MAKONESE
J: The
accused was charged with the crime of murder; it being alleged that
on 19 December 2014 at Mabutho Ncube's homestead, Nyambane Village,
Gulathi area, Matobo, the accused did wrongfully and unlawfully kill
and murder Mabutho Ncube a male adult who was aged 35 years, by
striking him with a log on the head.
The
accused pleaded not guilty to the charge and tendered a limited plea
of guilty with respect to the lessor charge of culpable homicide.
The
State accepted the limited plea and tendered a Statement of Agreed
facts (Exhibit 1).
The
brief facts are that on 18 December 2014, the accused and the
deceased who were husband and wife had a misunderstanding over the
accused's disappearance from their matrimonial home without the
deceased's knowledge. The deceased did not accept the accused's
explanation. On the following day, on 19 December 2014 around 2000
hours the accused and deceased had a physical confrontation. Harsh
words were exchanged between the parties. The accused alleges that
the deceased threatened to stab her with a knife. In anger, the
accused picked up a log and struck the deceased twice on the head.
The accused disappeared from the scene.
On
20 December 2014 accused phoned deceased's brother and informed him
that she had fought with deceased and struck him with a log. On 21
December deceased's brother proceeded to deceased's homestead
where he found the deceased naked and lying in a pool of blood, dead.
The deceased had succumbed to the injuries sustained in the
assault.
The
post mortem report (Exhibit 2) reveals that the cause of death was:
(a)
subarchnoid haemorrhage.
(b)
depressed skull fracture.
(c)
blunt force trauma head.
(d)
homicide.
The
pathologist concluded from the examination that the cause of death
was consistent with a blunt force trauma with a heavy and blunt
object.
On
external examination the following marks of violence were observed:
(i)
abrasion on left hand (2cm x 2cm);
(ii)
swelling on hand;
(iii)
blood on the face, neck, shoulders and forearm;
(iv)
lacerations below right eye (2cm);
(v)
laceration on left frontal (4cm) and left parietal (6cm).
The
court is satisfied that the accused acted negligently in causing the
death of the deceased. Accordingly, the accused is acquitted on the
charge of murder, and found guilty in respect to culpable homicide.
Mitigation
Counsel
for the accused argued that the court must be lenient with the
accused. She was aged 29 years at the time. She is now 30 years old.
She has some unique family responsibilities in that she has three
minor children aged 13 years, 11 years and 8 years respectively.
These children are from a previous marriage. The father of the
children is now late. She had no children with the deceased. Her
children are now in the care and custody of accused's mother who is
disabled. The court is urged to take into account that accused is
sorry and regrets what happened. She apologized to the family of the
deceased for this unfortunate loss of life. The accused did not waste
the court's time by putting up false defences which would have
necessitated a full trial. The accused has been in remand prison
since 27 December 2014 and has thus already been punished for her
wrongful conduct.
The
court must also take into account accused's moral blameworthiness
regard being had to the circumstances that led to the fatal assault.
Although accused concedes that she exceeded the bounds of self
defence it must be noted that she was threatened with a knife by the
deceased and that there was a physical confrontation between the
parties.
Aggravation
The
State argued that a custodial sentence is the only appropriate
sentence. The deceased evidently sustained very serious injuries. The
accused must have exerted severe force when striking the deceased
twice on the head. The courts have always stated and restated that
domestic disputes must be resolved amicably and that parties must not
resort to violence. The court is urged to uphold and preserve the
sanctity of human life.
Reasons
for sentence
In
arriving at an appropriate sentence the court must always strive to
strike a balance between the interests of the accused person and the
societal expectations. The court will not impose sentences that tend
to bring the administration of justice into disrepute or that lead
society to lose faith in the justice delivery system. The sentence
must always fit the offender and be appropriate regard being taken of
all circumstances surrounding the commission of the offence.
The
court takes into account all the mitigating features of the case as
argued by accused's defence counsel. There are certain mitigating
features of this case which the court may not ignore, namely:
(a)
there was a misunderstanding between the parties.
(b)
The attack on deceased was not a premeditated.
(c)
There was evidence of prior violence between the parties and accused
was threatened with a knife.
(d)
The accused acted at the spur of the moment and in the heat of
frustration.
There
are however some aggravating features of the case which show that the
moral blameworthiness of the accused is on the high side, namely:
(a)
The injuries reflected on the post mortem report show that deceased
sustained serious injuries.
(b)
The accused struck the deceased twice on the head using a log.
(c)
The degree of force exerted upon the deceased's head must have been
severe for accused to suffer a depressed skull fracture and
subarchnoid haemorrhage.
(d)
The accused fled the scene after the incident and did not render
assistance.
(e)
Accused did not make a timeous report and deceased's body was only
discovered two days after the fatal assault.
The
courts are dealing with cases of domestic violence at an alarming
rate. Hardly a day passes without an incident being reported of a
couple being involved in case of fatal domestic violence, leading to
loss of life. The message from the courts should, and must be that
violence is not tolerated as a means of resolving disputes. Violence
has no place in a modern society and the courts must uphold the
sanctity of human life.
I
do concur with both defence and State counsel that a custodial
sentence is the only appropriate sentence.
In
the circumstances, the accused is sentenced as follows:
“4
years imprisonment of which one is suspended for 5 years in condition
accused does not within that period commit an offence of which
violence is an element and for which she is sentenced to a term of
imprisonment without the option of a fine.
Effective
sentence (three) 3 years imprisonment.”
National
Prosecuting Authority's Office,
the State' legal practitioners
Messrs
T. Hara and Partners,
accused's legal practitioners
