Part 4 - Sentencing murderers where death penalty is not imposed

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Part 4 - Sentencing murderers where death penalty is not imposed

In S v Ndlovu 2012 (1) ZLR 393 (H) Kamocha J said that in cases of murder with actual intent, where the court is of the opinion that there are extenuating circumstances, the convicted person is usually sentenced to imprisonment for a period ranging from 21 years’ imprisonment upwards. For murder with constructive intention, where there are extenuating circumstances, the sentence is usually between 14 years and 20 years.

These guidelines were put forward before the advent of the 2013 Constitution and the subsequent amendments to the Criminal Law Code to incorporate the constitutional provisions on the death penalty.

The relevant provision in the Criminal Law Code is now as follows:

Section 47(4) A person convicted of murder shall be liable—

(a) subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3); or

(b) in any other case to imprisonment for any definite period.

According to this provision where the court decides not to impose the death penalty and it also decides that a sentence other than life imprisonment should be imposed, it is obliged to impose a sentence of twenty years imprisonment if it finds that the crime was committed in any of the specified aggravating circumstances. It is submitted that the sentencing discretion should not have been restricted in this manner. As stated earlier the court may find that despite the fact that an aggravating circumstance was present, there are significant mitigating factors and where this is the case a sentence of less than twenty years might be appropriate.

Life imprisonment

Note must be taken of the ruling by the Constitutional Court that the legislative provisions precluding consideration of parole for those sentenced to life imprisonment are unconstitutional.

In Makoni v Commissioner of Prisons & Anor CCZ-08-16 the court ruled that a life sentence imposed on a convicted prisoner without the possibility of parole or release on licence constitutes a violation of human dignity and amounts to cruel, inhuman or degrading treatment or punishment in breach of sections 51 and 53 of the Constitution. It also ruled that the provisions of Part XX of the Prisons Act [Chapter 7:11], to the extent that they exclude prisoners sentenced to imprisonment for life from the parole or release on licence process, contravene the right to equal protection and benefit of the law under section 56(1) of the Constitution. It further ruled that pending the enactment of legislation amending the provisions of Part XX of the Prisons Act [Chapter 7:11] so as to conform with the right to equal protection and benefit of the law under section 56(1) of the Constitution, the respondents shall apply those provisions, mutatis mutandis, to every prisoner sentenced to imprisonment for life, including the applicant.

At the time of writing of this article the relevant provisions in the Prisons Act and the Criminal Procedure and Evidence Act had still not been amended to reflect this judgment.

Sentence for attempted murder or incitement or conspiracy to commit murder

Section 47(6) provides that persons who commit these offences are liable to be sentenced to imprisonment for life or any definite period of imprisonment. Thus the death penalty may not be imposed. However, if the inciter actually commissions a person to commit the murder, it may be possible to argue that the inciter committed the murder using an agent.

 

CASES

 

What follows is a summary of a selection of murder cases in which either the death penalty was imposed or where the death penalty was not applicable, the court had to decide on the appropriate sentence.

 

Death sentence imposed

 

S v Muchaparara & Anor HH-99-04

Main facts: The first accused fatally shot two police officers who were manning a road block after they questioned him about a car that he had stolen. He was found guilty of murder.

Aggravation

Extenuation/Mitigation

The intentional killing of two police officers

X pleaded intoxication as a mitigatory factor that warranted other sentence than death penalty. The court rejected this argument. It was held that the intoxication concerned was voluntary in nature and in that regard it is the policy of the law to punish people who deliberately  take alcohol leading them to commit crime. It was further held that the degree of the intoxication was not so grave that it could reasonably be said that X did not appreciate the nature and effect of his conduct when he shot the two police officers. The court found that he acted rationally.

Sentence: Death

 

S v Moyo & Anor HB-162-11

Main facts:

The two accused acted in common purpose to kill the deceased. They were provided with a lift by the deceased whom they proceeded to fatally strangle in the course of the journey. They took the belongings of the deceased and dumped his body at a place near a cemetery. Robbery murder

Aggravation

Extenuation/Mitigation

The accused persons were motivated by greed and sheer evilness to kill the deceased. The original design of the accused persons was to rob the deceased and they could have easily done so without killing him since they were two of them.

There were no extenuating factors

Sentence: Death

 

S v Mudenda S-214-12

 

Main facts: This was an appeal against a death sentence that had been passed in the trial of a murder case. The deceased was aged 19 years at the time he met his death. On one night, in the early hours of the morning, deceased walked into the hut holding his neck and writhing in pain. Deceased died thereafter. X admitted to the murder and confessed that they had killed the deceased in ritual offerings.

Aggravation

Extenuation/Mitigation

The manner the murder was done was aggravating and nothing could extenuate it.

There were no extenuating circumstances in the present case.

Sentence: Death. The appeal against the death sentence was dismissed.

 

S v Nyoni S-66-14

 

Main facts: The appellant had been found guilty of murder with actual intent by the High Court The facts of the case are that the appellant fatally struck his estranged lover on the head with a log and an axe.

 

He was sentenced to death by the court a quo. He appealed against the decision of the court of first instance that he was guilty of murder with actual intent. He also appealed against the death penalty. Regarding sentence, the appellant argued that the court a quo had ignored two mitigatory factors whose consideration warranted other sentence than death penalty.

Aggravation

Extenuation/Mitigation

 

On appeal, the appellant argued that the court a quo had ignored two mitigatory factors whose consideration warranted other sentence than death penalty. He argued that the fact that the murder was committed in connection with a quarrel by lovers was mitigatory. He further argued that the court a quo had ignored evidence showing that he was suffering from severe mental and emotional stress which was mitigatory.

The appellate court rejected the argument on the basis that the onus to prove extenuating factors is on the accused and in this case the appellant had not discharged that onus. The appellate court held that in any event, the factors that the appellant sought to rely upon were not mitigatory. On that basis, it dismissed the appeal and upheld the death sentence that had been imposed by the court a quo.

Sentence: Death

 

S v Kichini HH-25-17

 

Main facts:

X killed his blood brother because the deceased had denied him access to food. The accused proceeded to dismember the body of the deceased and buried it in a shallow grave.

Aggravation

Extenuation/Mitigation

The seriousness of the offence of murder and the brutality with which the murder was committed.

The fact that X had lied that he had killed and buried a bird in the shallow grave when he was confronted about it in the first place in a bid to cover up the offence.

 

In the result, the court was convinced that the aggravating circumstances were so overwhelming that the death penalty was the appropriate sentence which met the justice of the case.

X was a young first offender

He had pleaded guilty

Sentence: Death

 

 

S v Masilela HB-83-17

Main facts: X, aged 32, murdered his 83 year old grandmother. He was sentenced to death by the High Court. Upon hearing the appeal, the Supreme Court ordered that the accused’s sentence be revisited in light of the principles of sentencing in murder cases set out in section 48 (2) of the Constitution.

Aggravation

Extenuation/Mitigation

When the matter was remitted to the High Court, both counsel were ad idem that the murder was not committed in such aggravating circumstances as to warrant the imposition of the death penalty.

 

But the High Court did find that there were the following aggravating circumstances:

 

The painfulness of the death of the deceased of having been subjected to a fatal blow by X after narrowly escaping death from a burning hut,

The blameworthiness of the conduct of the accused of consciously partaking of dagga before committing the murder.

The failure by X to protect instead of killing his grandmother

The sanctity of human life

The relative youthfulness of X

The trouble that would haunt X for the rest of his life for having murdered his elderly grandmother

The trauma and pain that X had suffered of having been on the death row for a period of over a year awaiting the execution of the death penalty

The remorse exhibited by X for having needlessly killed his grandmother

The particular peculiarity of the matter and the lack of motive for the murder.

Sentence: Death sentence altered to 18 years

 

S v Mateketa S-99-85

Main facts:

The appellant was convicted of murder by the court a quo for having killed her husband with actual intent and sentenced her to death. The deceased was in the habit of assaulting the appellant. On the fateful day in question, the deceased told the appellant that he was going to kill her. The explanation which the deceased gave for wanting to kill the appellant was that he had a dream which indicated that he was going to die a painful death. He has said that he wanted to kill the appellant before he suffered the painful death because he did not want the appellant to be inherited by other men after his death. The appellant became fearful for her life and so she fatally struck the deceased with an axe three times on his head whilst the deceased was asleep so as to forestall the imminent death which she was facing.

Aggravation

Extenuation/Mitigation

The appellate court said it was held that the circumstances relating to the seriousness of the crime and the callousness and brutality of the murder were aggravating.

The appellate court held that there were extenuating factors in the evidence given by the appellant which the court a quo failed to properly consider. In that regard, it held that it was mitigatory that the deceased and the appellant loved each other and that the appellant had been forced by the imminent death which she faced to kill the deceased. It was held that the fear for her life which affected the appellant at the time she committed the offence operated to reduce her moral blameworthiness and the court a quo misdirected itself by failing to attach due weight to that factor.

Sentence: Originally sentenced to death. The Supreme Court altered the sentence to 10 years imprisonment

 

 

          Imprisonment when death sentence not applicable

 

In S v Malundu HH-68-15 X was the head of security at farm. The deceased who was a farm worker was accused of stealing some farm equipment. The accused and another badly beat the deceased with a rubber baton stick resulting in the death of the deceased. The beating was done to try to extract a confession from the deceased that he had stolen the property. The judge decided upon sentence as follows:

 

In arriving at the appropriate sentence, I took into account the personal circumstances, social and health status of the accused as outlined by his counsel. He is a 49 year old first offender with a wife and two minor children who look up to him for sustenance. He also supports his elderly and blind mother and three nieces and nephews. He is the sole breadwinner. He was employed as the head of security at the farm in question. He will lose his job as a result of the conviction. He is of ill health. The case has been pending for the past 6 years. Even though he was on bail, he suffered the agony and anxiety associated with criminal trials while awaiting the conclusion of this matter. All these constitute mitigation.

 

In aggravation, he killed a fellow employee and breadwinner with two others who are at large. He abused his position of authority over the deceased. The assault which resulted in death was brutal and callous. It was inflicted on a defenceless deceased whom he suspected of theft of irrigation pipes. He took the law into his own hands. He used a rubber baton stick. His duty after apprehending the deceased was to hand him over to law enforcement agents for investigation. He did not protect the deceased from harm.

 

The circumstances in which the crime was committed and the nature of the crime far outweigh the mitigatory features advanced by the accused. The aggravating features found do not, however, call for the imposition of the death penalty. The appropriate sentence, in line with precedent, for a conviction of murder with constructive intent is a term of imprisonment. See S v Sibanda HB-30-2013, a culpable homicide conviction, where a 39 year old son who killed his mother with a brick was sentenced to 8 years imprisonment and S v Gatsi S-37-1990 where a wife who poisoned her husband in retaliation of a brutal assault perpetrated on her was on appeal found guilty of murder with constructive intent and sentenced to 8 years imprisonment. Society looks up to the courts for the protection of the sanctity of life.

 

The appropriate sentence that reflects society’s disapproval of his actions but takes into account his mitigation is one of 10 years imprisonment.”

 

In S v Zimondi HH-179-15 the accused was convicted of a grave offence of murder with constructive intention. He stabbed his girlfriend with a kitchen knife and the deceased succumbed to hypovolemic shock due to stab wounds in the chest. Regarding sentence the judge said this:

 

Both the defence and State counsels addressed the court and agreed there are extenuating circumstances. Both alluded to the youthfulness of the accused at the time of the commission of the offence and also to the fact that the accused stands convicted of murder with constructive intention.

 

The locus classicus on extenuating circumstances S v Mugwanda case, S v Siluli Sithole and a plethora of other cases have clearly defined extenuating circumstances as circumstances reducing the moral blameworthiness of the accused albeit not the criminal liability of the accused. Indeed the factors ought to be considered cumulatively. We agree with both counsel’s observations that there are indeed extenuating circumstances in the present case. The age of the accused at the time of the commission of the offence about 22 can certainly not be ignored.

 

The court take judicial notice of the fact that immature adults and mature adults react differently and behave differently faced with the same set of facts or scenarios. Immaturity of the accused on matters of emotions and love can therefore not be ignored when one considers the moral blameworthiness of the accused for purposes of sentence. We have taken the cumulative effect of the extenuating circumstances as highly mitigatory. The accused person even during trial per the court’s observation depicted demeanor which displays youthfulness at play given his playful oblivious stance during the serious trial. We will therefore take note of the fact that at time of commission of the offence, the accused was indeed an adult but an immature adult.

 

Also in mitigation is the fact that accused has not been given as a repeat offender at least no such submissions were made to the extent that it can be taken it is his first flouting of the law. The accused was given as a bread winner of his terminally ill mother. We cannot ignore such responsibility in our assessment of sentence.

 

In passing sentence the court will not lose sight of the pre-trial and during trial, incarceration period. The court is alive to the fact that prison life is not easy for the obvious infringement of dignity and freedom. Further we are alive to the fact that from the time of commission of the offence, that is 24 April 2012, the accused has today suffered anxiety over uncertainty as regards his fate with a murder charge hovering over his head. The period of suspense is certainly traumatic and the situation is worsened by incarceration.

 

In passing sentence then, the pre-sentence time of incarceration will be taken as part of punishment already served and suffered. The defence counsel also submitted that the accused is remorseful for the death of his girlfriend.

 

In our endeavour to reach at any appropriate sentence we have also taken note of submissions by the State counsel in aggravation. It is correct going by the weapon used, a sharp about 30cm long kitchen knife, aimed at the chest and the number of stabbed wounds that the murder was callous, ruthless, brutal and cruel. When someone stabbed the chest with a dangerous weapon like a knife he gives the other person no chance to survive.

 

Further in aggravation is the fact that precious human life was lost at a tender age of 20 and that precious human life was lost unnecessarily. The court will not lose sight of the sanctity of human life. ….

It is in aggravation that the deceased a 20 year old was robbed of life at the prime stage and stopped from living life to its fullness. The lost human life can never be replaced. In any event no amount of compensation can bring back lost life.

 

In assessing an appropriate sentence, the court has taken into consideration the totality of mitigatory factors and sought to weigh them vis-a-vis the aggravatory factors at the same time seeking to strike a balance on the nature of the offence, murder with constructive intent and the offender, his personal circumstances and societal interest, that justice must not only be done but must be seen to be done. The accused, a youthful, immature adult stands convicted of a brutal murder of a young girl. Society on the other hand requires protection from dangerous criminals and in fact the society looks up to the court to do justice not condone crime in a manner which would intrigue society into losing confidence in the whole justice delivery system.

 

The accused by unnecessarily resorting to violence as a way of resolving a dispute acted in a barbaric manner occasioning the death of the deceased. Sacred human blood was lost and the court frowns at such violent criminal conduct. We should show displeasure at such violent conduct leading to loss of life by the corresponding sentences imposed. The offence was observed correctly by both counsel as an offence deserving of removal of accused from the community. The State and defence counsel did not agree as regards the period of removal. However, given the accused’s age at the time of commission of the offence, 22 and even now 24 at the time of sentence, it is our considered view that the sentence to be imposed to a relatively young man or young offender should not be that we should break him. There is room for the accused given his age to turn and be a better citizen in the country. It is mainly with the consideration of the accused’s tender age at the time of commission of the offence that we will not consider life imprisonment as appropriate in the present circumstances, but we will consider a lengthy imprisonment term. That term is 18 years’ imprisonment.”

 

 

Killing of wife or lover because of adultery or suspicion of unfaithfulness or killing spouse or lover during quarrel

S v Basera HH-316-14

 

Main facts:

A husband fatally attacked his wife with a dibble (small implement for digging holes) on her head and knee several times. The attack took place in the presence of the children. He was accusing her of engaging in an adulterous affair with another man. X sought to rely on the defences of provocation and self defence but these defences did not avail him because their respective requirements were not satisfied on the facts of the case.

Aggravation

Extenuation/Mitigation

Human life is sacrosanct and once lost it cannot be regained

The brutality and callousness of the assault

The fact that the deceased was pregnant which entailed the death of the unborn baby

The weapon used was dangerous

The crime was committed in the full glare of the children.

It was a crime of passion

X had already spent 1 year 5 months in custody

X was a first offender

X had tried to make peace with his in-laws by giving them some cattle as compensation

The fact that there are certain customary consequences associated with the murder of a person.

Sentence: 25 years imprisonment

 

S v Tiyavo HH-293-15

 

Main facts:

X, a fairly young man, killed his wife believing that she had been unfaithful to him because she had contracted a sexually transmitted disease. He had constructive intention to kill. He had killed her as a result of a sustained attack. He then buried her.

Aggravation

Extenuation/Mitigation

X killed this defenceless woman who regarded X as her only pillar of strength in a foreign country. X had taken the deceased from afar and across the border and the deceased died a painful death.

The persistent lies told by X, starting with lying against the police and openly lying in the court are not consistent with a remorseful individual.

The secretive burial of the deceased’s remains demonstrate a resolve to conceal the evil done by X.

X cruelly cut short the life of the deceased in its prime age.

 

Fairly young first offender

 

In custody for 1 year and 3 months

 

Caused death of person who should have been dear to him and this misfortune is likely to haunt him for a considerable length of time.

It is the pride of every man to feel that his wife is morally upright. We do accept that X must have been annoyed or hurt by discovering that his wife had contracted a sexually transmitted disease. To this end X must have felt both insecure and vulnerable by the invasion of his conjugal entitlement.

 

 

Sentence: 22 years

 

S v Khumalo HB-143-11

Main facts:

X at the time of committing the crime was 17 years old. He stabbed to death the deceased after having a squabble over a girl.

Aggravation

Extenuation

X showed no contrition

He was the one who started the fight and walked around with an okapi knife indicating that he was ready to start a fight anywhere. 

X’s youthfulness

He had already spent 18 months in pre-trial incarceration

Sentence: 10 years

 

S v Kasiko HH-579-16

 

Main facts:

A woman had terminated her relationship with X because of X’s violent behaviour. X was jealous of the fact that she had started a relationship with the deceased. Armed with a knife, he had attacked and stabbed to death the deceased who was naked.

Aggravation

Extenuation/Mitigation

The attack was callous and unprovoked. X had consumed alcohol to give him the courage to carry out the murder upon the deceased whose only crime was to be found together with X’s ex-lover.

 

Sentence: 19 years

 

S v Mupuna HH-209-16

Main facts:

X suspected that his wife was having an extra-marital affair with a fellow villager. X fought the fellow villager and lost the fight. Later at night while his wife was asleep, he armed himself with an axe and struck his wife twice on the head after which he fled to an unknown place. The wife died instantly of head injuries. The accused was found guilty of murder with actual intent.

Aggravation

Extenuation/Mitigation

The crime was well-planned and pre-mediated. The deceased lost her life in a cruel, violent and callous manner. Her life was ended in a cold blooded murder.

X was 39 years old and had 4 children, 3 of which are minors.

He is now the only surviving parent of the children.

He had been in custody up to date

His wife’s infidelity provoked him beyond measure.

Sentence: 15 years

 

S v Togara HH-13-17

Main facts:

X was the husband of the deceased and the marriage was going through serious problems as X suspected that the deceased was indulging in acts of adultery with her superiors at work. On the fateful day in question, X fatally slit the throat of his wife with a knife by stabbing her four times. He was found guilty of murder with constructive intention.

Aggravation

Extenuation/Mitigation

 

X was a first offender.

There was an element of provocation

X was a young person who was 28 years old. The stigma that would attach to X as a wife killer was a punishment in its own. 

X had shown contrition.

Sentence: 18 years imprisonment

 

S v Wakeni HH-15-18

Main facts:

X killed his wife after a fight between them. There were allegations that the wife was involved in extra-marital affairs. On the fateful day, after the two had failed to discuss and solve their matter amicably, they started fighting. The wife ran away and fell and at that moment X struck her with a pestle and left her to die.

Aggravation

Extenuation/Mitigation

The brutality of the murder

The court rejected the argument in mitigation that X had been in an unhappy marriage. It said that he should have resorted to divorce

Sentence: 22 years

 

S v Mamvura S-22-05

Main facts:

The appellant had been found guilty of murder by the High Court for killing his wife. The accused had returned from drinking beer and had enquired about the whereabouts of his axe. He became infuriated when he was told by the deceased that it had been borrowed. He started to assault the deceased, initially with switches from a gum tree and later on with a mattock handle. Finally, he attacked the deceased with a pestle with which he delivered numerous blows to her chest. The deceased eventually succumbed to the injuries which she sustained from the attack.

Aggravation

Extenuation/Mitigation

The High Court was convinced that there overwhelming aggravating factors mainly arising out of the brutal nature of the attack and the age of the deceased who was 20 years old at the time of her death.

The High Court considered extenuating factors arising out of the young age of the appellant and the fact that he had been at a beer drink.

Sentence: 25 years. This sentence was upheld on appeal to the Supreme Court

 

S v Phiri HH-581-16

 

Main facts:

X, a school teacher, had quarrelled with her husband on a number of occasions. She killed her husband by striking him with an axe whilst he slept. This was a pre-planned and brutal murder. X had tried to clean up the scene after the murder.

Aggravation

Extenuation/Mitigation

This case ranked as one of the worst cases of domestic violence, incidences of which were on the rise. This case required that a severe sentence be imposed.

X had expressed remorse for her crime and her family had paid compensation to the deceased’s family.

The court found that X was not suffering from a mental disorder at the time of the killing.

Sentence: 20 years

 

S v Chikunda S-99-05

Main facts:

The appellant had been found guilty in the High Court of two counts of murder. The appellant had been involved in numerous domestic disputes with his wife. On the day in question, he killed his wife with a knife and proceeded to also kill his minor child.

Aggravation

Extenuation/Mitigation

 

The High Court accepted that there were extenuating circumstances mainly in form of diminished responsibility.

On appeal the Supreme Court disagreed with the trial court as regards the presence of diminished responsibility. It concluded that on the facts of the case there was no evidence which conclusively proved diminished responsibility on the part of the appellant. That finding notwithstanding, the Supreme Court did not alter the sentence that was imposed by the High Court.

 

Sentence: 12 years on each count to run concurrently

 

S v Toringa HH-582-16

 

Main facts:

X, a married woman, had gone armed with a knife to confront her husband and the woman with whom he was having an affair. When the teenage son of the paramour of her husband had tried to drive away X using a stick, X had produced the knife and had fatally stabbed the son.

Aggravation

Extenuation/Mitigation

This was a premeditated crime but that she had vented her anger not on her husband or his lover but on the teenage son. If the son had been using the stick to beat her, X had used excessive force to defend herself and was not entitled to the defence of self-defence.

 

Sentence: 15 years imprisonment

 

S v Mapuna HH-209-16

 

Main facts:

X killed his wife with an axe. He suspected his wife of adultery and had fought with the man whom he suspected was committing adultery with his wife.

Aggravation

Extenuation/Mitigation

Cases of domestic violence leading to loss of life particularly of female spouses are very prevalent and deterrent sentences are necessary.

X was a first offender who had spent a long time in custody awaiting trial.

Sentence: 15 years

 

S v Mutemi HH-729-16

 

Main facts:

X stabbed to death her husband who had previously subjected her to domestic violence.

Aggravation

Extenuation/Mitigation

 

The court rejected the defence of self-defence. The husband was lying on the floor when he was stabbed.

Sentence: 18 years imprisonment

 

 

S v Sibanda HB-313-16

 

 Main facts:

X was aged 25 years while the deceased was aged 27 years. The parties were at a beer drink and there had been a misunderstanding over a girlfriend. X, who had been drinking, slapped and struck the deceased with a sjambok. The deceased tried to run away but was pursued by X and an accomplice. They caught up with the deceased and assaulted him with stones and a beer bottle causing his death. X was found guilty of murder with actual intent.

Aggravation

Extenuation/Mitigation

“… the accused and his colleague behaved like bullies on the day in question. They appear to have targeted the deceased from a very early stage and routinely used him as a punching bag for no apparent reason. Even the accused himself could not point to any untoward conduct on the part of the deceased which would inform repeatedly beating him up. When the deceased eventually left the bar going home they followed him and literally crushed him like a snake for no reason at all.

It is the kind of conduct which is unbelievable. Apart from being senseless in the extreme, it betrays a trait that is fast becoming the badge of our youthful people especially in this part of the country. Young men who seem to have no scruples whatsoever to take the life of another human being and celebrate after doing it.

Alcohol cannot be an excuse for that kind of behaviour. If anything it is a factor in aggravation because the accused spent the whole night drinking to gain Dutch courage only to then prey on the deceased in the early hours of the morning.

The courts will not tire to send accused persons who commit such gruesome crimes to prison. In fact it is a borderline case in that this may have been murder in the course of a robbery. The accused is lucky that we have found no proof that the deceased was robbed.” 

 

Sentence: 20 years

 

S v Chitsungo & Anor HH-9-17

Main facts:

The accused persons assaulted the deceased person with open hands and tree logs on the basis of the suspicion that he was having an extra marital affair with the wife of one of them. They also threw the accused into the fire. They continued to assault the accused despite the attempts by the people milling around the scene of the attack to restrain them.

Aggravation

Extenuation/Mitigation

The seriousness of the crime of being a danger to the sanctity of life protected by the Constitution

The upsurge in the crime of murder hence the need to curb this crime

The age of the deceased who was 71 years old

The lack of remorse on the part of the accused persons

The social status of the accused persons of being unsophisticated rural persons The fact that one of the accused was HIV positive

The economic status of the accused of being breadwinners for their respective families

The intoxication to which the accused persons were subject when they committed the crime.

Sentence: 20 years

 

S v Sibanda HB-93-16

Main facts:

 X fatally assaulted his girlfriend for an unknown reason. He buried the lifeless body of the deceased in a shallow grave in a bid to conceal the crime. The body was later on discovered.

Aggravation

Extenuation/Mitigation

The court held the following factors as increasing X’s moral blameworthiness;

The loss a young life occasioned by the murder of the deceased who was 33 years of age at the time of her death

The death of the deceased left her four minor children with no one to fend for them

The resort to brutal violence by X

The need to send a strong signal to society that violence is wrong

The trauma to which the relatives of the deceased were subjected by the conduct of X after the murder who feigned ignorance of the fate and whereabouts of the deceased.

X had made an effort to accept his liability through pleading guilty to the lesser charge of culpable homicide

He was a first offender

He had been in custody for a period of about 5 months

He had expressed some sort of remorse through his legal practitioner.

 

Sentence: 22 years imprisonment

 

S v Nkomo HB-91-16

Main facts:

X was convicted by the court of murder with constructive intent for having killing his young wife. The marriage between the two was characterised with quarrels. On the day in question, a quarrel for an unknown reason occurred resulting in a fight between the estranged couple. X stabbed the deceased with a knife in the course of the fight. The deceased subsequently succumbed to the injury which she sustained.

Aggravation

Extenuation/Mitigation

The upsurge in the domestic violence-related murder cases

The need to protect human life since it cannot be regained once lost

The needless loss of a young life and the brutality of the murder concerned

The influence of the alcohol under which X laboured

The contrition which he exhibited

The responsibilities that he had as a family man

 

Sentence: 25 years imprisonment

 

 

S v Shava HH-124-17

 

Main facts:

X was 64 years old. X’s wife was committing adultery and X had taken steps to try to persuade the adulterer and his wife to put a stop to this relationship. But X was also involved in an extra-marital relationship. The marital strife led to X’s wife attacking him with a home-made mattock. X wrestled the weapon away from her and then he savagely attacked the deceased who was lying on the bed and trying to get up. He repeatedly struck the deceased on the head using a dangerous weapon. X struck 3 fatal blows and the wife died a painful death. He had used excessive force when he was no longer under an imminent attack.

Aggravation

Extenuation/Mitigation

The courts will not condone the use of violence as a means of resolving matrimonial disputes.  This was a barbaric and despicable attack on a defenceless woman. The sentence must reflect the seriousness of the offence.

 

Sentence: 20 years

 

 

Witchcraft cases

S v Chikomo HH-557-16

 

Main facts:

X killed his mother-in-law by striking her on her head with a stone. X believed that the deceased was bewitching him and had placed noxious herbs in his drink causing him to become ill. The deceased had accused X of being possessed by demons which needed to be cast out.

Aggravation

Extenuation/Mitigation

Moral blameworthiness not very high

The court found that he was suffering from diminished responsibility on account of acute mental or emotional stress.

X had been in custody for nearly two years before his trial. The court said that pre-trial incarceration is a factor to be taken into account in assessing sentence and is not considered in isolation but together with other relevant circumstances of the matter.

Sentence: 3 years wholly suspended for 5 years

 

S v Hahlekiye HH-260-17

Main facts:

X struck his 86 year old neighbour with a stick on his head and back over the allegation of witchcraft. He subsequently kicked the deceased indiscriminately all over his body. The deceased eventually succumbed to the injuries which he sustained as a result of the attack.

The attack was motivated allegations of the use of witchcraft by the deceased against the accused’s family.

Aggravation

Extenuation/Mitigation

The brutality of the crime

The old age of the deceased

The assault on this old man was unprovoked and he was too old to defend himself.

The needless loss of the sacrosanct human life occasioned by the murder

Society abhors this kind of gratuitous violence where individuals take the law into their own hands over perceived wrongs committed by fellow citizens.

The old age of the deceased person.

The contrition exhibited X by meeting the funeral expenses. He also paid compensation to the family of the deceased in part payment of the death.

Sentence: 20 years

 

S v Chigayi & Ors HH-248-17

Main facts:

Four brothers killed their father by burning him with molten plastic in the unfortunate belief that he was a wizard. They also burnt him as they were burning his “artifacts” by tying him to a pole. Further they denied him any medical attention that his senior wives attempted to give him. They were all found guilty of murder with actual intent.

 

Aggravation

Extenuation/Mitigation

The dire nature of the crime of adult sons literally roasting their father in a burning furnace. They also prevented their mothers from rendering medical assistance to their father.

 

The mistaken belief in witchcraft of each of the accused

Sentence: Each sentenced to 20 years

 

S v Ndlovu & Anor HB-188-16

 

Main facts:

The deceased aged 67 was killed by the deceased’s son (accused 1) aged 19 at the time of the killing and 21 at the time of his trial and the deceased’s daughter in law (accused 2). Accused 1 forcibly entered the deceased’s bedroom and struck the deceased twice on the neck with a knobkerrie rendering him unconscious. Accused 1 then poured petrol all over the hut and ordered accused 2 to set the hut alight which she did and the deceased was burnt to death. Accused 1 had become angry after the n’anga told him the deceased was bewitching him. He went to drink and smoke drugs to fortify himself for the murder of his father. Accused 1 was convicted of murder but accused 2 was acquitted on the basis of the defence of compulsion.

Aggravation

Extenuation/Mitigation

The heinous killing nonetheless required the imposition of a lengthy term of imprisonment.

In sentencing accused 1, the court took into account in mitigation the youthfulness of the accused.

His strong belief in witchcraft and the fact that he had acted under the influence of a n’anga.

Sentence: 15 years

 

Killing of child

S v Moyo HB-150-16

 

Main facts:

X, who was 43 at the time of the murder, killed his 5 year old daughter possibly for ritual purposes. He had drunk strong illegal liquor to give himself courage to carry out the killing. He had killed her with an axe and had severed one of her arms.

Aggravation

Extenuation/Mitigation

X had killed his own daughter in such a manner.

X was only brought for trial 16 years later when he was 59 and the matter had been hanging over his head for that period of time.

X is in ill-health as he is HIV positive and is under treatment.

Sentence: 20 years

 

S v Tsumele HH-559-15

 

Main facts:

X had an adulterous relationship with his uncle’s wife, resulting in the woman falling pregnant. After she gave birth, the woman brought the newly-born to X to ask him to assist in getting a birth certificate for the child. Fearful of the uncle finding out about the adulterous affair, X and the woman took the baby to a secluded place at night and X strangled to death her baby. They dug a hole and buried the dead child.

Aggravation

Extenuation/Mitigation

This was a bad case of murder of an innocent baby with premeditation

X had shown genuine remorse and had confessed to the murder.

Sentence: 30 years

 

S v Hamandishe HB-29-16

 

Main facts:

X, a 29 year woman, killed her 2½ year old son. She had re-married and had taken her son, fathered by her previous husband, with her to her new husband’s house. However, her in-laws were not comfortable with the son living with them. The in-laws advised X to surrender custody of the boy to her former husband. She made an attempt to surrender the child to her former husband but she was unsuccessful. X returned home but on the way she decided to kill her son so that she could protect her marriage.

Aggravation

Extenuation/Mitigation

X’s moral blameworthiness is of a high degree. Her decision to terminate her child’s life was purely selfish. She acted after careful planning and there was an element of premeditation. Her conduct was utterly cruel as she took the life of her child by strangulation. She killed her own child who looked to her for protection. The offence is inexcusable, and the court must impose a sentence that should blend leniency and mercy with a just and proper sentence.

 

Sentence: 10 years, of which 3 years conditionally suspended

 

 

 

S v Elderman HB-165-11

Main facts:

X strangled to death his 2 year old son

 

Aggravation

Extenuation/Mitigation

The murder was premeditated

The attack was brutal and callous

The deceased was a child and his young life had been unnecessarily lost and the court had the duty to protect the sanctity of human life.

The fact that X was suffering from the psychological pressure of having the child not accepted by his family

He was a first offender

He was relatively young and he was also a breadwinner for his family.

Sentence: 30 years

 

S v Moyo HB-150-16

Main facts:

X killed his 5 year old daughter whilst left in charge of the deceased. He killed the child during the night. The deceased’s body was found without an arm.

Aggravation

Extenuation/Mitigation

The callousness of the murder in light of the fact that it had been brutally committed by a parent against his child.

The need to uphold the sanctity of human life.

X’s age who was now 59 years old.

X’s ill-health since he was HIV positive and under treatment.

The inordinate delay of 16 years that occurred before the finalisation of the matter which was considered as a punishment on its own.

Sentence: 20 years imprisonment

 

S v Shoriwa HH-576-16

 

Main facts:

X killed her brother-in-law’s 4 year old girl child by pushing her into a river where she drowned. She claimed she was suffering from diminished responsibility due to emotional distress. She had been deserted by her husband and her sister-in-law had taunted her over her failed marriage and accused her of having committed adultery with a brother of her husband.

Aggravation

Extenuation/Mitigation

There are more aggravating features in this case than mitigatory ones. X had acted with unparalleled cruelty when she pushed an innocent 4 year old toddler who was in no way involved in the problems of X to her death. Such a heartless crime requires a stiff sentence. Even accepting that X may have been acting under severe mental and emotional stress, a stiff sentence was required.

 

Sentence: 20 years

 

 

 

S v Chikandiwa HH-281-17

Main facts:

X with intent to kill forced his biological daughter to drink some poisonous substance thereby causing her to die. He also drank the poison. He alleged that he had a moment of insanity. The allegation was not substantiated by anything whatsoever and the court was of the view that he intended the consequences of his action and cannot escape conviction.

Aggravation

Extenuation/Mitigation

The killing of his daughter was callous, brutal and heartless. It is cruel for any parent to inflict such kind of pain on his child.

The court took note of X’s past drug abuse history, which resulted in him getting a less lengthy sentence.

He alleged that he was going through a stressful situation

Sentence: 12 years

 

 

Killing of parent, sibling or relative

S v Muchini HMA-4-17

Main facts:

X was convicted of murder with constructive intent for killing his own brother with constructive intent. There was a dispute between the deceased and his parents over the use of family cattle. The deceased became angry and pushed his parents to the ground. X was incensed by his brothers’ conduct of attacking their parents and he intervened and attacked the deceased with the handle of a hoe. He pursued the deceased when the latter ran for his life. X continued to attack his brother with the handle of the hoe till the deceased died.

Aggravation

Extenuation/Mitigation

The court frowned upon the prevalence of murder cases in Masvingo area and emphasised the need to send a signal that violence is not tolerated.

It also considered the sanctity of human life and the need to protect it at all costs.

The murder was senseless 

X’s lack of remorse

X was a young man of 22 years and a family man with responsibilities.

X would have a guilty conscience that would torment him for having killed his own brother and this was a punishment on its own.

X was a first offender. 

Sentence: 20 years

 

S v Chunda HB-36-17

Main facts:

X murdered his own brother by striking him twice on the head with a chisel. On the day in question it is provided that the deceased had ordered X who was just lying around to work and a brawl immediately surfaced. X holds that on the day he was already agitated as he was suffering from diarrhea. He struck his brother twice on the head with a chisel which eventually caused the death of the deceased. X was found guilty of murder with actual intent.

Aggravation

Extenuation/Mitigation

However there is a need to take into account that the deceased was senior to X and in a managerial post and thus X was meant to be subordinate to him.

X a first offender and a family man with a number of children including deceased’s children.

He took care of funeral expenses and medical expenses.

He lost a brother at his own hand - a stigma he will live with forever.

He also spent 1 year and 4 months in pre-trial custody.

Sentence: 14 years

 

S v Sibanda HB-262-16

 

Main facts:

X, who was a young man, had stabbed to death his mother after she had refused to drive her vehicle to go out and she had also refused to give him money. After the stabbing, the accused locked the doors, took the murder weapon and concealed it in the garage. He then took the vehicle and money and drove to see his girlfriend. Later he teamed up with his friend, collected more money belonging to the deceased from a neighbour and went to a club to drink beer. The following morning he took his friend and girlfriend to Harare in his mother’s vehicle. This was after he had stolen fuel from a garage. He dropped his girlfriend in Harare and returned to Gweru. On the way he hit a pedestrian near Norton and he abandoned the car and returned to Harare by public transport. He decided to travel to Gweru and boarded a vehicle from which he was spotted by some of his relatives who caused his arrest. The court found that despite his intoxication from drugs and alcohol he had the intention to kill his mother. He was found guilty of murder with actual intention.

Aggravation

Extenuation/Mitigation

The brutal manner in which the accused had killed his mother. The court said:

“… it is unthinkable that a child could do such a thing to a parent. It appears accused acted out of sheer wickedness. He is a rogue son to say the least. Had the accused been older than he is, we would have sentenced him to a much longer term of imprisonment. Quite clearly the accused has been saved by his tender age.”

That he was a young man

Sentence: 20 years

 

 

 

Drunken brawls and quarrels arising from property disputes

 

S v Ndowa HH-257-17

Main facts:

X killed the deceased in a brawl that arose between them by assaulting him with the axe he had and stabbing him with a tiny sword on the cheek. There were allegations that the deceased had taken the accused’s ex-wife and accusations of witchcraft. The accused was found guilty of murder with actual intent.

Aggravation

Extenuation/Mitigation

The court came to the conclusion that there are more aggravating features than mitigatory ones. Society abhors such disregard for human life.

The court found out that he had not acted in self-defence but on the belief that the deceased had found the affection of his ex-wife.

Sentence: 18 years

 

 

 

S v Moyo & Anor HB-218-16

 

Main facts:

The two accused persons were father and son. A fist fight broke out at a drinking place. The father handed his son a knife which was used to stab to death the deceased who was trying to flee. The father had encouraged the use of the knife by the son.

Aggravation

Extenuation/Mitigation

Even though the father was not the actual perpetrator it was his conduct which caused this unfortunate event. His moral blameworthiness is therefore extremely high. A deterrent sentence was required

 

Sentence: The two accused were sentenced to 17 years’ imprisonment.

 

S v Macheke HH-556-15

 

Main facts:

X, a fairly young person, stabbed and killed the deceased with constructive intent. The stabbing occurred during a quarrel in which X accused the deceased of stealing his money.

Aggravation

Extenuation/Mitigation

X had used a knife to kill when he should have left it to the authorities to deal with the matter.

X was a fairly young first offender

He showed remorse when he found out that the deceased had died by surrendering himself to the South African authorities so he could be returned to Zimbabwe for trial.

Sentence: 18 years

 

S v Ndlovu HB-263-16

 

Main facts:

X quarrelled with the deceased at a beer drink. The deceased stabbed X. The deceased fled with X in pursuit. The deceased fell down and X struck him several blows to the head with a wooden stool thereby causing his death. X raised unsuccessfully the defence of self-defence, the court finding that when he retaliated X was not under attack. X was found guilty of murder with constructive intention.

Aggravation

Extenuation/Mitigation

X used excessive force using a dangerous weapon and had crushed the skull of the deceased

X was not the initial aggressor and the deceased had inflicted serious injuries upon him

X was intoxicated.

Sentence: 15 years

 

S v Chishaka HH-264-17

Main facts:

X was one of the squatters who had been evicted on the Wattle Company property. When the deceased was assigned to go and mark the place for business operational purposes, the gang came to the deceased and X assaulted him with a knife by stabbing him once on the left arm causing serious injuries from which the deceased died. The accused person sought to rely on the defence of killing in defence of property which was not substantiated.

Aggravation

Extenuation/Mitigation

However there were more aggravating factors as a life was lost unnecessarily. Further, the deceased had relinquished his firearm to the guard who was in his company and thus he was no longer a threat to the accused, yet he still attacked.

X was a first offender and a man with a large family for whom he was responsible.

Sentence: 18 years

 

S v Masuna HB-221-16

 

Main facts:

There had been a dispute over the control of a mine between two persons. This dispute had been settled by a court order in favour of Y and Z was to be evicted from the mine. Z had in his employ X who was the operations manager of a security company which had been employed to provide security services to Z. In violation of the court order Z deployed X and other security guards to deal with Y’s workers who were seeking to occupy the mine. These workers were throwing stones. X, who was an ex-police officer, ended up shooting and killing one of Y’s workers. Anyone who chooses to kill merely because he does not agree with a court process shows total disregard of the law and a killing in such circumstances would qualify to be murder committed in aggravating circumstances.

Aggravation

Extenuation/Mitigation

An innocent life was needlessly lost in circumstances which show total disregard of a court order. That total disregard of the law calls for stiffer penalty.

Those who decide to kill merely because they disagree with a court order as in this case are clearly a danger to society and they must not expect mercy from the courts.  

To compound matters, X is not an ordinary citizen. Through his profession he had committed himself to maintaining law and order as a highly ranked police officer. According to him he was an expert in the use of fire arms like the one he used in this murder. He said he had been so exposed to the use of firearms for the past 18 years. He should not have retorted to the use of such a dangerous weapon on an innocent civilian who was not even the owner of the disputed mine but an ordinary worker who was trying to earn a living.

By any standard, this was brutal murder and under normal circumstance this offence should attract capital punishment. However, it was accepted that there are indeed compelling factors in mitigation, the most pronounced being the fact that almost everyone who testified confirmed there was stone throwing.

X had no criminal record and that as an adult aged 50 years this is a notable consideration.

X has fairly heavy family responsibilities.

The deceased’s company were engaged in throwing stones at X and his group.

Sentence: Life imprisonment

 

S v Kurangana HH-267-17

Main facts:

X was invited by the deceased to his homestead for a beer binge. They listened to the radio during the course of the beer binge. After the beer binge, X took with him the radio of the deceased. X proceeded towards his homestead with the deceased’s radio despite the call by the deceased not to do so. The deceased followed X and an altercation ensued. X eventually struck the deceased with an axe. Eventually the deceased died of the injuries which he sustained from the attack by X. The court found X guilty of murder on the basis of legal intention to kill.

Aggravation

Extenuation/Mitigation

The case was fraught with aggravating factors such as:

the seriousness of the crime,

the brutality with which it was committed using such a lethal object as an axe,

the lack of contrition by X who had lied to the court as to what happened

his covetousness of taking a possession that belongs to another person

There were negligible mitigating factors

Sentence: 18 years

 

S v Mpofu HB-99-15

Main facts:

X and the deceased had fought over a hoe. X had tested his weapon of choice to ensure it was lethal thus leading him to leave a wooden stick he had picked for the metal rod. X struck the deceased on the back of the head with the iron rod causing the deceased to fall down and X continued to assault deceased while he was on the ground. X was restrained and disarmed by another person.

Aggravation

Extenuation/Mitigation

The seriousness of the offence

The degree of recklessness exhibited by X accused.

X inflicted a number of blows to the deceased causing a series of injuries. 

The courts must discourage people from taking the law into their own hands in the face of provocation.

X had had ample opportunity to report the assault to the police which he did not do.

Life was needlessly lost and the courts must uphold the sanctity of human life by imposing appropriate sentences.

X was a first offender

X was assaulted for no apparent reason by the deceased on the night in question

Previously the deceased had assaulted X and deceased was not punished

After being kicked on the chin/mouth by the deceased X was deeply angered and decided to take revenge

X had been drinking beer prior to the altercation

X is married and has 8 children

He is remorseful

He had spent 10 months in pre-trial incarceration.

Sentence: 15 years imprisonment of which 3 years conditionally suspended

 

 

 

Youthfulness

S v Mutinhima HH-16-18

Main facts:

X stabbed the deceased on his right rib with an okapi knife causing his death. X is a 17 year old who was involved in a fight with deceased over his phone that was ringing in church. X was the aggressor at all material times.

Aggravation

Extenuation/Mitigation

The court was of the view that when a young person acts in such a manner they emancipate themselves.

X was between 16 and 17 years old, therefore immaturity played a big role.

Sentence: 9 years

 

S v Ndlovu HB-332-16

 

Main facts:

Following a dispute over the ownership of a shovel X went to the deceased house and stabbed to death the deceased who was a male juvenile. X was found guilty of murder with actual intent. X was a youthful first offender.

Aggravation

Extenuation/Mitigation

The killing was premeditated and well planned. At the time of the savage attack on the deceased, X had already secured the shovel in question and there was no reason why he continued to pursue this issue.

X had faked drunkenness when it was clear that he was in his sober senses when he committed this offence. The only reason why he tracked down the deceased was because he wanted to stab him.

X was much older than the deceased and there was no need for him to behave in such an irrational and vengeful manner. The deceased had not shown any signs of posing a threat to the accused person.

It was disturbing that throughout this trial X had not been able to show any traces of remorse or regret towards his conduct. The deceased had done nothing deserving the termination of his life in such a brutal manner. 

Such youngsters like the accused are dangerous and much as they require to be treated with mercy they must be kept away from the mainstream society for quite some time. The court hoped that by the time the accused comes out of prison he would have matured enough to be a useful member of society.

X was a youthful first offender.

Sentence: 25 years. But for the accused’s age, this is the offence that required serious consideration of capital punishment.

 

S v Sibanda HH-13-17

Main facts:

X caused the death of deceased by stabbing him with a knife on the right side of his chest thereby causing injuries which led to his death. X sought to allege that his companion had killed the deceased but the court denied this as he had no motive. X and the deceased had had consecutive fights outside the bar over a bar stool.

Aggravation

Extenuation/Mitigation

The crime was not committed in aggravating circumstances taking into account the totality of the circumstances.

X was 19 years old at the time of commission of the crime. Generally youthful offenders are treated with leniency.

He was in pre-trial incarceration for over a year.

Sentence: 20 years

 

S v Moyo HMA-16-17

Main facts:

X stabbed to death the deceased, aged 21, using an okapi knife after he had encountered the deceased on a footpath.

Aggravation

Extenuation/Mitigation

Lack of contrition and X was simply unwilling to disclose and be truthful as to what happened between him and the deceased. The manner in which X killed the deceased was brutal and savage.

Cases of murder are very prevalent in Masvingo province and this trend should be worrying to every law abiding person who respects the sanctity of human life. Many young persons resort to the use of dangerous weapons like knives at the slightest provocation.

X is a first offender who is married with no children.

He is unemployed.

He had already suffered pre-trial incarceration of 8-9 months.

 

Sentence: 25 years

 

S v Makuchete & Ors HMA-07-16

Main facts:

Accused 2, aged 25 years at the time, was one of three brothers arrested for the murder of their cousin. By the time of trial only accused 2 was available. The accused and his brothers caused the death of the deceased by striking him with knobkerries and a slasher all over the body. 

Aggravation

Extenuation/Mitigation

X showed no contrition and he had tried to go after deceased’s wife to kill her also. 

He tried to disown responsibility.

 

X has 3 children and a wife and his wife is unemployed and disabled.

X was 25 years of age at the time of the commission of the crime, hence he was youthful.

On the day the crime was committed, X had drunk too much alcohol, resulting in induced lack of self-control.

He was also serving 7 years for attempted murder that occurred in the same transaction.

Sentence: 25 years

 

S v Mapurisa HMA-16-18

 

Main facts:

At New Year’s celebrations, a quarrel occurred between X’s brother and another person. The deceased tried to intervene to stop the fight but X warned him not to interfere and when he did not heed the warning, X knocked down the deceased, sat on his chest, drew a knife and stabbed the deceased in his head which led to the death of the deceased. X had brushed aside attempts to restrain him. Before inflicting the fatal wound, X cut the deceased twice on the face. X was found guilty of murder with actual intent. X was 22 at the time of the murder and the deceased was 23 years old.

Aggravation

Extenuation/Mitigation

A brutal murder of an innocent person

X had shown no remorse and his moral blameworthiness was very high.

“This court is worried by the prevalence of murder cases in Masvingo province. What is disheartening is that such murder cases are being committed by fairly young persons. The mind boggles as to why such young persons readily resort to violence at the slightest provocation or at no provocation at all. We do not even understand why on this day you were moving around with a knife in your pocket. This was a day for merry making. The knife itself is very unique. People should be discouraged to move around with such dangerous weapons.”

The court said it was difficult to find anything of a mitigatory circumstance.

X was a first offender who had spent one year and two months in pre-trial custody. Although X was a youthful offender and youthfulness can to some extent denote immaturity, in the present case the court should not place undue weight on this factor.

Sentence: 25 years

 

            Brutal planned attacks

 

 

 

S v Katsande HH-854-15

 

Main facts:

X was convicted of murder with constructive intention. He has brutally assaulted a defenceless woman and thrown her body into a raging river. X had impregnated the wife of the brother of his cousin. He committed the murder to conceal the fact that he had impregnated the woman.

Aggravation

Extenuation/Mitigation

 Brutal assault on defenceless woman

 

Sentence: 20 years

 

 

S v Moyo HB-343-16

 

Main facts:

X with accomplices stabbed to death with actual intention to kill the defenceless deceased who was being held down by the accomplices.

Aggravation

Extenuation/Mitigation

X was sentenced to 30 years imprisonment as the killing was unprovoked and without justification and a life was needlessly lost.

X was brought for trial only after 14 years when he was finally tracked down. He was a first offender who was in ill-health.

Sentence: 30 years

 

 

S v Ncube & Ors HB-303-16

 

Main facts:

The three accused armed with knobkerries, spears and axes assaulted a person at a tuck shop leaving him unconscious. When some people confronted the accused about the earlier assault, the accused attacked these people with their weapons causing the death of the deceased. The accused were found guilty of murder with constructive intent.

Aggravation

Extenuation/Mitigation

“… the kind of banditry exhibited by the accused persons on the day in question is alarming indeed. They first severely assaulted [one person] in a gang attack thereby setting in motion the events which led to the fatal attack on the deceased. It is now a norm rather than exception that youthful people roam the neighbourhood and frequent business centres on a daily basis especially at Christmas time where they spend lengthy periods of time not engaged in any useful activity but consuming large amounts of alcohol, abusing drugs and showing off. Once intoxicated they become menancing wantonly attacking others and at times causing unnecessary loss of life. Our youths have become blood thirsty and are no respecters of human life. They are arrogant, rude and violent. These courts have repeatedly decried the cancer of violence and alcohol abuse which is tearing our social fabric and it would appear that these people are not taking heed. It is however the duly of the court to underscore and respect the sanctity of human life by imposing deterrent sentences against those that cross the line in order to protect our people from the likes of the accused persons. Sentences must mirror the revulsion of society against the kind of conduct as exhibited by the accused persons in this matter.

The ages of the accused (28, 21 and 20) who were first offenders.

They are youthful offenders whose irresponsibility stemmed from immaturity.

They are unsophisticated rural young men.

The episode leading to the death had been triggered by an attack upon the accused.

Sentence: Each accused sentenced to 15 years

 

S v Nyarusanga HH-7-17

Main facts:

X, who was 18 years old at the time of the commission of the crime, struck the deceased with an iron bar on the head whilst he was sleeping. He also struck him with bricks and stones to ensure that he had died. X also removed the skin of the scalp of the deceased, cut his left ear and disgorged his left eye.

Aggravation

Extenuation/Mitigation

The brutality of the crime and the heinous manner in which it was committed in so far as it was accompanied by physical torture and mutilation of the body. It also considered the importance of the right of life.

The fact that the murder was committed consequent upon an unlawful entry into a dwelling.

The personal circumstances of X exercised the mind of the court. His upbringing was pathetic in so far as he had not been provided with an opportunity to continue with education. He had also been left to fend for himself at a tender age. He was therefore forced to resort to crime to take care of himself.

The court also took into account his young age as a youth.

Sentence: 25 years imprisonment

 

S v Dube HB-92-16

Main facts:

X, without warning, struck the deceased twice with a pestle on the head which caused his death. X plead the defence of self-intoxication but this was rejected. X had to walk some 20 kilometres to fetch the striking tool, indicating that he had intention to murder the deceased.

Aggravation

Extenuation/Mitigation

This was a premeditated murder

X was a man of 36 years old with heavy responsibilities (had 3 children and a wife).

He is the sole breadwinner.

He was a first offender

He had been drinking.

Sentence: 30 years

 

S v Mafukidze HH-255-17

Main facts:

The pair pre-planned the attack carefully choosing their victim by reason of her age and hermit-like-life. They unleashed gratuitous violence, consisting of the vicious assault against her in her hut before strangling her to death.

Aggravation

Extenuation/Mitigation

The pair pre-planned the attack carefully choosing their victim by reason of her age and life style.

They unleashed gratuitous violence, consisting of the vicious assault against her before strangling her to death.

The murder was committed in aggravating circumstances; an innocent life was lost needlessly.

The accused were 22 years old and first offenders.

Sentence: 20 years

 

S v Makoni & Ors HB-201-16

Main facts:

There was a tribal altercation pitting the Ndebele speaking group on one side and the Shona speaking on the other. The deceased was hit twice on the head with a heavy concrete slab. The two accused were part of a gang whose common objective was to assault those of Ndebele extraction. They were found guilty of murder with actual intention.

Aggravation

Extenuation/Mitigation

This was a brutal murder carried out on tribal grounds.

Neither of the accused actually struck the fatal blows

Sentence: Both accused were sentenced to 30 years imprisonment.

 

 

Sections 337 and 338 simply reflect the constitutional provisions laying down the persons upon whom the death penalty may not be imposed.

 

This case is summarized in detail to illustrate how a court balances aggravating circumstances against mitigating circumstances.

This case is summarized in detail to illustrate how a court balances aggravating circumstances against mitigating circumstances.

Note that killing of a child can be an aggravating circumstance for the purposes of imposition of the death penalty.