MAKONESE
J: The
deceased was aged 30 years at the time of his death and accused was
also aged 30 years. The accused appears in this court on a charge of
murder.
The
allegations are that on 1 January 2013 and at Umvutshwa Farm, Umguza
District, the accused wrongfully and unlawfully and intentionally
killed and murdered Morris Sibanda a male adult during his lifetime.
On
the fateful day and at around 0900 hours the deceased arrived at
accused's place of residence where he wanted to collect property
which accused had taken from deceased's rural area in Jotsholo. The
accused who was in the company of his wife denied having taken
deceased's property. A misunderstanding ensued, resulting in the
deceased striking accused with an empty beer bottle on the shoulder.
The accused retaliated by hitting the deceased once on the head, just
above the right ear, using a plank.
The
deceased collapsed and died on the spot.
The
accused pleaded not guilty to the charge of murder and tendered a
plea of guilty to the lessor charge of culpable homicide. The State
conceded that death was not caused intentionally and that accused
acted negligently. The accused was acquitted on the charge of murder.
The
State and defence tendered into the record a Statement of Agreed
Facts (Exhibit 1) whose contents are in the following terms:
“Statement
of Agreed Facts
The
State and defence agree that the following issues are common cause:
1.
The accused resides at Menami Nyoni, Homestead, Tshongogwe Area,
Lupane and was aged 30 years at the time of the commission of the
offence.
2.
The deceased resided at Umvutshwa Farm Compound and was aged 30 years
at the time he met his death.
3.
On the 1st
of January 2013 at around 0900 hours deceased went to accused's
place where he wanted to collect his property which he alleged had
been taken by the accused in Jotsholo.
4.
The accused, who was in the company of his wife, one Argatha Dube,
denied having taken the property.
5.
A misunderstanding ensued resulting in the deceased hitting accused
with a beer bottle on the shoulder.
6.
The accused retaliated by hitting deceased once on the head just
above right ear with a plank.
7.
The deceased collapsed and died on the spot.
8.
The accused will plead not guilty to murder.
9.
The accused will plead guilty to culpable homicide.”
The
State then tendered by consent the post mortem report (Exhibit 2).
The report lists the
cause of death as:
(a)
bronchoaspiration.
(b)
intracranial haemorrhage.
(c)
blunt force trauma.
(d)
homicide.
The
report compiled by Dr Sangananyi Pesanai on 2 January 2013, reflects
that an examination of the remains of the deceased showed a scalp
haematoma, right parietal region to the left parietal region. The
pathologist further observed massive subachnoid haemorrhage and right
extradural hematoma. The pathologist concluded that the injuries were
consistent with bleeding in the brain secondary to skull fracture
caused by a blunt and heavy object.
On
the evidence presented before us we are satisfied that the limited
plea to a lessor charge of culpable homicide was properly made. We
accordingly find the accused guilty of a culpable homicide.
The
accused's defence argued that the accused deserved a non-custodial
sentence for the following reasons:
(a)
accused is a first offender.
(b)
accused pleaded guilty.
(c)
accused has shown remorse.
(d)
accused spent almost one year in remand custody before he was
admitted to bail.
(e)
deceased appeared to have been the aggressor.
It
was contended on behalf of the accused that a sentence with the
option of community service was appropriate.
We
could not agree with defence counsel.
It
is trite that sentencing is at the discretion of the court. The
sentence imposed in each case must be just and fair. The sentence
must not be too lenient but at the same time it must reflect the
seriousness of the defence. Invariably, where there is loss of life,
the court must not lose sight of the consequences of the loss of life
on the victim's family.
The
deceased was at the prime of his life. The accused though provoked,
retaliated in a manner that was disproportionate to the provocation.
He struck the accused with a dangerous object on a sensitive part of
the body.
The
injuries reflected on the post mortem report reveal that excessive
force was used. A single blow to the head below the ear left the
deceased with a fractured skull and massive subachnoid haemorrhage.
It is clear that the deceased's chances of survival were very slim.
It
is our view that a sentence of community service will trivialize the
offence. It would be seen as a reward to the offender and it is
against all notions of justice.
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.
In
the circumstances accused is sentenced as follows:
“3
years imprisonment, of which 1 year is suspended for a period of 5
years on condition accused is not within that period convicted of any
offence involving violence and for which he is sentenced to
imprisonment without the option of a fine.
Effective
sentence: 2 years imprisonment.”
National
Prosecuting Authority,
state's legal practitioners
Messrs
T. Hara and Partners,
accused's legal practitioners
