A convicted killer, who, by all accounts, should have received a stiffer penalty, if not the ultimate one, but, for the generosity of the trial court which suddenly became unbelievably lenient despite the prosecution's pleas for a sentence of life imprisonment, appealed against the sentence of seventeen years imprisonment.
The sentence was imposed on 7 July 2017.
If ever there was a trifling with an Appellate Court by a recalcitrant, unrepentant, and indeed, ungrateful litigant, this appeal deserves a special prize for it.
After hearing arguments from the parties, with the appellant self-representing, the court was exceedingly unanimous in its rejection of the unmeritorious appeal, which it dismissed out of hand. The court stated that the reasons for doing so would follow. These are they.
THE FACTS
The facts of this matter, which are breathtakingly common cause, make for painful reading.
On the morning of 11 February 2016, at Mandaza Village, under Chief Nyamweda in Mhondoro, the fifteen year old deceased girl was making her way to Chitemere Secondary School, clad in her beautiful school tunic. She was in the company of her school mates in the ordinary course of things, as they had obviously done on countless occasions in their quest for knowledge and intellectual enhancement.
Only that on this particular day evil was lurking in the fringes; the appellant was lying in ambush with obvious intent and filled with all evil demons worse than those that overwhelmed the biblical Legion.
Armed with a kitchen knife he had snatched from his wife's kitchen back in Harare, the appellant emerged from the side of the road and rushed towards the deceased - in the full glare of the other innocent young souls.
He was wielding the 15 centimeter bladed kitchen knife.
The appellant launched his first frontal attack, a completely unprovoked aggression on an innocent sister-in-law he had abused continuously for two years, commencing when she was thirteen years old. The abuse had been discovered by his wife, sister to the deceased, when she intercepted text messages between the deceased and the appellant.
It was upon being exposed that the appellant's criminal enterprise commenced.
First, he travelled from Harare all the way to Mhondoro, under the cover of the night, aboard a hired taxi. Upon arrival, staggering and with a bottle of beer in hand, he confronted his father-in-law and his mother-in-law demanding to marry the fifteen year old victim. When he was rebuffed, somehow his warped mind took this as an insult. His resolve, if he was not going to marry the deceased, no one else would. Never mind that he was already married, and to none other than the deceased's elder sister, and that the deceased was a mere school-going child.
Second, even though he returned to Harare that night, first thing the following morning, the appellant again hired another car to take him back to Mhondoro. This time, he asked to be dropped off a distance away from his in-laws homestead and waylaid the deceased on her way to school. As already stated, upon seeing the deceased, the appellant launched an unprovoked attack.
Sensing danger, the deceased tried to run away but fell down facing up. The appellant sat on her stomach and started stabbing her all over the body.
It took the intervention of some villagers for the appellant to stop the stabbing and stand up telling them that the deceased's parents knew why he was viciously attacking the girl.
The deceased stood up and staggered towards her home, only to collapse and die some fifty metres away.
The appellant then made a feeble attempt to take his own life using the same knife, but could not even penetrate his body before being arrested by villagers.
PROCEEDINGS BEFORE THE COURT A QUO
For his troubles, the appellant was arraigned before the court a quo on a charge of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded not guilty and put up a spirited fight, arguing that, in stabbing the deceased the way he did, he was trying to repossess the school uniform she was wearing because he is the one who had bought it for her.
The court a quo found that the deceased died from hypovolemic shock secondary to multiple stab wounds and assault, and that, it being a condition where the body rapidly loses blood or fluid supply, she died a painful but rapid death.
It found that it was proved, beyond a reasonable doubt, that the appellant is the one who stabbed the deceased inflicting mortal wounds.
The court a quo found, further, that, the appellant pre-planned the killing of the deceased, carried a knife from Harare for that purpose, and executed his plan. It therefore returned a verdict of guilty of murder with intent.
In considering sentence, the court a quo accepted the concession by State counsel that there were extenuating circumstances in the case, the offence having been committed prior to the amendments to section 47(2) of the Criminal Law (Codification and Reform) Act and sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:06].
The amendments introduced a new sentencing regime for murder.
The court a quo took into account, that, the appellant was an unsettled person prior to the commission of the offence due to his differences with his wife and his in-laws. He had taken to excessive drinking and the court a quo considered the events of the night prior to the killing of the deceased as having influenced his conduct the following morning.
After weighing the mitigating factors against the aggravation, the court a quo reasoned that:
“The accused person stood in loco-parentis towards the deceased because he looked after her by providing for her needs. It was an abuse of such relationship for the accused to wish to make the deceased his wife at the tender age of 15 years. The accused's conduct, of starting a love affair with the deceased, was therefore abusive of the deceased. The accused knew that the deceased was under the age of marriage when he engaged in a love relationship with the deceased. Such conduct should be frowned upon by the courts which have a mandate, under section 19 of the Constitution, to ensure that the best interests of children be made paramount.
The accused committed the offence in a brutal and callous manner using a dangerous weapon, a knife. The deceased could not defend herself. She died a painful, though quick death. The accused was selfish and cowardly in his conduct. He attacked a defenceless child. The murder was heartless, senseless, and selfish.”
The court a quo then settled for the sentence of seventeen years imprisonment.
PROCEEDINGS BEFORE THIS COURT
After serving more than six years of the sentence imposed by the court a quo, the appellant appealed against the sentence on the following grounds;
“1. The court a quo, upon adopting Supreme Court appeal analysis on the case circumstances of Siluli- case erred to pass (sic) harsh sentence that confirmed in Siluli case (sic).
2. The court a quo erred to ignore statutory provision of section 239(1)(2)(a) of the Criminal Code. The court a quo erred to consider circumstances which cause (sic) appellant to lose self-control. Therefore proper sentence should have been proper to culpable homicide (sic).
3. Further, the court a quo erred and misdirected upon failing to give proper weight to appellant factual circumstances (sic) of intoxication to pass fair sentence.
4. The court a quo failed to consider provision of section 49 of the Criminal Law (Codification and Reform) Act.
Wherefore, appellant prays for duplication of sentence as passed on Siluli case SC146/04 through application of judicial character of continuity rule.”
The grounds of appeal are typically those of a self-representing litigant without the benefit of legal counsel. They border on the meaningless.
Be that as it may, they raise only one issue for determination on appeal, namely; whether or not the court a quo erred in imposing the sentence of seventeen years imprisonment.
