MWAYERA
J: The matter came up for
trial. Initially the State prepared a charge of murder against the
accused. On reflection before commencement of trial the State reduced
the charge to culpable homicide. The State and defence came up with a
charge of culpable homicide and a Statement of Agreed Facts.
The
accused pleaded guilty to culpable homicide, wherein, it is the
State's contention that on 9 November 2017 at Maronga Village,
Chief Musikavanhu, Chipinge, the accused unlawfully caused the death
of Onai Chinondida by striking him with a brick once on the head
negligently failing to realise that death might result from his
conduct resulting in injuries from which Onai Chinondida died.
The
statement of agreed facts revealed among other common cause aspects
that on 9 November 2017, the accused and deceased were at Ndashuwa
homestead for a beer drink. Further that at around 1500 hours, an
altercation arose between the deceased, accused and accused's young
brother one Trymore Chinondida. The altercation was over accused's
persistence to have more beer and that Trymore owed the deceased 50
cents. The deceased struck the accused once on the back of the head
with a stone propelled from a catapult. This then led to Trymore
Chinondida and Gift Tendai joining in and striking the accused with
logs. The accused produced a knife and picked a brick and then
charged towards the deceased. Amos Makuyana restrained the accused
and dragged him out of the homestead but the accused could not have
any of that, he broke free and ran back to the yard and picked a
stone which he threw towards Gift Tendai but missed and struck
another. The accused picked another brick and struck the deceased on
the head. The deceased sustained a depressed skull and fracture from
which he died.
There
being no disputed facts the following exhibits were tendered as
evidence by consent.
A
confirmed warned and cautioned statement by the accused exh I. The
post mortem report by Dr Tapi and affidavit showing cause of death
exh 2 and exh 2(a) respectively.
A
weight certificate showing weight of the brick used to strike the
deceased exh 3 and pieces of the broken brick exh 3a, and, finally,
the sketch plan and key drawn by sergeant Zvenyika, exh 4.
The
circumstances surrounding the matter having been already captured in
the statement of agreed facts and supported by the documentary
evidence tendered having been accepted and admitted to by the accused
we found no reason to question the stance of both the State and
defence counsel who sought for a conviction of culpable homicide.
Accordingly, the accused is found guilty of culpable homicide.
No
record.
We
were addressed in mitigation and aggravation by both State and
defence counsel and we came up with sentence.
Sentence
In
reaching at an appropriate sentence we have considered all mitigatory
and aggravatory factors advanced by Ms Jaricha
and Mr. Chingwinyiso.
We are indebted to both counsels for their submissions on principles
of sentencing, personal circumstances of the accused and
circumstances of the matter. Both counsels referred us to fairly old
cases in the 60s in bringing to light what the court should consider
in passing sentence. The cases although old were not irrelevant as
clearly the universal nature of sentencing principles has not
changed. We must mention reference to recent cases and cases of
circumstances of similar nature would however, be appreciated in
assisting the court to exercise its sentencing discretion in a manner
that will balance the interests of the criminal, matching these to
the crime and at the same time be fair to society whose interests is
anchored on the administration of justice.
We
have considered that the accused pleaded guilty to culpable homicide
thus showing remorse and genuine penitence. As correctly stated by
the defence counsel Ms. Jaricha
the accused will forever live with the stigmatisation of having
killed someone. The accused has been in custody for about 7 months
while awaiting the finalisation of this matter. For that period the
accused had the charge of murder hanging above his head and the
trauma that goes with facing such serious allegations cannot be
ignored.
In
considering an appropriate sentence to impose it was further
submitted that the accused is a young adult aged 27.
Although
an adult, he is fairly young and at the time of commission of the
offence fell into the bracket of youthful offender cannot be ignored
as it is a mitigatory factor.
The
accused further has a young wife and 2 young children who are all
dependent on him for sustenance.
The
defence counsel at lengthy urged the court to consider a short
imprisonment term for deterrence as opposed to a long imprisonment
term. See S v
Teburo
HH 517-87, S
v Wood
1973 (1) RLR 11. The State counsel agreed with the defence counsel
that a long imprisonment term was unwarranted.
However,
in aggravation Mr. Chingwinyiso
emphasised correctly the sanctity of human life. On that point he
referred us to an old South African case R
v Branard
1960 SA (1) 552. It is clear in the Zimbabwean Constitution section
48(1) that every person has a right to life. As such the court has a
duty to protect the said right. Therefore, a person who unlawfully
takes away another's life deserves to be punished adequately not
only to deter the offender and likeminded people but to ensure that
the society retains confidence in the justice delivery system.
As
correctly pointed out by Mr. Chingwinyiso
the court in considering the personal circumstances of the accused
should not lose sight of the attendant personal circumstances of the
deceased whose loss of life will occasion undue hardship on his own
family and dependents. The deceased lost life at a tender age of 38
in circumstances where it could have been avoided given the accused
had earlier been restrained by one Amos Makuyana who acted as a
pacifier but the accused persisted on the violence. The sentence has
to reflect that resolution of disputes by resorting to violence is
not acceptable in a civilised society.
We
are not blind to the fact that the accused was under attack from
three people and that this was at a beer drink. This reduces the
accused's moral blameworthiness. However, the accused having been
restrained was negligent when he picked a brick and struck the
deceased on the head which is a vulnerable part of the body. The
deceased died as a result of a head injury as outlined in the
post-mortem report by Dr Tapi.
Upon
considering all the mitigatory factors and aggravatory factors we
agree that a short imprisonment term will meet the justice of the
case. The universal principle is that the punishment should fit the
criminal as well as the crime and be fair to society while at the
same time being reflective of a blend of a measure of mercy given the
circumstances of the case.
Accordingly
the accused is sentenced as follows.
4
years imprisonment of which 1 year imprisonment is suspended for 5
years on condition accused does not within that period commit an
offence involving the use of violence on the person of another for
which he is sentenced to imprisonment without the option of a fine.
National
Prosecuting Authority,
State's legal practitioners; Mhungu
& Associates,
accused's legal practitioners
