The accused is..., found guilty as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: that is, murder with constructive intent....,.SENTENCECounsel addressed the court in mitigation and aggravation.None of them made submissions in respect to whether or not the accused committed the murder in aggravating ...
The accused is..., found guilty as charged under section 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]: that is, murder with constructive intent....,.
SENTENCE
Counsel addressed the court in mitigation and aggravation.
None of them made submissions in respect to whether or not the accused committed the murder in aggravating circumstances.
The court, following a conviction for murder, must make a determination as to whether or not the murder was committed in aggravating circumstances.
Such circumstances, without limitation of other factors which the court may take into account as constituting aggravating circumstances, are set out in section 47(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
None of the factors were present in this case and neither did the court consider that there were other factors present which could be classified as aggravating circumstances for purposes of applying the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act as aforesaid.
It is not necessary to cite extenso the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act and it suffices to incorporate them, by reference, they having been considered and found absent on the facts found proved.
The importance of making a finding on the presence or absence of aggravating circumstances following a conviction for murder is twofold:
(i) Firstly, it enables the court to properly exercise its discretion whether or not to impose the death sentence. The death sentence can only be imposed in the court's discretion in circumstances where a murder is committed in aggravating circumstances.
The provisions of section 337(1) of the Criminal Procedure and Evidence Act are instructive.
Where aggravating circumstances are not present, the death penalty cannot be imposed but imprisonment for life or “any sentence other than the death penalty.”
The “any other penalty” must be interpreted taking into account the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act which provides, that, where a murder is committed in the absence of aggravating circumstances, the court is obliged to impose a sentence of imprisonment for any “definite period.”
(ii) Secondly, the importance of the court making a finding on the presence or absence of aggravating circumstances arises from the fact that section 47(4)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the imposition of a minimum sentence of 20 years upon an offender convicted of murder committed in aggravating circumstances where the court, in the exercise of its discretion, is disinclined or not disposed to impose the death penalty.
The court enquired of both the State and defence counsels as to whether, by not addressing the issue of whether the murder was committed in aggravating circumstances, they were agreed that there were no aggravating circumstances as envisaged in section 47(2) of the Criminal Law (Codification and Reform) Act.
Counsel had apparently not been aware of the provisions of section 47(2) of the Criminal Law (Codification and Reform) Act and had thus not addressed the court on the issue.
The court referred counsel to section 47(2) of the Criminal Law (Codification and Reform) Act, and, after going through its provisions, State counsel conceded that he could not advance any argument for a finding that the murder was committed in aggravating circumstances for the purposes of section 47(2) of the Criminal Law (Codification and Reform) Act aforesaid.
As already indicated, the concession coincided with the prima facie observation of the court on the absence of aggravating circumstances in the commission of the murder.
The court will therefore determine the appropriate sentence on the basis that it is at large, subject to the provisions of section 47(4)(b) of the Criminal Law (Codification and Reform) Act, to impose a sentence of imprisonment upon the accused of such length as it considers appropriate taking into account the objective circumstances surrounding the commission of the offence and balancing them with the accused's personal circumstances and the interests of society.
The interests of society require that the provisions of Chapter 4 (Declaration of Rights) of the Constitution should be upheld. Section 44 of the Constitution reads as follows;
“44 Duty to respect fundamental human rights and freedoms
The State and every person, including juristic persons, and every institution and agency of the Government, at every level, must respect, protect, promote and fulfil the rights and freedoms set out in this chapter.”
The right to life is a fundamental human right and the court, as an agency of Government must give effect to section 44 of the Constitution when imposing sentence upon an offender convicted of murder or violating another's person's right to life as set out in section 48 of the Constitution.
Although this case was committed in 2011, before the promulgation of the present 2013 Constitution, nothing turns on this because the determining period, in terms of section 48 of the current Constitution, is the time of sentence.
Even if argument were to be raised to the contrary, and barring further arguments which could arise as a result of the savings and transitional provisions of the Constitution, in section 18 of the 6th Schedule, on the applicability of this Constitution to cases committed before the Constitution came into office, the position of the accused would not be any better, since, under the previous Constitution, not only was the right to life classified as a fundamental human right, but, legislation then in force made the imposition of a death penalty for murder mandatory in the absence of extenuating circumstances.
The above said, what is not debatable is that societal interests call upon the courts to impose sentences, in murder cases, which emphasize society's abhorrence for persons who commit murder.
Sentences imposed for murder must send a clear message to the accused, and would-be offenders, that the sanctity of human life should be held sacrosanct.
Whilst human rights are indivisible and interdependent, the right to life must rank as the mother of all human rights because without respecting and promoting it, society is decimated, and without society, there can be no human rights to enjoy, protect, promote, or fulfil.
The accused therefore committed a very serious offence in that it deprived society of one of its members.
It must go without argument, and as properly conceded by both counsel, that the offence committed by the accused is of serious proportions.
Despite the acceptance of the seriousness of the offence, and the finding that societal interests must take centre stage in sentencing an offender for the offence of murder, a court should not be retributive.
The remarks of HOLMES JA, in S v Rabie 1975 (4) SA 855, at 861-2, should always be embraced by every sentencer.
The learned judge reminded every sentencer of the importance of being fair to both the convict and society. He emphasised that justice included the element of mercy and that the latter was the hallmark of a civilised society and enlightened criminal justice system.
CORBETT JA, in the same judgment, at page 866, stated;
“A judicial officer should not approach punishment in a spirit of anger, because, being human, that will make it difficult for him to achieve that delicate balance between the crime, the criminal, and the interests of society which has task and the objects of punishment demand of him. Nor should he strive after severity, nor, on the other hand, surrender himself to misplaced pity.
Whilst not flinching from firmness, where firmness is called for, he should approach his task with a humane and compassionate understanding of human frailties and the pressures of society which contribute to criminality.
It is in the context of this attitude of mind that l see mercy as an element in the determination of the appropriate punishment in the light of all the circumstances of the particular case.”
I must, at once, say that I defer to the dicta by the learned judgement as they commend themselves as pointedly very instructive and jurisprudentially beyond reproach.
The court will be guided accordingly.
Following on the court's embrace of the above approach, it must follow, as stated in S v Zinn 1969 (2) SA 537 (A), that, in assessing sentence, the court must have regard to the offender, the offence, and the interests of society in the imposition of an appropriate sentence.
So far as l stand informed of the court's approach to sentence in this jurisdiction, the approach in the quoted cases relate with the Zimbabwean approaches and indeed with sentencing trends in other jurisdictions where the court exercises a discretion on what sentence to impose for the specified offence.
The accused is a married and mature adult aged 56 years old. He would have been 49 years when the offence was committed. 49 years would still classify him as a mature adult.
He committed a crime of passion in that he suspected the deceased to be promiscuous and that she frequented bars.
At his age, the accused would have been expected to hold his emotions in check and not resorted to violence.
His behaviour betrayed his deemed maturity and expected measured approach to dealing with such problems. Society does not expect mature adults to lose their heads and act irrationally when resolving disputes.
The deceased suffered a lot of pain, as evidenced by the burn degrees which were assessed, initially at 35%, and then 76%.
The burns were so serious that the local district hospital at Chivhu could not treat them and referred the victim to Harare Central Hospital.
The burns were life-threatening, and, as the court found, it was not disputed, in evidence, that the victim died from the burn injuries as charged in the indictment.
The use of paraffin, and setting the deceased ablaze, was clearly an act of barbarism.
The purpose of burning something is to destroy it or change its state.
This is why the court ruled that the accused must have appreciated and did foresee the risk of serious injury or death resulting from the use of paraffin and setting the deceased ablaze.
Many a time, the courts have encouraged, in their judgments, that, domestic disputes should be solved amicably. This can be achieved, firstly, by embracing and respecting each other's rights to privacy and dignity and talking over problems instead of using the rod to instil discipline in the other spouse.
The use of violence by one spouse on another cannot be a panacea to fixing a problem or dispute. Dialogue should be the route to follow.
The behaviour of the accused did not only cost a life but has created animosities within the family of the deceased and his own; with the former now looking upon the accused as a murderer.
The death of a human being is not a small matter which can be brushed under the carpet.
The accused himself will forever live in regret carrying the stigma of a murderer. This is a form of punishment. It amounts to psychological torture that will eternally torment him for life.
In his submissions in mitigation, the defence counsel referred to several cases in this jurisdiction dealing with sentence for murder committed with constructive intent.
The cases predate the promulgation of the 2013 Constitution.
What was referred to then as constructive intent would, more or less, equate to what is envisaged in section 47(1)(b) as read with section 15 of the Criminal Law (Codification and Reform) Act which defines “realisation of a real risk or possibility” as an element of a crime and section 17 which sets out the test for the quoted phrase of the Criminal Law (Codification and Reform) Act.
Constructive intent, in a sense, is the antithesis or converse of actual intent, in that a person is said to have constructive intent where he committed an act in circumstances where he foresaw the risk or possibility of the end result as an eventuality and proceeded with his or her conduct regardless.
The cases which counsel cited, including S v Mukome 2008 (1) ZLR 314; S v Ncube SC149-04; S v Scluli HH146-04; S v Madzima SC70-01; and S v Moyo HB26-20, were all distinguishable on the facts from the case in casu.
In S v Shavi HB124-17, MAKONESE J emphasized that courts should not condone the use of violence as a means of resolving domestic disputes.
The accused, in that case, murdered his wife following a domestic dispute. The accused struck the deceased on the head several times as she lay on the bed. He fled the scene without rendering assistance. A sentence of 20 years imprisonment was imposed.
Other than adding the court's voice to that of MAKONESE J, for parties not to resort to violence in settling domestic disputes, the court is not persuaded to impose a similar sentence herein because the facts are different.
The accused, in casu, denied committing the offence and thus was not remorseful for his conduct.
The court was not placed in a position, because of the denial, to determine the proximate cause for the accused's reaction. This is not to say that the accused should have admitted committing the offence. It was his constitutional right to plead the denial and no adverse inference should be drawn from the denial.
The point made is that where the accused denies committing the offence charged, but the court convicts; it becomes difficult for the accused to turn around and adduce mitigating facts connected with the commission of the offence.
Equally, the court has no facts connected with the commission of the offence as would mitigate the accused's conduct in explaining the rationale for this conduct.
As regards individual deterrence, there was no evidence led to suggest that the accused is of a violent disposition.
He is a first offender.
There is, therefore, on his past, no evidence of propensity or disposition to commission of crimes.
As regards general deterrence, it has already been noted, that, the courts must shun and deprecate domestic violence. Sentences for crimes which arise from domestic violence must be severely punished as a mark of society's abhorrence for such crimes.
Engaging in love relationships and marriages should cease to be looked upon as an antecedent of domestic violence. The relationships should not be considered as a licence for couples to engage in acts of violence or abuse of each other or their families.
In the case of the accused, he and other like-minded people must understand that the exercise of marital power, to the extent that it may still exist in regard to other facets of life, does not extend to committing acts of violence over those over whom the accused and other like minded persons may consider they are entitled to exercise marital power over them.
A factor which weighs heavily in favour of the accused is the prima facie unreasonable delay in bringing this case to trial.
The defence counsel did not invoke the provisions of section 167A of the Criminal Procedure and Evidence Act for the court to enquire on the delay.
Be that as it may, the issue was raised in mitigation.
It was submitted, on the accused's behalf, that, from the time that the accused was arrested, on 23 October 2011, he availed himself to stand trial.
A delay of seven (7) years in bringing an arrested person to trial is prima facie unreasonable unless properly justified by the State.
Defence counsel submitted, that, on no less than three (3) previous occasions, the accused had been committed for trial with the trial being aborted for no fault of the accused.
The law provides for criminal trials to be held within a reasonable period, and, where there has been an unreasonable delay in the completion of the criminal proceedings, such factor should be considered as a mitigating factor in assessing sentence.
The State counsel did not deny that the delayed trial was not due to the conduct or fault of the accused. The fault was with the State whose house was not in order.
The delay in this matter is therefore a factor of weighty mitigation.
Another point requiring comment was the suggestion or submission by defence counsel that the accused be sentenced to a term of imprisonment with a portion thereof suspended.
Both sections 47(4)(b) of the Criminal Law (Codification and Reform) Act and section 337 of the Criminal Procedure and Evidence Act, which are the applicable sections informing sentence in this case, in view of the verdict reached, are clear that the death sentence aside, the accused must be sentenced to a definite term of imprisonment for the offence of murder.
Section 358 of the Criminal Procedure and Evidence Act is the one which empowers the court to suspend a portion of sentence imposed on an offender on appropriate conditions.
The power to suspend the whole, or a portion of a sentence, does not apply to 8th Schedule offences, and, murder, in regard to which the conviction in this case relates, is classified as an 8th Schedule offence.
Resultantly, counsel's prayer cannot be granted as it is not sanctioned by law.
In conclusion, general deterrence must be taken as the prime consideration taken together with other factors in this matter.
There is a clear unlikelihood that the accused will repeat the same offence. Individual deterrence is therefore not of much weight other than looked at from the retributive perspective that the accused should feel the pain of punishment for his transgression.
General deterrence should be the core value of society in matters of violence.
The interests of society will not be served by too harsh a sentence inasmuch as they will not be served by too lenient a sentence. A proper balance must be struck using the triad approach set out in S v Zinn 1969 (2) SA 537 (A).
Bearing in mind, and guided by the principle that each case should be decided on its own facts and circumstances, a sentence in the region of 18 years imprisonment would have been appropriate but for the delay in bringing the accused to trial.
The effect of the delay has been such as to persuade the court that a lesser sentence than the 18 years would meet the justice of the case. The following sentence is therefore imposed:
13 years imprisonment.
