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.
It is accordingly
ordered that the application for leave to appeal to the Supreme Court be and is
hereby dismissed.
