Criminal
Trial
MAKONESE
J: The
accused who is a female juvenile aged 17 years appeared in this court
on a charge of murder.
The
state alleged that on 4 January 2014 and at B17 Turkmine Compound,
Inyathi, in the Province of Matabeleland North, the accused
wrongfully, unlawfully and intentionally killed and murdered Polite
Muduneko, a female juvenile aged 6 years.
The
accused pleaded not guilty to the charge of murder and tendered a
plea of guilty in respect to the lessor offence of culpable homicide.
The state accepted the limited plea.
We
are indeed satisfied that the concession by the state was properly
made.
The
state and the defence tendered a statement of agreed facts (Exhibit
1).
In
brief the agreed facts are that the deceased was aged 6 years at the
time she met her death. The accused was aged 16 years at the
time of the alleged offence.
In
December 2013 the accused met and fell in love with one Enias Nduna
at Turk Mine, Inyathi. The accused and Enias Nduna stayed together at
house number B17, Turk Mine Compound as lovers.
The
accused who had brought along with her the deceased decided to remain
at Turk Mine compound with the young juvenile.
Enias
Nduna was not happy with the continued stay of the deceased at the
compound and instructed the accused to return the deceased to her
parents at Gokwe.
The
accused and deceased were related in that deceased's father was a
maternal uncle to the accused.
The
accused failed to return the juvenile to her parents and tension
began to grow between the accused and Enias Nduna.
On
or around 1 January 2014 accused assaulted the deceased all over the
body using a cooking stick. The accused had been angered by the fact
that the deceased had soiled the blankets. The accused then assaulted
the deceased on subsequent dates.
The
deceased complained of body pains arising from the assaults, the
deceased was not taken to hospital.
The
deceased died on 5 January 2014.
On
realizing that the juvenile was lifeless, the accused strapped the
deceased on her back and proceeded to Zimbabwe Republic Police,
Inyathi where she made a report to the police.
Initially,
the accused lied that the child had collapsed and died as they were
walking to the police station. An investigation led to the arrest of
the accused and Enias Nduna as there was evidence that the juvenile
had been subjected to physical abuse.
The
state produced (Exhibit 2), the Post Mortem Report.
Dr
S. Pesanai is a qualified medical practitioner attached to United
Bulawayo Hospitals. On 6 January 2014 the pathologist examined the
remains of the deceased and compiled his findings in a Post Mortem
Report number 21/21/201.
As
a result of the examination, the Dr concluded that the cause of death
was:
(1)
bronchoaspiration.
(2)
fractured femur.
(3)
homicide.
On
further external examination, the Post Mortem Report reveals that
there were marks of violence consisting of multiple abrasions on the
back and the buttocks, abrasions on the shoulder, and forearm,
abrasions on the chest, abrasions on the left parietal and thighs,
and abdomen.
The
deceased also suffered a fractured femur.
On
internal examination the Post Mortem Report indicates that the
deceased sustained a scalp haematomas on the right and left side.
There was extradural haematoma on the right side parietal region.
There was evidence of hyperinflated bilateral bronchoaspiration in
the lungs. The stomach was full of porridge like contents.
A
broken wooden cooking stick was tendered into the record as Exhibit
3. The cooking stick is 21cm long. Its width at the widest part is
10cm, and at the narrower point its width is 5,5cm. Its weight was
not provided.
On
the evidence presented before us we acquitted the accused on the main
charge of murder and convicted her on the lessor charge of culpable
homicide.
The
accused admits that she acted negligently in causing the death of the
deceased.
The
accused's boyfriend, Enias Nduna was absolved from any liability
and discharged because the state failed to secure any credible
evidence on his role in the assault.
The
court is not entirely convinced that Enias Nduna was an innocent
bystander in this matter but in the absence of any other evidence,
the court has no option but to rely on the available and admitted
evidence.
The
accused has been convicted of culpable homicide which is a very
serious offence.
She
pleaded guilty and all the mitigating facts have been adequately
canvassed by her legal counsel. These factors include the following:
That
she is a female, juvenile first offender. At the time of the
commission of the offence she was aged 16 years. She lacked
sufficient maturity to care for and look after another juvenile, the
deceased who was aged 6 years.
She
was thrust with the onerous task of looking after another child, when
she herself was a child.
She
had no parental supervision herself and yet she was expected to cater
for the needs of a young child aged 6 years, who usually requires the
tender loving care and attention.
This
error is placed squarely on the doorsteps of both the deceased's
and accused's parents.
In
assessing an appropriate sentence the court must be mindful of the
fact that the courts are very slow to commit juvenile offenders to
prison.
A
number of decided cases have settled the position that wherever
possible, juvenile offenders must not be exposed to the polluting
environment of prison. Care must be taken that the sentences imposed
against juveniles are rehabilitative and reformative, rather than
penal in that nature.
The
aim and objective when sentencing a juvenile is to ensure that the
juvenile is rehabilitated and reintergrated into society.
It
has been indicated that the accused has spent well over a year in
Khami Prison.
This
is not an ideal situation at all as that prison does not cater for
juvenile offenders and is not a reformatory. The accused should not
have been exposed to the harsh prison conditions which will have a
long term effect on her social well being.
State
counsel correctly pointed out that International Legal Instruments
such as the United Nations Convention on the Rights of the Child,
which define a child as a person under the age of 18 years, call for
non-custodial sentences, and non-penal sentences that offer
rehabilitative forms of punishment in relation to juvenile offenders.
The
African Charter on the Rights and Welfare of the Child (OAU) also
provides similar protections on the rights of juvenile offenders.
See
the cases of S
v
Zaranyika
1995 (1) ZLR 270; S
v
Malanga
HH218/93; S
v
Lehnberg and Another
1976 (1) SA 214; and S
v
Muguti
SC218/92.
The
common thread that runs through the cases referred to is that as a
general rule juvenile offenders should be spared the agony of
imprisonment, unless there is no suitable punishment for the
particular offence.
I
now turn to the present case.
A
probation officer's report was tendered into the record. It
reflects that the accused person's family has been living in the
rural areas as long as the accused can remember. Their rural home is
in Gokwe in Chief Sahi's area.
During
the time of the offence the accused was co-habiting with her
boyfriend Enias Nduna.
The
area where accused was staying with her boyfriend is an area where a
large number of people are into gold panning. The accused was exposed
to an unfamiliar environment and her involvement with a boyfriend at
her age of 16 years is indicative of the fact that she has lost moral
direction.
The
prognosis given by the probation officer was that accused was a first
offender who had admitted committing the offence and had shown
remorse.
At
the time of the offence the accused was already pregnant. When she
appeared in court she had given birth and had an eight month old baby
to look after.
The
recommendation was that she be placed in a reformatory or training
institute in terms of the provisions of section 351(2)(b) of the
Criminal Procedure and Evidence Act [Chapter
9:07].
It
is my considered view that whatever sentence the court shall impose
must take into consideration the following factors:
(a)
the seriousness of the offence.
(b)
the interests of justice.
(c)
the interests of the juvenile offender as well as the interests of
the accused's 8 month old baby.
(d)
the period spent in custody by accused before trial.
I
accordingly, order that the following sentence is appropriate, taking
into account all the circumstances of the case:
1.
Accused is sentenced to 2 years imprisonment wholly suspended for 5
years on condition, accused is not within that period convicted of an
offence involving violence and for which she sentenced to a term of
imprisonment without the option of a fine.
2.
The accused shall forthwith be released from prison and transferred
to an institution, namely, NORTHCOT, Harare for supervision for a
period of 2 years.
3.
Upon the expiration of the period of 2 years the accused shall be
discharged from the institution into the custody of her parents or a
guardian.
National
Prosecuting Authority,
the State's legal practitioners
Mashindi
and Company,
the Accused's legal practitioners
