HUNGWE J:
Sometime
in 2003 the accused and two others were indicted for two counts of
murder and one count of armed robbery. In the trial that followed,
Joram Frank was acquitted; Pedzisai Zhoya and Jonathan Mutsinze
remained. They were convicted of the two counts of murder with actual
intent and one count of armed robbery. At that time – 2004, I
invited submissions on extenuation from the accused and his erstwhile
co-accused whereupon I made a finding that there were no extenuating
circumstances surrounding the commission of the two counts of murder
since both counts were premeditated and executed in cold blood during
the course of planned robberies of business premises in one night.
Before
I could pronounce sentence, the record was recalled to the registry
to complete certain formalities in respect of the other co-accused
who had been acquitted. I was, in the meantime, considering the
appropriate sentence.
The
matter had to be postponed because on that day the record could not
be located in the criminal registry. Subsequently, I was advised that
even my long hand notes could not be located from my clerk's office.
I ordered that the recorded proceedings be transcribed. This was done
over time but again the transcribed record vanished.
As
time passed, even the recording tapes where the proceedings were
recorded mechanically were prematurely erased without notice.
There
is also an indication that there was a video recording of the accused
as he made physical indications. The video recording of the accused
making indications was not part of the new record.
Post
mortem examination reports of the deceased in each count were
produced. There were two ballistics reports in respect of the two
scenes of the crime as well as the two firearms used. Blood sample
results were also produced in the proceedings.
As
I pointed at the onset of this judgment, the accused was convicted on
two counts of murder and one count of armed robbery the reasons for
judgment were pronounced in open court at the time. I proceed to give
a rehearsed version of those same reasons on the basis of the
available record of proceedings.
The
State Summary of the case against the accused was that the accused's
erstwhile accomplices, Pedzisai Zhoya and Joram Frank were employed
at Craiggieburn Farm, Bindura as farm guards. The farm owner, Richard
Paul Dollar, had an array of firearms which he kept inside his house.
He left for Harare on 27 March 1998. He stayed there until 30 March
1998. During his absence the two farm guards had gained entry into
his house and stole a .38 revolver.
On
28 March 1998 around 20:00 hours the accused teamed up with the two
farm guards and proceeded to Chipadze Shopping Centre, Bindura. They
approached two security guards who were on duty, Lessmore Kange and
Takesure Furawu. The accused shot and instantly killed Kenge. The
motive of the shooting was to disarm Takesure Furawu who was armed
with a 303 riffle which they wanted to use in the robberies. They
proceeded to Chiwaridze Shopping Centre around 20:30 hours. The two
arrived at Chiwaridzo Bottle Store. Pedzisai Zhoya remained outside
whilst the accused burst into the bottle store and ordered everyone
to lie down. He demanded money from the owner of the bottle store
Maslina Ganga. Willis Konje, an off duty police officer who was
present, thought that the pistol was a toy. He struck the accused
Jonathan Mutsinze with a beer bottle on the forehead. The accused
responded by shooting Willis Konje from a point blank range. He died
a few moments later. The accused proceeded to empty the contents of
the till into a bag he brought for the purpose. He also took
Maslina's two wrist watches and a calculator. The cash stolen in the
robbery was given as ZW$5 000-00. He left the scene.
In
his defence outline the accused Jonathan Mutsinze admitted that he
was present and took part in the robbery at Chiwaridzo Bottle Store
where Willis Konje was shot. He says, however, that it was one Evans
who fired the fatal shot that killed Willis Konje. He gave the
background to this incident as follows:
On
28 March 1998, he and five others travelled from Marondera to
Bindura. Evans and Bonga were in his group. The other group consisted
of Simon, Nyamakundu and the father of Eliza. He believes this other
group was responsible for the shooting at Chipadze Shopping Centre
where Lessmore Kange was shot and killed. He admits that he had
proceeded to Chiwaridzo Bottle Store with Evans and Bonga. Evans was
armed with a .38 mm calibre pistol. He had a toy pistol. On arrival,
he and Evans went inside. His instructions were that he will order
patrons to put their hands up and lie down. He gave the order for
patrons to lie down. The deceased said that the accused had a toy
pistol and struck him on the forehead. He bled profusely. Evans
fired. Patrons lay on the floor. He then jumped on the counter and
seized the cash box, calculator and the wrist watch. He left and met
up with his accomplices and shared the loot. He spent the night at
517 Chiedza Street, Chipadze. He stitched himself up when no one at
home was able to. After a week he left for Craiggieburn Farm where he
stayed with the accused at Pedzisayi Zhoya's father. He did not
disclose his involvement in the robbery to anyone. Neither Pedzisai
Zhoya nor Joram Frank was involved in this armed robbery and murder.
After 3 weeks he returned to Marondera. In August 1998 he was
arrested. He claimed that he was subjected to severe torture which
included painful electric shock treatment, beatings under the soles
of his feet with either a hose pipe or a plank in order for him to
confess.
He
challenged his extra-curial statement.
He
mentioned the names of Sergeants Makudza, Gomwe, Mukono and Meke as
taking part in the assaults on his person.
The
State called eighteen of the 25 witnesses it had listed as its
possible witnesses. The formal documentary evidence consisting the
post mortem report and ballistic evidence was produced without
contest. The court admitted into evidence the video recorded
indications made by the accused. The recordings show that accused was
properly warned and cautioned regarding whether he wished to make
indications. He elected to make indications. He asked the officers to
go to Chipadze. At Chipadze the accused showed the police officers
where Pedzisayi Zhoya stood holding a gun. He said he had no gun. He
showed police where he stood on the side opposite his accomplice who
then approached the two guards one of who held a .303 rifle. His
task, he said, was to watch out for the police as his accomplice went
to disarm the guards before they could carry out the plan to rob the
premises under guard. After his accomplice approached one guard he
heard bursts of gunshots. The accused showed the police the different
directions taken by the fleeing guards. The accused then told the
police at the time that Pedzisai Zhoya who had the .38 stolen from
one Mr Dollar, then came to him saying he had failed to disarm the
guards. They should go to Chiwaridzo. He then told the police to
proceed to Chiwaridzo Shopping Centre. He told them by then there
were 7 to 8 rounds left in the .38 special revolver. He had a toy
gun. Upon arrival he indicated the bottle store which they had
robbed. He indicated where Pedzisai was at the pool table with the
green satchel in which the pistol was carried. He closed the door
behind him. He told the police that Pedzisayi then instructed him to
order people to surrender. He gave him 3 live rounds to show the
patrons that this was no joke. He told the police that after he
closed the door he then ordered the patrons to put their hands up and
to lie down. At that time he showed them the bullets demanding cash.
He demonstrated in the video how he did this. He indicated how he
proceeded behind the counter. As the cash box was unlocked it opened
and spilled its contents. In the video he demonstrates how he knelt
down to pick the cash which he had then placed in his pocket. At that
stage he told the police that Pedzisayi came and threw the satchel at
him ordering him to put everything inside it. He heard two shots
fired by Pedzisai. He told the police during the recorded dictations
that he took spirits and a calculator. They then went away in
different directions as the patrons scattered around in fear. He told
the police that they latter met and shared the loot. He indicated the
place where he hid the cash box, at house No 1513.
They
proceeded to Chipadze where Pedzisai went to buy some pain killing
tablets for him after he was injured during the robbery. He asked the
police team to go to house No 517 Chipadze. At this house they found
his wife present. He tied his head with a towel. He indicated how
they shared the money amongst the three of them including Joram
Frank. He confirmed that he sutured his wound.
Pedzisai
Zhoya also elected to make indications. He asked the police team to
drive to Chipadze. Upon arrival at a shop that he indicated he went
on to give the following indications and explanations. He indicated
the places where each stood respectively. They saw two guards; one
was armed with a rifle. The present accused Jonathan Mutsinze had a
gun. Jonathan Mutsinze showed the guards a live round. The guards
then ran away in the direction he indicated. They did not manage to
rob. He asked the police team to proceed to Chiwaridzo where he said
they had then gone. They had arrived there around 8 pm. At Chiwaridzo
Bottle Store, Pedzisayi told the officers that when they got under
the shop Jonathan Mutsinze carried the satchel with stripes. They
stood near the pool table. The gun was in the satchel. He then left
Jonathan under as he went out of the Bottle Store holding a beer
bottle. He then shouted;
“Take care of your life."
Immediately
the gun went off. Doors opened and people ran out. Jonathan came out
of the shop carrying the cash box with money. They left the scene and
proceeded to 1513 Chipadze. Inside they chased the children outside
the lounge. Jonathan removed all his clothes to show that he did not
remain with any money before they shared it amongst the three of
them. Jonathan called for a needle and thread to suture his forehead
injury which injury he had sustained during the robbery at
Chiwaridzo.
Accusing
Pedzisayi said he and Frank got $450-00 and Jonathan Mutsinze got
$500 00 as he said he was the main actor. Joram Frank had assisted by
carrying the firearms from Craiggieburn Farm.
He
indicated the sofa inside the room where he slept whilst Jonathan
Mutsinze and his wife used the floor. They left Bindura the following
morning for Matapatepa. He took the gun. He indicated that he was
happy with the manner the indications were carried out. The videos
recorded indications were supplemented by written indications, the
transcript of which appears at p 56 top 60 of the new record.
The
transcript follows clearly the video recorded indications. It was not
however signed by the accused.
According
to Jonathan Mutsinze, his accomplice directed him on what to do;
which is to close the door; to raise his hands showing live bullets
as he shouted the order for everyone to put up their hands and lie
down and to demand money. He then proceeded to do exactly as he was
told. He had a toy gun and Pedzisayi Zhoya had a real one. The first
witness to give evidence was Takesure Furawu who survived the botched
armed robbery at Chipadze Shopping Centre. His fellow guard Lessmore
Kange was less fortunate. He told the court that he was in the
company of Lessmore Kange when they were approached by a young man
who handed a live bullet to Lessmore Kange. This man took steps
backwards, showed then another live round. He then fired at the
deceased. This man wore a blue shirt and a navy blue or black pair of
trousers. The latter fired two shots in the air. The deceased took a
few steps in an attempt to run away before he fell down and died. He
was unable to identify their assailant. He did not see any other
person at that time. The deceased was not armed but he had a .303
which had no bullets as he had not received any training in the use
of firearms. The purpose of carrying it was to intimidate would-be
assailants he said.
Under
cross-examination he said although people were still milling around,
he could not say whether their assailants had company. The man did
not say anything before he fired. He had been arrested by police on
the day as the public believed he had shot his colleague. He had been
severely assaulted in a fit of public anger over the killing of his
friend. He had thrown away his rifle as the crowd pursued him. Police
rescued him from the assault and detained him. He was released when
the police identified the correct suspects.
Zuze
Zuze is the witness who rescued the first witness from the crowd. He
took his rifle and gave it to the first officer at the scene, one
Constable Takundwa, who was off duty.
Paul
Richard Dollar identified the .38 special revolver which was produced
as Exh 12. He had not missed it till police called him to advise him
of its role in the double murders. His guards, who were Pedzisayi
Zhoya and Joram Frank had access to keys to the house when he was
away.
The
fifth witness, Albert Fato, gave direct eye witness evidence on how
the murder and armed robbery at Chiwaridzo occurred.
Around
8pm , the accused, Jonathan Mutsinze, entered into the bottle store
when doors had been closed for ending the business of the day. He
closed them behind him. He then ordered everyone to take care and
hands up as he wielded a gun. Someone, a patron, then said the
accused had only a toy pistol. The accused turned back to see this
man who had retorted a challenge to the arms he was bearing. That
same patron then struck the accused on the forehead with a bottle
which slipped and hit the walls. The accused, Jonathan Mutsinze, then
fired at point blank range towards this patron. People lay on the
floor. The accused shouted at them to get out. The accused proceeded
behind the counter; emptied the cash box and ran out. The witness
called the police to the scene. The deceased was ferried by other
patrons to the hospital. The accused had been inside the shop for
close to 10-15 minutes before he produced the gun, shoot the
deceased, and rob the complainant. He wore a black pair of trousers.
He wore black shoes. Two people , including the deceased, were
playing pool at a table and four others were drinking beer. The
accused had run away with the cash in his left hand and the gun in
the right hand. According to the witness, the accused, Jonathan
Mutsinze, held a live bullet in his right hand, waving it as he
barked his orders whilst he stood in a firing pose with the gun in
the right hand.
Under
cross-examination this witness mentioned that it was the accused who
barked orders to people to lie down; take care; get out and so on as
he fired his gun and proceeded to grab his loot. This witness'
evidence was corroborated by that of Maslina Ganga. According to the
witness, the deceased had been drinking with other patrons till
closing time. She shut the windows and half of the double doors to
the shop. She waited for her patrons to drink up and leave.
A
certain man entered. He wore a blue shirt. He held a bullet in one
hand. His right hand had something carried by a satchel. This man
shouted "take care! Lay down!" She remained on her feet.
The deceased held a beer bottle in his right hand and struck the
gunman. The gun shot rang out. She ran out the back door exit
together with Albert Fato. She asked Fato to keep an eye on this
unfolding drama. Police came in response to someone who had called
them.
Maslina
says the accused was wearing a blue shirt and a black pair of shoes.
Ernest
Mudhindo was 9 years old in 1998. When one morning he woke up to find
his school satchel missing. He regards Pedzisayi Zhoya as his uncle.
He resided at 517 Chiedza Street, Chipadze, Bindura.
Firimon
Mbindo Zhoya is employed as a domestic worker. Pedzisayi is his son.
He described to court how he would leave his employer's main door
keys under the door mat on knocking off his employer could not have
returned. The guards including his son would see him do this. He
recalled that his son brought Jonathan Mutunguze and his wife. He
accommodated them for a month and half as it was said they had
nowhere to stay. Jonathan had a wound on the forehead. When it healed
he went to Marondera.
Givemore
Nyamhondera and Andrew Biza gave an account of how the murder and
armed robbery at Chiwaridzo took place. They both described the
gun-totting man as wearing a blue shirt and a black pair of trousers.
They both described how he held a bullet in one hand and the gun in
the right shouting to everyone to take care, hands up and lie down.
They both told the court that Willis Konje struck the accused on the
forehead with a beer bottle after someone remarked that the accused
was holding a toy gun. He was then shot. They described how the
accused, Jonathan Mutsinze, then proceeded to rob the premises before
taking flight into the darkness.
They
both say only the accused carried out the murder and armed robbery.
John
Chabukwa resided at 517Chiedza Street, Chipadze, Bindura in 1998. On
the night in question he told the court that Jonathan, who was
visiting him together with his wife suggested that he goes to see
Pedzisayi and look for mealie meal at the farm where Pedzisayi was
employed. He came back with Pedzisayi and he woke up to greet the two
before retiring back to bed. They left. He was awakened by his wife
who advised him of the return of the two. She advised that Jonathan
was injured. He had already been bandaged on the forehead. Jonathan
said he had been involved in a fight at the bar. Jonathan left with
his wife after 2 days. He was now wearing a cap.
His
wife gave evidence along the same lines.
Jonathan
Mutsinze's wife Farirai Nyambo also testified. Her evidence was to
the following effect. Jonathan Mutsinze left for Matepatepa and came
back with Pedzisayi Zhoya on 27 March 1998. The next day they left
home around 7pm after supper for the beer hall. Upon their return
they found her inside the home with the children. They asked her to
leave the room with the children. Her husband called her and asked
her to bring a dish of water and a mirror. He was inside the toilet.
He had a wound on the forehead. She did so. She asked him what had
happened. Her husband did not reply. She asked Pedzisayi. He told her
not to bother him with useless things. She left the room. He called
her to bring a sewing needle and thread. When she did, he asked
Pedzisayi to suture his wound. Pedzisayi failed. Mrs Chibukwa came
and tried to assist with the suturing but failed as the thread
snapped. He then sutured himself. The then took a towel and wrapped
it around his head. They tried to leave, the three of them, that
night but failed to find transport. They slept in one room. Pedzisayi
produced a gun from under the sofa and threatened her with it if she
tried to be clever. Early in the morning before people were up they
left Bindura for Matepatepa. Pedzisayi would find tablets for
Jonathan which he took from home. In April or there about, they left
for Marondera where the accused was arrested by police.
The
evidence from these witnesses establish the following facts.
1.
The accused, Jonathan Mutsinze, arrived at Chiwaridzo around 8pm on
28 March 1998.
2.
He was wearing a blue shirt and a black pair of trousers.
3.
There were over 10 patrons still drinking from Chiwaridzo Bottle
Store.
4.
The accused had a satchel which he placed on the pool table.
5.
When other patrons wanted to use the table he picked it up and went
out.
6.
When he entered the bottle store he waved a bullet in his left arm
and wielded a
revolver
in the right hand.
7.
He took a shooting pose and ordered the patrons to take care, hands
up and lie down.
8.
The deceased challenged him saying he was carrying a toy gun and he
struck the accused about the forehead when the accused turned around
to face him.
9.
The beer bottle found its mark on Jonathan Mutsinze's forehead.
Jonathan Mutsinze fired at his assailant at point blank range and hit
him.
10.
Jonathan Mutsinze then ordered the patrons out as he proceeded to
pick up the cash box, wrist watches and a calculator.
11.
He placed these items in his stripped satchel and ran out into the
night.
12.
He met up with his accomplices and went home after discarding the
cash box.
13.
He sutured himself that night. The three then left Bindura the
following day.
The
accused denies any involvement in the murder of Lessmore Kange a few
minutes before the killing of Konje.
We
did not believe him for the following reasons:
(a)
Witnesses John Chibukwa, his wife, Siti Chibukwa, Jonathan's wife
,Farirai Nyambo, all say that the accused and Pedzisayi Zhoya left
517 Chedza Street after 7 pm but before 8 pm. They had supper.
(b)
The survivor of the Chipadze botched armed robbery described the
gunmen as a young man dressed in a blue shirt and a black pair of
trousers. Takesure Furawu stated, and we believe him, that he did not
realise that this person was carrying a gun but noticed that he
showed his victim a bullet before he took steps back and then shot
the deceased. The same witness could not tell whether he was in
someone else's company since people were sitting around the Centre
at the time.
(c)
The same modus operandi was replicated a few minutes after that
botched, cruel, robbery.
(d)
First, the witness described the gunman as wearing a blue shirt and a
pair of black trousers. They also say he waved a bullet to his victim
before he shot the deceased. They were unable to say whether the
gunman was alone or acting in concert with someone else.
In
our view, when the accused states that he was not at Chipadze during
the shooting of Lessmore Kange he is not being truthful. Besides the
description given by Takesure Furuwu the court was satisfied that the
detailed indications he gave could only have been given by Lessmore
with the considered knowledge of the events of the night. Without
relying on statements made by the accused there is sufficient
evidence on the record from which the only inescapable conclusion is
that Jonathan Mutsinze shot and killed Lessmore Kange at point blank
range using the .38 special revolver. The evidence adduced indicated
that the 303 rifle recovered from Zuze Zuze had not been fired for a
long time. So it was not fired that night. The only firearm which had
been fired is the .38 special revolver which Jonathan admits was used
to plan and execute the armed robbery. As for his explanation that he
acted under instructions when he ordered patrons at Chiwaridzo Bottle
Store to take care, hands up and lie down, clearly he was
fabricating. He did not act under any superior order. We therefore
rejected his defence.
The
question that remains is whether, when he fired the fatal shots, he
intended to kill.
The
accused tendered a defence of alibi in respect of the first count.
The State led credible evidence to rebut that defence. He did not
offer any other defence in respect of the first count. He must be
found guilty of murder with actual intent in count 1.
In
count 2, he shot at an off duty police officer who had resisted the
robbery of the bottle store. There was no submission by the defence
that this was in self-defence. The defence argued that the accused
carried a toy gun and only did as ordered.
As
already demonstrated above, this defence was false. It was a mere
fabrication. The overwhelming evidence was that it was Jonathan
Mutsinze who masterminded both the botched armed robbery attempt at
Chipadze and that at Chiwaridzo. The killing of Willis Konje was
reasonably foreseeable when, at planning, it was decided to use a
firearm to overcome any resistance to their goal to rob. As such, the
accused knew that in the course of their planned armed robbery,
which he admitted to planning when in Marondera, they might meet with
resistance and that resistance ought to be broken with the use of a
firearm. Death of the person resisting was a risk which they had
agreed and resolved to deal with. As it turned out, he was struck on
the forehead. He shot his assailant at point blank range. He cannot
say he did not intend to kill.
His
forehead wound became his identification mark by which he was easily
picked up in an identification parade subsequently carried out. In
the result I found that when Jonathan Mutsinze fired at Willis Konje
he intended to kill him. He admitted to commit the robbery but
claimed he was under orders planned. No one ordered him. He is guilty
of murder of Willis Konje with actual intend as well as armed
robbery.
Sentence
In
assessing sentence I take into account what counsel for the accused
has submitted in mitigation. Factors which should weigh as mitigating
include but are not limited to the following:
(a)
Accused is a family man with many wives and 10 children.
(b)
He is a first offender who was a leader of his church.
(c)
He has been in prison for the past 13 years.
(d)
He has lost his mother and son whilst in prison.
Indeed,
he has been anxiously awaiting to hear his fate for a long time.
These are his personal circumstances against which the interests of
justice need to be weighed. These factors include the aggravating
factors of the case which the counsel for the State has pointed out
in its submissions.
These
factors include but are not limited to the following:
(a)
The accused has been convicted of serious crimes i.e. 2 counts of
murder and 1 count of armed robbery.
(b)
The murders were not planned in the sense that the accused set out to
kill Lessmore Kange and Willis Konje but they fell within the general
plan that the accused and his erstwhile accomplices hatched when they
settled and decided to set in motion their evil plan to rob business
premises at night.
(c)
The armed robbery was planned to detail. The accused and his friends
foresaw that by its nature the crime of robbery involved confronting
their victims who may or may not resist their demands to take away
property. If their demands were resisted, they could force their way
by use of armed force. In that sense, therefore, the death of the two
victims was planned.
(d)
They carefully chose their targets which were business premises the
timing also jeopardised the lives of innocent people who were going
about their ordinary businesses.
Usually
at 20:00 hours the urban business centres are a hive of activity.
They chose to execute their plans then - the results were disastrous
for two security personnel.
In
the case of Lovemore Kange he had not challenged or resisted the
robbery. In fact he was killed before he knew why he was being shot.
He was unarmed and had not resisted the accused in any way.
As
for Willis Konje, he was relaxing with other members of the public
and apparently not on duty. He was a police officer. When public
security was threatened he felt duty-bound to act in the interest of
crime prevention. He resisted the accused because he was under the
false belief that the accused had a toy gun. Unfortunately it was a
real gun. He, in a way, met his death in the line of duty.
The
first count of murder was committed in the course of a robbery so was
the second one. In my view these murders were committed in aggravated
circumstances.
The
law at the time required and obliged the court to impose the death
penalty especially where no extenuating circumstances had been found
to exist. See 337 of the Criminal Procedure and Evidence Act, [Cap
9:07]. However there has been a change in the legal terrain
introduced by the new Constitution. That Constitution, in section
48, recognises everyone's right to life - including a prisoner.
Section 48(2) of the Constitution states that a law may permit the
death penalty to be imposed on a person convicted of murder committed
in aggravated circumstances and that the law must permit the court a
"discretion whether or not to impose the penalty.”
In
my view what the Constitution has done is to unfetter the exercise of
the discretion which was previously fettered in s 337 of the Criminal
Procedure and Evidence Act [Cap 9:07] . The omission of reference to
extenuating circumstances and the introduction of aggravated
circumstances in my view must be interpreted to mean that what is
envisaged is an Act of Parliament which will define the terms on
which courts will impose the death penalty. Alternatively, and in any
event, the absence of the definition of the term or what amounts to
"aggravated circumstances" must mean that these were to be
defined in the envisaged law. Before such an Act of Parliament is
enacted, I interpret the legal position to be that, in keeping with
its international obligations and international best practices,
Zimbabwe intends to move away from the death penalty. Therefore,
unless the State applies for a finding that aggravated circumstances
exist, the court cannot impose this penalty in the spirit of the new
law.
In
my view the accused must benefit from the absence of a specific law
setting out the exact definition of what constitutes special
circumstances.
In
any event the accused has spent a long time awaiting sentence.
However I do not attach too much weight on this aspect because he did
not press early enough his right to a speedy trial within a
reasonable time. He is in any event, partly to blame for his plight.
In view of the fact that these crimes were committed after a careful
planning I find that the following sentences are appropriate;
Count
1: Life imprisonment
Count
2: 10 years imprisonment
Count
3: Life imprisonment
Prosecutor General's
Office, State's legal practitioners
Mambosasa Legal
Practitioners, defence's legal practitioners
