MWAYERA
J:
The
matter started off as a murder trial. At the close of State case,
parties conferred and agreed that the accused persons' plea to
culpable homicide be accepted.
A
Statement of Agreed Facts outlining common cause aspects was compiled
and presented before the court. Having established the genuiness of
the plea of guilty to culpable homicide we retained a verdict of
guilty to culpable homicide. We were then addressed in mitigation and
aggravation by the respective counsels.
Both
Mr Nhambura
and Mr Nyakureba
addressed us in mitigation as regards the personal circumstances of
the two accused persons.
Accused
1 is 49 years old, a family man with responsibilities as the family's
sole breadwinner. The second accused is 79 years old, has an elderly
wife approximately 59 years old to take care of. Both accused pleaded
guilty to culpable homicide and such a plea of guilty cannot go
unrecognised as it is a sign of regret and genuine penitence of what
occurred.
The
accused are both first offenders and such will be taken note of by
the court as mitigatory. The accused persons have suffered pre-trial
incarceration and the trauma that goes with the offence of murder
hovering over one's head.
Further
the accused persons stand convicted of culpable homicide of a blood
relation brother and son respectively. They will both live with the
stigma of having killed a close relative. Secondly, the sting and
stigma of brother and father having teamed up to cause the death of
the other son and brother respectively will forever live in the
history and life of the accused persons and their family.
In
any event society does not know the difference between murder and
culpable homicide. Further in mitigation is the fact that both
accused had partaken alcohol and were drunk. This drunken state
although it does not diminish liability reduces moral blameworthiness
because of the diminished appreciation of events.
The
counsels cited relevant cases in seeking to assist the court in
exercising its sentencing discretion.
Sight
should however not been lost that the circumstances of each case are
pivotal in coming up with an appropriate sentence.
As
correctly observed by the State counsel Mrs Matsikidze
and defence counsels to an extent the offence the accused stand
convicted of is serious and calls for a custodial sentence. Domestic
violence is rampant and cases occasioning loss of the God given and a
constitutionally provided for right to life are on the increase. The
court will surely not treat with kid gloves people who voluntarily
imbibe liquor and in a drunken stupor act irresponsibly causing loss
of life.
The
accused persons mercilessly assaulted the deceased in the presence of
his juvenile daughter. She tried to restrain but the accused ignored.
This is certainly in aggravation.
That
the juvenile 16 year old daughter of the deceased one Lucia Asidi
witnessed the callous attack of her father over a cell phone which
was available further aggravates the offence. The child and all other
relatives will live with the trauma all their life. No amount of
remorse and/or compensation will bring back the life of the deceased
whose life was cut short at a prime age of 44 at the hands of the
accused persons.
The
second accused's moral blameworthiness is higher than Accused 1
given he instigated the whole incident in an irresponsible manner
which exhibited immature behaviour. As stated by the witness he was a
stress monger and divisionist who did not want to see his children
united and happy.
In
spite of his old age we found no reason why the second accused should
be treated differently from the first accused on considering
sentence.
Even
going by his demeanour in court, Accused 2 is one such irresponsible
old member of society who would reign havoc in the community worse
off after partaking alcohol.
There
is need for the court to send the right signal to the community that
physical prowess in a bullying manner is not acceptable.
We
are alive to the fact that in passing sentence one should consider
the offence, seek to match it to the offender and act in the interest
of administration of justice, while at the same time tempering
justice with mercy.
It
is our considered view that imprisonment with a portion suspended
will meet the justice of the case.
Each
accused is sentenced as follows:
6
years of which 2 years imprisonment is suspended for 5 years on
condition accused does not within that period commit any offence
involving the use of violence on the person of another for which he
is sentenced to imprisonment without the option of a fine.
National
Prosecuting Authority,
State's legal practitioners
Mugadza
Chinzamba & Partners,
1st
accused's legal practitioners
Maunga
Maanda & Associates,
2nd
accused legal practitioners
