The State v Donald Padoro

### Preamble
1
HB 58-19
HC (CRB) 4/19
XREF REDCLIFF CR 17/10/17
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THE STATE

versus

DONALD PADORO

HIGH COURT OF ZIMBABWE

MABHIKWA J with Assessors Mr W. T Matemba and Mrs L Sithole

GWERU CIRCUIT 29 JANUARY 2019

Criminal Trial

Ms N Chikuni for the state

B Mzenda for the accused

MABHIKWA J:	The accused person in this case is a juvenile aged 16.   He was 15 at the time of the fateful incident. He faces a charge of murder as defined in section 47 (1) of the Criminal (Codification and Reform) Act, [Chapter 9;23].  It was alleged that the accused resides at No. TC 6 Torwood, Redcliff in Kwekwe and is a pupil at Batanai High School at Redcliff.  The deceased, Munyaradzi Guramatunhu was 21 years old at the time of his demise and resided at No K174, Torwood, Redcliff, and was not employed.

On 3 October 2017, and at about 2000 hours, the deceased proceeded to the accused’s place of residence to ask him over gossip involving his (deceased)’s girlfriend.  In the process, a misunderstanding ensued.  The deceased assaulted the accused with clenched fists on his face.  This incensed the accused who then picked up a metal stool and threw it at the deceased, catching him on the head.  The deceased was taken to Kwekwe hospital and thereafter to Parirenyatwa Hospital in Harare.  He was returned to Kwekwe on 10 October 2017 but unfortunately passed away on 13 October 2017.  The accused denied the charge of murder and tendered a plea of guilty to the lessor charge of culpable homicide.  He stated in his plea that whilst he admits striking the deceased with a stool, he did not intend to kill him.

The state has conceded that on the facts before the court, there is insufficient evidence to prove that the accused intended to bring about the victim’s death.

The statement of agreed facts tendered into the record and marked as Exhibit 1 confirms the above facts.  A pathologist, Dr Sanganai Pesanayi examined the deceased’s remains.  His findings recorded in post mortem report (Exhibit 2) No. 937-936-17, reveal the following as the cause of death;

1.	Severe brain damage

2.	Depressed skull fracture

3.	Assault

The metal stool was also produced as Exhibit 3.  It is in fact not all metal but a 3 legged stool made up of a total of 6 small strands of metal rods welded together.  The stool had a height of just 39.5cm.  The diameter of the circular part of the stool was 28cm.  The circumference was 92cm and it weighed 0.1795kg.  The accused’s birth certificate and a probation officer’s report were also tendered as Exhibits 4 and 5 respectively.

From the evidence before us, the court is convinced that the accused indeed caused the death of the deceased.  However, the deceased apparently called the juvenile out of the durawall in the evening without informing any elderly person.  Outside, he started asking him gossip and was generally the aggressor.  Apparently, no person witnessed the incident.  Passers-by only found the deceased lying unconscious.  No evidence therefore has been adduced before the court to indicate that the accused possessed the requisite intention to kill either in the form of Dolus Directus or Dolus eventualis.  He was however negligent in his actions leading to the death of another.  Having been above the age of 14 at the time, he was no longer Doli incapax.

Accordingly, the accused is found not guilty of murder but guilty of culpable homicide.

Sentence

In assessing sentence, the court will consider that which has been said in his favour by both counsel.  	He was 15 at the time of the unfortunate incident.  He was doing form 3 but has lost a year of schooling as his father has allegedly decided he will continue after the finalization of this matter.  The court is not sure why.  He simply is a “child” with nothing in the form of property or savings.

The court considers also, that from the facts before it and by way of evidence accepted in the agreed statement of facts, the accused has not been shown to be a rougue or problem child. The probation officer’s report also indicates that he is not a problem child.

In fact the deceased who was 21 but was allegedly doing form 3 also, called the juvenile outside without even asking for permission from parents or guardian.  He then started asking him about gossip on women before assaulting him with clenched fists.  	The juvenile then retaliated.  He clearly acted in anger, at the spur of the moment.  This was not by any means, a pre-planned attack.

The court also considers that from the probation officer’s report, the accused grew up with no parental guidance.  In fact, his half-sister appears to have done the best in the circumstances when one looks at the probation officer’s report.  The parents, who are not deceased by the way, seem to have left the juvenile exposed, perhaps hence the deceased acted in the manner he did knowing that the accused had absentee parents.

The post-mortem by Dr S Pesanai also does not reveal a callous attack.

It would certainly be undesirable to send the juvenile to prison and expose him to hard core criminals.  Such a sentence would damage his character and life rather than rebuild it.  A more restorative type if punishment, which will give the juvenile offender time to reflect and change his ways hopefully, is the more appropriate one.

In State v Polite Tekwane- HB-128-17, the accused, a juvenile aged between 13 and 15 years old, buried an 8 year old child alive.  He was sentenced to 4 years imprisonment wholly suspended on conditions.

See also, State v Major Makumbe –HB-21-17 where the accused got angry and kicked the deceased on the neck whilst playing football at school.  He committed the offence at 16 and was tried when he was 17.

He was sentenced to 4 years imprisonment wholly suspended on conditions.

See also State v Tamolyn Lamola HB 144/15.

The court will always however, emphasise the need to respect life.  The accused, inspite of the above findings by the court, started his criminal life from the deep end.  One only hopes he will mend his ways and respect life.  Once lost, life cannot be replaced.

Accordingly, accused is sentenced to 4 years imprisonment wholly suspended for 5 years on condition the he does not, within that period commit any offence of which violence is an element and for which he is convicted and sentenced to term of imprisonment without the option of a fine.

National Prosecuting Authority, state’s legal practitioners

Hore and Partners, accused’s legal practitioners