On the question of sentence, counsel for the appellant
sought to argue that the appellant was a youthful offender who had been misled
by his accomplice.
Counsel for the appellant pursued this argument on the
misapprehension that the appellant was younger than his accomplice. However,
when it was pointed out to him by the court that the appellant was in fact
older than his accomplice he abandoned his submission and conceded that the
court a quo had correctly found that there were no extenuating circumstances.
The trial court was aware of the principle that
youthfulness is an extenuating factor provided that the actions of the offender
are consistent with immaturity.
In respect of the appellant, the court a quo stated the
following:
“In this case, we have considered all the factors which may
be regarded as extenuating and weighed them against the aggravating factors.
Youthfulness, as already indicated, is the main extenuating issue. However, as
against this factor, the assault was gruesome. It was an attack by two people
on an old man aged 71 years, using metal rods that have been produced as
exhibit 8 and as we have found there was no need to be so vicious in order to
steal from this old man.
After killing the deceased, the accused buried him in a
shallow grave and stole his property and loaded it into his vehicle and drove
off. They covered the shallow grave with asbestos sheet in order to conceal
their offence. We consider that the aggravating features in this case outweigh
those that tend to reduce the accused's moral blameworthiness, and, in the
circumstances, we find that extenuating circumstances do not exist.”
It is the view of the court that the learned judges'
reasoning cannot be faulted.
It has been stated on numerous occasions that murder
committed in the course of a robbery is likely to disentitle an offender of a
finding of extenuating circumstances and attract the death penalty unless there
are weighty extenuating circumstances.
In S v Sibanda 1992 (2) ZLR 438 (S)…, GUBBAY CJ said:
“Warnings have frequently been given that in the absence of
weighty extenuating circumstances, a murder committed in the course of a
robbery will attract the death penalty. This is because, as observed in S v
Ndlovu SC34-85 (unreported):
'…, it is the duty of the courts to protect members of the
public against this type of offence which has become disturbingly prevalent.
People must feel that it is possible for them to enjoy the sanctity of their
homes, to attend at their business premises, or to go abroad, without being
subjected to unlawful interference and attack.'”
In this case, the deceased, who lived alone, was a harmless
old man, aged seventy-one (71) years, who could have been subdued by the appellant
and his accomplice without killing him. The assault on the deceased was vicious
and totally unnecessary.
The court is satisfied that the trial court did not
misdirect itself in finding that no extenuating circumstances existed in
respect of the appellant
Accordingly, the appeal is dismissed.
