Criminal
Trial – Sentence
MAWADZE
J:
The
accused who was initially facing the charge of murder as defined in
s47(1) of the Criminal Law (Codification and Reform Act) [Chapter
9:23] was subsequently convicted on his own plea of guilty of
contravening s49 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] which relates to culpable homicide.
The
matter proceeded on a statement of agreed facts. In summary the
agreed facts are as follows:
On
7 August 2015 at about 16.30hrs the accused, together with his cousin
Natasha Maradza, were walking through a flea market in Chiredzi
called Messina flea market. They passed near the now deceased who was
drunk and the now deceased for no good cause started insulting them
using vulgar and obscene language.
The
accused tried to rebuke the now deceased to no avail.
In
a fit of rage, the accused picked a log which was in a wheel barrow
pushed by one Emmanuel Munyeiwa and struck the now deceased once on
the left side of the head.
The
now deceased fell down and was bleeding from the head. The now
deceased was ferried to Chiredzi General Hospital where he was
pronounced dead on arrival.
The
post mortem report shows that the now deceased sustained a depressed
skull fracture on the left temporal region with subdural haematoma.
The now deceased died as a result of the head injury.
We
are very grateful to Mr Chakabuda for the accused who agreed to take
this matter at a very short notice after the pro deo counsel
allocated the matter played truant with the Court.
The
prejudice likely to arise from the postponement of the matter was
thus avoided.
In
addition to that Mr Chakabuda made a very detailed, well researched
and meaningful submissions in mitigation despite the limited time he
had to prepare the case.
Such
conduct should be acknowledged and applauded.
In
assessing the appropriate sentence, we shall endeavour to balance the
mitigatory and aggravatory factors of the case.
We
have considered the accused's personal circumstances. The accused
is 28 years old and single. He is unemployed and is a holder of an
Accounting Degree. Accused possesses neither savings nor assets.
It
is clear from the agreed facts of this case that there are mitigatory
factors surrounding the commission of the offence as forcifully and
passionately submitted by Mr Chakabuda for the accused.
It
is trite that the rationale in punishing the accused for culpable
homicide is not based on accused's evil intent as accused had no
intention to kill the now deceased. The accused is being punished for
being careless and/or negligent. See S v Richards 2001 (1) ZLR 129
(S).
The
idea is to encourage the accused and the general public to be
cautious at all times in dealing with others and be wary of the
safety of fellow human beings.
The
accused failed in this regard and undertook an act which resulted in
unnecessary loss of life. The most pertinent aspect to note however
is that the accused acted negligently.
The
facts of this case clearly show that the accused was provoked. This
explains the reason why the accused committed the offence.
The
motive or reason for committing an offence always assists the Court
to properly assess the sentence in a meaningful, humane and fair
manner. See S v Ngulube 2002 (1) ZLR 316 (H).
In
casu the accused and his cousin were insulted in a public place
persistently for no apparent reason by the now deceased. The accused
tried to reason with the now deceased to no avail and he lost his
temper.
At
the spur of the moment he picked a log nearby and delivered a fatal
single blow.
While
the accused's conduct can never be condoned it is understandable.
He
reacted to the uncalled for affront to his dignity and that of his
cousin. In our view this is a mitigatory factor.
It
is in accused's favour that he pleaded guilty to the charge.
As
was pointed out in the case of S v Katsaura 1997 (2) ZLR 102 (H) a
plea of guilty immensely contributes to the swift administration of
justice.
We
have been able to finalise this case in a very short period of time
without further waste to the State's resources. The State witnesses
although present were spared of the possible trauma of testifying and
spending further time at Court.
By
admitting to the charge the accused is clearly contrite.
We
shall therefore give due weight to this factor by according the
accused a meaningful reduction of the sentence to be imposed and
impose a minimum possible sentence.
It
is in accused's favour that he is a first offender.
In
principle therefore he should be treated with some measure of
lenience.
It
has been submitted on accused's behalf that the accused and his
family engaged the deceased's family who demanded payment of 20
herd of cattle as compensation. The accused has since paid 9 herd of
cattle to deceased's family.
In
our view this gesture will go a long way to appease the now
deceased's family and reconcile the two families.
Indeed,
our criminal justice system should embrace these positive customs in
our African traditional life.
While
this will not bring back the lost life, sending accused to prison on
its own may not serve the wide interests of justice. This is an
aspect one may meaningfully consider after hearing full argument on
the need to pay compensation to the deceased's family where a life
has been lost. The pros and cons should be carefully weighed.
For
now, we however take this gesture as a mitigatory factor.
The
accused did not suffer much from pre-trial incarceration.
In
a proper case where as accused person has suffered from a lengthy
pre-trial incarceration period the Court would reduce the sentence to
be imposed: see S v Difiri 2001 (2) ZLR 411 (H).
In
casu the accused was in prison for only two months after which he was
granted bail pending trial and had been in custody for less than a
month after his indictment.
We
shall therefore not place much weight on this factor.
The
offence of culpable homicide arising from violent conduct remain a
very serious offence which should generally attract a custodial
sentence.
A
proper balance should however be struck between the interests of the
accused and those of the society: see S. v Mukome 2008 (2) ZLR 83
(H).
This
is not an easy task to achieve a delicate balance between the
conflicting interests. The cardinal rule is that the Court should
strive to strike such a balance in the most human, rational and
dispassionate manner.
Each
case should be assessed on its own merits as a one size fits all
approach is undesirable.
The
public in this case expects the accused to be punished adequately for
causing the unnecessary loss of life lest the criminal justice system
is put into disrepute.
We
are mindful of the fact that we cannot overlook accused's interests
or personal circumstances lest the sentence we impose becomes unduly
harsh, capricious and draconian. A proper delicate balance should be
achieved.
We
totally agree that we should pass a deterrent sentence in order to
discourage the accused and others of like mind from needlessly
resorting to violence to resolve disputes or misunderstandings. Such
an exemplary sentence is called for.
We
are however mindful of the fact that we should guard against
excessive devotion to deterrence which may lead to disproportionate
sentence. See S v Bhero 1994 (2) ZLR 66 (S).
As
the saying goes, the accused should simply get his just desert.
While
it remains important to punish the accused in this matter for reasons
already stated we are cognisant of the fact that retribution is no
longer the underlying principle in our criminal justice system. An
eye for eye makes everyone blind, so they say.
The
sentence we shall impose should be rehabilitative so that the accused
who is fairly educated can come back and be useful to society. The
thrust should be to encourage reformation: see S v Chera & Anor
2008 (2) ZLR 58 (H).
In
our assessment the accused's degree of negligence is high.
The
accused used a weapon described as a log despite that it was not
produced in Court.
It
is clear accused used severe force as the post mortem report shows
that accused fractured deceased's skull.
The
single blow was aimed at the delicate part of the body which is the
head.
The
consequences were fatal as deceased passed on within a short period
of time.
In
our view a fine coupled with a wholly suspended prison term as
submitted by Mr Chakabuda is inappropriate.
This
is a serious offence where a life has been lost through violent
conduct. The sanctity of human life cannot be over emphasised. No one
has the right to take the life of another whatever the circumstances.
The
accused should know that self-control is important and be able to
walk away from any provoking situation.
In
the same vein community service which is preserved for non-serious
offences would trivialise this offence and send wrong and harmful
signals to the accused and the public.
In
the result the accused is sentenced to 3 years' imprisonment of
which 1-year imprisonment is suspended for 5 years on condition the
accused does not commit within that period any offence involving the
use of violence upon the person of another for which the accused is
sentenced to a term of imprisonment without the option of a fine.
National
Prosecuting Authority, counsel for the State
Ruvengo
Maboke and Company, pro deo counsel for the accused