S v Mhute (CRB 107 of 2009) [2015] ZWHHC 784 (6 October 2015)

1 HH 784/15 CRB 107/09 THE STATE versus TAWONA MICHAEL MHUTE HIGH COURT OF ZIMBABWE BHUNU J HARARE, 5 August 2015 and 7 October 2015 Assessors: 1. Mr. Gonzo 2. Mr. Shenje Application for bail pending appeal against sentence F. Nyahunzvi, for the State T. M Kanengoni, for the Defence BHUNU J: This is an application for leave to appeal against sentence in terms of r 263. The accused was convicted of culpable homicide after contest. He assaulted and killed his wife in a drunken brawl on the night of 4 October 2009. In consequence whereof he was sentenced as follows: “1. The accused is accordingly sentenced to 7 years imprisonment of which 2 years imprisonment is suspended for a period of 5 years on condition the accused does not again within that period commit any offence involving the unlawful killing of a fellow human being. 2. In respect of the minor child KUDZAIISHE MICHAEL MHUTE it is ordered in the interim: (a) That GRACIANO PARADZAI KAPFUNDE shall continue to have custody of the minor child KUDZAIISHE MICHAEL MHUTE pending a final order of a competent court of competent jurisdiction. (b) That 50% or Half of the proceeds or rentals from a certain piece of property known as NUMBER 9 SORMERSET MEWS NEWLANDS HARARE jointly owned by the deceased and the accused shall be deposited into the GUARDIAN FUND pending the determination of a competent court of competent jurisdiction. (c) That the Registrar is directed to serve a copy of this judgment on the Master of the High Court” HH 784/15 CRB 107/09 In assessing sentence the court was alive to the prevalence of offences involving domestic violence and the need to pass stiff and deterrent sentences in offences of this nature. Having regard to the applicant’s moral turpitude, it is my considered opinion that imprisonment is unavoidable at all costs. The sentence passed is within the range for serious culpable homicide cases such as this one. It was tempered with mercy in that a substantial portion of the sentence was suspended on appropriate conditions of good behaviour. The applicant’s intended appeal is premised on the credibility of the post-mortem report. That criticism of the trial court does not take the applicant’s case any further because the judgment makes it clear that there were two credible eye witnesses who saw the deceased shortly after the attack. It was common cause that the accused was the author of the wounds and injuries observed by the two state witnesses. The court’s vision of the deceased’s injuries to which she subsequently succumbed to death was perceived through the eyes of the two state witnesses with the post-mortem report simply providing a backup and confirmation of direct eye witness evidence. The assault was brutal and merciless causing the following injuries observed by two eye witnesses: 1. A black eye 2. Bruises on the face 3. Bruises on the neck 4. Swelling on the face The above injuries were confirmed by a medical report which also revealed that the deceased had sustained a fractured jaw. A narration of the injuries by the deceased’s mother and sister paints a ghastly horrific picture depicting the ferocity of the barbaric savage attack. Thus even if the medical report was to be expunched from the record, the result will remain the same. The applicant’s argument that the deceased suffered from a condition called sickle cell trait is more of an aggravating feature than a mitigating circumstance considering that the applicant perpetrated a brutal fatal attack on his wife with the full knowledge that she was of ill health. The well-known thin skull rule is applicable. You take your victim as you find him. Both ill and healthy people have an equal right to life. Come to think about it, the applicant was lucky to come out with the lesser charge of culpable homicide. Since he knew of his HH 784/15 CRB 107/09 wife’s ailment he must have subjectively foreseen that death would ensure in the circumstances of this case, thereby rendering him liable to guilty of murder with constructive intent. In assessing sentence the court took into account all the mitigating factors and balanced them against the interests of the state and society at large. The court also went out of its way to achieve social justice by making provision for the sustenance and upkeep of his immediate family particularly his minor child with the deceased who has lost the love and care of both parents through death and imprisonment. There being no discernible misdirection on the trial court’s part, I am of the firm view that there are no reasonable prospects of success on appeal. That being the case, the application cannot succeed. It is accordingly ordered that the application for leave to appeal to the Supreme Court be and is hereby dismissed. Nyika, Kanengoni & Partners, Defence’s legal practitioners The Prosecutor-General’s Office, State’s legal practitioners