Themba Moyo v The State

### Preamble
Judgment No. SC 29/21
1
Criminal Appeal No. SCB 84/20
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REPORTABLE	(28)

THEMBA     MOYO

v

THE     STATE

SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA & CHITAKUNYE AJA

HARARE, MARCH 22, 2021 & MARCH 24, 2021

Mr N. Sibanda, for the appellant

Mr B. Gundani, for the respondent

GUVAVA JA:	On 8 February 2018 the High Court delivered a judgment in respect to this matter. The appellant noted the present appeal against the decision of the court a quo which imposed a penalty of death against the appellant for the murder of two deceased persons.

FACTUAL BACKGROUND

The facts of this case are largely common cause. The appellant was charged with two counts of murder as defined in s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”) at the High Court (“the court a quo.”) He pleaded not guilty. It was alleged that on 23 February 2017, the appellant went to Nyama General Dealer, Mberengwa, where he struck the first deceased Netsai Maruvisa (his wife) with an axe on the head resulting in her instant death. On the second count, the appellant struck the second deceased Mthabisi Moyo (his son) with an axe on the head which also resulted in his instant death.

The respondent’s witnesses, one being the sister of the deceased, testified that the first deceased (wife) had marital disputes with the appellant and that she had left her matrimonial home to live with her sister. They testified that earlier on the fateful day, the appellant went to the first deceased and pleaded with her to return to their matrimonial home. It was the witnesses’ testimony that the first deceased refused and the appellant threatened her with death before he left. They further testified that the next morning, they found the first and second deceased dead. The first deceased had been struck by an axe on the head. The axe was still lodged in the deceased head. They testified that there was also a blood-stained axe next to the second deceased’s lifeless body.

At the trial, contrary to what had been recorded in the warned and cautioned statement, the appellant testified that he did not remember the material facts of the matter because he was very drunk. He testified that he did not remember when he married the first deceased, when he committed the offence, when he recorded a statement before the police officers and how old the second deceased was. He only remembered that he drank beer on the day in question. He told the court that he remembered being informed by his inmates that he had committed murder and that he believed them hence his admission to the charges in his warned and cautioned statement.

The court a quo found that the appellant was aware of the events that transpired on the day in question. It held that his warned and cautioned statement and post-mortem report were conclusive evidence of what happened on the particular day. It further found that the appellant had an altercation with the first deceased. He then went to drink some alcohol. He thereafter proceeded to his homestead and collected an axe. The court a quo found that he then went to the dwelling where the deceased persons were sleeping with two other persons. The appellant entered the room through the window.  He found a big axe in the room which he used to strike his wife. With the small axe, he struck his son. He thereafter fled the crime scene and went to Filabusi. From these facts, the court a quo found that the appellant meticulously planned this crime as he struck the first and second deceased only and left the other persons who were in the room and sought to use drunkenness as a way to reduce his moral blameworthiness.

The court a quo found the appellant guilty of the two counts of murder with actual intent. After considering the mitigatory and aggravating circumstances, the court a quo sentenced the appellant to death. Aggrieved by the court a quo’s decision, the appellant noted the present appeal challenging the aspect of sentence only.

APPELLANT’S SUBMISSIONS ON APPEAL

At the hearing, counsel for the appellant submitted that the court a quo misdirected itself by failing to accord due regard to the mitigating factors. It was appellant’s contention that a careful consideration of the mitigating factors would not have resulted in the imposition of capital punishment. It was submitted that the appellant does not possess any academic credentials as he only attended school up to the seventh grade. It was stated that his lack of education therefore impacted on his appreciation of issues. Further, it was submitted that the appellant was highly intoxicated on the fateful day which clouded his judgment.

Mr Sibanda for the appellant, further submitted that the lack of credentials coupled with the consumption of alcohol clouded the appellant’s normal inhibitions and the court a quo should have taken it into consideration. It was also argued for the appellant that his social upbringing may have also impacted on his actions as he was raised by his maternal relatives after his parents separated. Counsel for the appellant stated that the appellant’s upbringing points to an individual who was subjected to a harsh social environment whilst growing up.

It was further argued that the appellant’s entire family will be wiped out if the death sentence is allowed to stand as he had already lost two members due to the murder he committed. The appellant is of the belief that his bloodline will be haunted by the spirit of the first deceased (ngozi) which can only be appeased if his life is spared as he is the only person who can appease the spirits and save his extended family and generations to come.

In the final analysis, Counsel for the appellant argued that since 2005, no death row inmates have been executed. He stated that this shows that the country is moving away from imposing the penalty of death. He also submitted that the appellant will be subjected to unimaginable mental anguish and haunted by being on the death row as he will not know when the day of reckoning will arrive. In light of these submissions, the appellant’s counsel urged the court to set aside the death penalty and substitute it with a sentence of life imprisonment.

RESPONDENT’S SUBMISSIONS ON APPEAL

Mr Gundani for the respondent, submitted that the court a quo judiciously exercised its sentencing discretion when it imposed the sentence of death on the appellant. He relied on s 337 of the Criminal Procedure and Evidence Act [Chapter 9:07], (hereinafter “the Act”), in support of the position that the High Court may pass a sentence of death upon an offender convicted of murder if it finds that the murder was committed in aggravating circumstances. He further argued that the appellant’s mitigating factors cannot be said to outweigh the aggravating features.

Counsel for the respondent stated that the fact that appellant does not possess any academic qualifications is not sufficient on its own. He added that no evidence was pleaded pertaining to the abnormalities of the appellant’s state of mind at the time he committed the offence. There was no evidence that the appellant was abused by his maternal family whilst growing up nor that he was abused by the first deceased during the time they lived together. Counsel for the respondent submitted that it was in fact the appellant who had abused the first deceased until she left him. Counsel for the respondent averred that the manner in which the offence was committed was callous and calculated. The fact that he lost his whole family through his own actions and with regards the submission that his extended family may be haunted by the spirit of the first deceased, he submitted that it cannot be a mitigating factor to reduce the moral blameworthiness of the appellant or warrant consideration of a sentence other than the death penalty.

He further submitted that the fact that the appellant had threatened to kill the first deceased showed that the murder was premeditated. On the aspect of intoxication, Counsel for the respondent submitted that it was voluntary intoxication and in terms of the Criminal Code, the court was not obliged to take it into consideration. In any event during the trial, the appellant had pretended not to remember the events of the fateful day but this was clearly contradicted by his warned and cautioned statement where he explained vividly how he committed both crimes and his conduct after the commission of the offence. It is from the detailed warned and cautioned statement that Counsel for the respondent submitted that the acts committed by the appellant were done by someone who was not highly intoxicated as he was aware of what he was doing.

He urged the court to consider that aggravating circumstances are set out in s 47(2) of the Criminal Code. Counsel for the respondent moved that the appeal against sentence be dismissed as the death penalty was properly imposed in terms of the law.

APPLICATION OF THE LAW TO THE FACTS

It was the appellant’s submission in his sole ground of appeal that the court a quo misdirected itself in not giving due weight to his factors in mitigation. To that end, he argued that the court a quo imposed a harsh sentence which was not warranted.

It is pertinent to note that whenever an appellant appeals against sentence, the court is obliged to inquire whether the conviction is appropriate. The sentiments were aptly illustrated in Mutero v The State SC 53/18 at p3, where the court held that:

“Although the appellant had noted an appeal against sentence only, at the hearing of the appeal before this Court on 3 August 2015, this Court, as it is required to do in terms of the law, scrutinized the evidence adduced before the High Court in order to determine whether the conviction was also proper. See S v Mubaiwa 1992 (2) ZLR 362, 365D; Mupande v The State SC 82/14; Samson Mutero v State SC 28/17; Cloudious Mutawo v State SC 37/14; Enock Ncube and Anor v State SC 58/14.”

A perusal of the record, particularly, the appellant’s warned and cautioned statement and the post mortem report shows the appellant’s guilt is beyond reasonable doubt. He confessed to the two charges of murder. The effect of a confession has been reiterated in several cases. In Remo Investments Brokers (Pvt) Ltd & Ors v Securities Commission of Zimbabwe SC 13/13, it was held that the confession of guilt cannot be wished away and a conviction founded thereupon cannot be upset. Accordingly, the finding by the court a quo of murder with actual intent is hereby confirmed.

With regards to sentence, s 48 (2) (a) of the Constitution of Zimbabwe 2013, provides that a law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and that the law must permit the court a discretion whether or not to impose the penalty. Further, s 337 (1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that subject to s 338 of the Act, the High Court may pass a sentence of death upon an offender convicted of murder, if it finds that the murder was committed in aggravating circumstances.

Section 339 of the Act provides that the High Court shall not pass sentence of death upon an offender who:-

Was less that twenty-one years old when the offence was committed; or

Is more that seventy years old; or

Is a woman

It is apparent that appellant in casu, does not fall under the category of persons to whom a sentence of death must not be passed in terms of s 339 of the Act.

On whether or not the offence was committed in aggravating circumstances, the court is guided by s 47(2) and 47(3) of the Criminal Law Code. Section 47(2) provides that in determining an appropriate sentence to be imposed upon a person convicted of murder, and without limitation on any other factors or circumstances which a court may take into account, a court shall regard as an aggravating circumstance if the murder was committed by the accused in the course of, or in connection with, or as the result of, the commission of any one or more of the following crimes, or of any act constituting an essential element of any such crime (whether or not the accused was also charged with or convicted of such crime)form example but not limited to-

-	unlawful entry into a dwelling house or

- the murder was one of two murders committed by the accused during the same episode.

Section 47(3) provides that, a court may also in the absence of other circumstances of a mitigating nature or together with other circumstances of an aggravating  nature, regard as an aggravating circumstance the fact that-

The murder was premeditated

The murder victim was a minor

From the facts of this case, one is left with no doubt that the appellant’s behaviour was intentional and calculated. This is illustrated by the fact that he consumed alcohol following an altercation with the first deceased. He thereafter armed himself with an axe and went to the scene where he committed the crime. The appellant entered into the room where the deceased persons were sleeping through a window silently without anyone noticing or hearing anything. He went on to identify the two people he wanted to kill in room where they were sleeping with other people. From there, the appellant managed to put down the small axe he had brought with him after identifying a bigger axe which was in the room which he then used to strike the wife’s head and thereafter took the small axe and used it on the minor one and half year old child. After committing the offences he left through the window and fled to Filabusi.

The above sequence of events show that the appellant had planned to commit the murders. He cannot be presumed to have been highly intoxicated in the circumstances. He committed the murder having unlawfully entered the deceased’s dwelling. He was able to identify his two victims from the four people that were sleeping in the room and killed them. The second deceased was a minor. All this coupled with the threats to kill the first deceased prior to committing the offence points to a person who was not highly intoxicated but one who had just taken alcohol to gather dutch courage in order to commit the crimes in question. The warned and cautioned statement clearly exhibits how the murders were committed in aggravating circumstances. In our view, any other conclusion would be an affront to logic and justice.

The point advanced by the appellant to the effect that no death row inmates have been executed since 2005 which he alleges suggests that the country is moving away from imposing capital punishment does not preclude the court from imposing the death sentence at law. The law permits capital punishment. The Constitution as earlier alluded to makes provision for it. In this regard, until it is abolished, capital punishment remains an option for sentencing in murder cases committed in aggravating circumstances.

It is trite that sentencing is within the discretion of the trial court as held in Thomas Madeyi v The State SC 128 /20. It is also trite that such discretion cannot be interfered with unless it is proven that it was improperly exercised as held in S v Bottoman & Anor CC 22/07 [2008] ZAECHC 129. The appellant submits that the court a quo did not give due consideration to his mitigatory circumstances and that, this tainted its exercise of discretion. The consequences of failing to give due weight to mitigatory circumstances before sentencing have been reiterated in a number of cases. In Siluli v The State SC 106/04, this Court held:

“… before arriving at a conclusion the court is enjoined to carefully balance the mitigating features and aggravating features. This the court did not do in the present case. The trial court’s misdirection leaves this Court with two options. Either to remit the matter for sentencing de novo or, for this Court to pass sentence itself. The latter is the more common practice; see Mharadzo’s case, supra. The Court, in this case, will follow the more common practice and assess the sentence itself.” (my emphasis)

A perusal of the judgment of the court a quo shows that the court a quo carefully considered the appellant’s mitigatory circumstances. It considered that the appellant was a first offender aged 32 years and that he had spent ten months in remand prison and had only attained educational qualifications up to Grade seven. However, it found that the aggravating features in the case far outweighed the mitigatory factors. This was because the murders were found to have been pre-meditated and had been committed in the most brutal of circumstances.

It should be emphasised that domestic violence should never be condoned. The court may take judicial notice that many women are losing lives at the hands of their spouses. As a result, deterrent penalties must be imposed to set an example to would be perpetrators as such cases are prevalent.

In light of the above, it is the Court’s view that aggravating circumstances far outweighed the mitigatory ones. It is the duty of the court to uphold the sanctity of human life. The fact that no executions have been carried out since 2005 cannot be held to be a mitigatory factor as it is entirely the President’s prerogative. Capital punishment has not been abolished or outlawed in our jurisdiction.

It is the court’s view that the appellant’s moral blameworthiness is very high. The court a quo cannot be faulted for imposing the death penalty in view of the circumstances of this case. The judgment of the court a quo cannot be impugned.

DISPOSITION

In the result this Court makes the following order:

“That the appeal be and is hereby dismissed”.

UCHENA  JA:			   I agree

CHITAKUNYE AJA:		   I agree

Tanaka Law Chambers, appellants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners