Sentencing re: Approach iro Medical Considerations

HB30-13 : THE STATE vs WITNESS SIBANDA
Ruled By: MAKONESE J

We note that the accused is now aged 45 years and it has been submitted that he is HIV positive although no medical evidence was placed before the court. We therefore there cannot accept the medical condition of the accused in the absence of some evidence in the form of hospital cards or ...

HB46-11 : SAMUEL MUUNGANIRWA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

The appellant's plea that he is in a critical health condition cannot be taken too far. He told the court during the hearing of the appeal that he was HIV Positive and was receiving anti-retroviral medication in prison. He was in that condition when he committed the crimes that he has been convicted of. ...

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

As regards sentence, the appellant contended before us that the court a quo erred in holding that a custodial sentence was the only appropriate sentence and in disregarding the mitigatory circumstances, advanced before the Magistrates' Court, in relation to the appellant's health. In that court, no medical evidence was adduced to establish the appellant's ...

HMA32-18 : THE STATE vs NORMAN MAHACHI
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and DAURAMANZI

It is an important mitigatory factor that the accused is HIV positive and is on ARV treatment. We take judicial notice that the current economic challenges have not spared our prison facilities. The resources in prison, like proper diet and medical care, are not easily available. This would greatly compromise the accused's health moreso as he ...

HH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

The submission by counsel for the accused that imposing a custodial sentence upon the accused, who is HIV positive, will result in her CD4 receding because of harsh conditions obtaining in prison was adequately addressed by counsel for the State when he submitted that prisoners receive medical care in prison ...

HB88-12 : THE STATE vs LOVEMORE ZULU
Ruled By: MAKONESE J

Address in mitigation by the defence counsel:...,.The accused is HIV positive (do not have medical proof).

HH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

It was also submitted that the accused was HIV positive....,.The accused is HIV positive. Fortunately, medicine has now made inroads and there is medication which controls the condition. Being HIV positive is no longer a sure death sentence as it used to be.

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI
Ruled By: CHITAPI J

The first accused was said to be HIV positive. Thankfully, medicine has made inroads in controlling the medical condition which used to be a sure death eventuality. The accused can continue to access his HIV medication in prison.

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

SentenceThe accused is 54 years old. She has been convicted of a serious offence. The court shall take into consideration the weighty mitigating features of the case as outlined by the accused's legal counsel.The accused is a first offender who has pleaded guilty to culpable homicide. The accused has shown ...

Sentence

The accused is 54 years old. She has been convicted of a serious offence. The court shall take into consideration the weighty mitigating features of the case as outlined by the accused's legal counsel.

The accused is a first offender who has pleaded guilty to culpable homicide. The accused has shown genuine remorse and contrition. She has taken full responsibility for her conduct. She has not sought to deny the charges even when she was aware that State witnesses were not readily available in this matter.

The court takes into account the fact that this case has taken an inordinate period of time before it was finalised. The delays are entirely not the fault of the accused person.

The court will not, however, lose sight of the fact that a juvenile aged three (3) years lost her life.

The accused acted violently against a young child. Even if the court were to accept that the accused acted out of anger, and not sheer vengeance, it is difficult to understand the accused's conduct.

The deceased was helpless. She was subjected to a brutal and sustained attack that left her with a skull fracture and subdural haematoma.

There is clear evidence that excessive force was used in the assault.

Parents stand in loco parentis to their children. The accused was expected to have protected the minor child and not to brutalise her. The accused's conduct is most reprehensible.

Had it not been that the accused is elderly and suffers from high blood pressure, a custodial sentence would have been appropriate: see State v Agnes Chipika HB129-17 and State v Sibanda HB67-15.

The remarks I made in those cases are relevant in the present case.

However, as I mentioned in the case of State v Mutopa HB127-17, nothing would be achieved by sending an elderly, female first offender to prison.

In State v Agnes Chipika HB129-17 and State v Sibanda HB67-15, the accused persons were aged 36 years and 23 years respectively. The court found it appropriate to impose custodial sentences in those cases after considering the ages of the accused.

In this matter, we find that an effective custodial sentence would be inappropriate.

The sentence imposed in every case must fit the offence and the offender. The sentence must meet the ends of justice.

In the result, and accordingly, it is ordered as follows:

“Accused is sentenced to 36 months imprisonment of which 24 months imprisonment is suspended for 5 years on condition accused does not within the period commit an offence involving violence and for which upon conviction accused is sentenced to imprisonment without the option of a fine.

A further 12 months imprisonment is suspended on condition accused completes 420 hours community service at Batanai Old Peoples Home, Gweru on conditions set out by the Probation Officer.”

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU
Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

We were advised that the accused suffers from chronic pain arising from a hip problem where he was injured while employed by Triangle Limited. The severity of this injury could not be ascertained as no further medical details were availed.

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Law Portal
Zimbabwe

Sentencing re: Approach iro Medical Considerations

HB30-13 : THE STATE vs WITNESS SIBANDA
Ruled By: MAKONESE J

HB46-11 : SAMUEL MUUNGANIRWA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

HMA32-18 : THE STATE vs NORMAN MAHACHI
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and DAURAMANZI

HH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HB88-12 : THE STATE vs LOVEMORE ZULU
Ruled By: MAKONESE J

HH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI
Ruled By: CHITAPI J

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU
Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

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Law Portal Zimbabwe

Sentencing re: Approach iro Medical Considerations

HB30-13 : THE STATE vs WITNESS SIBANDA Ruled By: MAKONESE J

HB46-11 : SAMUEL MUUNGANIRWA vs THE STATE Ruled By: KAMOCHA J and CHEDA J

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

HMA32-18 : THE STATE vs NORMAN MAHACHI Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and DAURAMANZI

HH190-16 : THE STATE vs FORTUNATE NSORO Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HB88-12 : THE STATE vs LOVEMORE ZULU Ruled By: MAKONESE J

HH794-16 : STATE vs EDMORE KARADZANGARE Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI Ruled By: CHITAPI J

HB30-20 : THE STATE vs ESTHER MOYO Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA

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Law Portal
Zimbabwe

HB30-13 : THE STATE vs WITNESS SIBANDA
Ruled By: MAKONESE J

HB46-11 : SAMUEL MUUNGANIRWA vs THE STATE
Ruled By: KAMOCHA J and CHEDA J

SC44-14 : FUNGAYI NYANGARI and HEATHER SHAMU vs THE STATE
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

HMA32-18 : THE STATE vs NORMAN MAHACHI
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and DAURAMANZI

HH190-16 : THE STATE vs FORTUNATE NSORO
Ruled By: CHITAPI J and ASSESSORS: SHENJE and BARWE

HB88-12 : THE STATE vs LOVEMORE ZULU
Ruled By: MAKONESE J

HH794-16 : STATE vs EDMORE KARADZANGARE
Ruled By: CHITAPI J and ASSESSORS: CHIDYAUSIKU and BARWA

HH09-17 : THE STATE vs TAPIWA CHITSUNGO and PROSPER MUBVONGI
Ruled By: CHITAPI J

HB30-20 : THE STATE vs ESTHER MOYO
Ruled By: MAKONESE J and ASSESSORS: MATEMBA and BAYE

HMA04-19 : THE STATE vs NHEMA NYAMAYEVHU
Ruled By: MAWADZE J and ASSESSORS: NISH and CHADEMANA