Criminal
Trial
TSANGA
J: The
accused was charged with murder, it being alleged that on the 4th
day of December 2014 at around 23:00 hours at Kimcote 2, Beatrice he
unlawfully and intentionally killed Lovemore Mutaramutswa by striking
him all over his body using sticks thereby inflicting injuries from
which the said Lovemore Mataramutswa died.
He
pleaded not guilty to murder but pleaded guilty to culpable homicide.
A
statement of agreement facts was submitted by the state and defence
counsel which was as follows:
1.
The accused and the deceased were not related and were not known to
each other. They were introduced to each other by the first state
witness Charles Ropowa on the fateful day the 4th
of December 2014.
2.
They were drinking alcohol together from 4.30pm in the afternoon to
9:30pm in the evening that is Chibuku mixed with spirits.
3.
On their way home the accused gave the deceased his Nokia 1200 cell
phone and as they approached Zururu plot Kimcote 2, the accused asked
from the deceased to give him back the cell phone. However, the
deceased Lovemore Mutaramutswa failed to produce the cell phone and a
misunderstanding arose.
4.
Upon the deceased failing to produce the cell phone and insisting he
did not know where he had put it, the accused person commenced
assaulting the deceased using a stick that he had plucked from the
nearby bushes.
5.
The deceased pleaded with the accused to stop assaulting him
undertaking to show him where his cell phone was and the accused
stopped assaulting the deceased.
6.
The deceased failed to produce the phone whereupon the accused
unplucked another stick from a nearby bush and resumed assaulting the
deceased all over his body. Again the deceased pleaded with the
accused to stop assaulting him, again undertaking to produce his cell
phone.
6.
The deceased again failed to produce the cell phone and accused
unplucked a third stick from a nearby bush and resumed assaulting the
deceased with it demanding production of his cell phone and tearing
his clothes in the process.
7.
The accused stopped assaulting the deceased upon realising that he
had stopped responding to his demands to produce his cell phone.
8.
At this point the accused used the 1st
state witness's cell phone to dial his number and his phone rang
from some nearby bushes from where he retrieved it and he went home
and left the deceased in the bush lying naked and motionless.
9.
The following day on the 5th
of December 2014 at around 08.00 state witnesses Charles Kopowa and
Ashton Chakwenya passed through the scene and saw the body of the
deceased upon which they alerted the police.
10.
Sergeant Basira attended the scene and caused the body to be conveyed
to Chitungwiza Hospital for a post mortem. Sergeant Basira also
arrested the accused on the same day the 5th
of December 2014.
11.
The post-mortem for Lovemore Mutaramutswa and the three sticks used
to assault him will be produced as exhibits by consent.
12.
From the onset the accused admitted to causing the deceased's death
by assaulting him all over his body using the three sticks.
It
was agreed that the accused negligently caused the death of the
deceased.
Several
exhibits were tendered as evidence.
The
post-mortem report by Dr Roberto Trecu was admitted as exh 1. It
showed that the deceased had died of subdural hematoma, subarachnoid
haemorrhage, and severe head trauma consistent with assault.
The
three sticks used to assault the deceased measuring 2m, 84cm and 76cm
were admitted as exh 2(a), (b) and (c) respectively.
The
deceased's tattered clothes from the assault which included a
shirt, short and trousers were admitted as exhibit 3.
Defence
counsel confirmed that all the essential elements of the culpable
homicide had been explained to the accused who had understood them
and that the limited plea of guilty to culpable homicide was
genuinely made.
The
court therefore returned a verdict of guilty to the lesser charge of
culpable homicide as pleaded on the basis of the agreed statement of
facts which showed negligence on the accused's part in causing the
death of the deceased.
The
accused was said by the state to be a first offender.
His
defence counsel Mr Garabga
addressed
the court in mitigation. He submitted that the accused had pleaded
guilty to culpable homicide and that to that extent he had
demonstrated some contrition. This was also said to be a factor that
the court was urged to take into account in arriving at an
appropriate sentence.
Mr
Garabga
further highlighted on behalf of the accused that he has a daughter
who is residing with his maternal grandmother. He has been out of
employment from December 2014 when the incident occurred.
Furthermore,
his state of mind at the time of commission of the offence was also
said to be a factor to be taken into account in that together with
the deceased they had consumed at least 5 chibuku “scuds” with
each scud being 2 litres. Moreover, they had mixed this with spirits.
He therefore submitted that there was a strong element of drunkenness
at the time the offence was committed.
Compounding
this drunkenness was said to be provocation arising from deceased's
failure to return the accused's phone when requested.
Two
case authorities were relied on for persuasive guidance on sentence:
(i)
S v Chiperi
HH966/2015 where the accused had struck the deceased with a metal
object and had been sentenced to 4 years of which two years was
suspended on the usual conditions of good behaviour.
(ii)
The other was S
v Kazembe
HH378-2015
where an altercation had occurred at a beer drink resulting in the
accused hitting the deceased with a stone. The trial magistrate had
sentenced the accused to seven years with one year suspended. This
had been reduced by the High Court to three years imprisonment of
which one year was suspended for five years. The emphasis was that
the effective sentence there had been 2 years.
As
such the sentence urged by counsel for the accused was no more than
an effective sentence of three years.
The
state on the other hand, which addressed the court in aggravation,
urged the court to take into account the manner in which the offence
was committed and that led to the demise of the deceased.
The
state drew on the case of S
v Mugwanda
2002
(1) 574 (S) where on appeal a sentence of 7 years was imposed for
stabbing the deceased over ZW$50.00 allegedly stolen from the
accused.
State
counsel, Mr Kasema,
also drew on the case S
v Fortunate Nsoro
HH190-16
where a 10 year sentence with two years suspended was imposed on a
woman who had fatally stabbed her husband in a dispute over a cell
phone.
In
urging for a sentence within a similar range, he argued that the
accused's actions were not those of a person who had intended a
simple assault on the deceased.
As
regards his defence of intoxication, Mr Kasema
argued that the accused knew what he was doing in that if he could
still remember to phone the number to locate the phone then his level
of drunkenness could not have been that high.
Mr
Garabga
argued in response that the distinguishing feature with the cases
that the state had drawn attention to was that the accused in this
case had pleaded guilty.
Indeed
it is not in dispute that the accused was reckless in that he
intermittently assaulted the deceased only stopping when the deceased
was no longer responding to his demands. The tattered clothing of the
accused also pointed to a lack of self-restraint on the part of the
attacker.
In
so far as intoxication is put forward as a mitigatory circumstance,
the evidence from the agreed facts suggests that it did not in fact
colour the accused's reasoning as the accused was perfectly able to
reason after assaulting the accused that he could in fact try to
locate his phone by ringing it from a witness's number.
It
is this that he should have done in the first place as opposed to
resolving the conflict through violence.
What
the binge drinking did was to loosen his inhibitions.
The
fact that he was able to get and use three different sticks against
the deceased indeed suggests that he knew what he was doing. As such
we do not find that drunkenness is an important factor that is to be
taken into account in the determination of sentence in this instance.
However,
as stated in S
v Mukome
2008
(2) 839 (H)
it
is desirable for the sentencing court to articulate the competing
interests to be balanced.
What
is of significance is that the accused was a first offender. As such,
it would therefore be improper to approach his sentence from a high
end without taking this into account.
As
highlighted in the of Attorney
General v Makoni
S–42-88
where
an accused is a first offender, in the initial instance a sentence of
personal deterrence must be applied. It is only where an accused is
an unrepentant offender that that the principle of exclusion from
society in order to give society a respite from his anti-social
activities should then be applied.
A
sentence of 10 years as suggested by the state would be a failure to
take into account the fact that the accused is a first offender.
It
would most certainly be on the high side.
It
would also be a failure to appreciate that having admitted to
culpable homicide, ultimately the death occurred as a result of
negligence on the part of the accused.
On
the other hand an effective sentence of no more than three years as
suggested by the accused's counsel is certainly on the lenient
side.
In
those cases where seemingly lenient sentences have been imposed, it
is important to understand why.
In
S
v Weston Mombeshora
HH435-16
where
accused had struck the deceased six times with a rubber baton, a four
year sentence was imposed with 2 suspended. A reading of that case
however, also shows that the lesser sentence was imposed because the
accused had already been incarcerated for one and a half years and
the court also took into account that he was 26 years old.
In
S
v Phillip Mashava
HH482-16
three
and half years were suspended from a six year sentence because the
accused had again already spent a year in custody.
In
S
v Kingdom Hlahla
HMA01-16,
the deceased had been struck once with a log on the side of the head.
A three year sentence with one year suspended was imposed taking into
account that the accused had since paid nine head of cattle out of
the twenty that the deceased's family had asked for. This was
considered as mitigatory.
Indeed
in S
v Kazembe
HH378-15
which the accused's counsel referred to
the accused had compensated the deceased's relatives and assisted
at the funeral - factors which clearly persuaded the court to grant a
more lenient sentence.
In
casu
the accused has been out on bail. It was not alleged that he has
spent any significant amount of time behind bars awaiting trial. It
was however explained that he could not work on customary ways of
atoning for the deceased's death because he was forbidden from
interfering with witnesses as part of his bail conditions.
In
most cases, customarily the issue of compensation when taken
seriously is instituted at the onset when the crime has been
committed and sometimes even before burial. However, failure to do so
should may be a question of resources given that it generally the
wider family who pull resources together. See in this regard S
v Naison Chayambuka & Anor
HH133-17.
It should therefore not weigh against the accused where he has failed
to do so as the customary process is merely parallel to the state law
under which he is being tried.
In
the final analysis taking into account that the accused did show a
high degree of recklessness but that he is being sentenced for a
crime of negligence, and that he is a first offender who pleaded
guilty and did not waste the court's time, the accused is sentenced
as follows:
Seven
(7) years imprisonment of which 2 years is suspended for five years
on condition 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: 5 years imprisonment.
Criminal
Division, National Prosecuting Authority Office,
State's
legal practitioners
Garabga,
Ncube and Partners Legal Practitioners: (Pro deo),
for the accused
