STATE                                                                                                                                

versus

BIGKNOWS WAIROSI

HIGH COURT OF ZIMBABWE

UCHENA J

SITTING with Assessors Messrs E N BARWE, and C T GONZO

HARARE, 11, and 15 February 2011.

CRIMINAL TRIAL SENTENCE

M Mbanje, for the State

M Nkomo, for the accused

UCHENA J:   The convicted person was convicted on the findings of fact by the majority of the court.

The majority of the court found that the convicted person took his two sons from his mother who was staying with them in Chivakanenyama village in Karoi. He had arranged with his accomplices to murder his son Ronald. He while traveling with the accomplices and his two sons disembarked from the motor vehicle, and walked his two sons into the bush where he struck his elder son’s head with a stone. His younger son on seeing this gruesome murder ran away from the scene and was on the evening of the same day found wondering in the paddock of Sandara farm. A few days later the deceased’s body was found in the paddock of Sandara farm. The court found the convicted person guilty of murder with actual intent. As the trial judge I dissented, but must now consider whether or not there are extenuating circumstances, and sentence the convicted person on the facts found proved by the majority. This is because s 10 (2) provides that the decision of the majority is the decision of the court. The minority decision is not relevant and must be disregarded in considering the appropriate sentence, even though it might be the decision of the judge who must in terms of s 10 (3) of the High Court Act [Cap 7:06], determine the issue of sentence. Section 10 (2) and (3) of the High Court Act provides as follows:

“(2)      Any question of fact arising at a criminal trial in the High Court shall be decided by the majority of the members of the court.

 (3)       At any criminal trial in the High Court the judge shall have the sole responsibility for fixing the sentence, but he may consult the assessors if he thinks fit.”

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EXTENUATING CIRCUMSTANCES

In terms of s 47 (2) (b) of the Criminal Law (Codification and Reform) Act [Cap 9:23] when an accused person is convicted of murder he must be sentenced to death, unless the court finds that there are extenuating circumstances in his commission of the crime. Extenuating circumstances were in the case of S v Woods & Ors 1993 (2) ZLR 258 (SC) @ 283 G, described as “any facts bearing upon the commission of the murder which reduce the moral blameworthiness of the offender as distinct from his legal culpability”.

 Mr Nkomo for the convicted person submitted that there are extenuating circumstances, in this case, and based his submission on the following:

1.         That the convicted person was an immature and uneducated rural man aged 27, who was influenced by his accomplices. The convicted person attended school up to grade seven.

2.         That he was most likely duped into murdering his son by his accomplices.

3.         That he could have acted under delusions without appreciating what he was doing.

4.         That, he did not benefit from the commission of the ritual murder.

5          That the convicted person’s accomplices were not brought to court.

Mr Mbanje for the State submitted that there are no extenuating circumstances in the convicted person’s case. He correctly submitted that extenuating circumstances are circumstances in the commission of the offence which reduce the convicted person’s moral blameworthiness rather than his legal guilt. He referred us to the case of S v Letsolo 1970 AD 476 F - H where HOLMES JA said:

“Extenuating circumstances have more than once been defined by this court as any facts bearing on the commission of the crime which reduce the moral blameworthiness of the accused as distinct from his legal culpability. In this regard a trial court has to consider;

1. Whether there are any facts which may be relevant to extenuation such as immaturity, intoxication or provocation, (the list is not exhaustive).
2. Whether such facts in their cumulative effect had a bearing on the accused’s state of mind in doing what he did.
3. Whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did.

In deciding C the trial court exercises a moral judgment. If its answer is yes it expresses its opinion that there are extenuating circumstances.”

See also John Reid Rowland’s “Criminal Procedure in Zimbabwe” at p 25-35.

On the convicted person’s immaturity Mr Mbanje referred the court to the case of Robert Chingaona v State SC 105/02, where a 20 year old with four years of secondary school education was held not to be immature for purposes of extenuation. In my view s 47 (2) (a) of The Criminal Law (Codification and Reform) Act [Cap 9:23], gives a guide to the issue of maturity. It sets the age for which capital punishment can not be imposed at 18 years and below. This means any other aspects of immaturity which can be considered for purposes of extenuation must be those touching on the impairment of the convicted person’s mental development as opposed to his actual age. The court would thus be guided by signs of the convicted person’s lack of mental development, or mental illness short of that entitling an accused to a special verdict, in determining whether or not extenuating circumstances exist in a given case.

The convicted person’s rural back ground and limited education can not per se be extenuating unless his conduct in the commission of the offence shows signs of immaturity. On the contrary the convicted person’s conduct proves that he was conscious, of what he was doing, and determined to achieve what he had set out to do. He went to his parent’s home in Chivakanenyama village in Karoi, where his mother strenuously dissuaded him from taking the children away. He resisted her and gave reasonable arguments for doing so. He argued that he had his employer’s letter, which he could use to influence his obtaining the birth certificates in the absence of his former wife. This, demonstrates, his ability to strategize and manipulate systems to his advantage using the status of his employer, who was the Member of Parliament for the area, whom he must have asked to write such a letter for him. If he lied to his mother or the court about the letter it again shows an orderly evasion of his mother’s inquiry, consistent with a developed mind. His repeated visits to the Police about a child he had murdered again reveals a clear attempt to divert attention from himself consistent with a properly developed mind. If he had been manipulated by people he blames for the murder he would have said so instead of strenuously denying that he was involved. The accomplices where not present when he strenuously resisted his mother’s dissuasion. If he was of undeveloped mind he would not have outwitted his mother towards the achievement of his intended purpose. This means he was not duped by his accomplices, nor did he act under delusions.

The fact that the convicted person may not have benefited from the ritual murder, was not canvassed during the trial. The State’s allegation that he was to be paid Z$40 million was not proved. Tawanda who was said to be the source of that information did not testify to that effect. That however is not an issue for extenuation as it happened after the murder. What is of interest to this court is the convicted person’s moral blameworthiness at the time he committed the offence. Once it is proved that he struck the deceased with a stone causing his death then the existence of his moral blameworthiness, would have been satisfied, whether or not his accomplices eventual paid him the agreed price for his effort in committing the crime.

The fact that his accomplices where not brought to court does not have a part in deciding whether or not he committed the crime in extenuating circumstances. It is an event which took place after, the commission of the crime. They may well be tried separately for their part in the crime. What is relevant is the role each of them played in the commission of the crime. Each participant’s acts, determines his moral blameworthiness. The convicted person’s acts described above, confirms, that there are no extenuating circumstances in this case.

This was a clearly planed murder from which the convicted person refused to be dissuaded by his mother’s strenuous effort to stop him from taking the children away. He therefore was determined to commit the offence. We are therefore satisfied that there are no extenuating circumstances in this case.

THE SENTENCE

After the court found that there were no extenuating circumstances the Registrar in terms of s 49 (1) of the High Court (Criminal Procedure) Rules 1964, asked the convicted person if he knew of any reason, or had anything to say as to why the death sentence should not be passed on him. The accused said his counsel should make submissions on his behalf. Mr Nkomo sought leave to approach his client which was granted. After a brief conversation with the convicted person, he informed the court that the accused was to address the court in person.

The convicted person then asked the court to consider that he was married and had an extended family to look after. He submitted that he did not commit the offence, as he only wanted to obtain birth certificates for his children. He summed up by asking the court to pass a lenient sentence.

Mr Mbanje for the State submitted that what the convicted person said was merely mitigatory and does not entitle the court to pass any sentence other than that of death. Mr Nkomo said he had no comments on the submissions made by his client.

The opportunity given to the convicted person to inform the court of any reason, or say anything on why the death sentence should not be imposed on him, is an important stage, of a murder trial, during which the convicted person may inform the court if any of the statutory reasons for avoiding the death sentence are applicable to his case. He can for example tell the court that he is now over seventy years old, or was below 18 years at the time he committed the offence. See s 337 of the Criminal Procedure and Evidence Act [Cap 9: 07] and s 47 (2) (a) of the Code. His being allowed to say anything which will result in his not being sentenced to death, enables him to raise other issues including, facts which may touch on the propriety of the conviction. He may at this stage say things which prove that there are extenuating circumstances, or that he did not commit the offence which if believed by the court may lead to its recalling its finding that there are no extenuating circumstances, or even the recalling of the verdict of guilt. See John Reid Rowland’s “Criminal Procedure in Zimbabwe” at p 25-39

The convicted person in this case did not advance any statutory, reason why the death sentence should not be imposed on him. He did not advance anything warranting the recalling of the court’s findings on extenuating circumstances or the conviction. He merely repeated what he had said in his defence which was not believed by the court. There is therefore no basis on which this court can pass a sentence other than the death sentence.

The convicted person is therefore returned to custody for the sentence of death to be executed according to law.

Donsa-Nkomo & Mutengi legal practitioners, convicted person’s legal practitioners