Murder
Trial
TSANGA J: The two accused
were arraigned before this court on a charge of murder it being
alleged that on the 1st
of January 2016 around 00.30 hours at Home Plus bottle store in
Bromley NRZ Quarters, they unlawfully and intentionally murdered
Blessing Tondodza by head butting, kicking and assaulting him with a
jacaranda switch and a metal fluorescent lamp holder on his head
thereby causing injuries from which the said Blessing Tondodza died.
The first accused tendered a limited plea of guilty to culpable
homicide whilst the second accused had changed his mind and applied
for separation of trials on account of his election to proceed with
the murder trial.
The separation was granted and the state proceeded with the limited
plea in relation to the first accused but did not address mitigation
and aggravation pending the finalisation of the trial of the second
accused.
However, overnight the second accused had a change of heart regarding
proceeding with the murder trial, opting instead to proceed with the
limited plea.
His counsel, Mr Marwa
explained that he had
been summoned by prisons at the behest of the second accused who now
wished to tender a limited plea of guilty with respect to culpable
homicide.
The state conceded to the application in view of its position that
from the facts, the second accused was clearly guilty in his actions
of the lesser crime of culpable homicide.
This court granted the application by the second accused to change
his plea as it was of the view that on the facts it was indeed
properly made.
The statement of agreed facts
(Annexure 1) as applicable to both accused in light of their limited
plea, though initially dealt with separately mutatis
mutandis were as
follows:
1.
The first accused Naison Chayambuka resides at NRZ Quarters, Bromley
Goromonzi whilst the second accused Moses Mususa reside at Bromley
Tobacco Graders Compound, Goromonzi.
2.
The deceased Blessing Tondodza was a male adult and resided at Adiusa
Farm Bromley.
3.
On the 1st
of January 2016 both accused persons and the complainant were patrons
of Home plus Bottle Store Bromley together with other revellers.
4.
One of the patrons Prosper Matseketu picked an argument with the bar
lady, Catherine Shava over US$0.50 change which deceased said he was
owed. The argument escalated ending in the first accused intervening
in a bid to verify. As the first accused was interrogating Prosper
Matseketu the deceased confronted him.
5.
The deceased then struck the first accused with a fist once on the
face and the first accused reacted by head butting the deceased three
time on the face. The deceased then struck the first accused with a
water glass before he bolted out of the bottle store with the first
accused in hot pursuit.
6.
The second accused Moses Mususa joined in the chase and the two
caught up with the deceased at NRZ Bromley Quarters. The second
accused who was armed with a fluorescent light metal holder struck
the deceased once in the head. The accused also kicked the deceased
on the head as deceased lay on the ground. Other people who had
followed the parts pleaded with the accused persons to stop
assaulting the deceased. They complied.
7.
The deceased died on the spot and post mortem report was later
conducted on 7 January 2016 by Dr Pesanayi. He concluded he cause of
death as follows:
(i)
haemorrhagic shock;
(ii)
stab wounds; and
(iii)
assault.
The following exhibits were
produced by the State in the following order:
(a)
The
post mortem report (Exhibit 1);
(b)
The confirmed warned and cautioned statement by the first accused
(Exhibit 2);
(c)
The sketch plan (Exhibit 3);
(d)
The confirmed warned and cautioned statement by the second accused
(Exhibit 4);
(e)
The metal fluorescent lamp holder (Exhibit 5);
(f)
The jacaranda tree switch (Exhibit 6);
It was agreed that the accused
persons negligently caused the death of the deceased.
Both 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 in both instances returned a verdict of guilty to the
lesser charge of culpable homicide as pleaded.
The defence counsels addressed the court on mitigation.
The first accused was said to be
a family man with three children aged 6, 3 and 2. He was aged 24 at
the time he committed the offence, he is also a young first offender
and as such it was urged that he should be treated with leniency. The
cases of S
v Mpofu 1985
(1) ZLR at 255 and
S v Muchimikwa
1985 (2) ZLR at 328
were cited in support
of this contention.
The fact that he did not waste
the court's time in that he pleaded guilty to culpable homicide was
also said to be a factor which should weigh in his favour when it
comes to sentencing him in that in so doing he facilitated the smooth
administration of justice. (S
v Katsaura 1997
(2) ZLR at p 102).
Additionally the fact that the offence was not premeditated but
rather one that arose from an act of provocation was equally regarded
as a factor to be stirred into the pot of leniency.
The court's attention was drawn
to the case of S
v Silent Kazembe
HH378/15 in which the
court held that provocation of the lack of premeditation should not
be ignored when determining an appropriate sentence.
In that case which had come on review from the lower court that the
latter had imposed a sentence of seven years imprisonment. On review,
the court in analysing mitigatory factors reduced the sentence to
three years.
Mr Goto
highlighted however that in that case the accused had compensated the
deceased's relatives and assisted at the funeral - factors which
may have further nudged the court towards a more lenient altered
sentence.
The accused herein was said not to have been in a position to render
such assistance because he was in custody at the time of the funeral.
The case of S
v Nhongo HH52/03
where the accused were sentenced to 7 years for each count for
culpable homicide arising from a provoked assault was also drawn to
this court's attention.
Accordingly, Mr Goto
deemed a sentence of six years imprisonment with one year suspended
on the usual conditions to be appropriate in the present
circumstances.
Accused number two was equally said to be a family man with two minor
children aged 8 and 5.
He was 25 at the time of the offence.
His 22 year old wife was said to be unemployed.
The court was asked to take judicial notice of the circumstances he
grew up in order to explain his moral turpitude. He grew up in a
farming community and was orphaned at an early age. He was employed
as a tobacco grader at a farm where he lived with his family.
On the night in question, being New Year's Eve, he had revelled
with members of the community and had imbibed a considerable amount
of opaque beer. The resultant inebriation therefrom is said to have
clouded his better judgement.
In the frenzy of the moment he had weighed violently in dispute
between the first accused and the deceased.
The spot light was also placed on the fact that he had spent almost 8
months in custody before he had been released on bail. Following his
indictment in November he has been in custody. It was highlighted
that he has therefore effectively done almost a year of incarceration
- a factor which it was said ought to be taken into account in
sentencing him.
His plea of guilty to a lesser
charge though delayed by prevarication was said to be one genuinely
made. The case of S
v Nhongo (supra)
was equally drawn upon to highlight the sentence in that matter.
The case of S
v Makombe
HB110/15
in which the deceased
pleaded to culpable homicide and received a sentence of 36 months
with 18 months suspended was also mentioned. He had slapped the
deceased who had hit his head on hard surface.
Additionally, the case of
S
v Matuke
HH165/16 was said to
be of relevance. Therein a 23 year old accused had committed an
offence whilst still 20 when he had struck the deceased with a log.
In essence Mr Marwa
argued on behalf of the second accused that the range of sentencing
in cases of this nature was between 5 to 8 years with the actual
sentence depending on the circumstances of each case.
A non-lengthy custodial sentence of six years with two suspended was
urged.
The state in turn addressed the court on aggravation.
Mr Masamha
highlighted the convergence of the personal circumstances of both
accused in terms of age and family realities. The inebriation of the
accused persons as contributing to the offence was noted but at the
end of the day he emphasised the sanctity of human life which had
been lost.
In aggravation, he highlighted that the deceased had managed to make
good his escape from the scene of the scuffle but had been followed
in a determination to cause him harm.
The injuries he had sustained had been serious as evidenced by the
fact that he had died almost instantly from the assault.
The post-mortem report also spoke to the gravity of the injuries
being the cause of death.
As such he placed emphasis on the fact that had it not been for the
actions of the accused persons, death would not have occurred.
Equally aggravatory was deemed to
be the absence of compensation of any sort paid to the deceased's
family in keeping with cultural expectation where a loss of life has
been inflicted. This was said to be indicative of a lack of
contrition on the part of both accused persons. Furthermore, no
assistance had been rendered to the deceased following the assault.
He was left still alive and died thereafter. S
v Jaure 2001
(2) ZLR 393 was
drawn on the need for assistance as an act of repentance.
Furthermore, as regards the
second accused, Mr Masamha
argued that far from his time in custody justifying a somewhat lesser
sentence to first accused his moral blameworthiness was said to be
higher in that it was him who had struck the deceased with the metal
fluorescent light pole and the jacaranda switch stick.
The first accused on the other hand assaulted him with booted feet.
He therefore argued that the two at the end of the day should still
be treated equally even whilst taking into account the longer time
spent in custody by the second accused.
Whilst a plea of guilty was acknowledged as a persuasive factor for a
lenient sentence, he argued that both accused had started on the deep
end of the pool.
In urging for a crisp penalty Mr
Masamha
argued that it behoves the courts to play their role in public order
by meting out a sentence that maintains public confidence in the
justice delivery system. Given the rising incidents of murder in
society and to dissuade the public from taking the law into their own
hands, a rehabilitative stint in prison was as inevitable. The
sentence he prayed for as sufficient to meet the justice of this case
was 8 years with two suspended.
Reasons for sentence
When people are unlawfully killed no doubt it aggravates the offence.
I am in agreement that the courts
need to send a firm message about the dangers of resolving disputes
through violence. The courts should not encourage a culture of
violence as a dispute resolution mechanism. As
stated in the case of State
v Bonginkosi Sibanda
HB91-12, sentences imposed must send a clear signal to society that
violence of individuals against other human beings is not tolerated
and that society needs to be protected against unlawful attacks on
other persons.
When a lack of diligence to prevent or respond to interpersonal
violence is apparent, then the courts as organs of the state
responsible for passing effective sentences could be found wanting.
Not only is interpersonal violence an obstacle to peace and security
but it is also crucial that it be discouraged in the strongest terms
as a considerable amount of resources both legal and social that
could be used for constructive programmes end up being diverted
towards addressing issues arising from such violence.
Having said, there should always be a balancing act because it is
still crucial that the punishment of any accused person fits the
crime and the offender.
As stated in the S
v Shoriwa 2003
(1) ZLR 314 (H):
“Whatever
the gravity of the crime and the interests of society, the most
important factors in determining the sentence are the person, and the
character and circumstances of the crime: S
v Dualvani
1978
(2) PH, H176 (O).
The
determination of an equitable quantum of punishment must clearly bear
a relationship to the moral blameworthiness of the offender. However
there can be no injustice where in weighing the offence, offender and
the interests of society, more weight is attached to one or the other
of these, unless there is overemphasis of one which leads to
disregard of the other….”
Also in arriving at an appropriate sentence this court cannot lose
sight of the fact that culpable homicide is ultimately a crime in
which the perpetrator is unaware of the substantial and unjustifiable
consequences that will result from his actions.
As defined in s49(a), a person who negligently fails to realise that
death may result from his conduct is guilty of culpable homicide.
Also, even where a person realises that death may result from his or
her conduct it is the negligent failure to guard against such conduct
that gives rise to culpable homicide.
The point is ultimately in such circumstances a person is less
culpable.
I turn now to the state's
counsel's proposition that in deciding on the appropriate sentence
some weight should be attached to the fact that neither of the
accused have paid any compensation to the deceased's family and
neither did they assist in burying the deceased. State prosecution is
indeed at the core of the official criminal justice system in
bringing those who commit crimes to book. It is just as true that
criminal prosecutions in the context of the official law are not the
sole determinants of justice. Influenced by deep seated customs and
traditions people often draw on their own norms of compensation where
there has been a killing. These norms centre on reparations rather
than retribution. (See S
v Kazembe above
where the accused had
assisted at the deceased's funeral with cash and a beast and had
also been charged three beasts a compensation).
There are clearly positive aspects in the conscious effort to
incorporate aspects of the traditional justice system in the formal
criminal justice system in the state's reasoning on sentence. It
increases the legitimacy and relevance of the criminal justice system
as a whole in a context where parallel systems of law in essence
remain very real in the lives of the people.
But there is also need to appreciate the fuller picture.
It is important to recognise that the wider family as opposed to the
accused is often at the centre of these payments.
In
casu accused
were said to be young and would hardly have accumulated any assets of
their own. No doubt the harsh economic climate will have had an
impact on the ability to pay. As such poverty per
se should not be a
reason for imposing a harsher sentence. In any event, the payment of
reparation under customary norms is not time bound. The sins of the
father are said to affect generations.
Also too lengthy an incarceration for culpable homicide, founded as
it is on negligence and recklessness as opposed to actual intention
to kill, would merely delay the accused's availability to put into
motion that which the official justice system does not achieve.
In any event, in reality neither the state nor the defence counsels
are very far off from each other in their suggestion of the ultimate
sentence to be imposed. There is at most a difference of two years. A
comfortable medium between the two sentences would be accommodative
of the genuine concerns raised by each side.
In
imposing sentence this court is also cognisant of the need not pay
lip service to the fact that the accused are first offenders.
I am in agreement with defence counsels as well as the state that the
sentence range in such cases is indeed anything from 6-8 years.
I am in agreement with the State that on balance there is no
compelling reason for giving the second accused a lighter sentence at
this point from the first accused when he in fact played a somewhat
weightier role in negligently causing the death of the deceased.
In giving both the same sentence, this court shares the view that the
year second accused is said to have already served whilst awaiting
trial, effectively compensates for his weightier role.
Accordingly each of the accused are 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 he is sentenced to
imprisonment without the option of fine.
Effective sentence: 5 years
imprisonment.
Criminal
Division, National Prosecuting Authority Office, State's
legal practitioners
Muunganirwa
& Company, 1st
accused's legal practitioners
Rubaya
& Chatambudza, 2nd
accused's legal practitioners
