MAKONESE
J: The
accused is facing a charge of murder. He is aged 18 years. It being
alleged that on 10 April 2014 at Village Fayabo,
Lower
Gweru, the accused wrongfully and unlawfully with intent killed and
murdered Onismo Moyo a male adult, by striking him once on the head.
The
accused pleaded not guilty to the charge but instead tendered a
limited plea of guilty with respect to culpable homicide.
The
State acceded to the limited plea. A Statement of Agreed Facts
(Exhibit 1) was tendered into the evidence.
The
brief facts as accepted by both the State and the defence are that on
10 April 2014 at 10:00 hours, the deceased was herding cattle in the
grazing land, anticipating that accused would take over those duties
later that day. When accused arrived he did not take over as
expected. He refused. An argument erupted between the deceased and
the accused. This argument degenerated into a fist fight. One Ndumiso
Moyo intervened in a bid to stop the fight but the accused and
deceased continued trading insults. The deceased then confronted the
accused and slapped him once on the cheek with an open hand. The
accused got hold of a knobkerrie and struck the deceased on the head
once. The deceased left to go home but on the way complained of
dizziness. He collapsed and subsequently died. The accused who
surrendered himself to the police was later arrested.
The
accused accepts that he caused the death of the deceased negligently.
He did not intend to kill the deceased.
The
State then tendered Exhibit B2, the knobkerrie. The dimensions of
this weapon are: measured weight 166 grams, length 47cm,
circumference of the head 15cm.
The
last Exhibit 3 is the Post Mortem Report compiled by Dr Zimucha. The
cause of death as reflected in this report is:
(a)
Severe head injury, trauma on skull (right occipito temporal region).
The
other observations were a depressed skull fracture on right occipito
temporal region, nose bleeding, large haematoma on right occipito –
temporal region.
We
are satisfied that the limited plea of culpable homicide has been
properly conceded by the State. The accused clearly used excessive
force in striking the deceased on the head and negligently caused his
death.
The
accused is accordingly found guilty of culpable homicide. Accused is
acquitted of murder.
Sentence
In
assessing sentence the court shall have regard to all the mitigating
features of the case as outlined by defence counsel. The court shall
have particular regard to the youthfulness of the accused. He was
aged 17 years at the time of the commission of the offence. He was
not mature and possibly acted hastily and at the spur of the moment.
However,
in most cases of this nature, the crimes are not committed after
careful planning. The accused's moral blameworthiness is measured
on the nature of his response and reaction to a given set of
circumstances.
The
accused and the deceased had a minor dispute. There was provocation
on the part of the accused. Had it not been for that provocation the
situation might have been different. The court takes into cognizance
that accused has shown a great deal of contrition and remorse. He has
pleaded guilty and has not sought to absolve himself of liability.
The
sentence imposed must be rehabilitative in nature. The accused is
still young and he should reflect on his conduct and correct his
mistakes.
It
is of critical importance to consider on the other hand the impact of
the offence on the victim's family.
A
young life was needlessly lost. The courts have a duty to guard
jealously the sanctity of human life. The courts will impose
custodial sentences as a mark of displeasure at the use of violence
in resolving petty disputes.
The
accused who was only 17 years old at the time threw himself at the
deep end by using deadly violence to cause the death of another human
being. The court must however, strive to strike a balance between the
interests of justice and those of the accused person. A sentence of
community service in this case would tend to trivialize the offence
and the public will lose faith in the justice delivery system. The
sentence to be imposed in this case must be just and fair.
In
the result accused is sentenced as follows:
“6
years imprisonment of which 3 years is suspended for 5 years on
condition accused is not within that period convicted of any offence
of which violence is an element and for which he is sentenced to
imprisonment without the option of a fine.
Effective
sentence: 3
years imprisonment.”
National
Prosecuting Authority's Office,
the state's legal practitioners
Chitere,
Chidawanyika and Partners,
accused's legal practitioners
