This did not assist the court. The other case of State v Elias Ndlovu HB119-05 was, to some extent, relevant and the court will take into account the sentence imposed in that case as a guideline.

In arriving at an appropriate sentence, this court notes that the degree of provocation was very slight. In fact, what worries us in this case is that the dispute was between the accused's father and mother (deceased) and it seems the accused entered the fray for no apparent reason. The accused's moral blameworthiness is very high….,. We note that the accused is a peasant farmer with some huge family responsibilities of taking care of his extended family. We have also considered the fact that the accused will forever be traumatized by the fact that he took his own mother's life. Although it was submitted that the accused person was somehow intoxicated there was no compelling argument on that aspect and one can only assume that the level of intoxication, if any, of the accused was not very insignificant. The accused person showed some amount of contrition and remorse and that works in his favour. However, as submitted by counsel for the State, in this case the accused person pleaded guilty principally because he had no defence to proffer and the court should not place undue weight on the fact that the accused did not waste the court's time. The court, however, accepts that a plea of guilty is, on its own, a factor in mitigation. The court also notes that the accused is a first offender who has spent 6 years awaiting the outcome of his trial. The anxiety associated with the delay is taken into account. The accused was on bail pending trial as submitted by this defence counsel….,.

In the circumstances of this case, we consider that a life was needlessly lost. The accused person struck and killed his biological mother with a brick. Resolving disputes by violent methods cannot be condoned by these courts. The courts would be failing in their duty if they do not pass deterrent sentences. In the circumstances, the accused is sentenced as follows:

The appellant was sentenced to undergo six years imprisonment of which two years imprisonment was suspended for a period of four years on the customary conditions of future good behavior….,.

The sentence imposed on her was assailed on the grounds that it was too severe and induces a sense of shock in that:-

“1. The court a quo did not place sufficient weight on the mitigatory factors of this matter and did not consider alternative forms of punishment;

2. The court a quo erred in finding that “human life (was) lost deliberately due to conduct (of the accused). By using the word “deliberately” the court a quo elevated the crime of culpable homicide to that of murder and punished appellant as if she had been convicted of murder;

3. The sentence imposed is not in line with other decided cases;

4. The court a quo erred in finding, as an aggravating factor, that the deceased's intrusion was innocuous when it was undisputed that the deceased had damaged the appellant's kitchen door;

5. The inquiry into the mitigatory factors was done in a perfunctory manner such that the court a quo did not consider the following:-

(i) That the appellant had been wronged by the deceased juvenile, and was consequently feeling aggrieved which could have clouded her judgment;

(ii) That the pursuit of the deceased by the appellant was otherwise lawful;

(iii) Whether there was any psychological link between the fact that the appellant is married, aged 32 years, and childless in a rural set up and her reaction to the intrusion by the deceased;

(iv) The appellant's level of education;

(v) The trauma and stigma associated with a conviction for killing a juvenile neighbour; and

(vi) The appellant is the sole breadwinner taking care of her blind husband and two orphans.”…,.

A person guilty of culpable homicide is liable to imprisonment for life or any shorter period.

The trial court had contemplated imposing a term of 10 years imprisonment but reduced it to 6 years imprisonment with 2 years imprisonment being suspended on conditions of future good behavior. The sentence cannot be said to induce a sense of shock. It is quite appropriate. A very young life was unnecessarily lost. The offender needed to be adequately punished. Other forms of punishment would have been inappropriate in the circumstances as they would have tended to trivialise the offence.

Sentence

All that needed to be said in favour of each accused had been put forward by their legal representatives. Their personal circumstances have been taken into account. Other than that, nothing further can be said in the accused persons favour.

They carefully planned the robbery and in the process they caused the death of the deceased who was doing his work at the supermarket. The deceased did not resist them in any way. He did not try to foil the robbery; instead, he went to the door of the storeroom. He knocked at the door and tried to open it to no avail. He had no control over the lady who had locked herself inside. There was therefore no need to assault him. The assault was a vicious one. The doctor opined that severe force was used to inflict the injuries.

A life was unnecessarily lost. This court always guards jealously the sanctity of human life.

Regrettably, the crime of armed robbery seems to be on a sharp increase. There is now a high frequency of cases where innocent people are being killed during robberies. There is need to curb this by imposing deterrent sentences to deter the offenders and others with like minds.

Had the accused been convicted of murder there was a likelihood that capital punishment would have been imposed since the killing was during the commission of a robbery. The law provides that a person found guilty of murder is liable to life imprisonment or any other less sentence depending on the circumstances. This is a culpable homicide committed during the commission of a robbery which is a bad one, committed with contempt, in broad daylight. The accused committed it out of greed rather than need. The accused acted as a gang and allocated each other roles to play during the commission of the offence. In the circumstances, the justice of the case will be met by the following sentence.

Each accused is sentenced to:-

1. 25 years imprisonment;

In this case, the accused person, together with the deceased, were at a training session at a school ground. An argument ensued between the accused and the deceased over a ball tackle, and as the deceased moved away from accused, the accused drew an okapi knife from his trouser pocket and stabbed the deceased once on the left side of the chest. Such circumstances aggravate the accused's conduct to a very great extent. 

Why did the accused person carry an okapi knife on his person at a soccer match?  

This is a specified weapon which is lethal hence its specification and it is an offence to merely have it in your possession. As if the mere possession of the okapi knife was not bad enough, the accused uses it to stab the deceased in circumstances it did not warrant any physical force at all. Arguments are a normal thing in our day to day lives in society. We can't do things the same way, neither can we think or talk the same…, but we should be tolerant of each other's divergent views and opinions about anything. Surely a person cannot be killed for an argument over a ball tackle; otherwise all of us will be killed in the most brutal of ways if a message is not sent out there, and strong, that people should desist from violence and learn to tolerate others who hold different views from theirs. 

The deceased was killed for absolutely no reason at all and this must be condemned in the strongest of terms. The weapon used also exacerbates the whole situation as in the league of an okapi carrying a knife on its own is aggravating in which the circumstances the accused committed the offence. The part of the body that was aimed at, the vulnerability of the left side of the chest as it contains prominent life organs should be condemned. The stab wound was 5 x 1 x 2cm and the left lung was perforated. The degree of force applied was severe to bring about such a laceration. 

We find the circumstances in which the offence was committed and to be grave in that all that happened leading to the deceased's death had no basis at all. At this juncture, the interests of society then come in. This court must indeed discourage people like the accused from moving around carrying lethal weapons. The court must also show its disapproval of the unnecessary loss of lives where people are just killed for nothing, wherein if you differ in opinion with the next person, you are killed for that. That cannot be allowed, and a strong message surely must be sent out there, that the unnecessary loss of lives is unwarranted. See S v Khumalo HB143-11. 

This is an application for leave to appeal against sentence in terms of Rule 263.

The accused was convicted of culpable homicide after contest. He assaulted and killed his wife in a drunken brawl on the night of 4 October 2009. In consequence whereof he was sentenced as follows:

“1. The accused is accordingly sentenced to 7 years imprisonment of which 2 years imprisonment is suspended for a period of 5 years on condition the accused does not again within that period commit any offence involving the unlawful killing of a fellow human being.

2. In respect of the minor child, KUDZAIISHE MICHAEL MHUTE, it is ordered in the interim:

(a) That GRACIANO PARADZAI KAPFUNDE shall continue to have custody of the minor child KUDZAIISHE MICHAEL MHUTE pending a final order of a competent court of competent jurisdiction.

(b) That 50% or Half of the proceeds or rentals from a certain piece of property known as NUMBER 9 SORMERSET MEWS NEWLANDS HARARE jointly owned by the deceased and the accused shall be deposited into the GUARDIAN FUND pending the determination of a competent court of competent jurisdiction.

(c) That the Registrar is directed to serve a copy of this judgment on the Master of the High Court.”

In assessing sentence, the court was alive to the prevalence of offences involving domestic violence and the need to pass stiff and deterrent sentences in offences of this nature. Having regard to the applicant's moral turpitude, it is my considered opinion that imprisonment is unavoidable at all costs. The sentence passed is within the range for serious culpable homicide cases such as this one. It was tempered with mercy in that a substantial portion of the sentence was suspended on appropriate conditions of good behaviour.

The applicant's intended appeal is premised on the credibility of the post-mortem report. That criticism of the trial court does not take the applicant's case any further because the judgment makes it clear that there were two credible eye witnesses who saw the deceased shortly after the attack. It was common cause that the accused was the author of the wounds and injuries observed by the two State witnesses. The court's vision of the deceased's injuries to which she subsequently succumbed to death was perceived through the eyes of the two State witnesses with the post-mortem report simply providing a backup and confirmation of direct eyewitness evidence.

The assault was brutal and merciless causing the following injuries observed by two eyewitnesses:

1. A black eye.

2. Bruises on the face.

3. Bruises on the neck.

4. Swelling on the face.

The above injuries were confirmed by a medical report which also revealed that the deceased had sustained a fractured jaw. A narration of the injuries by the deceased's mother and sister paints a ghastly horrific picture depicting the ferocity of the barbaric, savage attack. Thus, even if the medical report was to be expunched from the record, the result will remain the same.

The applicant's argument that the deceased suffered from a condition called sickle cell trait is more of an aggravating feature than a mitigating circumstance considering that the applicant perpetrated a brutal fatal attack on his wife with the full knowledge that she was of ill-health.

The well-known thin skull rule is applicable. You take your victim as you find him. Both ill and healthy people have an equal right to life.

Come to think about it, the applicant was lucky to come out with the lesser charge of culpable homicide. Since he knew of his wife's ailment he must have subjectively foreseen that death would ensure in the circumstances of this case, thereby rendering him liable to guilty of murder with constructive intent.

In assessing sentence, the court took into account all the mitigating factors and balanced them against the interests of the State and society at large. The court also went out of its way to achieve social justice by making provision for the sustenance and upkeep of his immediate family, particularly his minor child with the deceased who has lost the love and care of both parents through death and imprisonment.

There being no discernible misdirection on the trial court's part, I am of the firm view that there are no reasonable prospects of success on appeal. That being the case, the application cannot succeed.

SENTENCE

The events leading to the demise of the accused's elder brother are aggravating and elevates the accused's moral blameworthiness.

The accused intervened between an altercation between his wife and sister - not to restore peace between them but to stoke the flames of combat. From there, the accused was on a warpath as he went a gear up by assaulting his mother who tried to knock sense in his drunken mind. The accused went on to attack his elder brother who had rightly admonished him leading to the demise of the elder brother. The family is indeed the nucleus of society and everyone is expected to foster peace and tranquillity in the family not to cause death within the family.

The deceased needlessly lost his life.

This court has a duty to protect the sanctity of human life. It is very disturbing and worrying that cases involving the loss of life arising from minor disputes are very prevalent in Masvingo. Some of these tragic events happen after consumption of alcohol. The court should, as a matter of urgency, draw a line in the sand and ensure that a message is clearly sent that disrespect of human life is intolerable. In this case, the deceased's family has lost a father and husband. The accused deserves to be harshly punished. It is fortunate that the accused's degree of intoxication has saved him from being convicted of a more serious offence of murder.

While voluntary intoxication is not a mitigatory factor in assessing sentence where an accused has been convicted of the offence of culpable homicide, as provided for in section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the court has taken into account the accused's personal circumstances.

The 29-year-old accused is a first offender who deserves to be treated with some measure of leniency.

The accused is an unsophisticated rural man who is barely literate. His family of five (5) children and a wife survives on his manual labour hence they would be adversely affected by his incarceration. The court has been advised that the accused had assumed an extra burden of taking care of the deceased's six (6) children. The accused, who was employed, earning US$120= per month, has lost his job as a result of this conviction and incarceration.

It is mitigatory that the accused will always live with the fact that he caused the death of his elder brother. Such stigmatisation will always weigh heavily on the accused's mind. The court notes in the accused's favour that after he realised that he had seriously injured the deceased he did not only render first aid but went out of his way to dispose of his assets to raise money to pay for transport which ferried the deceased to hospital.

In the result, the accused is sentenced as follows;

8 years imprisonment of which 3 years imprisonment are suspended for 5 years on condition the accused dos not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

SENTENCE

The accused persons now stand convicted of the lesser charge of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]….,.

In assessing sentence, we have taken into account submissions made on behalf of both accused persons and those against them. Both Accused 1 and Accused 2 are aged 30 years and 26 years respectively. Accused 1 is married with a 6 year old child and his wife is expecting. Accused 1 is employed by the Rural Electrification Agency as an Assistant Linesman. Accused 2 is married with 3 children and has the extra burden of looking after his siblings. He is not employed. Both accused persons have no meaningful assets or savings which can sustain their respective families in their absence.

We have considered that this unfortunate and tragic event seemed to have occurred at the spur of the moment without any pre-meditation. The accused persons, who have not had any brush with the law deserve to be treated with some measure of leniency. It is also a fact that this altercation was started by the now deceased who was the aggressor. Further, no dangerous weapon was used by either of the accused persons. They simply assaulted the now deceased with clenched fists and booted feet. We also note that Accused 2 was co-operative when he was located at his house and advised of the now deceased's deteriorating health condition.

Cases of violence which result in loss of life are very prevalent. It is saddening that precious lives are being lost due to petty disputes which should be resolved amicably. It would appear that many of our young people no longer respect the sanctity of human life and easily resort to violent conduct resulting in tragic consequences.

In casu, it is saddening to note that life was lost simply over a dispute of use of a path. The accused persons could have avoided this by simply acting in a responsible way by walking away and using an alternative route. Instead, they chose to engage in mortal combat with a drunk person whose mental status was open to doubt. The court has a duty to inform the accused persons, and society at large, that human blood is sacred and cannot be shed away without dire consequences. It is clear that both accused persons, who are quite young and fit, brutally assaulted the now deceased clearly oblivious as to the consequences. The accused persons should learn to restrain themselves and act responsibly at all material times.

Each of the accused persons is sentenced as follows;

6 and a half years imprisonment of which 1 and a half years imprisonment are suspended for 5 years on condition each of the accused does not commit, within that period, an offence involving the use of violence upon the person of another for which each of the accused is sentenced to a term of imprisonment without the option of a fine.

In assessing the appropriate sentence, we have considered that the 31-year-old accused is a female first offender.

While section 56 of our Constitution provides for equality and non-discrimination before the law, it is trite in our law that female first offenders are treated more leniently than males. In that regard what can be termed as “positive discrimination” is in order.

It is fact that we have more male prisoners than females in our country despite that women constitute 52% of our population. It is also not far-fetched that recidivism is more in males than in females.

The accused is now a widow and a single parent - albeit out of her own making. She now has the burden of looking after their four (4) children; a responsibility she cannot outsource to other persons for an unreasonably long time.

While the accused has been in custody from the time of arrest, the pre-trial period is just about 4 months and is therefore not an important mitigatory factor. It is however mitigatory that the accused will live with the fact that she is responsible for the demise of her husband. Society may never forgive her and this stigma may last forever. To make it worse, she may have to explain this uncomfortable fact to her own children. In our view, this is some measure of punishment.

The evidence adduced from the accused's daughter shows that the marriage between the parties has always been a turbulent one. The daughter said the accused and the now deceased were always quarrelling and exchanging blows. This may explain why this seemingly minor misunderstanding ended up with such tragic consequences. This dispute may as well have been evidence of a troubled marriage.

The now deceased, from the facts of the matter, was unwilling to consider the accused's protestatations. He insisted that he wanted to kill the goat and was determined to do so.

In aggravation, the court has to consider the sanctity of human life. While the offence of culpable homicide is premised on negligence, a life was needlessly lost over a simple issue involving a goat. The accused, being a woman, is not generally expected to act in such a violent manner but to value life and act with restraint. The said goat can never be equated to human life.

It is aggravating that this offence was committed in the full view of the couple's 13-year-old daughter. This should have been a very traumatic experience to her.

It is apparent that the accused was determined to inflict serious harm upon the now deceased. A fellow woman and neighbour, Betty Mudzingwa, could not restrain the accused. As already said, the extent of brutality exhibited by the accused is shocking to say the least. In that regard, the accused deserves to be punished. This court has a duty to ensure that cases of domestic violence which often lead to loss of life are never condoned. The accused clearly failed to live up to the standard expected of a reasonable person.

In all the circumstances, the following sentence would meet the justice of the case.

The accused is sentenced to 4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit, within that period, any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

In assessing the appropriate sentence, we have weighed both the mitigatory and aggravating features of this case as was submitted by counsel.

The personal circumstances of both accused persons are almost the same and we therefore find no basis to differentiate their sentences. Accused 1 is 31 years old and Accused 2 is 30 years old. Both of them are married. Accused 1 has one (1) child and Accused 2 has two (2) children. The accused persons are of no means as they are not employed with no savings. At least Accused 2 owns three (3) cattle and five (5) goats.

We are bound to exercise some degree of leniency as both accused persons are first offenders.

The fact that both accused persons were voluntarily intoxicated is immaterial and would not assist their cause in any manner.

Although this matter proceeded to trial, the accused persons, as already stated were admitting to the charge of culpable homicide. This, in our view, shows that both accused persons were not keen to waste the court's time.

It is an important mitigatory factor that both accused suffered from pre-trial incarceration from June 2016 to March 2017, a period of 9 months before they were admitted to bail pending trial.

The offence of culpable homicide arising from violent conduct remains a serious offence. It generally attracts a lengthy custodial sentence unless there are special reasons or circumstances. The reason for this approach is that it entails loss of life. The sanctity of human life cannot be over-emphasised.

It is saddening to note that offences of this nature, committed after beer drink, are very prevalent. Our young people seem not to value human life, especially after taking to the bottle. The court has to play its role by handing down deterrent sentences in order to restore the moral fibre of our society and discourage such conduct. In most cases, the disputes leading to loss of life are petty, like in the instant case where both accused persons, and the now deceased, haggled over the route to use to their respective homes. The consequences are, however, serious as a precious life has been unnecessarily lost.

The degree of negligence in this case is very high. Severe force was used to assault the now deceased on the head, a delicate part of the human anatomy. The now deceased's skull was fractured. Both accused persons simply left the now deceased along the road, at night, and fled to Beitbridge. The conduct of both accused persons deserves censure.

In our view, the following sentence would meet the justice of this case;

Each Accused is sentenced to 8 years imprisonment of which 2 years imprisonment are suspended for 5 years on condition each Accused does not commit within that period any offence involving the use of violence upon the person of another for which each Accused would be sentenced to a term of imprisonment without the option of a fine.

Reasons for Sentence

In considering sentence, we have taken into account the mitigating factors highlighted by counsel who appeared for the accused person and the aggravation alluded to by counsel for the State.

The accused was 46 years old when he committed the offence. He is a first offender who is married with seven children. Although he really had no choice, we acknowledge that he surrendered himself to the police. He is a bread winner in the family and has, as a result of the offence, obviously lost his employment. The accused was a victim of drunken abuse at the hand of a drunk, unruly, and undisciplined young man half his age who targeted him for verbal and physical attack in a completely senseless manner. The conduct of the deceased forced the accused's hand thereby reducing his moral blameworthiness. The accused had also consumed copious quantities of alcohol when he committed the offence.

In aggravation, we cannot ignore the fact that a life was lost in a very violent manner. When the tables turned against him, the aggressive deceased person was ruthlessly clobbered with a grotesque weapon which would have killed even an animal.

The initial few blows were directed at the head, itself a very vulnerable part of the body. The flurry of strokes which followed, which the accused himself says were several, were not only vicious but also directed all over the body with sufficient force to rupture the liver and badly injure the abdomen resulting in instant death. The accused's conduct, of escaping the scene without even the thought of rendering first aid, betrays lack of contrition especially as, up to now, the accused still maintains that “the deceased brought the fatal mishap upon himself.”

This court cannot allow a situation where people consume alcohol to excess rendering them senseless, and, although provoked, to then go about killing people in the name of drunkenness. There is still need for respect of human life. Indeed, the law encourages people, especially mature people like the accused, to exercise self-restraint. It is for that reason that the sentence to be imposed must recognize that although the accused was found guilty of the lesser crime of culpable homicide, this was an extreme case of culpable homicide. It actually is a borderline case.

Our people must be reminded that violence does not pay. We cannot be a society of primitive individuals who readily resort to extreme bouts of violence at the slightest excuse. Our courts will continue to enforce the broad social policy to require people to control their emotions even under extreme provocation.

In the result, the accused is sentenced to 10 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition he does not, during that period commit an offence involving violence for which, upon conviction, he is sentenced to imprisonment without the option of a fine.

The accused person is sentenced to seven years imprisonment with 2 years imprisonment suspended for 5 years on condition the accused person does not, within that period, commit an offence of which violence is an element, whereupon conviction he shall be sentenced to imprisonment without the option of a fine.

Sentence

The accused person stands convicted of culpable homicide. He pleaded guilty to this charge; he is a first offender; he is a family man and a breadwinner. The deceased was related to him through his wife. He is nearing the afternoon of his life considering that he is now 60 years old. He has waited for justice for 14 years not because of his own actions. He acted in common purpose with others in committing this offence.

His co-accused were sentenced to an effective 10 years imprisonment.

This court should, however, be alive to the fact that a life was unnecessarily lost through violence. Political violence is a cancer in our society that needs to be addressed as our Constitution grants everyone freedom of conscience and political belief. There is no need for people to butcher each other simply because one's ideology differs from theirs. Politics is like religion, whilst it can be a sensitive subject, people should learn to respect other's views whilst believing in their own. Again, its surprising that the accused and his team were celebrating victory after winning an election; how could they then be fighting when they had already won? The accused and his co-accused acted in an immature manner on the day in question. A life was lost in circumstances that did not call for a loss of life.

It is our considered view that despite the mitigating features on the accused's personal circumstances, and the circumstances of the commission of the offence, this court has to maintain a proper balance between those two and the interests of society. These three pillars constitute the interests of justice. It cannot be the interests of justice that the court views the accused's circumstances and that of the commission of the offence without considering in the interests of the society at large lest we undermine the confidence of the public in our courts.

It is for these reasons that, after considering the mitigation and balancing it with the aggravating features, also taking into account the period of imprisonment given to his co-accused, the accused person will be sentenced to 8 years imprisonment.

Sentence

The accused person stands convicted of the offence of culpable homicide. He is a first offender; he was 35 at the time of the commission of the offence. He is now aged 44. He is married with six children. He has compensated the deceased's family. The deceased in this case was the aggressor. The accused has waited for justice for 9 years.

However, these courts do not take lightly any circumstances where life has been lost through violence. These courts are, day in day out, inundated with cases involving the loss of life where people are killed over disputes that can otherwise be handled in a lawful manner. It is not justified to kill another person simply because they have sought to attack you or have attacked you. Surely, in an open field there were other available options of averting the attack - like fleeing.

It is therefore this court's view that the accused persons should not resort to violence at the slightest of provocation for the simple reason that life, being sacred, these courts will never take such matters lightly.

It is for these reasons that the accused person will be sentenced to 8 years imprisonment of which 2 years imprisonment will be suspended for 5 years on condition the accused person does not within that period commit an offence of which violence is an element, whereupon conviction the accused person shall be sentenced to imprisonment without the option of a fine.

As a court, we pride ourselves as the upper guardian of all children in this country and this case represents extreme child abuse by any standard and the conduct exhibited by the accused, in persistently hitting the child with several switches of different sizes, summarizes the seriousness of this offence.

The 53-year-old Accused 1 and 27 years old Accused 2 resided in the same Mandivenga Village, Chief Mukanganwi, Bikita, Masvingo with the 50-year-old now deceased….,.

In assessing the appropriate sentence we shall consider both the mitigatory and aggravating features in this case.

The mitigatory factors were outlined with consummate skill and tenacity by counsel for the accused persons. He canvassed virtually every aspect of this case and prayed that we impose a fine coupled with a wholly suspended sentence, or, at worst, that we impose community service.

Indeed, we were cuddled and persuaded by counsel for the accused persons in a very remarkable and impressive manner.

In arriving at this appropriate sentence we did consider the personal circumstances of both accused persons. These include, inter alia, their ages, marital status, employment status and their dependants. We note that Accused 1 is much older as compared to Accused 2. Accused 2 is still single with no family responsibilities. He is also unemployed. On the other hand Accused 1 is married with 7 children and is employed at Glen View Home Industry in Harare as a carpenter realising monthly income of US$30=. None of the accused persons has any meaningful assets or savings. Despite these differences we find no rational and objective basis to treat the accused persons differently in respect of sentence as they are both adult men and their moral blameworthiness is the same.

It is in the accused persons' favour that they are both first offenders. To that extent, they deserve to be treated with some measure of leniency. They have the potential to reform and can only be sent to prison if it is necessary. Our prisons are currently overpopulated and we take judicial notice of the Government's intention to reduce this over-ballooning prison population by granting Presidential amnesty to some of the prisoners. Indeed, there are no resources to fend adequately for the prisoners and judicial officers should be alive to such constraints and challenges. This means that prison sentences should be imposed sparingly and as a last resort only in deserving cases.

It is a fact that there has been a delay of four (4) years in finalising this matter despite that the accused persons were not denying the charge of culpable homicide. The blame lays squarely on the shoulders of the State which inexplicably believed a more serious charge of murder was warranted. It is prudent for the State to always carefully consider such cases and ensure that justice is not delayed to the prejudice of the accused persons. Besides ensuring that the rights of accused persons are protected such cases are low hanging fruits which reduce the backlog of cases.

In casu, both accused persons cannot be blamed for this inordinate delay.

They both religiously attended the Remand Court in Bikita for four (4) years incurring expenses. They could not plan their future without knowing how this matter would be finalized. Their lives were put in a freezer as it were. As an example, Accused 2 may well have decided not to marry for fear that if he did he may nonetheless leave the wife after being incarcerated. While the pre-trial incarceration of one (1) month which the accused persons suffered is insignificant, the delay of four (4) years is an important factor.

There are indeed mitigatory circumstances surrounding the commission of this offence.

While in terms of section 221(2) of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23] voluntarily intoxication is not a mitigatory factor in assessing sentence on an offence involving negligence (I am still to be educated why this is the case) we nevertheless cannot close our minds to the fact that the accused persons and the now deceased were drinking beer from 0700 hours until 1400 hours when this tragic incident happened.

What is indeed mitigatory is the accused persons' belief in witchcraft. Our law, as outlined in PART VI of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23]; sections 97–102, in my view, recognises the existence of witchcraft. In fact, in terms of section 101 of the same Act the belief in witchcraft should be taken as a mitigatory factor in assessing sentence.

The accused persons believed that the now deceased practiced witchcraft and blamed him for deaths in the family. The now deceased did not help the situation on this day as he seemed to reinforce this idea in the minds of the accused persons. To that extent, he was the author of the misfortune which befell him. Allied to this fact is that it is the now deceased who provoked the accused persons - especially Accused 2 initially.

We remain mindful of the fact that the accused persons did not use any dangerous weapons besides their fists and switch. The fact that the accused persons are responsible for the demise of their own relative will indeed haunt them for the rest of their lives. The stigma in the eyes of the public that they have the now deceased's blood in their hands will forever be attached to them.

It is a mitigatory factor that the accused persons paid two (2) head of cattle and a goat as compensation to the now deceased's family. While this cannot be equated to the value of the precious life which was needlessly lost, it is nonetheless in line with our african custom and practices.

Having outlined these mitigatory factors we remain mindful of the fact that the offence of culpable homicide arising from violent conduct remains a very serious offence. Invariably, it should attract a custodial sentence unless there are special mitigatory factors. Society should always be encouraged to resolve disputes in a non-violent manner and should know that violence is not a panacea to whatever problems one may face. The bottom line is that no person has a right to cause the loss of life of another unless in circumstances permitted by the law.

The sanctity of human life should be respected at all times.

In our view, there was no need for the accused persons to have resorted to such violence on the day in question after the now deceased had refused to go with them to their home. There were other lawful and acceptable means the accused persons could have employed to solve this dispute rather than violence. They could have sought the involvement of fellow clan members or the traditional leaders especially when they would be in their sound and sober senses.

The fact of the matter is that this was a gang assault involving two physically-fit people. Severe force was used as the now deceased lost consciousness and died the following day despite being taken to hospital. The assault itself was indiscriminate judging by the injuries reflected in the post-mortem report. It was also prolonged. The now deceased sustained multiple bruises on the limbs, trunk, the head and face. The accused persons also targeted the head which is a vulnerable part of the human anatomy. As a result, death resulted from the severe head injury inflicted.

We would have agreed with counsel for the accused persons if death arose probably from a single blow with a fist during a beer brawl. In that case a fine or community service would be appropriate.

The degree of negligence by the accused persons in this case is very high. The level of their moral blameworthiness warrants punishment with a custodial sentence. The resultant sentence should, however, reflect the genuine mitigatory factors in this case.

In the result, we believe the following sentence meets the justice of this case.

Each accused is sentenced to 3 years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition each accused does not commit within that period any offence involving the use of violence upon person of another for which each accused is sentenced to a term of imprisonment without the option of a fine.

The effective term of imprisonment is one and half years for each accused person.

While the accused was clearly provoked by the now deceased's conduct, public policy demands that people should be able to rein in their temper even under such provocation and avoid such conduct leading to loss of life. The accused should therefore remain accountable for his conduct.

It should have dawned upon the accused that it is his daughter who should have invited the now deceased into her bedroom. In any case, the accused's daughter was not a juvenile who was being sexually molested but an adult married woman. This makes the accused's reaction or conduct inexcusable and totally unjustified. There is therefore the need for the court to send a loud and clear message to society that violent conduct would never be tolerated and would be met with the full wrath of the law. A deterrent sentence is called for in the circumstances.

We have however not lost sight of the mitigatory factors in this case which were impressively articulated by counsel for the accused with admirable clarity.

The accused's personal circumstances were ventilated. The accused has three (3) children, being Sithulisiwe, from his first marriage, and two other children aged 11 years and 5 years. The family solely survived on his manual labour as he has no meaningful assets or savings. He also was looking after Sithulisiwe's one year one son upon Sithulisiwe's return to his home. The accused's wife is of ill-health as she suffers from epilepsy. His absence would greatly compromise her medical condition as he is solely responsible for her medical bills.

In terms of section 238 of the Criminal Law (Codification and Reform Act) [Chapter 9:23] provocation is indeed a mitigatory factor in assessing sentence in a case of culpable homicide. The accused was indeed provoked when he discovered an intruder inside his married daughter's bedroom who was a stranger to him. The attack upon the now deceased was therefore not pre-planned or pre-meditated. The accused was just confronted by a provocative situation and acted at the spur of the moment.

The now deceased did not also help matters by trying not only to hide but to escape, and, thereafter, fight back. This should have incensed the accused who felt challenged at his own homestead and in relation to his own married daughter.

It is clear that the accused is contrite. He apologised to the now deceased's family and paid compensation in the form of 12 beasts.

The accused, who is a first offender, did not waste the court's time raising flimsy defences. The witnesses present did not go through the inconvenience of testifying. The State resources have been saved. This matter has been resolved in a very short space of time. The accused therefore deserves some measure of leniency.

It is also a mitigatory factor that the accused has suffered pre-trial incarceration for a period of about eight (8) months. This should reduce the sentence the court would impose.

We accept that the accused, who had no misunderstanding with the now deceased prior to this incident, simply found himself in a situation which he could not countenance. The loss of life was therefore not intentional but a result of negligence. We have been referred to the cases of S v Abel Sibanda SC05-14; S v Nxobile Ncube HB162-15 and S v Shingirai Hamunakwadi HH323-15 to guide us in assessing the appropriate sentence.

It is our view that the following sentence would meet the justice of this case;

The accused is sentenced to 6 years imprisonment of which 2 years imprisonment are suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused would be sentenced to a term of imprisonment without the option of a fine.

Effective term: - 4 years imprisonment.

In assessing sentence, the court has taken into account the very strong mitigatory features that both the defence and the State have highlighted. They include the following circumstances personal to the accused:

(a) He is a first offender. He is now 35 years of age. He was 30 at the time of the commission of the offence. Thus, he has been a law abiding citizen for much of his life. As much as possible, such people should be kept out of jail.

(b) He has two wives and four minor children. They all look up to him for maintenance and support. Any period of incarceration will inevitably result in much hardship to such dependants.

(c) He is a trained teacher of relative experience. Jail will undoubtedly cost him his job. Jobs being scarce, chances of getting another after time in prison will be slim.

Also highlighted in mitigation were the circumstances surrounding the commission of the crime. They include:

(a) The deceased was a friend and a professional colleague. The accused will have to live with the stigma of his death. It will probably haunt him for the rest of his life.

(b) There was nothing like premeditation or planning in the commission of the crime. It happened on the spur of the moment in an effort to ward off a common enemy. The accused and the deceased had gone to the bottle store together to enjoy themselves, not to look for trouble.

(c) After realizing that he had struck and severely injured his friend, the accused did all he could to save his life, namely, applying crude first aid, seeking help from the nearby village, and ferrying the deceased to hospital. Unfortunately it was too little too late.

(d) Given the length of time that they had been drinking, the accused must have been drunk by the time of the commission of the offence. Alcohol impairs one's sense of judgment. Furthermore, Kudakwashe Musvamhuri and Kizito Mutongoza were the aggressors. They provoked the brawl that led to the demise of the deceased.

(e) The crime was committed in 2013. The trial was concluded in 2018. It was a long five year wait. The accused lived with anxiety and anguish for such a long time awaiting his fate.

Both the defence and the prosecution have concurred that in the circumstances of this case the appropriate sentence for culpable homicide should be 3 years imprisonment, with one year suspended on condition of good behaviour….,.

It was evident that both the defence and the prosecution had no conviction in the appropriateness of the kind of sentences they were suggesting. It was evident they both felt a non-custodial sentence would meet the justice of the case. However, they felt constrained to suggest that type of sentence in view of the fact that an innocent life was lost and that the sentencing trends by the courts in cases of culpable homicide are to impose jail terms.

Counsel for the accused cited the case of S v Watanhuka HH342-13 in which a wholly suspended 12 months jail term was imposed for culpable homicide in circumstances which were roughly similar to those of the present.

Counsel for the State alluded to cases of culpable homicide, especially in traffic offences, where sometimes the State declines to prosecute or where, on conviction, the accused escapes with a fine.

Counsel's discomfitures are well understood. Sentencing is a complex exercise. The cardinal principle is that in any crime the penalty must suit the offence and the offender.

In the present case, we have wondered whether if we imposed a custodial sentence, would the accused appreciate the justice of the case? The error of his ways on the night in question was undoubtedly to arm himself with a dangerous weapon and to use it. But this was to ward off an unlawful attack. However, given the manner the whole incident panned out, will the accused appreciate that jail is the only form of retribution or recompense or rehabilitation for the error of his ways?

We think not.

After taking all the circumstances of this case into account, we have settled for a non-custodial sentence. The accused is sentenced as follows:

1….,.

2. The accused is sentenced to a fine of three hundred dollars [$300=], or, in default of payment, 3 months imprisonment.

3. In addition, the accused is sentenced to 12 [twelve] months imprisonment wholly suspended for 5 years on condition that during this period he is not convicted of an offence involving violence for which he is sentenced to a term of imprisonment without the option of a fine.

The accused was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. However, at the commencement of the trial both the State and the defence agreed that the charge of culpable homicide, as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is the appropriate charge. The accused was thus duly convicted on his own plea of guilty of the charge of culpable homicide.

The agreed facts which inform the charge are as follows;

The 31-year-old accused is the son of the now deceased and they both resided at the same homestead in Taruvinga Village, Chief Nyamandi, Gutu, in Masvingo. The accused is married with a 9-year-old child in Grade 4. The now deceased was 69 years old.

On the fateful day, on 5 September 2017, both the accused and the now deceased arrived home separately from a beer drink. They were both drunk. The accused proceeded into the now deceased's bedroom and went on to lie on the now deceased's bedding spread on the floor. This infuriated the now deceased who confronted the accused as to why the accused was lying on the now deceased's bedding and also in his bedroom. A quarrel ensued resulting in a scuffle between the two. The accused got out of the now deceased's bedroom and picked a “mususu” log from the goats' pen. The accused threw the log at the now deceased hitting him below the left rib cage. The now deceased fell down and his wife and another son rendered first aid. This was in the evening. The now deceased's condition deteriorated during the night and he passed on in the early hours of the next day on 6 September 2017.

As per the post mortem report, the cause of death is stated as “haemorrhage shock, retroperitoneal haematoma, ruptured left kidney, blunt trauma to abdomen and assault.”

In assessing the appropriate sentence, the court is alive to the prevalence of cases of this nature arising from needless violent conduct. This has resulted in the loss of life, a precious gift from God which cannot be replaced. This court has said, times without number, that it has the duty to uphold the sanctity of human life and that human blood is sacred.

It is saddening that in most cases such offences are committed as a result of very petty disputes and after consumption of alcohol. The lack of respect for human life is shocking to say the least. In this case, one cannot believe that the now deceased lost his life due to a dispute over some bedding. This is an issue which could have been amicably resolved without resort to violence had the accused not taken leave of his senses. It is unheard of in our custom that the accused would decide to lie on his parents' bedding - let alone to lay his fingers on his own father; moreso an old man. Indeed, voluntary intoxication is not a mitigatory factor as is provided for in section 221(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is clear from the injuries inflicted that the accused used severe force on his aged father. This court has a duty to send out the correct message that such conduct would be met with the full wrath of the law. An exemplary and deterrent sentence is therefore called for.

The court has not lost sight of the mitigatory factors.

This is the accused's first brush with the law hence he has the propensity to reform and desist from further crime. Indeed, he deserves to be treated with some measure of leniency.

The plea of guilty by the accused has immensely contributed in the swift disposal of this case. Less State resources have been expended. The witnesses have been saved from coming to court to testify. The matter has been disposed of within a short period of time. It is clear that the accused is contrite as he readily admitted to his wrongful and negligent conduct without raising fanciful defences.

The accused will forever live with the stigma that he caused the death of his own father. This is not an easy burden to carry. Society may be unforgiving. The accused's family and siblings will always blame him for their father's demise. This is some form of punishment.

It is important to note that the accused delivered a single albeit fatal blow. This was not a prolonged or sustained assault. In fact, the accused threw the log at the now deceased. It is unfortunate that this single blow was fatal.

The accused has suffered from pre-trial incarceration from September 2017, a period of about eight (8) months.

After weighing both the mitigatory and aggravatory factors the following sentence is deemed to be appropriate;

“6 years imprisonment of which 2 years imprisonment are suspended for 5 years on condition accused does not commit within that period any offence of which the use of violence upon the person of another is an element and for which the accused would be sentenced to a term of imprisonment without the option of a fine.

The effective sentence is 4 years imprisonment.”

In assessing the appropriate sentence, we have taken on board the submissions made for and against the accused by both counsel.

The 46-year-old accused is married with a large family of 9 children whose ages range from 2 years to 22 years. The accused is a peasant farmer who specialises in cotton farming and he realised a bumper harvest this year of 30 bales of cotton. His family relied on the accused's manual labour hence his incarceration would greatly inconvenience them.

It is an important mitigatory factor that the accused is HIV positive and is on ARV treatment. We take judicial notice that the current economic challenges have not spared our prison facilities. The resources in prison, like proper diet and medical care, are not easily available. This would greatly compromise the accused's health moreso as he would obviously be stressed by the incarceration.

It is in the accused's favour that he pleaded guilty to the charge. This is a sign of contrition. This matter has, as a result, been finalised in a short period. The State witnesses, who are the accused's and the deceased's relatives, have been spared the agony of facing the accused testifying. Consequently, less State resources have been expended in prosecuting the accused. Indeed, the accused could have raised some fanciful defence moreso as there was no eye witness to the assault and the pathologist could not ascertain the cause of death.

As a first offender, the accused deserves to be treated with some measure of leniency with the hope that he would reform and desist from further crime.

It may well be that the accused believed that he was exercising his right as a parent by chastising an errant son and in the process negligently caused his death. All things equal, the death of his own son should forever weigh heavily on the accused's conscience. The accused would not be able to chlorinate the stigma that he caused the death of his son.

On the other hand, the offence of culpable homicide arising from violent conduct is a very serious offence. It is clear that this was a reckless and merciless assault upon an 8-year-old toddler who may well not have fully appreciated whatever wrongful or errant behaviour on his part was being alleged. The now deceased looked for protection from the accused - his father.

It is saddening to note that offences involving violence leading to loss of lives are very prevalent. The sanctity of life cannot be over-emphasised.

There are a number of factors which elevate the accused's moral blameworthiness. As already said, the now deceased was just a toddler of 8 years to whom the accused stood in a protective relationship. The nature of the assault was quite reckless as the accused ended up directing the blows on the testicles.

The accused's conduct, after committing this offence, is shocking to say the least.

The accused had the presence of mind and temerity to bury the body in a toilet pit he was digging at his homestead. One would have expected the accused to have his conscience pricked by what he had done and thus owned up. Instead, the accused went on to behave as if nothing amiss had happened. He was able to live with his own flesh and blood buried in an unofficial grave at his homestead! This was for a period of 9 months.

It is indeed baffling that the accused would behave in such a manner. It never dawned upon the accused that his son, the now deceased, at least deserved a decent burial. Further, the accused could not own up for 9 months despite being probed by other relatives and was prepared to lie to the relatives. The moral blameworthiness of the accused, without doubt, is very high. Clearly the option of a fine or a sentence of community service is inappropriate. The accused, without doubt, deserves a lengthy custodial sentence.

In the result, the accused is sentenced as follows;

“6 years imprisonment of which 2 years imprisonment are suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which accused is sentenced to a term of imprisonment without the option of a fine.

Effective sentence is 4 years imprisonment.”

SENTENCE: Each accused 2 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition each accused does not commit within that period an offence involving the use of violence upon the person of another for which each accused is sentenced to a term of imprisonment without the option of a fine.

EFFECTIVE FOR EACH: 1 year imprisonment.

The offence of culpable homicide arising from violent conduct is a very serious offence and invariably attracts a custodial sentence unless there are special mitigatory factors. This is so because the sanctity of human life cannot be over emphasised.

Human blood is sacred, hence, once life is lost, whether intentionally or through negligence, it cannot be replaced.

This court is saddened by the fact that offences of this nature are alarmingly prevalent in Masvingo Province. A lot of lives are needlessly lost over minor disputes like a game of snooker. It is unfortunate that these offences are being committed by our young persons who are the future of this country. The mind boggles why young persons easily resort to violent conduct using lethal weapons, like knives, to settle very petty disputes. Our nation has the onerous task to incalculate some sense of moral responsibility within the young generation so that they value human life.

It is clear from the facts of the case that the accused used severe force. An okapi knife is a lethal weapon. Three stab wounds were inflicted targeting the neck, one of the stab wounds pierced through the chest wall to the lung. The attack was vicious, barbaric and unfeeling. In the circumstances, the degree of negligence is extremely high…., It borders on intention to kill.

The accused's conduct, after fatally injuring the now deceased, deserves severe censure. The accused saw if fit to flee from the scene. He did not render any assistance to the now deceased. Instead, he decided to avoid the long arm of the law by deserting his residence, concealing the weapon used after wiping it of blood. The moral blameworthiness of the accused is very high. In such circumstances our courts can only play their role by handing down deterrent sentences.

We are alive to the mitigatory factors in this case.

The accused is married with two children said to be 6 years old and 8 months old respectively. We just wonder whether the accused had his first child at 16 years of age as he is 22 years old. At that age, the accused is fairly youthful. The accused is unemployed and the family relies on his manual labour.

As a first offender the accused deserves some measure of leniency.

Further, he did not waste the court's time and resources by admitting to the charge without raising flimsy defences. To that extent he exhibited contrition. This matter has been finalised in a short space of time.

It is in the accused's favour that his family assisted in the burial of the now deceased. They provided a coffin and the food consumed at the funeral.

We take note that the now deceased was the aggressor. He is the one who followed the accused, was in possession of the okapi knife, and was ready to use it. To that extent his was the author of his demise.

In the circumstances, we believe the following sentence will meet the justice of the case;

“10 years imprisonment of which 2 years are suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Effective term; 8 years imprisonment.”

Sentence

In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors advanced by counsel for the accused. We are indebted to both counsels for their submissions on principles of sentencing, personal circumstances of the accused and circumstances of the matter. Both counsels referred us to fairly old cases in the 60s in bringing to light what the court should consider in passing sentence. The cases, although old, were not irrelevant as clearly the universal nature of sentencing principles has not changed. We must mention reference to recent cases and cases of circumstances of similar nature would, however, be appreciated in assisting the court to exercise its sentencing discretion in a manner that will balance the interests of the criminal, matching these to the crime, and, at the same time, be fair to society whose interests is anchored on the administration of justice.

We have considered that the accused pleaded guilty to culpable homicide thus showing remorse and genuine penitence. As correctly stated by the defence counsel…, the accused will forever live with the stigmatisation of having killed someone. The accused has been in custody for about seven (7) months while awaiting the finalisation of this matter. For that period the accused had the charge of murder hanging above his head and the trauma that goes with facing such serious allegations cannot be ignored.

In considering an appropriate sentence to impose it was further submitted that the accused is a young adult aged 27.

Although an adult, he is fairly young, and, at the time of commission of the offence, fell into the bracket of youthful offender cannot be ignored as it is a mitigatory factor.

The accused, further, has a young wife and two (2) young children who are all dependent on him for sustenance.

The defence counsel, at length, urged the court to consider a short imprisonment term for deterrence as opposed to a long imprisonment term. See S v Teburo HH517-87; S v Wood 1973 (1) RLR 11. The State counsel agreed with the defence counsel that a long imprisonment term was unwarranted.

However, in aggravation, counsel for the State emphasized, correctly, the sanctity of human life. On that point, he referred us to an old South African case, R v Branard 1960 SA (1) 552. It is clear in the Zimbabwean Constitution, section 48(1), that every person has a right to life. As such, the court has a duty to protect the said right. Therefore, a person who unlawfully takes away another's life deserves to be punished adequately not only to deter the offender and like-minded people but to ensure that the society retains confidence in the justice delivery system.

As correctly pointed out by counsel for the State, the court, in considering the personal circumstances of the accused, should not lose sight of the attendant personal circumstances of the deceased whose loss of life will occasion undue hardship on his own family and dependents. The deceased lost life at a tender age of 38 in circumstances where it could have been avoided given the accused had earlier been restrained by one Amos Makuyana who acted as a pacifier - but the accused persisted on the violence.

The sentence has to reflect that resolution of disputes by resorting to violence is not acceptable in a civilised society.

We are not blind to the fact that the accused was under attack from three people and that this was at a beer drink. This reduces the accused's moral blameworthiness. However, the accused, having been restrained, was negligent when he picked a brick and struck the deceased on the head which is a vulnerable part of the body. The deceased died as a result of a head injury as outlined in the post-mortem report by Dr Tapi.

Upon considering all the mitigatory factors and aggravatory factors we agree that a short imprisonment term will meet the justice of the case. The universal principle is that the punishment should fit the criminal as well as the crime and be fair to society while at the same time being reflective of a blend of a measure of mercy given the circumstances of the case.

Accordingly, the accused is sentenced as follows;

4 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.