State v Kawocha (65 of 2024) [2024] ZWCHHC 65 (19 July 2024)

HCC65/24 HCCR437/24 THE STATE Versus KASINA KAWOCHA IN THE HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI 17 &19 JULY 2024 Assessors Mr Kamanga Mrs Mateva Criminal trial A Sibesha for the State T Marinda for the accused MUZOFA J: [1] The accused is charged with the crime of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is alleged that on 30 August 2023 he unlawfully caused the death of his wife Spejina Kawocha by striking her twice with a log on the head intending to kill her or realising that there was a real risk or possibility that his conduct may cause the death of the deceased and continued to engage in that conduct despite the risk or possibility. [2] The accused pleaded not guilty to the crime of murder and offered a plea of guilty to the lesser crime of culpable homicide. The State accepted the plea of guilty to the crime of culpable homicide. The State tendered into the record of proceedings a statement of agreed facts, which is before court and marked Annexure “A”. The statement reads as follows: HCC65/24 HCCR437/24 i. The accused and the deceased were married and living together. On the day 30th of August 2023 at around 2200 hours, the accused and the deceased were at their homestead seated by the fire. ii. The accused asked the deceased why she had not bathed her nephew Takudzwa Kawocha. The deceased responded to the accused leading to an exchange of words between the two. The accused then picked a log from the fire and struck the deceased twice on the iii. head. The log was 5cm in width and 75cm in length as per the description by the witnesses. The deceased who was now bleeding then fell down. The accused carried the iv. deceased and placed her in the bedroom hut. A report was made to Winscol Nzomba who went and saw the deceased in bed v. groaning in pain. The accused denied Winscol Nzomba access to assist the deceased. The Village Head was invited to intervene but still the accused denied him access to the deceased. vi. The deceased’s son was called to assist that is when the accused relented and the deceased was ferried to Murambi Clinic around 0200hours. She was later transferred to Chinhoyi Provincial Hospital where she succumbed to the injuries. A post-mortem examination was conducted by Doctor Stageous Mutanikwa who v. concluded that death was due to severe traumatic head injury. The accused was charged with murder, however the accused person cannot properly vi. be found guilty of murder as he lacked the requisite intention, actual or constructive, to cause the death of the now deceased. A charge of culpable homicide as defined in section 49 of the Criminal Code as he acted negligently in assaulting the deceased with the log causing her death would be appropriate in the circumstances. The State and defense urge the court to return a verdict of not guilty of murder but guilty on a charge of culpable homicide. [3] The State tendered the following exhibits; a post mortem report which shows that the cause of death was severe traumatic brain injury and the accused’s confirmed warned and cautioned statement where he admitted that he struck the deceased with a log. [4] The totality of the facts and the evidence adduced in this trial show that the injuries sustained by the deceased were caused by the accused. The post mortem report shows that the injuries inflicted by the accused caused the death of the deceased. [5] The accused struck the deceased with a log on the head. A reasonable man placed in the same circumstances would have foreseen the possibility of death and would have guarded against it. The accused’s conduct fell below the reasonable person standard. He must have guarded against the eventuality of death. The accused was negligent and it was his negligence that led to the death of the deceased. The concession by the State was properly made. [6] The accused is found not guilty of murder and found guilty of the lesser crime of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. HCC65/24 HCCR437/24 Sentence [6] The accused stands convicted of the crime of culpable homicide as defined in s 49 of the Criminal Law Code. In coming up with an appropriate sentence this court must consider the applicable sentencing principles as set out in the Sentencing Guidelines and juxtapose the principles with the circumstances of the case bearing in mind the established triad of sentencing consisting of the crime, the offender and the interests of society. See S v Zinn 1969 (2) SA 537 (A). [7] The presumptive penalty provided in the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 is five years imprisonment where there are aggravating factors and three years where there are mitigatory factors otherwise the maximum statutory penalty is life imprisonment. [8] The accused gave evidence in mitigation that he is a family man with the attendant family responsibilities. However, by his conduct he has demonstrated that he lacks responsibility by killing his wife. [9] It is mitigatory where the accused is remorseful and has paid or has triggered some process to pay some compensation. Although he asked for forgiveness in Court his conduct did not show any remorse. He did not engage his wife’s relatives at all, only to aver that he was in custody. He could have sent emissaries through his family. There was evidence that his son visited him at prison but nothing was organised. Secondly, he denied that he prevented people from assisting the deceased yet the evidence from the eye witnesses and accepted in the Statement of agreed facts indicate as such. We come to the conclusion that the accused is not remorseful. [10] What is aggravating is that the accused committed this offence in the domestic setting, the home where a person must find comfort and protection. The deceased lost her life over a petty issue for not bathing his nephew. Surely after a marriage of over 30 years that issue could have been settled amicably. Conflict is inevitable in marriages but combat is optional. The accused opted for combat. Striking the deceased twice on the head a vulnerable part of the body twice and denying her immediate assistance cannot be overlooked. We find that the accused’s moral blameworthiness is high a sentence exceeding the presumptive penalty is warranted. [10] Having found that the degree of negligence is high, we also considered the accused’s personal circumstances. He is aged 61 years. He is fairly advanced in age. He is also a victim he lost his wife and destroyed his marriage. He will live with the stigma that he killed his wife. He was arrested and could not bury his wife which could have given him some closure. He has been in custody for almost a year. In S v Difiri 2001 (2) ZLR it was held that before passing sentence in all cases, the court should enquire whether the accused has been on bail pending trial or on remand. If the accused has been in custody for a lengthy period awaiting trial, that should be taken into account in determining sentence. Also, in S v Hlahla HMA-1- 21 where the court held that: “In a proper case where an accused person has suffered from a lengthy pre-trial incarceration period the court would reduce the sentence to be imposed.” HCC65/24 HCCR437/24 [11] Culpable homicide is a serious offence it involves the loss of life. The sanctity of life must be preserved. Loss of life in any circumstances whether negligent or intentional is not in the public interest. Life is sacred and should be preserved with utmost care. Deaths as a result of violence are a cancer in our society that has become a cause for concern. [12] The accused and the deceased had been married for 40 years and they must have calculated some measure of respect. For the accused to assault an elderly woman for not bathing his nephews was downright highhanded and very patronising. This attitude to physically chastise spouses as if they are children must be condemned in the strongest sense. No dispute is beyond amicable resolution. {12] Both counsel for the State and the defence are agreed that the degree of negligence is high and a custodial sentence is inevitable. [13] In S v Chilanga & Anor HMT 20/18 in a case of domestic violence which resulted in the death of a brother one of the accused was aged 79 years the court imposed an effective 4-year term. A custodial sentence can still be imposed on the accused who is 60 years. [14] We were also referred to the case of S v Dube HB 18/24 in which the accused aged 62 years killed her husband. The Court imposed a wholly suspended sentence. The court noted that the 42-year marriage was tainted with domestic violence the accused being the recipient. On the fateful day the accused was acting in self-defence and she also assisted the deceased immediately after the killing. The circumstances of that case are at tangent with this case. The deceased was not the aggressor. The case is not of any persuasive value. In the result the offender is sentenced as follows: “6 years imprisonment of which 2 years imprisonment is wholly suspended for 5 years on condition accused does not commit within that period any offence involving the use of violence upon the person of another and or causing the death of another through violent conduct and of which if convicted the accused is sentenced to a term of imprisonment without the option of a fine.” National Prosecuting Authority, State’s legal practitioners Masawi & Partners, accused’s legal practitioners