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, he was convicted of the permissible verdict of culpable
homicide as defined in section 49 of the Criminal Code [Cap
9:23]
after the State and the defence agreed that it is the appropriate
charge. The matter therefore proceeded on the basis of a Statement of
Agreed Facts.
The
agreed facts are that the accused is the father of the 8-year male
now deceased. They were residing at the same homestead at Village TI
Nyahombe Resettlement, Chief Shindi, Chivi, Masvingo. Apparently the
accused separated from the now deceased's mother and he had custody
of the now deceased and had remarried.
On
10 April 2017 the accused alleged that the now deceased was
misbehaving and decided to inflict corporal punishment using a mopani
stick. The accused took issue with the now deceased's habit of
unpunctuality when sent to on errands at the nearby shops. As the now
deceased was being chastised he raised his legs and was hit on the
testicles rendering the now deceased unconscious. The accused tried
to carry out first aid but the now deceased passed on. The accused
thereafter wrapped the now deceased's body in a blanket and buried
it in a toilet pit he was working on. Thereafter the accused lied to
the persons he was staying with that the now deceased had gone to the
now deceased's mother in Chivhu. The now deceased's mother later
learnt that the now deceased was being said to be in her custody and
she approached the accused about the lie. The accused still could not
reveal the whereabouts of the now deceased hence the matter was
referred to police leading to accused's arrest 9 months later in
January 2018.
The
accused only pointed to the police on 28 January 2018 the place where
he had buried the now deceased after which the police exhumed the
skeletal remains of the now deceased wrapped in a blanket. The
pathologist could not determine the cause of death due to advanced
decomposition.
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
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 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 accused's and
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 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 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 accused 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 assault was quite reckless as 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.”
National
Prosecuting Authority, counsel
for the State
T.
Munyanyi & Associates, pro
deo counsel for the accused
