CHITAPI
J:
The
accused was indicted to answer to a charge of murder as defined in
section 47 of the Criminal Law (Codification & Reform) Act
[Chapter
9:23].
When
the matter was called, the State counsel Mr
Chesa informed
the court that after an exchange of evidential documents including
the accused's Defence Outline with Mr
Kativhu,
the accused's pro
deo
defence counsel, the accused had tendered a plea of guilty to
culpable homicide. The State counsel advised the court that the State
was agreeable to have the trial proceed on the lesser charge of
culpable homicide.
The
prosecutor then applied that the trial be postponed to the following
day to enable the preparation and drafting of the altered charge
sheet and a Statement of Agreed Facts. The matter with the consent of
the defence counsel was accordingly stood down to 4 March, 2016.
It
should be pointed out that the court having considered the summary of
the State case and the accused's Defence Outline also formed the
view that proceeding on a charge of murder would have presented a
challenge of perhaps insurmountable proportions for the State. The
views of the court notwithstanding, the State is in any case dominis
litis
and was well within its rights to choose what charge to prefer
against the accused.
On
4 March 2016 the trial resumed and a charge of culpable homicide was
put to the accused person.
It
was alleged against him, that on 20 February, 2014 at house number
5125-110 Street Warren Park D, Harare, the accused unlawfully and
negligently caused the death of one Tendai Manyenga by “stabbing
him negligently and failing to realize that death may result from his
conduct, or realizing that death may result from his conduct,
negligently failed to guard against that possibility resulting in
injuries from which the said Tendai Manyenga died”.
The
accused pleaded guilty to the charge and Mr Kativhu,
his defence counsel confirmed the guilty plea. The court entered a
plea of guilty.
The
Statement of Agreed Facts was produced by consent and read into the
record. It was accepted as “Annexure A”.
Mr
Kativhu
confirmed with the court that the accused fully understood and
admitted the agreed facts. He further confirmed that he had fully
explained the essential elements of the offence to which the accused
had pleaded guilty and that the accused's plea was genuine and
understandingly made.
In
accordance with the confirmations made by Mr Kativhu
the court was satisfied in terms of the proviso to section 271(2)(b)
of the Criminal Procedure & Evidence Act [Chapter
9.07]
(“the Code”) that the accused understood the charge, the
essential elements of the offence to which he pleaded guilty as well
as the acts and for omissions from which the charge arose as set out
in the Statement of Agreed Facts, the court formally convicted the
accused of culpable homicide in contravention of section 49 of the
Criminal Law (Codification and Reform) Act [Chapter
9.23]
as charged.
For
completeness of record, the agreed facts which for purposes of this
matter form the basis from which the charge arose were stated in the
Statement of Agreed Facts as follows:
“1.
The accused person and the deceased resided in the same
neighbourhood. The deceased's friend John Silimoyo owed and still
owes the accused person US$5.00. The debt arose over a track suit
which he bought for his minor daughter from the accused person.
2.
On 20 February 2014, and at around 1600 hours, the now deceased and
John Silimoyo were consuming alcohol whilst walking around 110
Street, Warren Park D.
3.
Accused person was sitting outside his residence at number 5125-110
Street, Warren Park D when he saw the two approaching.
4.
On their meeting, a quarrel ensued which later degenerated into a
fight between accused person and John Silimoyo. The deceased
intervened to assist John Silimoyo in the fight.
5.
The accused person tried to escape into his yard but he fell down.
The deceased and John Silimoyo caught up with the accused person and
the fight continued on the ground.
6.
Accused managed to escape and came back armed with a kitchen knife
and stabbed deceased just below the left breast and the deceased
collapsed.
7.
The deceased was rushed to Suburban Hospital where he died on
admission.
8.
A post mortem examination was carried out by Dr Maurizio Gonzalez, a
forensic pathologist who concluded that death was as a result of
haemothorax wound on the heart and chest stab.
9.
Accused admits having stabbed the deceased but denies having had the
intention to bring about his death. Accused further denies that he
realised the possibility that his conduct would result in the death
of the deceased.
10.
Accused pleads guilty to negligently causing the death of deceased,
that is contravening section 49 of the Criminal Law (Codification and
Reform) Act [Chapter
9:23],
and the State accepts the limited plea”.
The
court in terms of section 271(4)(a) of the 'Code' called upon the
prosecutor to present evidence of any relevant to prove the fact of
the death of the deceased.
The
prosecutor produced the post mortem report by consent. It was marked
as exhibit 1.
The
post-mortem report was compiled by Dr Mauricio Gonzalez, a forensic
pathologist. It shows that he examined the remains of the deceased
Tendai Manyenga on 24 February, 2014. The report shows that the
deceased was 24 years old, weighed 75kg and was 174cm tall. The
deceased was apparently healthy and well nourished. The body of the
deceased was bleeding from the mouth and had blood on the chest.
There was a stab wound 2cm x 4cm on the left side of the chest below
the breast. The wound pierced the left ventricle. He concluded that
the cause of death was haemothorax, wound on the heart and chest a
stab.
Having
satisfied itself that the deceased died from the stab wound caused by
the accused, the court asked accused's counsel to address the court
in mitigation of sentence.
He
submitted a written statement in terms of section 27(4)(b) of the
Code. The court accepted the statement in evidence as “Annexure B”.
Mr
Kativhu
is
his submissions argued for a sentence of community service on the
basis that the accused was a first offender who pleaded guilty thus
exhibiting remorse and that the deceased was the aggressor. He also
cited a number of past decisions of this court on the courts'
approach to sentence. He sought to persuade the court to follow those
decisions. Basically his argument was that punishment must be blended
with a measure of mercy and that its purpose is not to break
criminals; see S
v
Sparks
& Anor 1972
(3) SA 396; S
v
Moyo
HH63/84;
R
v
Zuze RLR
(incomplete citation); and R
v
David
& Anor 1964
RLR Z. The court takes note of the points he has made and the dicta
in
those cases.
Mr
Kativhu
further cited the cases of S
v
Sibanda
HB102/06
to the effect that prevalence of an offence should not be the
overriding factor in sentencing and S
v
Moyo
& Ors HB116/06
which outlines certain considerations which should guide the
sentencing court.
The
court takes the helpful guidelines into account and will not repeat
them as they are set out in the submissions.
The
court was further referred to the cases of S
v Mpofu
1985 (2) ZLR 285 on the need to keep first offenders out of prison as
a general rule and that imprisonment should be resorted to when
absolutely essential (see S
v
Mudzimba
HH150/87).
In
response to questions from the court, Mr Kativhu
submitted that the accused was 25 years old and would have been 23
years old when he committed the offence. He emphasized that the
unfortunate death of the deceased would not have eventuated but for
the deceased's aggression.
Pursuant
to section 271(5) of the Code the court asked the accused certain
questions relevant to sentence. He answered the questions under oath.
The prosecutor and defence counsel did not have any questions to put
to the accused following questions by the court albeit having been
given opportunity to put any question.
In
answer to questions by the court the accused stated that he was not
friends with the deceased although they were neighbours. He, the
accused was friends with John Silimoyo who was in turn a friend of
the deceased. The accused's parents are deceased and he stays at
his late parents' residence (the scene of the offence) with his
brothers and sisters. He completed O levels (Form 4) in 2007. He is
not married and has no children. He survives through vending and
operates a vending stall.
He
got the knife which he used to stab the deceased from the sink which
was outside the house. He did not run away to escape the attack upon
him by John Silimoyo and the deceased although he could have done so.
It never occurred to him to run away from the two attackers. He did
not think of using other means of defence other than to use the
knife.
He
does not enjoy a good relationship with the deceased's family and
his family is broken. The siblings often quarrel over rental money
which is paid by tenants or lodgers at the house. He looks after his
two brothers who are mentally challenged but he has a sister who
works for a hotel.
He
was in custody for 10 months before being released on bail.
The
prosecutor addressed the court in aggravation. He submitted that the
court should take into account that when the incident took place, the
accused was sober whilst the deceased and John Silimoyo were drunk.
Whilst
it could not be concluded with certainty as to what caused or who
started the fight, he submitted that the deceased joined the fight
after his friend John Silimoyo was on the receiving end from the
accused. The accused had a chance to escape from the attack upon him
but he instead armed himself with a knife. The facts of the matter
according to the prosecutor were borderline between culpable homicide
and murder as defined in section 47(1)(b) of the Criminal Law
(Codification & Reform) Act.
The
prosecutor further submitted that the accused used severe force when
stabbing the deceased and that the stab wound extended to the heart.
He also submitted that the accused was a known bully in the area and
was an alcohol and drug abuser although this bad behaviour
manifested itself after the offence was committed. Prior to
committing the offence the accused was God fearing and attended
church.
The
accused skipped bail conditions and was imprisoned and then released
and arrangements were made for him to stay with a relative in
Masvingo but he caused havoc there as well.
The
prosecutor advocated for a sentence in the region of 12 years as such
a sentence with part suspended would be deterrent and rehabilitative.
The
court sought an explanation from the accused as to allegations made
by the prosecutor that he had suddenly changed in character from
being God fearing into an outright bully. The accused denied the
allegations that he was incorrigible and averred that these were lies
peddled by his siblings especially his sister who wanted to make sure
that the accused remained in prison whilst she enjoyed the rentals
from the house.
In
the view of the court and after considering all the circumstances
surrounding the commission of the offence, the mitigating factors and
aggravating features as submitted respectively by the accused's
counsel, the prosecutor and those elicited from questions by the
court, it is beyond doubt that this is a very bad case of culpable
homicide in which the accused's degree of negligence was very high.
Indeed, the court is in agreement with the submission by the
prosecutor that the circumstances of the commission of the offence
make it borderline between murder and culpable homicide.
The
starting point in assessing an appropriate sentence is to keep in
mind that the right to life is God-given and section 48(1) of the
Constitution provides as a fundamental human right that every person
has a right to life. That being, life should be jealously
safeguarded. It should only be lost by operation of law or natural
occurrences.
The
second point to keep in mind is the seriousness with which the
offence of culpable homicide is viewed by the law.
In
terms of the penalty section under section 49 of the Criminal Law
(Codification and Reform) Act, culpable homicide attracts a sentence
ranging from life imprisonment or any shorter term or a fine of up to
or exceeding level 14. Level 14 is the highest level on the standard
scale of fines and is set at USD$5,000.00. The court is allowed in
the exercise of its discretion to impose a fine in excess of the
highest level or to impose both a fine and imprisonment.
The
accused in this case was not cornered. He was indeed the victim of an
unlawful attack by John Silimoyo with the deceased joining in. He
appreciated that the two assailants were drunk whilst he was sober.
The nature of the attack upon the accused did not justify his use of
a dangerous weapon.
From
a reading of the agreed facts, the accused managed to escape from the
unlawful assault upon him. He removed from the assailants only to
return to attack the deceased after arming himself with a deadly or
lethal weapon.
The
accused clearly allowed his emotions to get the better of him.
Whilst
it has been argued that the deceased and John Silimoyo were the
aggressors, such a conclusion left unqualified is inaccurate.
In
the court's view, the correct factual analysis is that initially
the deceased and John Silimoyo were the aggressors. However once the
accused had managed to escape from the assault upon him, he returned
armed with a knife and became the aggressor. The accused was the
proximate cause of the tragedy. He was in the best position to avert
the tragedy. He simply decided to use a dangerous weapon after the
assault upon him and not during the assault. The accused instead of
putting an end to the assault upon him which he had managed to escape
from decided to retaliate in a dangerous fashion. Therefore contrary
to the submission by the defence counsel that but for the deceased's
aggression, the tragedy could have been avoided, the correct
conclusion is that, but for the accused's decision to retaliate
after the assault on him had ended and his unnecessary use of a
dangerous weapon, the tragedy could have been avoided.
It
is a pity that there has been an upsurge in cases of violence
resulting in death. People no longer respect the sanctity of human
life. If the courts do not curb the unnecessary upsurge in homicide
cases by playing their part through passing deterrent sentences where
circumstances warrant it, the courts would be failing in their duty.
The
public needs to have confidence in the criminal justice system. Once
society loses confidence in the criminal justice system, a risk of
anarchy arises. Persons who unnecessarily and negligently cause the
loss of human life must be visited with exemplary sentences so that
would be offenders are deterred. If a deterrent sentence is meted out
it has the effect of making people think twice before they act.
In
this case life was needlessly lost because of the accused's
self-ego.
The
accused's attack upon the deceased can be described as one of great
determination involving the use of a lethal or dangerous weapon. The
blow with the knife was delivered with determined force upon a
dangerous area of the body. The moral heinousness or blameworthiness
of the accused was extremely high.
The
accused whilst he pleaded guilty did not really have a choice. The
facts were clear that he acted out of proportion to the assault
perpetrated upon him.
Section
254 of the Criminal Law (Codification Reform) Act is very clear that
where a person purporting to act in self-defence as provided for in
section 253 exceeds the bounds of self-defence by using means which
are disproportionate to avert the attack upon him, he will be found
guilty of culpable homicide.
The
court has already observed that there was no justification after the
assault upon him for the accused after escaping from the assault to
arm himself with the knife and return to the stage. The fact that the
accused pleaded guilty should therefore not be overemphasized though
it is a relevant consideration.
The
accused did not in the court's view express any remorse for his
actions. He did not state that he was sorry for nor regretted his
conduct. The accused's attitude appears to be that he deserved
sympathy because he had been attacked first and was only retaliating.
The court will be failing in its duty if it was seen to be
encouraging retaliation. The law recognises not retaliation but
defending one's self or another within limits set by law. The two
concepts are different. Retaliation is inclined towards an eye for an
eye doctrine which is not part of our law.
Having
made the above observation, comments and conclusions, the court still
remains alive to the difficult task which faces it is assessing the
appropriate sentence.
The
accused still remains a member of the society albeit a bad apple
because of what he did. He needs to be punished and reformed in the
process so that he can reintegrate in the society and lead an
exemplary life. Despite the enormity of his conduct and the loss of
life which he caused, the court should not be retributive, lest it
also ends up falling into the same basket as the accused.
Courts
should temper justice with mercy and the most appropriate sentence in
any given case is one that fits the crime and the offender. The
balancing process is a delicate one. Ultimately sentencing is a
discretion to be exercised by the Judge in this case and it will
invariably please others and disappoint others. What is critical is
that the court's discretion has been exercised on justifiable
principles.
In
assessing sentence, apart from what has been alluded to, the rest of
what has been submitted in mitigation on behalf of the accused and
the aggravating circumstances submitted by the State though not
specifically repeated in the written reasons for sentence have been
given due consideration.
The
conduct of the accused of becoming a bully ex post facto
the commission of the offence will not influence the assessment of
sentence and it is accepted that the accused's conduct was an out
of character happen stance. If the accused thereafter decided to
behave as an animal, he is doing a disservice to himself. He will
however be punished for the crime for which he has been convicted and
not for other unconnected wrongs which he committed.
In
passing, it is necessary to comment that the submission by
Kativhu
that the court should consider community service as an appropriate
sentence is out rightly rejected as being inappropriate given the
objective circumstances of the case and the character of the accused.
Community service would trivialise a serious offence. Such a sentence
would engender in the public a sense of revulsion. The public
interest outweighs the individual interests of the accused in this
case.
In
the view of this court, given the serious view it has taken of the
accused's conduct, only a custodial sentence will be appropriate.
The
prosecutor has suggested a sentence of 12 years imprisonment with a
portion suspended. Mr
Kativhu
relying on S
v Robert
Nyoni
HB201/15, a judgement of Makonese J submitted that a sentence of 3
years imprisonment with 1 year suspended would be appropriate.
Contrary
to Mr Kativhu's
submission that the facts in Robert
Nyoni's
case and in
casu
are almost similar, the facts are easily distinguishable and most
notably, in Nyoni's
case, the deceased is the one who first attacked the accused with a
beer bottle and the latter retaliated there and then by striking the
deceased once with a plank above the right ear.
The
accused in this case decided to retaliate disproportionately and well
after he had managed to make good his escape and he also used a
lethal weapon.
What
the court finds instructive in Nyoni's
case is the learned Judge's pronouncement that; “These
courts have time and again indicated that members of the public must
be reminded that violence has no place in a modern and democratic
society as a means of dispute resolution. In cases of this nature
imprisonment is the only appropriate sentence.”
This
court associates itself with the learned Judge's
dicta.
The
sentence which this court will impose is hopefully one which will
reform the accused, deter others from resorting to violence to
resolve disputes and to entrench in the public's mind the
fundamental right to life of every person as guaranteed by the
Constitution.
The
court will not suspend any portion of the sentence because if the
accused is not reformed into a good citizen by the lengthy sentence
which will be imposed, a suspended portion is unlikely to do the
trick.
In
all the circumstances of this case the accused is sentenced to
imprisonment of 9 years.
National
Prosecuting Authority,
State's legal practitioners
Kantor
& Immerman,
accused's legal practitioners
