CRIMINAL
TRIAL - SENTENCE
MAWADZE
J: This
matter proceeded on the basis of a statement of agreed facts after
the accused who was facing the charge of murder as defined in section
47(1) of the (Criminal Law Codification and Reform) Act [Cap
9:23]
pleaded guilty to the charge of contravening section 49 of the same
Act relating to the charge of culpable homicide.
This
is a bad case of domestic violence which resulted in a fatality
wherein the thirty-three-year old wife died at the vicious hands of
her thirty-six-year-old husband.
The
brief and agreed facts are as follows;
Both
the now deceased and the accused were residing in Nyamayevhu village,
chief Nyajena, Masvingo and were wife and husband respectively. In
fact, the accused was in a polygamous marriage with the now deceased
Molline Ellias as the senior wife and one Alice Ellias as the junior
wife. Each of the wives has three minor children born out of the
marriage. They all resided at the same homestead.
On
15 July 2018, the accused arrived home from a beer drink. He was
confronted by the now deceased over the proceeds of a bovine accused
had sold and squandered the money. The accused would have none of
that inquiry and resorted to brutal violence.
The
accused proceeded to drag the now deceased from home.
At
some place away from the prying eyes of other family members the
accused brutally assaulted the now deceased with switches. As a
result, the now deceased sustained bruises on lower limbs and face,
haematoma on left temporal area and bled from the left ear. Her neck
was hypermobile as a result of assault.
The
now deceased collapsed and accused called the junior wife Allice
Ellias to ferry the now deceased back home.
At
home the accused tried to resuscitate the now deceased with the help
of Allice Ellias to no avail.
The
now deceased passed on that same night and the accused fled from home
only to be arrested some days after.
As
per the post mortem report, the now deceased died from the injuries
inflicted upon her resulting in the head injury and fracture of the
cervical spine.
Indeed,
this is a borderline case between the offence of murder with
constructive intent and that of culpable homicide.
In
assessing the appropriate sentence, we have considered submissions
made by both counsel.
In
mitigation we have taken into account the accused's personal
circumstances. As already pointed out the accused had two wives and
six minor children. As he is unemployed the family survives on his
manual labour and has no meaningful savings. As at now he only owns
one donkey and a scotch cart. His family would be greatly prejudiced
as a result of his incarceration.
We
were advised that the accused suffers from chronic pain arising from
a hip problem where he was injured while employed by Triangle
Limited. The severity of this injury could not be ascertained as no
further medical details were availed.
It
is in accused's favour that he has no previous criminal record. We
are therefore inclined to exercise some leniency with the hope that
he would reform and desist from further crime.
This
matter has been finalised in a very short time simply because the
accused decided to accept his wrongful conduct. A plea of guilty
should therefore be seriously considered as a mitigatory factor.
This
matter had been set for two days but was finalised within few
minutes. The witnesses who were present were excused and saved the
trauma of facing the accused while testifying as most of them are
accused's relatives, like his brother, son and second wife. The
scarce state resources have also not been wasted.
For
all these reasons we are obliged to reduce whatever sentence we are
inclined to impose and/or to suspend part of the overall sentence to
give effect to the plea of guilty.
The
accused has suffered from a pre-trial incarceration of six months and
has not been granted bail pending trial.
While
in custody, the now deceased's relatives caused the accused's
relatives to surrender some of the accused's assets as
compensation. These included nine cattle, twelve goats, four bales of
cotton, 2 tonnes of maize and R5,000.00.
While
this can never be compared to the loss of life we cannot close our
eyes to the fact that accused has somehow atoned for his criminal
conduct.
Indeed,
the accused through counsel profusely apologised for his conduct.
It
is worth noting that accused shall forever live with the stigma that
he is responsible for the demise of his wife. Worse still he will
have to explain this also to the children he had with the now
deceased.
It
is however unfortunate and very saddening that many couples are
losing their lives at the hands of their spouses who are expected not
only to love them but to protect them. The sanctity of human life can
never be over emphasised and human blood is sacred.
Another
worrying issue is that such cases are very prevalent hence the need
for deterrent sentences if we are to tame this tide.
Domestic
violence should not be condoned at all.
This
explains why the state has specifically enacted the Domestic Violence
Act [Cap 5:16] to specifically address this scourge.
The
dispute in this matter was minor and could have been amicably
resolved. In fact, the accused is the one who was at fault as he had
squandered the money realised from disposal of a family asset. The
now deceased being a responsible wife and mother was entitled to
question the accused and rebuke him for his selfish conduct. The now
deceased should not therefore have been battered and lose her life
for this.
It
is aggravating that the assault itself was the indiscriminate and
brutal.
The
now deceased was injured on the head, limbs and her cervical spine
broken. Severe force was therefore exerted against this defenceless
housewife. The accused's degree of negligence is clearly very high.
This elevates the accused's moral blameworthiness.
Despite
the mitigatory factors alluded to, the accused deserves a fairly
lengthy custodial sentence.
In
the result, the accused is sentenced as follows;
“Ten
years imprisonment of which two years imprisonment is suspended for
five years on condition the accused does not within that period
commit any offence involving the use of violence upon the person of
another and for which the accused is sentenced to a term of
imprisonment without the option of a fine.
The
effective sentence is eight years imprisonment.”
National
Prosecuting Authority, counsel for the State
Mutendi,
Mudisi and Shumba, pro
deo
counsel for the accused
