Criminal
- Sentence
MAWADZE
J: The
accused was initially facing a charge of murder as defined in section
47(1) of the Criminal Law (Codification and Reform Act) [Cap
9:23]
but now stands convicted of a permissible verdict of contravening
section 49 of the Criminal Law (Codification and Reform Act) [Cap
9:23]
which relates to culpable homicide. This was after both counsel found
each other and the matter proceeded by way of a Statement of Agreed
Facts.
The
agreed facts which inform the charge are as follows;
The
43-year-old accused who had gone to a local hospital with his sick
child returned home to midnight in Tagovegwa Village, Sorelele, Chief
Mazhetese, Mwenezi, Masvingo. The 21-year-old now deceased was
apparently in love with the accused's 20-year-old daughter
Sithulisiwe Ncube who was married and had a child. The accused's
said daughter had been returned to her parents' home due to some
undisclosed issues with her husband, which issues were yet to be
resolved. She was therefore committing adultery right under the nose
of the accused her father at the accused's homestead.
The
now deceased on that night of 8 August 2017 had sneaked into the
bedroom of accused's daughter in the absence of the accused and his
wife. When the accused and his wife returned home at midnight
unannounced the accused's daughter panicked and covered the now
deceased with a dish and a blanket. Unfortunately, the accused upon
entering his daughter's bedroom with a torch to leave his sick son
who shared the same bedroom with his daughter he found the now
deceased whom he did not know. A scuffle ensued as the now deceased
tried to escape unsuccessfully.
The
accused's wife brought some mopani tree switches which the accused
used to assault the now deceased all over the body. The now deceased
fought back to free himself without success. The assault continued
unabated until a neighbour Loyekai Bhamule arrived and identified the
now deceased. By then the now deceased had been fatally injured as he
had sustained extensive whip last marks on the trunk, buttocks and
lower limbs. He had bruises on the neck which was now loose, deformed
and hyper mobile. The now deceased passed on at dawn. As per the post
mortem report the cause of death is cervical spine fracture and neck
trauma.
There
is no doubt that this is a very serious case of culpable homicide
which may be borderline with a case of murder with constructive
intent. It entails violent conduct resulting in the loss of the now
deceased's young life. The sacred nature of human blood cannot be
over emphasised and it behoves upon the court to always uphold the
sanctity of human life. It is a fact that once a life is lost it
cannot be replaced.
It
is clear from the nature of the injuries sustained by the now
deceased that the accused's degree of negligence is very high.
Clearly severe force was used to inflict such injuries causing
cervical spine fracture and neck trauma. The assault itself was
prolonged.
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 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 Mr
Mazula
for the accused with admirable clarity.
The
accused's personal circumstances were ventilated. The accused has 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) [Cap
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. Accused
therefore deserves some measure of leniency.
It
is also a mitigatory factor that accused has suffered pre-trial
incarceration for a period of about 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
SC-5-14; 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 accused would be
sentenced to a term of imprisonment without the option of a fine.
Effective
term:
- 4 years imprisonment.
National
Prosecuting Authority
– counsel for the state
Tsara
& Associates
– counsel for the accused
