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HMT31-20 - THE STATE vs WINNIE MUSEKANEHUKU and TICHAONA CHIPOMHO and IYKE CHIPOMHO

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Indictment-viz multiple accused persons.
Charge-viz multiple accused persons.
Murder-viz mob assault.
Murder-viz multiple assailants.
Domestic Violence-viz murder.
Murder-viz murder committed by a group re the doctrine of common purpose.
Murder-viz multiple assailants re co-perpetrators.
Indictment-viz plea of guilty proceedings re Statement of Agreed Facts.
Charge-viz guilty plea proceedings re the Statement of Agreed Facts.
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 cause of death re postmortem report.
Procedural Law-viz rules of evidence re expert evidence iro post mortem report.
Procedural Law-viz rules of evidence re admissions iro unchallenged evidence.
Procedural Law-viz rules of evidence re physical evidence iro murder weapon.
Murder-viz culpable homicide re violent conduct iro section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Sentencing-viz multiple accused persons re the principle of equality of treatment iro age considerations.
Sentencing-viz culpable homicide re violent conduct.
Sentencing-viz the pre-sentence inquiry re assessment of factors in mitigation and aggravation.
Sentencing-viz first offenders.
Sentencing-viz mitigatory factor re plea of guilty iro remorse.
Sentencing-viz mitigation re guilty plea iro regret.
Sentencing-viz aggravatory feature iro in loco parentis.
Sentencing-viz mitigatory feature iro pretrial incarceration.
Sentencing-viz mitigation re pre-trial detention.
Sentencing-viz conduct of the accused ex post facto the commission of the offence.
Sentencing-viz youthful offenders.
Procedural Law-viz final orders re case law authorities iro the doctrine of stare decisis.
Procedural Law-viz final orders re judicial precedents iro the doctrine of stare decisis.

Murder re: Mob Assault, Multiple Assailants or Murder By a Group


In this case, an 18 year old lost his life at the hands of the three accused persons - his family. Domestic violence, in the form of physical assault, was perpetrated over suspicions of theft of ZW$30.

The three accused, mother and two (2) sons, pleaded guilty to the charge of culpable homicide.

It is alleged by the State, that, on 30 June 2018, and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the three (3) accused, or one or more of them, unlawfully caused the death of Francis Mawasa by assaulting him several times, interchangeably, all over the body with sticks and head butting him; negligently failing to realise that death may result from their conduct, and negligently failing to guard against that possibility, resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide, the parties came up with a Statement of Agreed Facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day, the first accused demanded her ZW$30 from the deceased, whom she suspected of having stolen the money. In a bid to recover the money, the three (3) accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head-butted the deceased on the forehead.

As a result of the assault, the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded, that, cause of death was polytrauma per the post-mortem report tendered as exhibit 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exhibit 2 and 3 respectively by consent.

It was agreed, that, the accused persons were negligent in their conduct when they severely assaulted the deceased, failing to realize that death may result from their conduct, and, thus, all three accused were held liable of negligently killing the deceased.

Accordingly, the three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Accessory, Accomplice, Common Purpose, Conspiracy to Commit, Co-perpetrators and Complicity re: Approach


In this case, an 18 year old lost his life at the hands of the three accused persons - his family. Domestic violence, in the form of physical assault, was perpetrated over suspicions of theft of ZW$30.

The three accused, mother and two (2) sons, pleaded guilty to the charge of culpable homicide.

It is alleged by the State, that, on 30 June 2018, and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the three (3) accused, or one or more of them, unlawfully caused the death of Francis Mawasa by assaulting him several times, interchangeably, all over the body with sticks and head butting him; negligently failing to realise that death may result from their conduct, and negligently failing to guard against that possibility, resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide, the parties came up with a Statement of Agreed Facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day, the first accused demanded her ZW$30 from the deceased, whom she suspected of having stolen the money. In a bid to recover the money, the three (3) accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head-butted the deceased on the forehead.

As a result of the assault, the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded, that, cause of death was polytrauma per the post-mortem report tendered as exhibit 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exhibit 2 and 3 respectively by consent.

It was agreed, that, the accused persons were negligent in their conduct when they severely assaulted the deceased, failing to realize that death may result from their conduct, and, thus, all three accused were held liable of negligently killing the deceased.

Accordingly, the three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

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


In this case, an 18 year old lost his life at the hands of the three accused persons - his family. Domestic violence, in the form of physical assault, was perpetrated over suspicions of theft of ZW$30.

The three accused, mother and two (2) sons, pleaded guilty to the charge of culpable homicide.

It is alleged by the State, that, on 30 June 2018, and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the three (3) accused, or one or more of them, unlawfully caused the death of Francis Mawasa by assaulting him several times, interchangeably, all over the body with sticks and head butting him; negligently failing to realise that death may result from their conduct, and negligently failing to guard against that possibility, resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide, the parties came up with a Statement of Agreed Facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day, the first accused demanded her ZW$30 from the deceased, whom she suspected of having stolen the money. In a bid to recover the money, the three (3) accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head-butted the deceased on the forehead.

As a result of the assault, the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded, that, cause of death was polytrauma per the post-mortem report tendered as exhibit 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exhibit 2 and 3 respectively by consent.

It was agreed, that, the accused persons were negligent in their conduct when they severely assaulted the deceased, failing to realize that death may result from their conduct, and, thus, all three accused were held liable of negligently killing the deceased.

Accordingly, the three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

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


In this case, an 18 year old lost his life at the hands of the three accused persons - his family. Domestic violence, in the form of physical assault, was perpetrated over suspicions of theft of ZW$30.

The three accused, mother and two (2) sons, pleaded guilty to the charge of culpable homicide.

It is alleged by the State, that, on 30 June 2018, and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the three (3) accused, or one or more of them, unlawfully caused the death of Francis Mawasa by assaulting him several times, interchangeably, all over the body with sticks and head butting him; negligently failing to realise that death may result from their conduct, and negligently failing to guard against that possibility, resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide, the parties came up with a Statement of Agreed Facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day, the first accused demanded her ZW$30 from the deceased, whom she suspected of having stolen the money. In a bid to recover the money, the three (3) accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head-butted the deceased on the forehead.

As a result of the assault, the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded, that, cause of death was polytrauma per the post-mortem report tendered as exhibit 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exhibit 2 and 3 respectively by consent.

It was agreed, that, the accused persons were negligent in their conduct when they severely assaulted the deceased, failing to realize that death may result from their conduct, and, thus, all three accused were held liable of negligently killing the deceased.

Accordingly, the three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

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


In this case, an 18 year old lost his life at the hands of the three accused persons - his family. Domestic violence, in the form of physical assault, was perpetrated over suspicions of theft of ZW$30.

The three accused, mother and two (2) sons, pleaded guilty to the charge of culpable homicide.

It is alleged by the State, that, on 30 June 2018, and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the three (3) accused, or one or more of them, unlawfully caused the death of Francis Mawasa by assaulting him several times, interchangeably, all over the body with sticks and head butting him; negligently failing to realise that death may result from their conduct, and negligently failing to guard against that possibility, resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide, the parties came up with a Statement of Agreed Facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day, the first accused demanded her ZW$30 from the deceased, whom she suspected of having stolen the money. In a bid to recover the money, the three (3) accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head-butted the deceased on the forehead.

As a result of the assault, the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded, that, cause of death was polytrauma per the post-mortem report tendered as exhibit 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exhibit 2 and 3 respectively by consent.

It was agreed, that, the accused persons were negligent in their conduct when they severely assaulted the deceased, failing to realize that death may result from their conduct, and, thus, all three accused were held liable of negligently killing the deceased.

Accordingly, the three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

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


Having been addressed in mitigation and aggravation, we proceeded to sentence the accused...,.

It is settled, a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed....,.

In considering sentence, it is important to consider, among other factors, the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence, and the attitude of the offender, his mode of life, and personal circumstances: see Moyo v S HB114-06....,.

The time immemorial sentencing principle of matching the offence to the offender...,.

In passing sentence, the court, in exercising its sentencing discretion, is duty bound to consider all circumstances and seek to match the offence to the offender, tempering justice with mercy, while ensuring that justice is done.

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


All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing, let alone finalisation of murder allegations.

The pre-trial incarceration period is not a walk in the park, and, thus, the court will take note of that period in considering an appropriate sentence for each of the accused persons.

Murder and Permissible or Competent Verdicts re: Approach, Intent, Motive, Corpse, Cause of Death & Inquest Proceedings


All the accused, despite being convicted of culpable homicide, will suffer and live all their lives with the stigma of having killed a close relative...,

The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

Sentencing re: Approach iro Contritional Compensation & Conduct of Accused Ex Post Facto Commission of the Offence


That the accused pleaded guilty to having negligently caused the death of the deceased, that they co-operated with the police and did not waste time should surely be reflected in the sentence.

Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased, their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

Final Orders re: Composition of Bench iro Precedents, Stare Decisis, Obiter Dictum, Ratio Decidendi & Judicial Lag


We are alive to State v Muzilawempi Hlupai HB125-17 and State v Landelani Tshuma HB126-17 cited and wish to emphasise, that, the cases are a distinguishable from the present case.

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


Upon considering all mitigatory and aggravatory factors, and, of course, the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances....,.

For loss of life occasioned by three (3) people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

Sentencing re: Murder iro Culpable Homicide (Violent Conduct)


The three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Having been addressed in mitigation and aggravation, we proceeded to sentence the accused as follows:

Sentence

In arriving at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused, counsel for the second accused and counsel for the third accused, respectively. We have also considered aggravatory factors advanced by the State counsel.

All the accused are first offenders who pleaded guilty to culpable homicide.

The first accused is the biological mother of Accused 2 and 3 and she was also in loco parentis for the deceased before his demise.

All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing, let alone finalisation of murder allegations. The pre-trial incarceration period is not a walk in the park, and, thus, the court will take note of that period in considering an appropriate sentence for each of the accused persons.

The first accused, as a mother, must indeed be agonising over losing a brother and also having her children incarcerated over loss of life which could have been avoided had she acted responsibly.

All the accused, despite being convicted of culpable homicide, will suffer and live all their lives with the stigma of having killed a close relative over ZW$30. The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

That the accused pleaded guilty to having negligently caused the death of the deceased, that they co-operated with the police and did not waste time should surely be reflected in the sentence. Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased, their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

It is settled, a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed.

Further, in mitigation for Accused 2 and 3, who are 24 and 19, respectively, is the fact that the two are youthful offenders.

They also fall in the bracket of immature adults, prone and susceptible to influence from external forces.

In this case, the two youthful offenders appeared un-amused by extended family bringing in the deceased, an uncle, under the same roof with them. They excitedly found comfort and joy in joining their mother accuse the deceased of theft of $30. Emotions in a clear excited mode took the better of them as they interchangeably and severely assaulted the deceased.

The irresponsible conduct, which culminated in the death of the deceased, though not premeditated, can however not go unpunished.

As correctly emphasised by the State counsel, the deceased, an 18 year old, died a painful death at the hands of those he looked up to for protection and love.

There was no evidence to substantiate that he had stolen the $30 which caused him to be visited with the fatal assault. The deceased was severely assaulted with switches, head butted, and left un-attended outside till the following morning when he succumbed to the injuries and died.

He sustained multiple bodily injuries, as evidenced by the post mortem report. He died as a result of poly trauma. The nature and extent of the injuries shows the intensity and severity of the assault.

In considering sentence, it is important to consider, among other factors, the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence, and the attitude of the offender, his mode of life, and personal circumstances: see Moyo v S HB114-06.

In the present case, going by the number of blows and the severity of the assault, culminating in loss of life, we find no reason why the three (3) accused should be given different sentences.

Granted, Accused 2 and 3 are youthful offenders, but, that does not minimise their participation.

The moral blameworthiness of Accused 1 is high as she, as a mother, could have stopped the savage attacks and could have done better when the deceased was injured.

However, the manner and mode of assaulting does not justify differential treatment of the accused as they clearly acted together with common purpose and in concert.

The three subjected the deceased to assault, negligently causing his death. Precious human life, which is a God-given and constitutionally guaranteed right, was unnecessarily lost.

Upon considering all mitigatory and aggravatory factors, and, of course, the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances.

We are alive to State v Muzilawempi Hlupai HB125-17 and State v Landelani Tshuma HB126-17 cited and wish to emphasize, that, the cases are a distinguishable from the present case.

The accused, in the cases, had to wait for 6 and 7 years respectively for matters to be finalised.

It is worth noting, that, despite that long wait, the suspended prison term of 5 years denotes the seriousness of the offences which involve loss of life.

For loss of life occasioned by three (3) people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

In passing sentence, the court, in exercising its sentencing discretion, is duty bound to consider all circumstances and seek to match the offence to the offender, tempering justice with mercy, while ensuring that justice is done.

It should be made clear to the society, that, disputes, of whatever kind and manner, cannot and should not be resolved by violence as this culminates, in most cases, loss of life as occurred here.

What further aggravates this offence is the fact, that, it is a culpable homicide related to domestic violence. The family and home should be a safe and peaceful abode not a volatile and scary abode.

Given the totality of the circumstances, it is our considered view, that, each accused be sentenced as follows:

Each three (3) years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any 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


The three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Having been addressed in mitigation and aggravation, we proceeded to sentence the accused as follows:

Sentence

In arriving at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused, counsel for the second accused and counsel for the third accused, respectively. We have also considered aggravatory factors advanced by the State counsel.

All the accused are first offenders who pleaded guilty to culpable homicide.

The first accused is the biological mother of Accused 2 and 3 and she was also in loco parentis for the deceased before his demise.

All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing, let alone finalisation of murder allegations. The pre-trial incarceration period is not a walk in the park, and, thus, the court will take note of that period in considering an appropriate sentence for each of the accused persons.

The first accused, as a mother, must indeed be agonising over losing a brother and also having her children incarcerated over loss of life which could have been avoided had she acted responsibly.

All the accused, despite being convicted of culpable homicide, will suffer and live all their lives with the stigma of having killed a close relative over ZW$30. The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

That the accused pleaded guilty to having negligently caused the death of the deceased, that they co-operated with the police and did not waste time should surely be reflected in the sentence. Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased, their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

It is settled, a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed.

Further, in mitigation for Accused 2 and 3, who are 24 and 19, respectively, is the fact that the two are youthful offenders.

They also fall in the bracket of immature adults, prone and susceptible to influence from external forces.

In this case, the two youthful offenders appeared un-amused by extended family bringing in the deceased, an uncle, under the same roof with them. They excitedly found comfort and joy in joining their mother accuse the deceased of theft of $30. Emotions in a clear excited mode took the better of them as they interchangeably and severely assaulted the deceased.

The irresponsible conduct, which culminated in the death of the deceased, though not premeditated, can however not go unpunished.

As correctly emphasised by the State counsel, the deceased, an 18 year old, died a painful death at the hands of those he looked up to for protection and love.

There was no evidence to substantiate that he had stolen the $30 which caused him to be visited with the fatal assault. The deceased was severely assaulted with switches, head butted, and left un-attended outside till the following morning when he succumbed to the injuries and died.

He sustained multiple bodily injuries, as evidenced by the post mortem report. He died as a result of poly trauma. The nature and extent of the injuries shows the intensity and severity of the assault.

In considering sentence, it is important to consider, among other factors, the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence, and the attitude of the offender, his mode of life, and personal circumstances: see Moyo v S HB114-06.

In the present case, going by the number of blows and the severity of the assault, culminating in loss of life, we find no reason why the three (3) accused should be given different sentences.

Granted, Accused 2 and 3 are youthful offenders, but, that does not minimise their participation.

The moral blameworthiness of Accused 1 is high as she, as a mother, could have stopped the savage attacks and could have done better when the deceased was injured.

However, the manner and mode of assaulting does not justify differential treatment of the accused as they clearly acted together with common purpose and in concert.

The three subjected the deceased to assault, negligently causing his death. Precious human life, which is a God-given and constitutionally guaranteed right, was unnecessarily lost.

Upon considering all mitigatory and aggravatory factors, and, of course, the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances.

We are alive to State v Muzilawempi Hlupai HB125-17 and State v Landelani Tshuma HB126-17 cited and wish to emphasize, that, the cases are a distinguishable from the present case.

The accused, in the cases, had to wait for 6 and 7 years respectively for matters to be finalised.

It is worth noting, that, despite that long wait, the suspended prison term of 5 years denotes the seriousness of the offences which involve loss of life.

For loss of life occasioned by three (3) people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

In passing sentence, the court, in exercising its sentencing discretion, is duty bound to consider all circumstances and seek to match the offence to the offender, tempering justice with mercy, while ensuring that justice is done.

It should be made clear to the society, that, disputes, of whatever kind and manner, cannot and should not be resolved by violence as this culminates, in most cases, loss of life as occurred here.

What further aggravates this offence is the fact, that, it is a culpable homicide related to domestic violence. The family and home should be a safe and peaceful abode not a volatile and scary abode.

Given the totality of the circumstances, it is our considered view, that, each accused be sentenced as follows:

Each three (3) years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any 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


The three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Having been addressed in mitigation and aggravation, we proceeded to sentence the accused as follows:

Sentence

In arriving at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused, counsel for the second accused and counsel for the third accused, respectively. We have also considered aggravatory factors advanced by the State counsel.

All the accused are first offenders who pleaded guilty to culpable homicide.

The first accused is the biological mother of Accused 2 and 3 and she was also in loco parentis for the deceased before his demise.

All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing, let alone finalisation of murder allegations. The pre-trial incarceration period is not a walk in the park, and, thus, the court will take note of that period in considering an appropriate sentence for each of the accused persons.

The first accused, as a mother, must indeed be agonising over losing a brother and also having her children incarcerated over loss of life which could have been avoided had she acted responsibly.

All the accused, despite being convicted of culpable homicide, will suffer and live all their lives with the stigma of having killed a close relative over ZW$30. The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

That the accused pleaded guilty to having negligently caused the death of the deceased, that they co-operated with the police and did not waste time should surely be reflected in the sentence. Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased, their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

It is settled, a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed.

Further, in mitigation for Accused 2 and 3, who are 24 and 19, respectively, is the fact that the two are youthful offenders.

They also fall in the bracket of immature adults, prone and susceptible to influence from external forces.

In this case, the two youthful offenders appeared un-amused by extended family bringing in the deceased, an uncle, under the same roof with them. They excitedly found comfort and joy in joining their mother accuse the deceased of theft of $30. Emotions in a clear excited mode took the better of them as they interchangeably and severely assaulted the deceased.

The irresponsible conduct, which culminated in the death of the deceased, though not premeditated, can however not go unpunished.

As correctly emphasised by the State counsel, the deceased, an 18 year old, died a painful death at the hands of those he looked up to for protection and love.

There was no evidence to substantiate that he had stolen the $30 which caused him to be visited with the fatal assault. The deceased was severely assaulted with switches, head butted, and left un-attended outside till the following morning when he succumbed to the injuries and died.

He sustained multiple bodily injuries, as evidenced by the post mortem report. He died as a result of poly trauma. The nature and extent of the injuries shows the intensity and severity of the assault.

In considering sentence, it is important to consider, among other factors, the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence, and the attitude of the offender, his mode of life, and personal circumstances: see Moyo v S HB114-06.

In the present case, going by the number of blows and the severity of the assault, culminating in loss of life, we find no reason why the three (3) accused should be given different sentences.

Granted, Accused 2 and 3 are youthful offenders, but, that does not minimise their participation.

The moral blameworthiness of Accused 1 is high as she, as a mother, could have stopped the savage attacks and could have done better when the deceased was injured.

However, the manner and mode of assaulting does not justify differential treatment of the accused as they clearly acted together with common purpose and in concert.

The three subjected the deceased to assault, negligently causing his death. Precious human life, which is a God-given and constitutionally guaranteed right, was unnecessarily lost.

Upon considering all mitigatory and aggravatory factors, and, of course, the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances.

We are alive to State v Muzilawempi Hlupai HB125-17 and State v Landelani Tshuma HB126-17 cited and wish to emphasize, that, the cases are a distinguishable from the present case.

The accused, in the cases, had to wait for 6 and 7 years respectively for matters to be finalised.

It is worth noting, that, despite that long wait, the suspended prison term of 5 years denotes the seriousness of the offences which involve loss of life.

For loss of life occasioned by three (3) people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

In passing sentence, the court, in exercising its sentencing discretion, is duty bound to consider all circumstances and seek to match the offence to the offender, tempering justice with mercy, while ensuring that justice is done.

It should be made clear to the society, that, disputes, of whatever kind and manner, cannot and should not be resolved by violence as this culminates, in most cases, loss of life as occurred here.

What further aggravates this offence is the fact, that, it is a culpable homicide related to domestic violence. The family and home should be a safe and peaceful abode not a volatile and scary abode.

Given the totality of the circumstances, it is our considered view, that, each accused be sentenced as follows:

Each three (3) years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any 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


The three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Having been addressed in mitigation and aggravation, we proceeded to sentence the accused as follows:

Sentence

In arriving at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused, counsel for the second accused and counsel for the third accused, respectively. We have also considered aggravatory factors advanced by the State counsel.

All the accused are first offenders who pleaded guilty to culpable homicide.

The first accused is the biological mother of Accused 2 and 3 and she was also in loco parentis for the deceased before his demise.

All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing, let alone finalisation of murder allegations. The pre-trial incarceration period is not a walk in the park, and, thus, the court will take note of that period in considering an appropriate sentence for each of the accused persons.

The first accused, as a mother, must indeed be agonising over losing a brother and also having her children incarcerated over loss of life which could have been avoided had she acted responsibly.

All the accused, despite being convicted of culpable homicide, will suffer and live all their lives with the stigma of having killed a close relative over ZW$30. The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

That the accused pleaded guilty to having negligently caused the death of the deceased, that they co-operated with the police and did not waste time should surely be reflected in the sentence. Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased, their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

It is settled, a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed.

Further, in mitigation for Accused 2 and 3, who are 24 and 19, respectively, is the fact that the two are youthful offenders.

They also fall in the bracket of immature adults, prone and susceptible to influence from external forces.

In this case, the two youthful offenders appeared un-amused by extended family bringing in the deceased, an uncle, under the same roof with them. They excitedly found comfort and joy in joining their mother accuse the deceased of theft of $30. Emotions in a clear excited mode took the better of them as they interchangeably and severely assaulted the deceased.

The irresponsible conduct, which culminated in the death of the deceased, though not premeditated, can however not go unpunished.

As correctly emphasised by the State counsel, the deceased, an 18 year old, died a painful death at the hands of those he looked up to for protection and love.

There was no evidence to substantiate that he had stolen the $30 which caused him to be visited with the fatal assault. The deceased was severely assaulted with switches, head butted, and left un-attended outside till the following morning when he succumbed to the injuries and died.

He sustained multiple bodily injuries, as evidenced by the post mortem report. He died as a result of poly trauma. The nature and extent of the injuries shows the intensity and severity of the assault.

In considering sentence, it is important to consider, among other factors, the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence, and the attitude of the offender, his mode of life, and personal circumstances: see Moyo v S HB114-06.

In the present case, going by the number of blows and the severity of the assault, culminating in loss of life, we find no reason why the three (3) accused should be given different sentences.

Granted, Accused 2 and 3 are youthful offenders, but, that does not minimise their participation.

The moral blameworthiness of Accused 1 is high as she, as a mother, could have stopped the savage attacks and could have done better when the deceased was injured.

However, the manner and mode of assaulting does not justify differential treatment of the accused as they clearly acted together with common purpose and in concert.

The three subjected the deceased to assault, negligently causing his death. Precious human life, which is a God-given and constitutionally guaranteed right, was unnecessarily lost.

Upon considering all mitigatory and aggravatory factors, and, of course, the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances.

We are alive to State v Muzilawempi Hlupai HB125-17 and State v Landelani Tshuma HB126-17 cited and wish to emphasize, that, the cases are a distinguishable from the present case.

The accused, in the cases, had to wait for 6 and 7 years respectively for matters to be finalised.

It is worth noting, that, despite that long wait, the suspended prison term of 5 years denotes the seriousness of the offences which involve loss of life.

For loss of life occasioned by three (3) people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

In passing sentence, the court, in exercising its sentencing discretion, is duty bound to consider all circumstances and seek to match the offence to the offender, tempering justice with mercy, while ensuring that justice is done.

It should be made clear to the society, that, disputes, of whatever kind and manner, cannot and should not be resolved by violence as this culminates, in most cases, loss of life as occurred here.

What further aggravates this offence is the fact, that, it is a culpable homicide related to domestic violence. The family and home should be a safe and peaceful abode not a volatile and scary abode.

Given the totality of the circumstances, it is our considered view, that, each accused be sentenced as follows:

Each three (3) years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any 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


In this case, an 18 year old lost his life at the hands of the three accused persons - his family. Domestic violence, in the form of physical assault, was perpetrated over suspicions of theft of ZW$30.

The three accused, mother and two (2) sons, pleaded guilty to the charge of culpable homicide.

It is alleged by the State, that, on 30 June 2018, and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the three (3) accused, or one or more of them, unlawfully caused the death of Francis Mawasa by assaulting him several times, interchangeably, all over the body with sticks and head butting him; negligently failing to realise that death may result from their conduct, and negligently failing to guard against that possibility, resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide, the parties came up with a Statement of Agreed Facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day, the first accused demanded her ZW$30 from the deceased, whom she suspected of having stolen the money. In a bid to recover the money, the three (3) accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head-butted the deceased on the forehead.

As a result of the assault, the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded, that, cause of death was polytrauma per the post-mortem report tendered as exhibit 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exhibit 2 and 3 respectively by consent.

It was agreed, that, the accused persons were negligent in their conduct when they severely assaulted the deceased, failing to realize that death may result from their conduct, and, thus, all three accused were held liable of negligently killing the deceased.

Accordingly, the three (3) accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Having been addressed in mitigation and aggravation, we proceeded to sentence the accused as follows:

Sentence

In arriving at an appropriate sentence, we have considered all mitigatory factors advanced by counsel for the first accused, counsel for the second accused and counsel for the third accused, respectively. We have also considered aggravatory factors advanced by the State counsel.

All the accused are first offenders who pleaded guilty to culpable homicide.

The first accused is the biological mother of Accused 2 and 3 and she was also in loco parentis for the deceased before his demise.

All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing, let alone finalisation of murder allegations. The pre-trial incarceration period is not a walk in the park, and, thus, the court will take note of that period in considering an appropriate sentence for each of the accused persons.

The first accused, as a mother, must indeed be agonising over losing a brother and also having her children incarcerated over loss of life which could have been avoided had she acted responsibly.

All the accused, despite being convicted of culpable homicide, will suffer and live all their lives with the stigma of having killed a close relative over ZW$30. The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

That the accused pleaded guilty to having negligently caused the death of the deceased, that they co-operated with the police and did not waste time should surely be reflected in the sentence. Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased, their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

It is settled, a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed.

Further, in mitigation for Accused 2 and 3, who are 24 and 19, respectively, is the fact that the two are youthful offenders.

They also fall in the bracket of immature adults, prone and susceptible to influence from external forces.

In this case, the two youthful offenders appeared un-amused by extended family bringing in the deceased, an uncle, under the same roof with them. They excitedly found comfort and joy in joining their mother accuse the deceased of theft of $30. Emotions in a clear excited mode took the better of them as they interchangeably and severely assaulted the deceased.

The irresponsible conduct, which culminated in the death of the deceased, though not premeditated, can however not go unpunished.

As correctly emphasised by the State counsel, the deceased, an 18 year old, died a painful death at the hands of those he looked up to for protection and love.

There was no evidence to substantiate that he had stolen the $30 which caused him to be visited with the fatal assault. The deceased was severely assaulted with switches, head butted, and left un-attended outside till the following morning when he succumbed to the injuries and died.

He sustained multiple bodily injuries, as evidenced by the post mortem report. He died as a result of poly trauma. The nature and extent of the injuries shows the intensity and severity of the assault.

In considering sentence, it is important to consider, among other factors, the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence, and the attitude of the offender, his mode of life, and personal circumstances: see Moyo v S HB114-06.

In the present case, going by the number of blows and the severity of the assault, culminating in loss of life, we find no reason why the three (3) accused should be given different sentences.

Granted, Accused 2 and 3 are youthful offenders, but, that does not minimise their participation.

The moral blameworthiness of Accused 1 is high as she, as a mother, could have stopped the savage attacks and could have done better when the deceased was injured.

However, the manner and mode of assaulting does not justify differential treatment of the accused as they clearly acted together with common purpose and in concert.

The three subjected the deceased to assault, negligently causing his death. Precious human life, which is a God-given and constitutionally guaranteed right, was unnecessarily lost.

Upon considering all mitigatory and aggravatory factors, and, of course, the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances.

We are alive to State v Muzilawempi Hlupai HB125-17 and State v Landelani Tshuma HB126-17 cited and wish to emphasize, that, the cases are a distinguishable from the present case.

The accused, in the cases, had to wait for 6 and 7 years respectively for matters to be finalised.

It is worth noting, that, despite that long wait, the suspended prison term of 5 years denotes the seriousness of the offences which involve loss of life.

For loss of life occasioned by three (3) people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

In passing sentence, the court, in exercising its sentencing discretion, is duty bound to consider all circumstances and seek to match the offence to the offender, tempering justice with mercy, while ensuring that justice is done.

It should be made clear to the society, that, disputes, of whatever kind and manner, cannot and should not be resolved by violence as this culminates, in most cases, loss of life as occurred here.

What further aggravates this offence is the fact, that, it is a culpable homicide related to domestic violence. The family and home should be a safe and peaceful abode not a volatile and scary abode.

Given the totality of the circumstances, it is our considered view, that, each accused be sentenced as follows:

Each three (3) years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any 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: In this case an 18 year old lost his life at the hands of the three accused persons, his family. Domestic violence in the form of physical assault was perpetrated over suspicions of theft of ZW$30.

The three accused mother and 2 sons pleaded guilty to charge of culpable homicide.

It is alleged by the State that on 30 June 2018 and at Chipombo Village, Divonia Farm, Chief Chipunza, Rusape the 3 accused or one or more of them unlawfully caused the death of Francis Mawasa by assaulting him several times interchangeably all over the body with sticks and head butting him negligently failing to realise that death may result from their conduct and negligently failing to guard against that possibility resulting in injuries from which the said Francis Mawasa died.

Pursuant to the pleas of guilty to culpable homicide the parties came up with a statement of agreed facts outlining common cause aspects.

It is common cause the deceased was a brother to the first accused and had been taken in for care by Accused 1 since the deceased's parents were late. The first accused's sons, Accused 2 and 3 were therefore cousins of the deceased.

On the fateful day the first accused demanded her ZW$30.00 from the deceased whom she suspected of having stolen the money. In a bid to recover the money, the 3 accused teamed up and severally and severely interchangeably assaulted the deceased all over the body. The third accused further head butted the deceased on the forehead.

As a result of the assault the deceased sustained multiple injuries from which he died.

The remains of the deceased were examined by Doctor Simbarashe Elton Matienga who concluded that cause of death was polytrauma per the post-mortem report tendered as exh 1 by consent.

Also adduced in evidence was the certificate of weight of the sticks recovered at the scene. The certificate and the sticks were marked as exh 2 and 3 respectively by consent.

It was agreed that the accused persons were negligent in their conduct when they severely assaulted the deceased failing to realise that death may result from their conduct and thus all three accused were held liable of negligently killing the deceased.

Accordingly the 3 accused are found guilty of culpable homicide as defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Having been addressed in mitigation and aggravation we proceeded to sentence the accused as follows:

Sentence

In arriving at an appropriate sentence we have considered all mitigatory factors advanced by Mr Zviuya for the first accused, Mr Mukwena, for the second accused and Mrs Chapata for the third accused respectively. We have also considered aggravatory factors advanced by the State counsel Mr Musarurwa.

All the accused are first offenders who pleaded guilty to culpable homicide.

The first accused is the biological mother of Accused 2 and 3 and she was also in loco parentis for the deceased before his demise.

All the accused have been in custody for about 1 year 8 months while awaiting the finalisation of this matter. The court is alive to the trauma that goes with the anxiety and suspense of awaiting the hearing let alone finalisation of murder allegations. The pre-trial incarceration period is not a walk in the park and thus the court will take note of that period in considering an appropriate sentence for each of the accused persons.

The first accused as a mother must indeed be agonising over losing a brother and also having her children incarcerated over loss of life which could have been avoided had she acted responsibly.

All the accused despite being convicted of culpable homicide will suffer and live all their lives with the stigma of having killed a close relative over ZW$30-00. The society is blind to the legal necessities of the distinction between murder with actual or legal intention and culpable homicide.

That the accused pleaded guilty to having negligently caused the death of the deceased, that they cooperated with the police and did not waste time should surely be reflected in the sentence. Whereas the accused cannot be applauded for negligently engaging in violence which caused the death of the deceased their pleas of guilty are a sign of regret and demonstration of remorse and penitence.

It is settled a plea of guilty should be credited for what it is worth and that can only be shown and reflected in the sentence imposed.

Further in mitigation for Accused 2 and 3 who are 24 and 19 respectively is the fact that the two are youthful offenders.

They also fall in the bracket of immature adults prone and susceptible to influence from external forces.

In this case the two youthful offenders appeared unamused by extended family bringing in deceased an uncle under the same roof with them. They excitedly found comfort and joy in joining their mother accuse the deceased of theft of $30-00. Emotions in a clear excited mode took the better of them as they interchangeably and severely assaulted the deceased.

The irresponsible conduct which culminated in the death of the deceased though not premeditated can however not go unpunished.

As correctly emphasised by the State counsel the deceased an 18 year old died a painful death at the hands of those he looked up to for protection and love.

There was no evidence to substantiate that he had stolen the $30-00 which caused him to be visited with the fatal assault. The deceased was severely assaulted with switches head butted and left unattended outside till the following morning when he succumbed to the injuries and died.

He sustained multiple bodily injuries as evidenced by the post mortem report. He died as a result of poly trauma. The nature and extent of the injuries shows the intensity and severity of the assault.

In considering sentence it is important to consider among other factors the degree of participation, the circumstances surrounding the commission of the offence, the gravity of the offence and the attitude of the offender, his mode of life and personal circumstances. See Moyo v S HB114/06.

In the present case going by the number of blows and the severity of the assault culminating in loss of life, we find no reason why the 3 accused should be given different sentences. Granted Accused 2 and 3 are youthful offenders but that does not minimise their participation.

The moral blameworthiness of Accused 1 is high as she as a mother could have stopped the savage attacks and could have done better when the deceased was injured.

However, the manner and mode of assaulting does not justify differential treatment of the accused as they clearly acted together with common purpose and in concert.

Having pointed out that the assault was protracted and severe aimed all over the body even breaking the neck one cannot possibly attribute the degree of negligence as ordinary but gross in the circumstances.

The three subjected the deceased to assault negligently causing his death. Precious human life which is a God given and constitutionally guaranteed right was unnecessarily lost.

Upon considering all mitigatory and aggravatory factors and of course the time immemorial sentencing principle of matching the offence to the offender, a custodial sentence is considered appropriate in the circumstances.

We are alive to the State v Muzilawempi Hlupai HB125/17 and State v Landelani Tshuma HB126/17 cases cited and wish to emphasise that the cases are a distinguishable from the present case.

The accused in the cases had to wait for 6 and 7 years respectively for matters to be finalised. It is worth noting that despite that long wait the suspended prison term of 5 years denote the seriousness of the offences which involve loss of life.

For loss of life occasioned by 3 people violently subjecting the deceased to assault, the suggestion of the option of a fine will not only put into disrepute the justice delivery system but is a mockery to the sanctity of human life.

In passing sentence the court in exercising its sentencing discretion is duty bound to consider all circumstances and seek to match the offence to the offender tempering justice with mercy while ensuring that justice is done.

It should be made clear to the society that disputes of whatever kind and manner cannot and should not be resolved by violence as this culminates, in most cases loss of life as occurred here.

What further aggravates this offence is the fact that it is a culpable homicide related to domestic violence. The family and home should be a safe and peaceful abode not a volatile and scary abode.

Given the totality of the circumstances it is our considered view that each accused be sentenced as follows:

Each 3 years imprisonment of which one and a half years imprisonment is suspended for 5 years on condition accused does not within that period commit any 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

Bere Brothers, 1st accused's legal practitioners

Chibaya & Partners, 2nd accused's legal practitioners

Henning Lock, 3rd accused's legal practitioners

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