The two accused were arraigned before this court on a charge of murder; it being alleged, that, on 1 January 2016, around 00:30 hours at Home Plus Bottle Store in Bromley, NRZ Quarters, they unlawfully and intentionally murdered Blessing Tondodza by head butting, kicking, and assaulting him with a jacaranda ...
The two accused were arraigned before this court on a charge of murder; it being alleged, that, on 1 January 2016, around 00:30 hours at Home Plus Bottle Store in Bromley, NRZ Quarters, they unlawfully and intentionally murdered Blessing Tondodza by head butting, kicking, and assaulting him with a jacaranda switch and a metal fluorescent lamp holder on his head thereby causing injuries from which the said Blessing Tondodza died.
The first accused tendered a limited plea of guilty to culpable homicide whilst the second accused had changed his mind and applied for separation of trials on account of his election to proceed with the murder trial.
The separation was granted and the State proceeded with the limited plea in relation to the first accused but did not address mitigation and aggravation pending the finalisation of the trial of the second accused.
However, overnight, the second accused had a change of heart regarding proceeding with the murder trial, opting instead to proceed with the limited plea.
His counsel…, explained that he had been summoned by prisons, at the behest of the second accused, who now wished to tender a limited plea of guilty with respect to culpable homicide.
The State conceded to the application in view of its position, that, from the facts, the second accused was clearly guilty in his actions of the lesser crime of culpable homicide.
This court granted the application by the second accused, to change his plea, as it was of the view, that, on the facts, it was indeed properly made.
The Statement of Agreed Facts (annexure 1) as applicable to both accused in light of their limited plea, though initially dealt with separately mutatis mutandis, were as follows:
1. The first accused, Naison Chayambuka, resides at NRZ Quarters, Bromley, Goromonzi whilst the second accused, Moses Mususa, resides at Bromley Tobacco Graders Compound, Goromonzi.
2. The deceased, Blessing Tondodza, was a male adult and resided at Adiusa Farm, Bromley.
3. On 1 January 2016, both accused persons and the complainant were patrons of Home Plus Bottle Store, Bromley together with other revellers.
4. One of the patrons, Prosper Matseketu, picked an argument with the bar lady, Catherine Shava, over US$0.50 change which the deceased said he was owed. The argument escalated ending in the first accused intervening in a bid to verify. As the first accused was interrogating Prosper Matseketu the deceased confronted him.
5. The deceased then struck the first accused with a fist once on the face and the first accused reacted by head butting the deceased three times on the face. The deceased then struck the first accused with a water glass before he bolted out of the bottle store with the first accused in hot pursuit.
6. The second accused, Moses Mususa, joined in the chase and the two caught up with the deceased at NRZ Bromley Quarters. The second accused, who was armed with a fluorescent light metal holder, struck the deceased once in the head. The accused also kicked the deceased on the head as the deceased lay on the ground. Other people who had followed the parts pleaded with the accused persons to stop assaulting the deceased. They complied.
7. The deceased died on the spot and a post mortem report was later conducted, on 7 January 2016, by Dr Pesanayi. He concluded the cause of death as follows:
(i) Haemorrhagic shock;
(ii) Stab wounds; and
(iii) Assault.
The following exhibits were produced by the State in the following order:
(a) The postmortem report (exhibit 1);
(b) The confirmed warned and cautioned statement by the first accused (exhibit 2);
(c) The sketch plan (exhibit 3);
(d) The confirmed warned and cautioned statement by the second accused (exhibit 4);
(e) The metal fluorescent lamp holder (exhibit 5);
(f) The jacaranda tree switch (exhibit 6);
It was agreed that the accused persons negligently caused the death of the deceased.
Both defence counsel confirmed that all the essential elements of culpable homicide had been explained to the accused who had understood them and that the limited plea of guilty to culpable homicide was genuinely made.
The court, in both instances, returned a verdict of guilty to the lesser charge of culpable homicide as pleaded.
The defence counsels addressed the court on mitigation....,.
For the first accused, additionally, the fact that the offence was not pre-meditated but rather one that arose from an act of provocation was equally regarded as a factor to be stirred into the pot of leniency.
The court's attention was drawn to the case of S v Silent Kazembe HH378-15 in which the court held that provocation, or the lack of premeditation, should not be ignored when determining an appropriate sentence.
In that case, which had come on review from the lower court that the latter had imposed a sentence of seven years imprisonment. On review, the court, in analysing mitigatory factors, reduced the sentence to three years.
Counsel for the first accused highlighted, however, that, in that case, the accused had compensated the deceased's relatives and assisted at the funeral - factors which may have further nudged the court towards a more lenient altered sentence.
The accused herein was said not to have been in a position to render such assistance because he was in custody at the time of the funeral.
The case of S v Nhongo HH52-03, where the accused were sentenced to 7 years for each count for culpable homicide arising from a provoked assault was also drawn to this court's attention.
Accordingly, counsel for the first accused deemed a sentence of six years imprisonment with one year suspended on the usual conditions to be appropriate in the present circumstances....,.
Counsel argued, on behalf of the second accused, that, the range of sentencing in cases of this nature was between 5 to 8 years with the actual sentence depending on the circumstances of each case....,.
The State, in turn, addressed the court on aggravation.
Counsel for the State highlighted the convergence of the personal circumstances of both accused in terms of age and family realities. The inebriation of the accused persons, as contributing to the offence, was noted, but, at the end of the day, he emphasised the sanctity of human life which had been lost.
In aggravation, he highlighted that the deceased had managed to make good his escape from the scene of the scuffle but had been followed in a determination to cause him harm.
The injuries he had sustained had been serious as evidenced by the fact that he had died almost instantly from the assault.
The post-mortem report also spoke to the gravity of the injuries being the cause of death.
As such, he placed emphasis on the fact that had it not been for the actions of the accused persons, death would not have occurred.
Equally aggravatory was deemed to be the absence of compensation of any sort paid to the deceased's family in keeping with cultural expectation where a loss of life has been inflicted. This was said to be indicative of a lack of contrition on the part of both accused persons.
Furthermore, no assistance had been rendered to the deceased following the assault. He was left still alive and died thereafter: S v Jaure 2001 (2) ZLR 393 was drawn on the need for assistance as an act of repentance.
Furthermore, as regards the second accused, counsel for the State argued, that, far from his time in custody justifying a somewhat lesser sentence to the first accused, his moral blameworthiness was said to be higher in that it was him who had struck the deceased with the metal fluorescent light pole and the jacaranda switch stick.
The first accused, on the other hand, assaulted him with booted feet.
He therefore argued, that, the two, at the end of the day, should still be treated equally even whilst taking into account the longer time spent in custody by the second accused.
Whilst a plea of guilty was acknowledged as a persuasive factor for a lenient sentence, he argued that both accused had started on the deep end of the pool.
In urging for a crisp penalty, counsel for the State argued, that, it behoves the courts to play their role in public order by meting out a sentence that maintains public confidence in the justice delivery system. Given the rising incidents of murder in society, and to dissuade the public from taking the law into their own hands, a rehabilitative stint in prison was inevitable.
The sentence he prayed for as sufficient to meet the justice of this case was 8 years with two suspended.
Reasons for sentence
When people are unlawfully killed, no doubt it aggravates the offence.
I am in agreement that the courts need to send a firm message about the dangers of resolving disputes through violence. The courts should not encourage a culture of violence as a dispute resolution mechanism. As stated in the case of State v Bonginkosi Sibanda HB91-12, sentences imposed must send a clear signal to society that violence of individuals against other human beings is not tolerated and that society needs to be protected against unlawful attacks on other persons.
When a lack of diligence to prevent or respond to interpersonal violence is apparent, then the courts, as organs of the State responsible for passing effective sentences, could be found wanting. Not only is inter-personal violence an obstacle to peace and security but it is also crucial that it be discouraged in the strongest terms as a considerable amount of resources, both legal and social, that could be used for constructive programmes, end up being diverted towards addressing issues arising from such violence.
Having said, there should always be a balancing act because it is still crucial that the punishment of any accused person fits the crime and the offender.
As stated in S v Shoriwa 2003 (1) ZLR 314 (H):
“Whatever the gravity of the crime and the interests of society, the most important factors in determining the sentence are the person, and the character and circumstances of the crime: S v Dualvani 1978 (2) PH, H176 (O).
The determination of an equitable quantum of punishment must clearly bear a relationship to the moral blameworthiness of the offender. However, there can be no injustice where, in weighing the offence, offender, and the interests of society, more weight is attached to one or the other of these, unless there is overemphasis of one which leads to disregard of the other…,.”
Also, in arriving at an appropriate sentence, this court cannot lose sight of the fact that culpable homicide is ultimately a crime in which the perpetrator is unaware of the substantial and unjustifiable consequences that will result from his actions.
As defined in section 49(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], a person who negligently fails to realise that death may result from his conduct is guilty of culpable homicide.
Also, even where a person realizes that death may result from his or her conduct, it is the negligent failure to guard against such conduct that gives rise to culpable homicide.
The point is, ultimately, in such circumstances, a person is less culpable....,.
I am in agreement with defence counsels as well as the State that the sentence range in such cases is indeed anything from 6-8 years....,.
Accordingly, each of the accused are sentenced as follows:
Seven (7) years imprisonment of which 2 years is suspended for five years on condition accused is not within that period convicted of an offence of which violence is an element and for which he is sentenced to imprisonment without the option of fine.
Effective sentence: 5 years imprisonment.
