Criminal
Trial
MAKONESE
J:
The
accused was charged with the crime of murder it being alleged that on
25th November 2011 and at homestead of Borehole 33 village Chief
Mvutu, Victoria Falls, you wrongfully and unlawfully and
intentionally killed Delight Ndlovu a female adult aged 34 years.
You
pleaded Not Guilty and accordingly we entered a plea of not guilty.
The accused tendered through his defence counsel a limited plea of
guilty with respect to culpable homicide.
The
court accepts that the concession made by the State in accepting a
limited plea was properly made and therefore you are found guilty of
culpable homicide. You were acquitted on the charge of murder.
Address
in mitigation by the defence counsel:
The
accused person is aged 36 years. He was married to deceased and they
had two minor children. The oldest is 15 years and youngest is 9
years. He was self employed as a wood carver. He was the sole
bread-winner. He has no assets of considerable value or any
savings. The accused is a first offender. Its his first time to be
found on the wrong side of the law. The accused is HIV positive (do
not have medical proof).
I
urge the court to take into account that accused person was provoked.
He
could not stomach the fact that his wife was seeing other man. He
acted in the heat of the moment. The accused person murdered his own
wife and that still traumatises him. We submit that its punishment on
its own.
In
the case of S v Innocent Phiri HB5/12; the brief facts are that
accused person assaulted deceased with Mopani switches for burning
down a kitchen hut. In that case the accused was sentenced to 10
years imprisonment.
Mabutho
Mutambo and Others HB78/11; the accused persons assaulted the
deceased with switches all over the body and was sentenced to 6 years
imprisonment.
The
accused person is of sober habits.
By
State: Address in aggravation
This
is a case where the accused acted precipitately. He acted on a mere
suspicion. Its humbly submitted that such a set up is not unusual
where people of different sexes share the same cup of beer. The
accused assaulted a defenceless woman with such a thick log. He did
strike her repeatedly, therefore causing injuries on deceased all
over her body The deceased is accused's husband. We would have
expected him even under provocation not to go to such extremes. It is
humbly submitted that even if the accused was provoked the
provocation was minor. A sentence imposed has to show the attitude
the courts have towards this behaviour. The force used was too
excessive. A sentence in region of 10 years will meet the justice of
the case.
Reasons
for sentence
The
accused person pleaded not guilty to murder but tendered a limited
plea of guilty with respect to culpable homicide. The court has
accepted that the concession was properly made by the State. The
accused person is therefore convicted of culpable homicide.
The
accused assaulted his wife using a log all over the body
indiscriminately. Accused was not under the influence of liquor at
the time of the offence. He acted recklessly and even though there
was some provocation we find that the extent of provocation was not
proportionate to the conduct or reaction of the accused. The deceased
was accused's wife. They have two minor children together. The
children are now going to grow without a mother. Accused found his
wife drinking beer with male persons and suspected she was having an
affair outside marriage. The court accepts that there was that
provocation. However against that the behaviour of the accused was
totally not inexcusable. Accused did not find the wife in an
uncompromising position.
These
are the factors in your favour:-
(1)
you are a first offender.
(2)
you pleaded guilty.
(3)
you have show some contrition.
(4)
family responsibilities.
That
is all that can be said in your favour.
Your
moral blameworthiness is very high. You were supposed to contain your
anger and resolve the issue using your elders. You had no right to
beat up your wife as if you were beating an animal. The force used
was excessive and the post-mortem report shows that death was
caused by;
(1)
asphyxia.
(2)
Gastric contents aspiration.
(3)
assault.
The
report shows that her spleen was raptured.
A
deterrent sentence must be imposed. Cases of domestic violence are on
the upsurge and society must be protected. These courts frown upon
abusive spouses and the courts will show little sympathy against such
offenders.
Sentence
Effective
sentence: 10 years imprisonment.
Criminal
Division, Attorney General's office, state's legal practitioners
Mashindi and Associates, accused's legal practitioners
