S v Ringoziva (142 of 2024) [2024] ZWCHHC 142 (12 March 2024)

1 HH 142-24 CRB 72/23 THE STATE versus GODKNOWS TAFADZWA RINGOZIVA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE; 12 March 2024 Sentencing Judgment Assessors : Mr Chimwonyo Mr Kunaka A Mupini, for the state P Takaidza, for the accused MUNGWARI J: On the night of 14 January 2023 and at Kanengoni village Chambare Manyene in Chivhu, Godknows Ringoziva broke into the deceased’s home motivated by a desire to steal. The deceased an elderly woman lived alone at the homestead. She walked in on him as he was in the process of ransacking her house and she confronted him. The offender elbowed her out of the way and assaulted her with her walking stick. He then took the deceased's blanket and covered her with it subsequently using it to suffocate her to death. Unmoved he stole her possessions, among them groceries, a cellphone as well as a blanket. He packed the property into three sacks loaded them into her wheelbarrow and wheeled the deceased’s property away from her premises and escaped into the night. He was identified by Anderson Kashora as he made his way to the bus stop and by Taurai Nyandiro as he boarded a commuter omnibus enroute to Chivhu town. About a month later the offender was arrested in Mutasa and was subsequently arraigned before this court facing a charge of murder as defined in s 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code). He pleaded not guilty to the charge. It was his defence that on the night of 14 January 2023, he was nowhere near Chivhu as he was at his father’s homestead in Mutasa. He had arrived there on 5 January 2023 and had never left Mutasa district until his arrest in February 2023. We however threw out that defence and convicted him after a contested trial. The proved facts of the matter were as already stated above. HH 142-24 CRB 72/23 Currently, the presumptive penalty for a murder committed in aggravating circumstances is 20 years. That law however only came into existence in the latter half of 2023 yet this offence occurred in January 2023. There is no difference between the minimum mandatory sentence prescribed for murder committed in aggravating circumstances and the presumptive penalty stated in the sentencing regulations. 1. The Law The initial stage in evaluating sentences in murder cases involves the court determining if the murder was committed in aggravating circumstances. Consequently, legal practitioners must recognize the necessity of addressing the court in relation to this aspect before presenting the generalised submissions in mitigation. Only if the court does not find that the murder was committed in aggravating circumstances will the general aspects in mitigation work in favour of the accused. Section 47(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows: “(4) A person convicted of murder shall be liable— (a) subject to sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07], to death, imprisonment for life or imprisonment for any definite period of not less than twenty years, if the crime was committed in aggravating circumstances as provided in subsection (2) or (3); or (b) in any other case to imprisonment for any definite period.” From the above provision, the court’s discretion is significantly limited in relation to the sentence it can pass after a conviction for murder where it finds that the killing was committed in aggravating circumstances. The decision on which sentence to impose is largely influenced by the strength of the mitigating and aggravating factors submitted by the defence and the prosecution. Citing the provisions of s 47(3)(b) of the Criminal Law Code, the state then submitted that this murder was committed in aggravating circumstances due to the victim being ninety-three (93) years old. The defence acknowledged that it was undisputed that the deceased was indeed of that age at the time of the murder and went on to state however that the deceased was an old woman nearing the end time of her life as it cited the case of S v Gunde HH 481/23. The relevance of the cited case was unfortunately lost to the court. We somehow interpreted counsel’s submission to mean that the defence was arguing that because the deceased was old, she had lost relevance in society suggesting that her old HH 142-24 CRB 72/23 age could not be taken as aggravating. Where the argument stems from is baffling especially in light of the provisions of s 47(3)(b) which reads as follows: “47 Murder (1)--------- (2)--------- (3) 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— (a)-------- (b) the murder victim was a police officer or prison officer, a minor, or was pregnant, or was of or over the age of seventy years, or was physically disabled.” In this case the deceased was ninety-three years of age as confirmed by both her seventy-four-year-old son and the doctor’s post mortem report. When a murder victim is seventy years old or older, it automatically falls under the category of murder in aggravating circumstances as stipulated by the law. This specific age threshold is not subject to negotiation or debate. The court is obligated to recognize and treat it is an aggravating factor based on the legal provisions in place. It is an aggravating circumstance and the matter ends there. What further aggravates this crime is that this was a brutal murder of a defenceless nonagenarian without any provocation. The old lady was mercilessly attacked to death. The brutality and inhumanity of the assault were extreme. The offender did not give the deceased any chance of survival as evidenced by the deceased falling down attempting to crawl to safety and then the offender returning to finish her off by snuffing the little life left out of her with a blanket. The examining pathologist said the deceased was old and frail. She obviously stood no chance against the fierce strength of her twenty-eight-year-old attacker. She must have died a very frightened woman. For some reason the defence counsel then went further and stated that the offender had constructive intent and not actual intent in committing the offence and as such the sentence to be imposed must be minimal. She cited the case of S v Mungoza CRB 8 of 2018. However, MAKARAU JA in the case of Tafadzwa Watson Mapfoche v The State SC 84/21 laid to rest the issue of whether or not it is of importance for the trial court in a murder trial to consider whether the murder was committed with actual or constructive intent. As already alluded to, what is important is for the court to determine whether or not the offence was committed in aggravating circumstance for purposes of appropriate sentencing. The argument HH 142-24 CRB 72/23 about whether or not a murder was committed with actual or constructive intention is a tired one. The state also argued that the fact that the offender had unlawfully entered the deceased house intending to steal is another aggravating factor. The defence on the other hand confirmed that the offender had indeed entered the deceased’s dwelling house and only intended to steal when he assaulted the deceased in the process. The defence counsel tried to differentiate this case from the S v Mhunza HH 331/2023. In the cited case the accused unlawfully entered the elderly deceased’s house, and upon being startled by the deceased assaulted him until she died. The evidence before us is that the offender unlawfully entered the elderly deceased’s dwelling house. He was disturbed by the presence of the deceased and assaulted her till she died. It is respectfully submitted that quite the contrary, the case of Mhunza is on all fours with this matter. The offender’s behaviour therefore brought him squarely into the ambit of the aggravating circumstance of murder committed after an unlawful entry into a dwelling house. This