MALABA
DCJ:
This
is an appeal against the sentence of death imposed on the appellant
by the High Court on 30 May 2006 following a conviction of murder
with actual intent to kill.
The
appellant had been charged with the unlawful and intentional killing
of Charles Anderson at Norfolk Farm, Bindura on 2 June 2002. The
trial court having found that no extenuating circumstances existed
imposed the mandatory sentence of death.
At
the hearing of the appeal Mr Halumani who appeared on behalf of the
appellant pro-deo indicated that he had no meaningful submissions to
make against the imposition of the sentence. Finding that there was
no need to call upon Mr Tokwe for the respondent we dismissed the
appeal and indicated that reasons for the decision would follow.
These are the reasons.
The
facts on which the charge of murder preferred against the appellant
was based and found by the court a quo to have been proved by the
State beyond reasonable doubt are accurately summarized in the
respondent's heads of argument. They are that:
On
2 June 2002 at about 12pm the appellant in the company of one
Benedict Makumbe who is still at large went to the deceased's house
at Norfolk Farm in Bindura with the intention of committing robbery.
The appellant was armed with an AK47 rifle loaded with live rounds.
On arrival at the deceased's residence the appellant and his
accomplice found the deceased's employees Michael Tom and Edmore
Mapuranga. Michael was outside whilst Edmore was inside the house the
doors to which were locked. The deceased was not at the farm at the
time. The appellant threatened Michael with the firearm and placed
him under their command. They took him to a window next to the front
door to the house. The appellant broke the window with an iron bar to
gain entry whence he was able to open the door.
In
the house the appellant and his accomplice found Edmore whom they
threatened with the firearm. The appellant ordered the two employees
to lie on the floor in the corridor next to the telephone receiver
and covered them with a blanket. The appellant ordered his accomplice
to keep guard on the employees whilst he cut the telephone cable. He
broke the security gates leading to the bedrooms using the iron bar
and started ransacking the house taking the items of property they
wanted and putting them in bags.
As
the robbery was going on the deceased, in the company of his wife and
two children, arrived at the gate to the homestead in a motor
vehicle. The appellant had now ordered the employees to lie on the
floor by the door leading into the corridor under guard by his
accomplice. Upon hearing the sound of the engine of the motor vehicle
Michael told the appellant that his employer had arrived. The
appellant retorted saying that he was not worried by the arrival of
the employer as he would shoot him if he came into the house. On
realizing that no-one was coming to open the gate for them, the
deceased's wife did so. She went ahead of the motor vehicle as it
drove into the yard. The appellant heard the sound of the motor
vehicle as it approached the house. He moved into a toilet whence he
could see what was happening outside.
Whilst
there he saw the deceased's wife approach the back of the house and
going back to the motor vehicle. The deceased's wife had noticed
that the lock on the front door had been tampered with. She had
called out for the employees and got no response. She went back to
the motor vehicle and reported the results of her observations to the
deceased. The deceased armed himself with a shotgun and moved around
to the back of the house. The appellant, who was armed with the AK
rifle, saw the deceased as he went to the back of the house. He got
ready to shoot the deceased as he entered the house.
As
the deceased entered the house, the appellant, without a warning,
immediately opened fire and shot him on the head. He fired at least
three shots. The bullet that killed the deceased entered the head
just below the right ear and exited from the left side.
The
appellant came out of the house and demanded keys to one of the
deceased's motor vehicles from the deceased's wife. The two
loaded the loot into the motor vehicle and forced the two employees
to get into it. The appellant gave the keys to his accomplice to
drive the car whilst he walked ahead to open the gate. The
appellant's accomplice, who probably had been overwhelmed by the
deceased's death, simply drove through the open gate leaving the
appellant behind. The motor vehicle overturned about three kilometers
from the deceased's homestead.
The
appellant's accomplice made good his escape to this day.
Meanwhile
the appellant left the scene on foot and met the deceased's
neighbour. The appellant lied to him saying he was a security guard
at the farm and that he needed assistance to track robbers who had
shot dead his employer. The neighbour responded by offering the
appellant a lift in his car as they drove in the direction taken by
the motor vehicle driven by the appellant's accomplice. When they
got to where the motor vehicle had overturned, the appellant
disembarked from the neighbour's vehicle and walked towards
Chiweshe Communal Lands.
He
was subsequently arrested on the same day and the rifle recovered
from him.
It
was later discovered by the police that the rifle had been reported
as having been taken by the use of violence from a Government
minister's security guard who had given the appellant and his
accomplice a lift on his way to Bindura two days before the death of
the deceased.
It
is clear that no court acting reasonably could possibly find
extenuating circumstances from the facts.
Extenuating
circumstances are any facts bearing on the commission of the crime
which reduce the moral blameworthiness of the accused, as distinct
from his legal culpability. In other words an extenuating
circumstance being a fact associated with the crime must upon its
consideration by a reasonable man serve to diminish in his or her
mind the degree of the prisoner's guilt in the moral sense. See S v
Badala 1964 (1) SA 26 (A); S v Letsolo 1970 (3) SA 476 (A); Chidziva
v S S83-99; Kuyeri v S S188-95.
When
considered carefully, all the facts bearing upon the commission of
the crime in this case aggravate rather than reduce the appellant's
moral blameworthiness.
The
appellant armed himself with a firearm loaded with live bullets and
proceeded to the deceased's farm house with the intention of
committing robbery. He was prepared to use the firearm to overcome
any perceived interference with his criminal conduct. There is no
doubt that the appellant welcomed a situation in which he would have
to use the firearm.
When
the deceased's employee warned the appellant of the arrival of his
employer and ipso facto the imminence of a possible confrontation, he
was not loath to say that he was going to shoot the deceased if he
came into the house.
To
successfully carry out his murderous intention the appellant took up
position in a strategic place in the toilet in readiness to shoot the
deceased as he entered the house and did exactly what he had told the
deceased's employee a few minutes earlier he would do. He shot the
deceased who had the right to enter his house, on the head at close
range, without any prior warning.
He
could safely have given the warning from the toilet affording the
deceased, the opportunity to surrender.
The
facts show that the appellant had premeditated the killing and had no
intention of saving the deceased's life. It was a killing committed
in cold blood.
This
court has warned in numerous cases that those who commit murder in
the course of robbery are themselves responsible for the creation of
circumstances relating to the commission of the crime which in many
cases would not in the minds of reasonable men and women reduce the
degree of their moral blameworthiness for the purposes of avoiding
the mandatory sentence of death.
The
appellant's case falls in that category of cases where there is
nothing in the circumstances of the commission of the murder in the
course of robbery that reduces the prisoner's degree of moral
guilt. See Ndhlovu v S S-34-85; Mubaiwa v S 1992 (2) ZLR 364; Chareka
& Anor v S S-4-93.
The
court a quo was correct in holding that there were no extenuating
circumstances and imposing the death sentence on the appellant.
ZIYAMBI
JA: I agree
CHEDA
AJA: I agree
