Criminal
Trial
MAKONESE
J:
The
accused was charged with the crime of murder it being alleged that on
the 7th June 2010 and at Sekiwa Sibanda's homestead in Ngwalongwalo
Village, Lupane, the accused wrongfully and unlawfully killed Sekiwa
Sibanda a male adult aged 80 years.
The
deceased is accused's father.
The
accused tendered a plea of not guilty with respect to the charge of
murder and a plea of not guilty was accordingly entered.
The
accused through his defence counsel has tendered a limited plea of
guilty with respect to culpable homicide. The State has accepted the
limited plea.
The
court is satisfied that the concession by the State in this matter
was properly made.
The
court is satisfied that the accused's plea is understandingly made
and accordingly a plea of guilty with respect to culpable homicide is
entered. The accused is found guilty of the less or charge of
culpable homicide.
Accused
is acquitted on the charge of murder.
Mitigation
Accused
person is aged 28 years. He is married with one child who was born
whilst he was in remand prison. The accused is a first offender who
pleaded guilty and showed contrition. He is unemployed. He has no
assets and no savings. When he realized that he had seriously injured
his father he went and advised his uncle. They ferried him in a
scotch cart to hospital where he unfortunately passed away.
The
accused was not in total control of his senses as he had been
drinking with his father.
From
the agreed facts the father was the aggressor. He held him by the
collar and hit him with an unknown object. The accused was never
granted bail. He has now been in remand custody for one year and nine
months.
Notwithstanding
the drunkenness there are some aggravating features in this case.
The
deceased was 80 years old and he was accused's father. The accused
used excessive force in retaliation. The use of two bricks on an 80
year old father was unreasonable. One would have thought that the
accused would have run away if the father was aggressive.
In,
the State v Sangila Gumbo HB42/90, in that the appellant and his
brother were at a beer drink. The appellant's brother and deceased
later quarrelled because the former suspected that the brother was
having an affair with his wife. The deceased then decided to leave
the bar quickly. The accused's brother, however, followed him and
went and caught up with him. The two exchanged blows; on seeing this,
the appellant went to them, used a log and struck the deceased who
fell down and later died. The appellant was convicted of culpable
homicide and he was sentenced to 6 years with 2 suspended. On appeal
it was held that the sentence was appropriate.
The
only similarity in that case is that accused was drunk.
Although
there was no immediate danger, in this matter the accused person's
father was the aggressor.
Sentence
The
accused person has been convicted on a charge of culpable homicide.
He pleaded guilty and offered a limited plea.
The
brief facts are contained in the statement of agreed facts.
The
accused and his deceased father had an argument over some groundnuts.
The accused later confronted his father and according to him it was
his father who was initial aggressor. Rather than run away the
accused picked a brick which he used to strike the deceased on the
head. Whilst on the ground and obviously defenceless accused
delivered further blows to the head using a brick.
The
post-mortem report shows that the force used was excessive. The
injuries are summarised as follows:
(a)
extension brain haemorrhage.
(b)
multiple skull fracture.
(c)
severe head injury.
(d)
assault.
In
mitigation the court will take into account the following factors:
(1)
the accused is aged 26 years.
(2)
accused pleaded guilty.
(3)
he showed some remorse.
(4)
he has been in remand prison for one year nine months.
(5)
accused was drunk.
Against
the mitigating features are the following factors in aggravation:-
(1)
the attack was vicious.
(2)
the accused could have run away.
(3)
the accused attacked his father; aged 80 years.
(4)
a life has been lost and nothing can replace life.
(5)
these kind of attacks arising from drunken brawls are on the
increase.
We
agree with the prosecution that the sentences imposed must send a
clear signal to society that violence of individuals against other
human beings is not tolerated. Society needs to be protected against
unlawful attacks on other persons.
The
accused is accordingly sentenced to 10 years imprisonment 2 years is
suspended for five years on condition accused is not within that
period convicted of an offence of which violence is an element and
for which he is sentenced to imprisonment without the option of fine.
Effective
sentence: 8 years imprisonment.
Criminal
Division, Attorney General's Office, State's legal practitioners
Marondedze,
Mukuku, Ndove and partners, accused's legal practitioners
