MAWADZE
J: The
accused was initially facing the charge of murder as defined in
section 47(1) of the Criminal Law (Codification and Reform) Act [Cap
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 [Cap
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
[Cap
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. Infact 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 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.”
National
Prosecuting Authority,
counsel for the accused
Chakabuda
Foroma Law Chambers,
pro deo counsel for the accused
