Judgment No. HB 68/15
Case No. CRB (HC) 104/13
PROSPER HABATSHUSI NKOMO
HIGH COURT OF ZIMBABWE
HWANGE 10 MARCH 2015
Miss N Ngwasha for the state
Mr E. Mashindi for the accused
MAKONESE J: The accused has been arraigned in this court on a charge of murder. The state alleges that in or about 10 December 2012 at Insuza, in the Province of Matebeleland, the accused did wrongfully, unlawfully and intentionally kill and murder Lushiana Paul Mpofu, a male juvenile aged 1 year 8 months at the time of his demise. The accused pleaded not guilty to the charge of murder and tendered a plea of guilty in respect of the lessor charge of culpable homicide. The state accepted, correctly in my view, the limited plea tendered by the accused.
The state and defence tendered a statement of agreed facts whose contents are as follows:
“STATEMENT OF AGREED FACTS
The state and the defence are agreed that the following issues are common cause being that:
- Accused resides at Mahatshi Nkomo’s homestead, village 3A Insuza and was aged 23 years at the time of the commission of the offence.
- The deceased used to reside at Mahatshi Nkomo’s homestead, village 3A Insuza and was aged 1 year 8 months old at the time he met his death.
- The accused is father to the deceased.
- On 10 December 2012 and around 2000 hours the accused was seated inside his kitchen hut and all was well.
- Accused went out of the hut to make a phone call taking the deceased with him.
- While outside he went to meet a Kombi driver.
- The deceased begun to cry and in a bid to silence the deceased, the accused slapped the deceased twice and went on to knock the deceased on the head using his knuckles.
- The deceased then appeared to have fits and fell unconscious and later died.
- The accused tried to render first aid.
- Accused spent the night in the bush with the deceased, and in the morning the accused left the body of the deceased in the kitchen hut.
- On 11 December 2012 the body of the deceased was discovered by Similo Mpofu the deceased’s mother.
- The accused person pleads not guilty to murder but pleads guilty to culpable homicide in that he negligently caused the death of the deceased.”
The state then tendered the Post Mortem Report (Exhibit 2). Dr Sanganai Pesanai is a medical doctor stationed at United Bulawayo Hospitals. On 14 December 2012 he examined the remains of the deceased juvenile and compiled his findings in the Post Mortem Report number 1023/1017/12. As a body of the deceased he concluded that the cause of death was:
- intracramical haemmorrhage
- blunt force trauma
An internal examination of the body, the pathologist made certain observations. He notes that there was a scalp haematomas on the right parietal region on different locations. Further he noted that on the brain there was a right extradural haematoma and generalized subarchnoid haemorrhage. The Doctor opines that the Post Mortem Report is consistent with blocking in the brain secondary to a blunt force trauma.
On the evidence presented to the court I am satisfied that the accused is guilty of culpable homicide in that by striking the deceased on the head in the manner he did he acted negligently. The accused is accordingly found not guilty of murder and acquitted. The accused is convicted of culpable homicide.
In assessing an appropriate sentence, the court took into account that the accused who is a first offender, and at aged 23 is still youthful. The accused is now a widower. His wife, the mother of the deceased died in December 2014. The accused person is not formally employed. He performs part time jobs for survival. It is not in dispute that prior to the assault upon the deceased there was no misunderstanding between the accused and his wife. He had no ulterior motives to bring about the death of the deceased. Those are the factors weighing in his favour. The accused’s moral blameworthiness is high in that after the death of the deceased he fled to Botswana and only came back to Zimbabwe in December 2014. The delay in the finalization of the case was brought about by the conduct of the accused. The accused recklessly caused the death of the juvenile. He must have exerted excessive force upon the head of the deceased when he assaulted him. The deceased’s only crime was that she was crying. This must have annoyed the accused whose reaction was totally disproportionate. The court takes into account that at the time of the commission of the offence the accused was immature and lacked the experience of life and did not possess the wisdom normally associated with mature man. This tragic death of his minor child will forever traumatise him. The courts do have the duty to uphold the sanctity of human life. The assault on the child on the head was senseless and was reckless. The Post Mortem Report indicates that the child sustained intractranial haemorrhage. There is no doubt that the force applied was rather excessive. The conduct of the accused is reprehensible. Parents are in loco parentis to their children. They are expected to care and look after their children. Parents who physically abuse their children should not expect lenient sentences from the courts. Indeed time has come for courts to protect children from physical abuse by their parents or those charged with the duty to look after them.
In the instant case, the court has carefully weighed the mitigating circumstance against the aggravating circumstances and has considered that a prison sentence is the only appropriate sentence. A non custodial sentence would trivialize the offence.
I accordingly consider the following to be an appropriate sentence:
Accused is sentenced to 5 years imprisonment of which 2 years is suspended for 5 years on condition the accused is not within that period convicted of an offence of which violence is an element and for which he is sentenced to imprisonment without the option of a fine.
Effective sentence: 3 years imprisonment.
National Prosecuting Authority, the state’s legal practitioners
Mashindi and Partners, accused’s legal practitioners