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HH435-16 - THE STATE vs WESTON MOMBESHORA

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Murder-viz section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Murder-viz culpable homicide re violent conduct iro section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Indictment-viz amendment of charges re alteration of State Outline.
Charge-viz alteration of charges re amendment of State Outline.
Indictment-viz plea of guilty re limited plea iro Statement of Agreed Facts.
Charge-viz guilty plea re limited plea iro Stated Case proceedings.
Murder-viz cause of death re post-mortem report.
Procedural Law-viz rules of evidence re expert evidence iro postmortem report.
Procedural Law-viz rules of evidence re admissions iro unchallenged evidence.
Procedural Law-viz rules of evidence re  admissions iro undisputed averments.
Procedural Law-viz rules of evidence re admissions iro uncontroverted submissions.
Procedural Law-viz rules of evidence re physical evidence iro murder weapon.
Procedural Law-viz rules of evidence re physical evidence iro plea of guilty proceedings.
Procedural Law-viz rules of evidence re physical evidence iro guilty plea proceedings.
Indictment-viz plea of guilty proceedings re section 271 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Charge-viz guilty plea proceedings re section 271 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Sentencing-viz culpable homicide re violent conduct.
Sentencing-viz first offenders.
Procedural Law-viz professional ethics.
Sentencing-viz the pre-sentence inquiry re assessment of factors in aggravation and mitigation.
Sentencing-viz age considerations re youthful offenders.
Sentencing-viz mitigation re personal circumstances iro family responsibilities.
Sentencing-viz mitigatory factors re pre-trial incarceration.
Sentencing-viz medical considerations.
Procedural Law-viz rules of evidence re defences iro provocation.
Procedural Law-viz rules of evidence re extenuating circumstances iro degree of moral blameworthiness.
Procedural Law-viz rules of evidence re special circumstances iro level of moral blameworthiness.
Sentencing-viz mitigatory features re societal stigma.
Sentencing-viz mitigation re public opinion.
Sentencing-viz the pre-sentence enquiry re sentencing provision of a statute.
Sentencing-viz the pre-sentence enquiry re sentencing jurisdiction of the court iro sentencing provision of a statute.
Sentencing-viz aggravation re seriousness of the offence iro sentencing provision of the statute.
Domestic Violence-viz murder.
Sentencing-viz community service.

Indictment or Charge re: Exception, Further Particulars and Amendment or Alteration of Charges or State Outline


The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016, when the matter was to be heard, both State and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session, a charge of culpable homicide was put to the accused.

The State's contention was that on 18 February 2015, and at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, Weston Mombeshora unlawfully caused the death of Rombayi Weston Mombeshora by striking him with a rubber baton on the head, negligently, failing to realize that death may result from the conduct.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016, when the matter was to be heard, both State and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session, a charge of culpable homicide was put to the accused.

Indictment or Charge re: Plea of Guilty iro Limited Plea, Plea Bargaining and Stated Case Proceedings


The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016, when the matter was to be heard, both State and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session, a charge of culpable homicide was put to the accused.

The State's contention was that on 18 February 2015, and at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, Weston Mombeshora unlawfully caused the death of Rombayi Weston Mombeshora by striking him with a rubber baton on the head, negligently, failing to realize that death may result from the conduct.

The accused pleaded guilty to the charge and defence counsel confirmed the plea accorded with his instructions. The Statement of Agreed Facts prepared by both counsel was read and admitted as evidence or part of the record.

In summary, it could clearly be discerned from the Statement of Agreed Facts that:

1. The accused, aged 26, and the deceased, aged 71, were son and father respectively.

2. The deceased instructed the accused to leave his homestead, and that, on 18 February 2015, upon the deceased and his other son, Philemon Tariro Mombeshora's return from fetching firewood, the deceased was not amused to find the accused still at his homestead.

3. A quarrel ensued between the deceased and the accused and the deceased used a rubber baton to assault the accused. A scuffle ensued, and the accused wrestled the baton from the deceased.

4. The accused struck the deceased with the rubber baton on his head before departing to notify his uncle, the deceased's brother.

5. Later on that day, the deceased passed on as a result of injuries sustained due to the assault.

The cause of death was established as intracerebral hemorrhage.

The State tendered, by consent, the post mortem report compiled by Doctor Tendai L. Nyafesa which confirmed the cause of death as having culminated from scalp hemorrhage and intra-cerebral bleeding leading to the conclusion that the cause of death was intracerebral haemorrhage.

The rubber baton was also tendered in evidence by consent as exhibit 2.

Counsel for the defence confirmed having explained the essential elements of the offence of culpable homicide to the accused. He stated the accused appreciated the offence and the exigencies thereto and that his plea of guilty was a genuine plea in full comprehension of the essential elements of the offence of culpable homicide.

Having been satisfied of compliance with section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], and that the plea was well-informed from the explanation of essential elements and Statement of Agreed Facts, we retained a verdict of guilty of culpable homicide.

Murder re: Culpable Homicide iro Violent Conduct, Exceeding Limits of Self Defence and the Eye for an Eye Doctrine


The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016, when the matter was to be heard, both State and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session, a charge of culpable homicide was put to the accused.

The State's contention was that on 18 February 2015, and at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, Weston Mombeshora unlawfully caused the death of Rombayi Weston Mombeshora by striking him with a rubber baton on the head, negligently, failing to realize that death may result from the conduct.

The accused pleaded guilty to the charge and defence counsel confirmed the plea accorded with his instructions. The Statement of Agreed Facts prepared by both counsel was read and admitted as evidence or part of the record.

In summary, it could clearly be discerned from the Statement of Agreed Facts that:

1. The accused, aged 26, and the deceased, aged 71, were son and father respectively.

2. The deceased instructed the accused to leave his homestead, and that, on 18 February 2015, upon the deceased and his other son, Philemon Tariro Mombeshora's return from fetching firewood, the deceased was not amused to find the accused still at his homestead.

3. A quarrel ensued between the deceased and the accused and the deceased used a rubber baton to assault the accused. A scuffle ensued, and the accused wrestled the baton from the deceased.

4. The accused struck the deceased with the rubber baton on his head before departing to notify his uncle, the deceased's brother.

5. Later on that day, the deceased passed on as a result of injuries sustained due to the assault.

The cause of death was established as intracerebral hemorrhage.

The State tendered, by consent, the post mortem report compiled by Doctor Tendai L. Nyafesa which confirmed the cause of death as having culminated from scalp hemorrhage and intra-cerebral bleeding leading to the conclusion that the cause of death was intracerebral haemorrhage.

The rubber baton was also tendered in evidence by consent as exhibit 2.

Counsel for the defence confirmed having explained the essential elements of the offence of culpable homicide to the accused. He stated the accused appreciated the offence and the exigencies thereto and that his plea of guilty was a genuine plea in full comprehension of the essential elements of the offence of culpable homicide.

Having been satisfied of compliance with section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], and that the plea was well-informed from the explanation of essential elements and Statement of Agreed Facts, we retained a verdict of guilty of culpable homicide.

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry


We were..., addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed....,.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Court Management re: Dominus Litis, Professional Ethics and Right of Audience Before the Court


We were..., addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Sentencing re: Approach iro Incarceration Conditions and the Effect of Pre-trial Detention and Constitutional Rights Violations


It was submitted, on behalf of the accused, that, he has suffered pre-trial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life; moreso given the tough economic times when basic necessities are hard to come by.

Sentencing re: Murder iro Culpable Homicide (Violent Conduct)


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Sentencing re: Approach iro First Offenders


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Sentencing re: Approach iro Co-Accused, Gender and Age Considerations & the Principle of Equality of Treatment


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Sentencing re: Approach iro Juvenile and Youthful Offenders, Juvenile Justice & Administration of Corporal Punishment


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Sentencing re: Approach iro Community Service, Repeat Offenders and Considerations of Non-Custodial Sentences


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Defence of Person, Self Defence, Private Defence & Defence of Necessity re: Retaliation or The Eye For An Eye Doctrine


After the verdict of guilty of culpable homicide, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Domestic Violence and Gender Based Violence


The accused was indicted for trial before this court on a charge of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: it being alleged against him, that, on 18 February 2015, at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016, when the matter was to be heard, both State and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session, a charge of culpable homicide was put to the accused.

The State's contention was that on 18 February 2015, and at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, Weston Mombeshora unlawfully caused the death of Rombayi Weston Mombeshora by striking him with a rubber baton on the head, negligently, failing to realize that death may result from the conduct.

The accused pleaded guilty to the charge and defence counsel confirmed the plea accorded with his instructions. The Statement of Agreed Facts prepared by both counsel was read and admitted as evidence or part of the record.

In summary, it could clearly be discerned from the Statement of Agreed Facts that:

1. The accused, aged 26, and the deceased, aged 71, were son and father respectively.

2. The deceased instructed the accused to leave his homestead, and that, on 18 February 2015, upon the deceased and his other son, Philemon Tariro Mombeshora's return from fetching firewood, the deceased was not amused to find the accused still at his homestead.

3. A quarrel ensued between the deceased and the accused and the deceased used a rubber baton to assault the accused. A scuffle ensued, and the accused wrestled the baton from the deceased.

4. The accused struck the deceased with the rubber baton on his head before departing to notify his uncle, the deceased's brother.

5. Later on that day, the deceased passed on as a result of injuries sustained due to the assault.

The cause of death was established as intracerebral hemorrhage.

The State tendered, by consent, the post mortem report compiled by Doctor Tendai L. Nyafesa which confirmed the cause of death as having culminated from scalp hemorrhage and intra-cerebral bleeding leading to the conclusion that the cause of death was intracerebral haemorrhage.

The rubber baton was also tendered in evidence by consent as exhibit 2.

Counsel for the defence confirmed having explained the essential elements of the offence of culpable homicide to the accused. He stated the accused appreciated the offence and the exigencies thereto and that his plea of guilty was a genuine plea in full comprehension of the essential elements of the offence of culpable homicide.

Having been satisfied of compliance with section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], and that the plea was well-informed from the explanation of essential elements and Statement of Agreed Facts, we retained a verdict of guilty of culpable homicide.

After the verdict of guilty, counsel for the State submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and State counsels respectively; we commend both counsel for their assistance to the court given sentence, by its very nature, is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person, and the nature of offence committed.

Defence counsel submitted, that, the accused, as given by the State, is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependents.

Further, it was submitted, on behalf of the accused, that, he has suffered pretrial incarceration for one and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further, during that period of pre-trial incarceration, the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted, in mitigation, that, the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head, causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceded by the State counsel, the accused largely brought about the situation.

The deceased did not have to assault the accused for his message, of driving the accused away from his home, to be heard and complied with.

Further, in mitigation, as pointed out by defence counsel, is the fact that the accused will remain isolated and blamed for the mishap.

In fact, he will live with the stigma of having killed his father; for the society out there does not know the difference between murder and culpable homicide.

The fact that the accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father, is highly mitigatory.

In aggravation, as correctly observed by State counsel, is the uncontroverted aspect of the need to preserve the precious human life.

The God-given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear, in section 48(1), that, every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to the sentiment echoed by HOLMES JA in S v Rabie 1975 (4) SA 855…, wherein he stated:

“Punishment should fit the criminal as well as the crime, be fair to society, and blended with a measure of mercy according to the circumstances of the case….,.”

This principle is universal and has been applied in a plethora of cases in Zimbabwe.

Whereas, it is important and a general rule, that, youthful first offenders should be kept out of prison this is not stone-casting.:S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean society views the crimes of violence, including culpable homicide, as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment, which is not out of proportion with the offence nor manifestly excessive, has to be considered.

In the circumstances of this case, having considered all mitigatory factors and aggravatory factors, it is our considered view that a prison term is called for.

The message has to be sent out there, that, no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes - especially in the family unit.

Given the accused has been in custody for one and a half years and that he pleaded guilty, in addition to all the other mitigatory factors, in the circumstances of the case, a short imprisonment term is appropriate.

It would not be appropriate to consider a non-custodial sentence given the accused assaulted an elderly 71 year old man, his father, in circumstances where he could have made good his escape. A non custodial sentence would trivialise an otherwise serious offence and send a wrong signal to the community.

Accordingly, the accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving the use of violence on the person of another for which he is sentenced to imprisonment without the option of a fine.

Criminal Trial

MWAYERA J: The accused was indicted for trial before this court on a charge of murder as defined in s47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it being alleged against him that on 18 February 2015 at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, the accused unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct may cause death continued to engage in that conduct despite the risk or possibility, caused the death of Rombayi Weston Mombeshora by striking him on the head six times with a baton stick resulting in him sustaining injuries from which he died.

On 15 June 2016 when the matter was to be heard both state and defence counsel made indications that the evidence and circumstances revealed a lesser offence of culpable homicide as defined in s49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Consequent to this observation and understanding in court session a charge of culpable homicide was put to the accused.

The state's contention was that on 18 February 2015 and at Tarambavamwe Village, Headman Nedewedzo, Chief Makoni, Rusape, Weston Mombeshora unlawfully caused the death of Rombayi Weston Mombeshora by striking him with a rubber baton on the head negligently failing to realise that death may result from the conduct.

The accused pleaded guilty to the charge and defence counsel Mr Tanaya confirmed the plea accorded with his instructions. The statement of agreed facts prepared by both counsel was read and admitted as evidence or part of the record.

In summary it could clearly be discerned from the statement of agreed facts that:

1. The accused aged 26 and deceased aged 71 were son and father respectively.

2. The deceased instructed the accused to leave his homestead and that on 18 February 2015 upon the deceased and his other sons Philemon Tariro Mombeshora's return from fetching firewood the deceased was not amused to find the accused still at his homestead.

3. A quarrel ensued between the deceased and the accused and the deceased used a rubber baton to assault the accused. A scuffle ensued, and the accused wrestled the baton from the deceased.

4. The accused struck the deceased with the rubber baton on his head before departing to notify his uncle the deceased's brother.

5. Latter on that day the deceased passed on as a result of injuries sustained due to the assault.

The cause of death was established as intracerebral hemorrhage.

The state tendered by consent the post mortem report compiled by Doctor Tendai L. Nyafesa which confirmed cause of death as having culminated from scalp hemorrhage and intracerebral bleeding leading to the conclusion that the cause of death was INTRACEREBRAL HEMORRHAGE.

The rubber baton was also tendered in evidence by consent as exh 2.

Mr Tanaya confirmed having explained the essential elements of the offence of culpable homicide to the accused. He stated the accused appreciated the offence and the exigencies thereto and that his plea of guilty was a genuine plea in fully comprehension of the essential elements of the offence of culpable homicide.

Having been satisfied of compliance with s271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and that the plea was well informed from the explanation of essential elements and statement of agreed facts we retained a verdict of guilty of culpable homicide.

After the verdict of guilty Mr Chigwinyiso submitted that the accused is a first offender.

We were then addressed in mitigation and aggravation by the defence and state counsels respectively, we commend both counsel for their assistance to the court given sentence, by its very nature is a delicate exercise which has to be carefully considered for the criminal justice system to retain its respect by seeking to strike a balance between the societal interests, the accused person and the nature of offence committed.

Mr Tanaya submitted that the accused as given by the state is a first offender. He is a young man with family responsibilities in the form of a child and wife who are both his dependence.

Further it was submitted on behalf of the accused that he has suffered pretrial incaseration for 1 and a half years.

The court will not lose sight of the hardship of prison life moreso given the tough economic times when basic necessities are hard to come by. Further during that period of pretrial incaseration the accused suffered anxiety which goes with having a grave offence hovering over his head.

The defence counsel also submitted in mitigation that the deceased was the aggressor thereby reducing the moral blameworthiness of the accused.

The offence was committed in the heat of a moment.

The accused was subjected to assault by a rubber baton by his father. He wrestled the rubber baton and struck the deceased on the head causing injuries from which the latter died.

The assault by the accused was not persistent as he made good his escape after striking the deceased.

As correctly conceeded by the state counsel Mr Chigwinyiso the accused largely brought about the situation.

The deceased did not have to assault the accused for his message of driving the accused away from his home to be heard and complied with.

Further in mitigation as pointed out by Mr Tanaya, is the fact that the accused will remain isolated and blamed for the mishap.

In fact he will live with the stigma of having killed his father for the society out there does not know the deference between murder and culpable homicide.

The fact that accused was driven away from his father's home, when viewed in conjunction with the childhood of having been removed from family because of the separation of the mother and father is highly mitigatory.

In aggravation as correctly observed by state counsel Mr Chigwinyiso, is the uncontroverted aspect of the need to preserve the precious human life.

The God given gift of life should not be taken away lightly.

The Constitution of Zimbabwe is clear in s48 (1) that every person has a right to life. The court has a duty to protect the said right. A person who unlawfully takes away another's life ought to be adequately punished.

We subscribe to sentiment echoes by HOLMES JA in S v Rabie 1975 (4) SA 855 at 862 wherein he stated:

“Punishment should fit the criminal as well as the crime be fair to society and blended with a measure of mercy according to the circumstances of the case…”

This principle is universal and has been applied in plethora cases in Zimbabwe.

Whereas it is important and a general rule that youthful first offenders should be kept out of prison this is not stone casting. S v Venganai 1989 (1) ZLR.

It is pivotal that the circumstances of each case be looked at holistically.

The courts frown at the use of violence to resolve disputes and the Zimbabwean Society views the crimes of violence including culpable homicide as grievious and serious. This is reflected in the penalty section which gives the court a discretion to sentence an offender to a punishment ranging from a fine to life imprisonment or to both a term of imprisonment and a fine.

This is an indication that adequate punishment which is not out of proportion with the offence nor manifestly excessive has to be considered.

In the circumstances of this case having considered all mitigatory factors and aggravatory factors it is our considered view that a prison term is called for.

The message has to be sent out there that no one has a right to take away the life of another and that violence is not acceptable as a tool of resolving disputes especially in the family unit.

Given the accused has been in custody for 1 and a half years and that he pleaded guilty in addition to all the other mitigatory factors, in the circumstances of the case a short imprisonment term is appropriate.

It would not be appropriate to consider a none custodial sentence given the accused assaulted an elderly 71 year old man, his father in circumstances where he could have made good his escape. None custodial sentence would trivialise an otherwise serious offence and sent a wrong signal to the community.

Accordingly accused is sentenced as follows:

4 years imprisonment of which 2 years imprisonment is suspended for 5 years on condition accused does not within that period commit an 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, defence's legal practitioners

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