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.
