MAKONESE J: The
accused has been arraigned in this court on a charge of murder. The
State alleges that in or about 10 December 2012 at Insuza, in the
Province of Matebeleland, the accused did wrongfully, unlawfully and
intentionally kill and murder Lushiana Paul Mpofu, a male juvenile
aged 1 year 8 months at the time of his demise.
The
accused pleaded not guilty to the charge of murder and tendered a
plea of guilty in respect of the lessor charge of culpable homicide.
The
State accepted, correctly in my view, the limited plea tendered by
the accused.
The
State and defence tendered a Statement of Agreed Facts whose contents
are as follows:
“STATEMENT
OF AGREED FACTS
The
State and the defence are agreed that the following issues are common
cause; being that:
1.
Accused resides at Mahatshi Nkomo's homestead, Village 3A Insuza
and was aged 23 years at the time of the commission of the offence.
2.
The deceased used to reside at Mahatshi Nkomo's homestead, Village
3A Insuza and was aged 1 year 8 months old at the time he met his
death.
3.
The accused is father to the deceased.
4.
On 10 December 2012 and around 20:00 hours the accused was seated
inside his kitchen hut and all was well.
5.
Accused went out of the hut to make a phone call taking the deceased
with him.
6.
While outside he went to meet a Kombi driver.
7.
The deceased begun to cry and in a bid to silence the deceased, the
accused slapped the deceased twice and went on to knock the deceased
on the head using his knuckles.
8.
The deceased then appeared to have fits and fell unconscious and
later died.
9.
The accused tried to render first aid.
10.
Accused spent the night in the bush with the deceased, and in the
morning the accused left the body of the deceased in the kitchen hut.
11.
On 11 December 2012 the body of the deceased was discovered by Similo
Mpofu the deceased's mother.
12.
The accused person pleads not guilty to murder but pleads guilty to
culpable homicide in that he negligently caused the death of the
deceased.”
The
State then tendered the post mortem report (Exhibit 2). Dr Sanganai
Pesanai is a medical doctor stationed at United Bulawayo Hospitals.
On 14 December 2012 he examined the remains of the deceased juvenile
and compiled his findings in the Post Mortem Report number
1023/1017/12. As a body of the deceased he concluded that the cause
of death was:
(a)
intracramical haemmorrhage.
(b)
blunt force trauma.
(c)
homicide.
An
internal examination of the body, the pathologist made certain
observations.
He
notes that there was a scalp haematomas on the right parietal region
on different locations. Further he noted that on the brain there was
a right extradural haematoma and generalized subarchnoid haemorrhage.
The Doctor opines that the post mortem report is consistent with
blocking in the brain secondary to a blunt force trauma.
On
the evidence presented to the court I am satisfied that the accused
is guilty of culpable homicide in that by striking the deceased on
the head in the manner he did he acted negligently. The accused is
accordingly found not guilty of murder and acquitted.
The
accused is convicted of culpable homicide.
In
assessing an appropriate sentence, the court took into account that
the accused who is a first offender, and at aged 23 is still
youthful.
The
accused is now a widower. His wife, the mother of the deceased died
in December 2014. The accused person is not formally employed. He
performs part time jobs for survival. It is not in dispute that prior
to the assault upon the deceased there was no misunderstanding
between the accused and his wife. He had no ulterior motives to bring
about the death of the deceased. Those are the factors weighing in
his favour.
The
accused's moral blameworthiness is high in that after the death of
the deceased he fled to Botswana and only came back to Zimbabwe in
December 2014. The delay in the finalization of the case was brought
about by the conduct of the accused.
The
accused recklessly caused the death of the juvenile. He must have
exerted excessive force upon the head of the deceased when he
assaulted him. The deceased's only crime was that he was crying.
This must have annoyed the accused whose reaction was totally
disproportionate.
The
court takes into account that at the time of the commission of the
offence the accused was immature and lacked the experience of life
and did not possess the wisdom normally associated with mature man.
This
tragic death of his minor child will forever traumatise him. The
courts do have the duty to uphold the sanctity of human life. The
assault on the child on the head was senseless and was reckless. The
post mortem report indicates that the child sustained intractranial
haemorrhage. There is no doubt that the force applied was rather
excessive. The conduct of the accused is reprehensible.
Parents
are in loco parentis
to their children. They are expected to care and look after their
children. Parents who physically abuse their children should not
expect lenient sentences from the courts. Indeed time has come for
courts to protect children from physical abuse by their parents or
those charged with the duty to look after them.
In
the instant case, the court has carefully weighed the mitigating
circumstance against the aggravating circumstances and has considered
that a prison sentence is the only appropriate sentence. A non
custodial sentence would trivialize the offence.
I
accordingly consider the following to be an appropriate sentence:
Accused
is sentenced to 5 years imprisonment of which 2 years is suspended
for 5 years on condition the 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 a fine.
Effective
sentence: 3 years imprisonment.
National Prosecuting Authority,
the State's legal practitioners
Mashindi and Partners,
accused's legal practitioners
