Criminal
Review
MAFUSIRE
J:
The
accused pleaded guilty to, and was convicted of, culpable homicide by
the regional magistrate court. He was sentenced to seven years
imprisonment of which one year was suspended on condition of good
behaviour.
I
feel the sentence was so manifestly excessive as to induce a sense of
shock if regard is had to the circumstances of the offence and the
mitigatory features.
The
deceased was 66 years old. The accused was 30. Both had been at a
beer drink. There had been several other people. The deceased had
been drunk. The accused had slightly been drunk.
The
accused had struck the deceased on the head with a half kg piece of
rock.
According
to the post mortem report, death had been due to severe head trauma
with intracranial haemorrhage.
It
seems the assault had not been premeditated. It had followed what to
me had been sustained provocation of the accused by the deceased.
At
an earlier occasion the deceased had himself assaulted the accused by
kicking him in the leg. However the issue had been resolved amicably.
The deceased had ended up apologizing to the accused. The deceased
had left the beer drink for home but had later come back. Upon
arrival at the beer drink he had called out the accused from the
kitchen where the accused had been dancing to some music. As the
accused came out, the deceased had struck him with a chain on the
head. This had caused a cut. It had led to severe bleeding.
The
accused had gone back into the kitchen and had shown the other
patrons the blood that was oozing from his head. He had then come out
and gone after the deceased.
He
had caught up with the deceased just on the edge of the homestead. He
had picked the half kg granite rock and had struck the deceased once
on the forehead. The deceased had died in hospital the following day.
It
seems to me the court a
quo
paid little attention to the aspect of provocation.
As
the court probed that issue, the accused stated that he was slightly
drunk and that if he had been completely sober he probably would have
managed to control himself and would not have succumbed to the
provocation.
The
court said that the accused had been negligent; that he had struck
the deceased on a sensitive part of the body; that people should be
discouraged from taking the law into their own hands and that the
accused could have reported the matter to the police if he had felt
aggrieved.
Ideally
the accused should have controlled himself.
He
did not.
But
that is why he had pleaded guilty and had been convicted.
In
mitigation, the issue of provocation should have loomed large.
In
assault and murder cases provocation, where established, assumes
great importance.
In
murder cases in particular, the charge reduces to culpable homicide
even where the killing is intentional: see S
v Nangani
1982 (1) ZLR 150 (SC) and Tenganyika
v R
1958 R & N 228 (FSC).
Provocation
reduces the mental element. Where it does not amount to a defence, it
may be an extenuating circumstance and a mitigating factor; see
Nangani's
case, at p159.
A
provoked man loses the power of self-control.
In
Nangani's
case it was noted that provocation may go beyond a man's endurance.
It may render a man unable to form an intention to kill. The court,
at p161, said:
“The
provocation must be such as to have actually caused the accused to
have lost his self-control, though not necessarily his capacity to
intend to kill. The provocation must also have been such that in the
circumstances an ordinary man would have lost his self-control and
acted in such a manner.”
In
that case a verdict of murder and a sentence of seven years'
imprisonment on the man who had intentionally shot and killed his
customary law wife whom he had found in bed with another man, was, on
appeal, reduced to culpable homicide and the sentence to five years
imprisonment.
In
S
v Nhongo & Ors
HH52–03 the three accused were each sentenced to two seven year
terms of imprisonment for the two counts of culpable homicide which
had arisen out of an unprovoked but sustained and brutal assault on
the two deceased persons at some political gathering.
In
S
v Burdett
1996 (2) ZLR 658 (S), a fine of $1,500 or three months'
imprisonment, plus two months imprisonment which had wholly been
suspended was confirmed on appeal for a charge of culpable homicide
where the accused, a farmer, had shot and killed a poacher on his
farm who had been running away.
In
S
v Badza
HH73/2001 two years' imprisonment of which one year was suspended
was imposed for the negligent discharge of a fire-arm.
In
the present case there had been no premeditation. The violence had
happened on impulse. Furthermore, the accused had been in a state of
moderate drunkenness as a result of the alcohol he had taken. That
would have diminished his sense of judgment.
Furthermore,
not only had the accused assisted at the deceased's funeral with
cash and a beast, but also he had been charged three beasts as
compensation.
He
did not waste the court's time as he had pleaded guilty.
In
my view, if all such aspects had been given due weight the
appropriate sentence should have reduced considerably.
I
consider that the failure by the court to give due weight to the
mitigatory features was a misdirection.
In
the premises the sentence of seven years' imprisonment of which one
year was suspended for five years on condition of good behaviour is
hereby set aside and substituted with a sentence of three years
imprisonment of which one year imprisonment is suspended for five
years on condition that during that period the accused does not
commit any offence which involves the perpetration of violence on the
person of another and for which, upon conviction, he is sentenced to
a term of imprisonment without the option of a fine.
15
April 2015
MUSAKWA
J: agrees ………………………
