Criminal
Trial (murder reduced to culpable homicide)
MWAYERA
J: The matter came up for
trial with accused being charged for murder as defined in section
47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
When
the charge was put to the accused he proffered a limited plea of
guilty to culpable homicide as defined in section 49 of the Code. The
State accepted the limited plea of culpable homicide. This occasioned
the matter to be stood down for the State and defence counsels to
come up with the Statement of Agreed Facts.
The
Statement of Agreed Facts for completeness sake reflected the
following common cause aspects:
“STATEMENT
OF AGREED FACTS
1.
The accused is a male adult aged 33 and a part time farm labourer. He
resides in Muradzi Village Chief Tandi Rusape.
2.
The deceased was a 49 years old woman who was customarily married to
the accused. They stayed together as husband and wife in Muradzi
Village Chief Tandi Rusape.
3.
The accused and the deceased had an uneasy marriage burdened with
unresolved matrimonial disputes.
4.
On the 14th
of April 2017,
accused
received word of illness from the deceased. The accused returned home
from his workplace. He discovered that the deceased had induced an
abortion. A misunderstanding arose and the deceased became violent.
The accused sought refuge from a neighbour who intervened and calmed
the situation.
5.
Later that night the accused confronted about the pregnancy and
abortion and the misunderstanding deteriorated into a fight.
6.
The deceased used a button stick and clenched fists to assault the
accused. The accused responded by using clenched fists to assault the
deceased. The accused then bolted out of their bedroom and fled from
the homestead.
7.
The deceased pursued and caught up with the accused and their fight
resumed. The deceased was armed with an iron bar which they
ordinarily used to secure their bedroom door with.
8.
The accused wrestled the iron bar from the deceased and struck the
deceased once on the head and she fell down. The accused left the
scene without checking on the condition of the deceased.
9.
As a result the deceased sustained injuries and later passed on.
10.
On the 26th
April 2017 the severely decomposed remains of the deceased were found
and Doctor Roberto Trecu conducted a post mortem examination of the
deceased remains and his findings on the cause of death were
inconclusive. The post mortem report shall be produced as an exhibit.
11.
The accused negligently caused the death of the deceased in that:-
(a)
He struck the deceased once on the head with an iron bar.
(b)
He ought to have foreseen that serious injury or death could occur.
(c)
He failed to act reasonably and ought to have exercised restraint.
(d)
He ought to have sought medical assistance for the deceased.
12.
In the circumstances the accused may be properly found guilty of
culpable homicide.”
The
postmortem report reflecting examination of human remains in advanced
stage of decomposition was also tendered in evidence as exhibit 1.
There
being no contentious aspects and having been satisfied that the
accused was genuinely pleading guilty to the essential elements
and/or components of the offence of culpable homicide, we returned a
verdict of guilty of culpable homicide as prayed for by both
counsels.
Both
the State and defence counsels addressed us in mitigation and
aggravation as a pre-sentencing exercise. Our reasons for sentence
are captioned herein.
Sentence
Sentencing
is a delicate exercise which calls for the judicial officers to
judiciously and cautiously exercise the sentencing discretion. The
sentencing court has a duty to operate on sound principles of
sentencing and be above being swayed by personal feelings. At the end
of it all the end product that is the sentence should not put the
administration of justice into on disrepute and should not break the
offender in a progressive and democratic society which emphasises
rehabilitation more than retribution.
We
subscribe to the sentiments echoed by Holmes
JA
in
S
v
Rubie
1975
(4) SA
855
at 862 when he stated:
“Punishment
should fit the criminal as well as the crime, be fair to society and
be blended with a measure of mercy according to the circumstances
of the case.”
(underlining my emphasis).
In
the case of State
v
Fortunate
Nsoro
HH
190/16 Chitapi
J emphasising on sentencing principles and the need to balance out
societal interests, the accused's interests and the interests of
the administration of justice, cited the case of S
v Harrison
1970 SA 684 (A) at 686 where Anderson
J
at 686 stated:
“Justice
must be done, but mercy not a sledge hammer is its concomitant.”
In
this case, the accused pleaded guilty to culpable homicide as defined
in terms of section 49 of the Criminal Law (Codification and Reform)
Act. The accused as correctly pointed out by the State counsel Mr
Musarurwa
stands convicted of a serious offence where precious human life was
lost in domestic violence. The accused unlawfully caused the death of
his wife in circumstances where this human life loss could have been
avoided. Paragraph 8 of the Statement of Agreed Facts sates:
“The
accused wrestled the iron bar from the deceased and struck the
deceased once on the head and she fell down. The accused left the
scene without checking on the condition of the deceased.”
Given
this was in open space the accused could have, after disarming the
deceased made good escape. The accused's degree of negligence in
the circumstances is high given he struck his wife with an iron bar
on the head, a vulnerable part of the body and the body was only
discovered later in an advanced state of decomposition as evidenced
by the post mortem report by Dr Roberto exhibit 1.
The
moral blameworthiness of the accused in this case cannot be minimised
by the fact that the Statement of Agreed Facts reveals that the
couple lived a marital relationship characterised by matrimonial
disputes and domestic violence. The society condemns violence of all
forms given the social ill that go with domestic violence. It is not
in dispute that in most cases where there is a cycle of domestic
violence, the situation rarely gets better but gets worse. The
accused and deceased took as normal living in a domestic violence
infested matrimony and the end result was the loss of precious human
life. Such conduct should be frowned at.
The
sanctity of human life cannot be whisked away by alleged acceptance
of an abnormal family set up by the accused whose counsel Mr Sigauke
properly advanced in mitigation that the accused had always been the
victim and suffered the battered man syndrome. However, nothing was
however placed before the court to substantiate this alleged
condition.
However,
from the Statement of Agreed Facts it is clear the accused came back
home and at night confronted the deceased about some pregnancy and
abortion after the accused had received word of illness of the
deceased. A misunderstanding then arose leading to the fight and
eventually the fatal blow; para 4 to 8 of the statement of agreed
facts. The accused was not portrayed as strictly a victim. In passing
sentence the court is alive to all mitigatory factors advanced by Mr
Sigauke
that accused is a family man with responsibilities that he pleaded
guilty to culpable homicide and that he is a first offender. Further,
the accused has been in custody for a year awaiting the finalisation
of this matter. He will also live with the stigma of having killed
his wife as clearly the society does not consider the legal
definitions of murder and culpable homicide. The accused is also said
to be of poor health as he is HIV positive.
I
have also considered the aggravatory factors advanced. Section 48
protects right to life and clearly no one has the right to take away
another's life. I am alive to customary compensation to the
bereaved family but it should be noted that no amount of compensation
can restore a lost life.
Accordingly
accused is sentenced as follows:
7 years
imprisonment of which 2 years is suspended for 5 years on condition
accused does not
