Criminal
Trial
MAKONESE
J: The
accused has been arraigned in this court on a charge of murder. It
being alleged that on 11th
July 2017 at Mabhena village, Mpinda 3, Chief Malisa, the accused
unlawfully caused the death of Pamela Mpanduki by striking her all
over the body with a fan belt and axe several times intending to
cause her death.
The
accused pleads not guilty to the charge. He tenders a plea of guilty
to the lesser charge of culpable homicide. The state accepts the
limited plea.
The
agreed facts are as follows.
Accused
person was aged 42 years at the time of the offence. The deceased who
was a juvenile aged 15 years was accused's daughter.
On
the 11th
of July 2017 at around 2100 hours the deceased was at home in the
company of her mother and two siblings. The accused person arrived
and indicated that he wanted to discipline the deceased. It had been
alleged that deceased was having an affair with a certain young man
in the village, one Pride Chando.
The
accused took a grinding mill belt made of rubber and invited the
deceased into one of the huts.
Whilst
inside the hut the accused assaulted the deceased with the fan belt
several times and indiscriminately all over the body. The accused
subsequently left the homestead and proceeded to his tuckshop where
he slept.
Deceased's
mother attended to the injured juvenile and observed that she had
sustained a cut on the head, had swollen forehead and bruises on her
back. The deceased proceeded to sleep in her room.
The
following morning deceased's mother found the deceased dead in her
room. She had succumbed to injuries sustained during the assault.
The
matter was reported to the police. The accused was arrested.
The
accused denies intentionally causing the death of the deceased.
A
post mortem report compiled by Doctor S Pesanai at United Bulawayo
Hospital on the 17th
July 2017, following an examination of the remains of the deceased
reveals that the cause of death was:
(a)
Asphyxia;
(b)
Bronchoaspiration;
(c)
Subarachnoid haemorrhage;
(d)
Assault;
On
internal examination the post mortem report reflects that the
deceased suffered a scalp haematoma on the left parietal and
occipital regions.
It
is clear that the assault on the deceased was severe.
We
are satisfied that on the evidence placed before the court, the
accused negligently caused the death of the deceased. There is no
evidence that accused's intention was to bring about the death of
the deceased.
In
the result and accordingly the accused is acquitted on the charge of
murder. Accused is found guilty of culpable homicide.
Sentence
The
accused is a businessman operating a tuckshop in Mabhena Village
under chief Malisa. He was aged 42 years at the time of the
commission of this offence. The accused has been convicted of
culpable homicide.
The
court shall take into account the mitigating features of the case as
set out by accused's defence counsel.
Accused
is single. His marriage fell apart after the commission of this
offence. The accused is now the sole breadwinner for 3 minor
children. The children are aged 12 years, 10 years and 8 years
respectively.
The
accused pleaded guilty to the lessor charge of culpable homicide.
He
has shown some measure of contrition.
The
accused spent 2 months in custody before he was granted bail pending
his trial.
The
court must weigh the interests of the accused against the interests
of justice.
The
accused is not a first offender.
The
state has tendered a certificate of previous convictions indicating
that on the 18th
March 2017 the accused was convicted of domestic violence. He was
sentenced to 24 months imprisonment of which 12 months was suspended
for 5 years on the usual condition of future good conduct. The
remaining 12 month was suspended accused performed 360 hours
community service commencing on the 27th
March 2017.
A
memorandum from the Community Service Officer dated 30th
January 2020 has been placed before the court and is in the following
terms:
“The
information we have as a department is that the offender Benjamin
Mupanduki was re-arrested during the course of his performance of the
Community Service.
This
position was re-affirmed by the school senior teacher Mr Makayi.
Contact number 0779526940 whom we contacted through the Headmaster Mr
Mudzingira who happens to be new at the station.
He
performed but never completed due to re-arrest.”
It
is clear that accused person committed an offence involving violence
and that the previous conviction is relevant.
This
court is enjoined to bring into effect the suspended prison sentence.
Further
the accused is not a suitable candidate for community service. He
never completed the community service and went on to re-offend.
Before
passing sentence I requested the state to furnish this court with the
circumstances surrounding the previous conviction.
The
record reflects that on 13th
January 2017 accused asked for money from his wife's sister. He
wanted to buy some beer. Accused's sister responded that she had no
money since she was unemployed. This did not go down well with the
accused. Accused's wife tried to restrain the accused and in the
process, the accused produced a machete from his trousers. Accused
struck his wife twice on the neck and right middle finger. Accused's
wife sustained serious injuries. Accused went on to plead guilty in
that case and was treated as a first time offender.
In
this present case, the accused has been convicted of a more serious
offence of culpable homicide.
The
undisputed facts are that for suspecting that his daughter was having
an affair with a young man in the village, the accused decided to
take matters into his own hands and chastise the juvenile.
In
State
v Agnes Chipika
HB129/17, this court had occasion to deal with a case whose
circumstances are similar to the present case.
A
36 year old mother killed her daughter by subjecting her to a
prolonged attack with sticks before throttling her. The deceased in
that case was 14 years old. This court sentenced the accused to an
effective 2 years imprisonment in spite of weighty mitigating
circumstances brought to the attention of the court. In that case I
made the following remarks:
“Parents
stand in loco
parentis
to their children. Parents are the last shelter for their children.
The abuse displayed by the accused in this matter is shocking and
alarming. There can be no human being, let alone a parent who would
administer such rigorous physical punishment on a juvenile of 14
years.
I
reject the notion that it is our tradition to chastise young children
in order to correct them by subjecting them to extreme punishment.
This
is not acceptable in a modern society.
Parents
who are convicted of such offences must invariably expect custodial
sentences. This court would be setting a wrong precedent of a
sentence other than a custodial one were imposed.”
I
affirm the sentiments I made in that case.
It
is our view that the conduct of the accused is not acceptable. He
brutalized his own daughter. He subjected to prolonged physical
beatings using a fan belt and some other object. The injuries
reflected in the post mortem reflect that accused died of;
(a)
Asphyxia;
(b)
Bronchoaspiration;
(c)
Subarachnoid haemorrhage;
(d)
Assault;
It
would be a miscarriage of justice if accused person were to be handed
a non-custodial sentence.
Children
deserve protection from their parents. Children have certain rights
including the inahanable right to life.
The
accused's behavior is appalling. His moral blameworthiness is high.
He used excessive force on a defenceless juvenile aged 15 years.
In
the result, the court finds this to be an appropriate sentence:
“Accused
is sentenced to 4 years imprisonment. The suspended sentence in Gweru
CRB No. 404/17 of 12 months imprisonment is brought into effect. The
effective sentence is 5 years imprisonment.”
National
Prosecuting Authority,
State's legal practitioners
Mavhiringize
and Mashanyare,
accused's legal practitioners
