This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018. At the conclusion of hearing of the appeal we dismissed ...
This is an appeal against both conviction and sentence. The appellant was convicted of two counts of murder with actual intent committed in aggravating circumstances and sentenced to death by the High Court sitting at Bulawayo on 11 July 2018.
At the conclusion of hearing of the appeal we dismissed the appeal against both conviction and sentence. We indicated that reasons will follow in due course. These are our reasons.
FACTUAL BACKGROUND
The appellant was arraigned before the High Court (court a quo) sitting at Bulawayo facing two counts of murder committed in contravention of section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as the Code) in aggravating circumstances.
The allegations were, that, in January 2017, on two separate dates, the appellant shot and killed Mboneli Joko Ncube and Cyprian Kadzurunga who were his friends.
In the first Count, on 12 January 2017, the appellant picked up his neighbour Mboneli Joko Ncube and one Terence Kajese outside Alasko Supermarket at the corner of Robert Mugabe Way and 11th Avenue in Bulawayo. The appellant was driving his Nissan Gloria motor vehicle registration number ACV 8914. The appellant drove with the two to Burnside where he dropped off Terence after which he drove to Hillside Shopping Centre with Mboneli. The two thereafter drove to number 13 West Mount Road, Burnside, Bulawayo, where, upon arrival, the appellant drew an Optima shotgun serial number 13752 from his motor vehicle and shot Mboneli Joko Ncube twice on the chest.
The deceased died on the spot
After gunning down the deceased, the appellant mutilated his body into various parts before burying some of the dismembered parts in four different shallow graves at that property. He took some of the parts away.
On the second Count, the allegations were that, on 29 January 2017, in the afternoon, the appellant visited the deceased at his home in Queenspark, Bulawayo. The two then left that home on a walk as friends. As the two were walking along a footpath linking Glengary and Queenspark East in Bulawayo, the appellant, again, armed with the same Optima shotgun which he used to shoot Mboneli Joko Ncube, shot Cyprian Kadzurunga twice on the head and abdomen causing his death.
Thereafter, the appellant robbed the deceased of his LG cell phone and Asus laptop which items he later tasked another individual to sell.
The appellant then ferried the body of the deceased in a wheelbarrow to his motor vehicle where he bundled the body into the boot of his motor vehicle before driving to number 13 West Mount Road, Burnside, Bulawayo. When he arrived there, he again buried the body at that address after hiring two individuals to dig a shallow grave which he misled them to believe was for other innocuous purposes. The appellant also took some body parts before burying the body in the shallow grave.
The appellant's defence was to the effect, that, when he killed both deceased persons, he was drinking alcohol, injecting himself with heroine, and also taking crystal meth. It was his defence that he was intoxicated during the commission of the offences.
In the first Count, as he was in the company of the deceased he felt an urge to kill someone and he was of the belief that if he did so he would get crazy. He also indicated, that, after committing the second offence, under the alleged intoxication, he later became sad and regretful for what he had done.
In its detailed analysis of the evidence, the court a quo found, that, the appellant had given contradictory testimony.
In respect of the first Count, the account given in his Defence Outline differed materially from the one he gave in his evidence in chief.
In his evidence in chief, he stated, that, he went to the shops to meet a drug dealer from whom he got heroine and crystal meth. He wanted a convenient, discreet place to take the drugs and the deceased advised him to go to Number 13 West Mount Road, Burnside, Bulawayo where he claimed he then took the drugs and got high.
He claimed, that, after taking the drugs, he started seeing “Lucifer” who then instructed him to kill the deceased, cut up the body, and consume the liver.
He went on to say, that, he did a number of things upon Lucifer's command. It was no longer his own desire to get crazy upon killing someone - per his Defence Outline.
Similar contradictions were noted in respect of the second Count.
He now said he was working under the command of Lucifer - yet this was not in his Defence Outline.
The court a quo also noted, that, under cross examination, the appellant refused to answer critical questions alleging that he had made a pact with Lucifer never to tell anyone.
The court a quo also noted, that, it was not in dispute that the appellant shot and killed the two deceased persons. His only defence was that he did it upon the devil's instruction and he was under the influence of drugs hence his claim that he was mentally unstable at the material time.
The insanity defence was thrown out on the basis, that, the appellant was examined, on 16 November 2017, at the instance of the court itself, and the medical practitioners who examined him concluded that he was fully alert and oriented in all aspects; and that he was mentally stable and fit to stand trial.
The court a quo threw out the appellant's defence and found him guilty of murder with actual intent.
It found, that, the murders were committed in aggravating circumstances that immensely outweighed the mitigatory circumstances. It sentenced him to death in terms of section 47(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as read with section 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07]....,.
The appellant's appeal also related to the sentence imposed by the court a quo.
The court a quo sentenced the appellant to death after considering the manner in which he executed the crimes.
In terms of section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), it is an aggravating circumstance in terms of which a court convicting an accused person may impose capital punishment, if the murder was committed in the course of or in connection with or as a result of the commission of a robbery.
In the second Count, the victim was robbed of his property thus aggravating his case.
Further, it is an aggravating circumstance if the murder was one of a series of two or more murders committed by the accused over any period of time.
In terms of section 47(3) of the Criminal Law (Codification and Reform) Act (the Code), a court may also regard it as an aggravating circumstance, with the same effect on sentence, if the murder was pre-meditated.
In the Court's view, all these circumstances exist in the manner in which the two victims were killed underscoring the very serious nature of the offences.
Two people were killed and their remains disposed of in similar circumstances within a period of only seventeen days in January 2017 pointing to propensity to commit murder. In fact, some of the victims body parts were carted away to an unknown place and the appellant was not willing to disclose where the missing parts were taken to.
Though the appellant claimed to have consumed some of the parts, this was a bare assertion, and, in any case, there were still some parts he refused to account for.
He showed no remorse by refusing to explain what he did with those other missing parts, stating that he had made a vow to “Lucifer” not to speak about what happened.
This bordered on arrogance, as the medical practitioners determined that he was of sound mind to stand trial.
The appellant may have killed the deceased for any other motives, including harvesting of parts for nefarious ritual purposes.
In Muhomba v The State SC57-13…, MALABA DCJ…, reiterated that:
“On the question of sentence, it has been said, time and again, that, sentencing is a matter for the exercise of discretion by the trial court. The Appellate Court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the Appellate Court to interfere with the sentence and assess it afresh. The allegation, in this case, is that the sentence imposed is unduly harsh and induces a sense of shock.”
It is not enough for the appellant to argue, that, the sentence imposed is too severe because that alone is not misdirection and the Appellate Court would not interfere with a sentence merely because it would have come up with a different sentence.
In S v Nhumwa SC40-88 (unreported)…, this court stated that:
“It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is more severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.”
In casu, the appellant has not shown that the court a quo did not exercise its discretion judiciously.
The court considered, that, the manner in which the appellant executed the murders, and covered them up, pointed to someone who was in control of his mental faculties. As such, the penalty imposed upon him was proper in the circumstances.
There is no evidence of mental incapacity to warrant a special verdict.
One does not create mental incapacity by blaming the heinous crimes on 'Lucifer' and refusing to shed more light to critical questions on how the crimes were committed and motives thereof.
The court a quo cannot be faulted for the sentence it imposed.
A point of concern is, that, upon finding the appellant guilty of murder with actual intent on both Counts of murder the court a quo passed one sentence of death.
This is an improper method of sentencing an offender with two or more counts of murder.
A complication would arise if, for instance, the appellant's appeal was to succeed on one Count and fail on the other Count.
Where it is intended to impose a death sentence, the proper approach is to impose the death sentence on each count separately: see S v Dube 1992 (1) ZLR 234 (S).
In as far as the appeal as a whole has no merit, no complication will arise warranting re-sentencing the appellant.
The..., sentence, in respect of both Counts, are hereby confirmed.
