THE State V Tatenda Migeri AND Cornius Kamutungo

### Preamble
1
HH 868-22
CRB 87/22
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THE STATE

versus

TATENDA MIGERI

and

CORNIUS KAMUTUNGO

HIGH COURT OF ZIMBABWE

MUNGWARI J

HARARE, 1 November 2022

Assessors:	Mr Mhandu

Dr Mushonga

Criminal Trial

T Mabika, for the state

T Marufu, for the 1st accused

C Mahlangu, for the 2nd accused

MUNGWARI J: The two accused appeared before us charged with the offence of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Code.”) the State alleged that on 25 January 2021 at around 4:00 a.m., Tatenda Ringson Anoki (the deceased) unlawfully entered into and stole from a shop that was manned by Tatenda Migeri (hereinafter referred to as the “1st accused”.) He was caught in the act by the 1st accused who called upon Cornius Kamutongo (hereinafter referred to as the “2nd accused)” for assistance. The two accused took turns to assault the deceased with a baton stick and clenched fists. As a result the deceased sustained mortal injuries.

The 1st and 2nd accused denied the charge of murder but admitted to having negligently caused the death of the deceased. They subsequently tendered a limited plea of guilty to culpable homicide. The state accepted the plea. Pursuant to the plea the parties prepared a statement of agreed facts.

It was apparent from the agreed facts that on the fateful day and at around 7:00 p.m., the 1st accused who was employed as a tuck shop attendant at Clear Morning Farm in  Centenary closed the tuck shop but did not lock the door.  He subsequently sat outside the tuck shop by the fireplace whilst guarding the premises.  He was later joined by the 2nd accused and together they warmed themselves against the chilly winter temperatures. The deceased observed the two accused seated at the front of the shop and using the back entrance broke into the shop and stole some groceries. The two accused were alerted of the deceased’s presence in the shop. They caught him red handed as he was stealing the groceries. Angered by the deceased’s actions the two men took turns to assault him with a baton stick and clenched fists all over the body. One Edwin Mazarire intervened and restrained the men.  He took the deceased person to the police station. Upon arrival, the deceased collapsed and became unconscious. He was escorted to the hospital where he was admitted for treatment.  He died on the 4th day after admission at the hospital due to the severity of the injuries sustained.

On 8 July 2021 an autopsy was conducted by Dr Yoandry Olay Mayedo upon the remains of the deceased. Dr Yoandry Olay Mayedo subsequently compiled a report. The postmortem which was admitted in evidence by consent as Exhibit 1 showed that the deceased died due to intracranial hypertension and severe head trauma.

Significantly the weapon used was also tendered as an exhibit.  It is a 59cm long black baton stick. The certificate of weight confirmed its weight at 0.580 kg signifying that it is light in weight.  It was agreed that accused negligently caused the death of deceased.

In view of the state outline, the statement of agreed facts together with the exhibits tendered and defense counsel’s unequivocal statement of accused’s understanding we accepted the limited plea of culpable homicide. We were satisfied that the states concession to accept a limited plea was proper in the circumstances.

Disposition

Accordingly we find the accused not guilty of murder but guilty of a lesser charge of culpable homicide.

Sentence

In passing sentence, we considered all the mitigating and aggravating factors as advanced by counsels.

We took note of the fact that both accused are first offenders who pleaded guilty to the offence they knew they had committed. They therefore assisted in the smooth administration of justice. They pleaded guilty to the offense of culpable homicide and in so doing, showed remorse and contrition for their actions as they did not waste the courts time by raising frivolous defences. Notwithstanding their remorse, both accused will still live with the stigmatisation of having taken someone someone’s life. The court maybe lenient but society will not be.

Both are young men, currently 23 years old. They were 22 years old at the time of commission of the offence and therefore fall into the bracket of youthful offenders. It is trite that youthful offenders are treated more leniently than mature people. This is because due to immaturity they cannot be expected to show the same stability, responsibility and self-restraint as fully mature adults. The age of the two accused and the way they recklessly beat up the deceased in a bid to prove their masculinity, is testament of their immaturity.

Significantly too, courts should not just pay lip service to a plea of guilty but ought to credit it for what it is worth and this will reflect in the sentence.

The facts of the matter also make the circumstances in which the death occurred mitigating. The deceased was the aggressor, a habitual thief he unlawfully entered into the premises of the 1st accused. In trying to protect his employer’s property the 1st accused with the 2nd accused’s assistance then assaulted him with a baton stick. Were it not for the deceased’s actions of unlawfully entering the premises and stealing, today the two accused would not be standing as convicted persons. We have therefore considered that to some extent the deceased was the author of his demise as he was the aggressor. This in essence reduces the accused’s moral blameworthiness.

Against the accused, is the fact that a precious life was needlessly lost as a result of the conduct of the accused. The State in aggravation correctly emphasised the sanctity of human life. The Zimbabwean Constitution s 48(1) makes it clear that every person has a right to life. This court therefore has a duty to protect this right. A person who unlawfully takes away another’s life deserves to be punished adequately, not only to deter the offender and likeminded people but to ensure that society retains confidence in the justice delivery system. In this case accused’s actions are even compounded by the fact that they did not stop to render any assistance to the accused despite that he was the aggressor.

This court bemoans the seemingly never ending rise of violence and self help in dealing with instances were the deceased would have been found committing an offence and mob justice kicks in. Adults are expected to behave in a mature manner and exercise self-restraint even in the face of such provocation. They are not expected to take the law into their own hands and mete instant justice but to allow the law enforcement agents do the needful. It is the duty of the courts to discourage the law of the jungle. The State lent a voice to this and implored the court to impose a deterrent sentence that sends a message to society to resort to proper lawful means as opposed to violence.

The defence and the State counsels made some helpful submissions as regards sentence. Both defense counsels implored the court to pass a noncustodial sentence such as a wholly suspended imprisonment term or alternatively community service. The case of State v Mukondiwa HH 605/20 was cited. With all due respect the case differs from the case at hand. The circumstances are different. The type of provocation different as well.  As a result we did not find it useful. The State on the other hand prayed for an effective custodial sentence of not less than three years imprisonment and cited the case of State v Kuipa and Ors HMA 29/21. The case is on all fours with the case at hand.  In the latter case, the deceased intruded into the complainant’s house and he stole some items.  He was caught red handed and was apprehended and assaulted by villagers some of who included the accused.  He died as a result of the assaults. The accused was sentenced to a four year imprisonment term of which 1½ years were suspended. The effective term of imprisonment was 2½ years.

A reading of many other decided cases in our jurisdiction shows that the predominant sentencing trend is imprisonment even where the accused has been found guilty of culpable homicide.  It represents a sign of the courts revulsion at the unnecessary loss of life.

In casu accused the accused are young offenders who acted negligently and caused the death of the deceased.  The credit for their youth, plea of guilty and remorse will be reflected in the suspended portion of the sentence.  Accordingly, they are sentenced to:

Each accused, three years imprisonment of which two years is suspended for five years on condition accused does not within that period commit any offence involving the use of violence upon the person of another and or negligently causing the death of another through the use of violence and for which upon conviction he will be sentenced to a term of imprisonment without the option of a fine.

National Prosecuting Authority, State’s legal practitioners

Marufu Attorneys-At-Law, first accused’s legal practitioners

Ruzvidzo & Mahlangu Legal Practitioners, second accused’s legal practitioners