THE State V Sosana Gondo

### Preamble
1
HMA 50-18
CRB 47/18
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THE STATE

VS

SOSANA GONDO

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 18 OCTOBER 2018.

ASSESSORS:

1.	Mr Gweru

2.	Mr Chikukwa

Criminal Trial - Sentence

M. Tembo for the State

O. Mafa for the Accused

MAWADZE J:	Without sounding patronising and or chauvinistic women are generally known for their motherly love, care and nurturing life.  They are not known for brutally taking away life.  Unfortunately this case proves otherwise.

The 29-year-old mother of the three minor children was arraigned initially facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Cap 9:23].  She was subsequently convicted of a lesser charge of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Cap 9:23] after both counsel submitted a statement of agreed facts to that effect.  I should confess that I reluctantly accepted this pact between counsel as the facts of this case may as well support a charge of murder with constructive intent.  Indeed, this can be said to be a borderline case.

Again one could not fail to feel sympathetic to the accused who has a suckling one-year-old baby which constantly gazed at us as we pronounced the reasons for sentence.  I allowed the baby into the court room as it was crying incessantly during the proceedings after it had been left in the custody female prison officers.  The innocence exhibited by this breast feeding child as its eyes rolled around the serene environment of the court room would even touch the heart of the biblical king Herod.

The facts of this case are briefly as follows;

The 81-year-old now deceased was a father in law to the 29-year-old accused.

They both stayed at the same homestead at Mafusire Village (clearly no relation of my brother MAFUSIRE J) in Chief Mazuru area, Gutu Masvingo.  The now deceased was unable to walk due to old age.

In the morning of 17 April 2018 the now deceased was at home with his 13 year old granddaughter while the accused had gone to the fields.  The now deceased felt hungry and decided to crawl into the kitchen to look for food.  As already said he could no longer walk.  During that process he broke some kitchen utensils and two eggs belonging to the accused.  The accused was alerted and returned from the fields.  She found the now deceased inside the kitchen hut.  The accused was incensed.  Harsh words were exchanged between the daughter in law (the accused) and the deceased.  The accused decided to administer physical punishment.

The accused took a cooking stick and struck the now deceased on the head.  In a rather moment of madness accused took a pestle and struck the now deceased all over the body.  The hapless old man was severely injured.  The post mortem report revealed the following injuries;

“1.	Multiple bruises and lacerations on occipital part.

2.	fracture right humerus, right radius and ulnar.

3.	fracture cervical spine.

4.	fracture right femur”

The accused realised the folly of her misplaced rage and tried to administer first aid.  The now deceased was ferried to Mazuru Rural Health Centre where he passed on the following day ironically on our independence day 18 April 2018.  The cause of death was haemorrhagic shock and multiple bone fractures.

It is on the basis of these facts that we have the unenviable task of assessing a fair and just sentence.  In doing so we should strike a balance between the mitigatory and aggravating factors of this case.

As already said the accused is a married woman with three minor children.  In fact her last born child is with her in prison as it is still breast feeding.  It is without doubt that the incarceration of the accused would cause immense suffering and problems to her three minor children.  She now has to outsource the nurturing of the other two minor children to other persons while the youngest child grows up within the four walls of prison.  It may be not far-fetched that a long period of incarceration may as well sound a death knell to her marriage.  Even assuming that her husband has the patience similar to the biblical Job it is very likely that other family members of her husband would never accept her back in the family upon her release from prison.  They will always hold her responsible for callously taking away the life of their relative, the now deceased.  Ordinary members of society do not distinguish between the offence of murder and culpable homicide.  That is the luxury of those schooled in law.  The accused therefore may forever live with the stigma that she took away an innocent elderly life.  Her hands may forever be deemed to be dripping with sacred human blood which may make her a permanent outcast.  This is another form of punishment likely to trouble accused’s conscience.

The accused is unemployed, without any savings or assets.  Basically she is just a poor rural wife.

Our courts have, as a general rule treated first female offenders with more leniency.  This aspect of positive discrimination is even enshrined in our Constitution where a sentence of death cannot be passed on female offenders (see s 48 (2) (d) of the Constitution).  Further even female juveniles are spared corporal punishment as provided for in s 353 of the Criminal Procedure and Evidence, Act [Cap 9:07].  To that extent therefore the accused being a first female offender deserves some measure of leniency.  I am inclined to believe also that female offenders are rarely recidivists.

It is in accused’s favour that she pleaded guilty to the charge of culpable homicide.  The court’s time was not wasted and this matter was disposed of in a short period of time.  Criminal cases disposed of by way of plea of guilty can be described as low hanging fruits.  The state’s resources are saved in dealing with such cases.  The witnesses are spared at times the trauma of facing an accused person giving evidence like in this case where accused’s 6 year old child was one of the state witnesses.  The quick disposal of such cases reduces our ever increasing backlog thus ensuring an efficient criminal justice system.  Indeed, any criminal court should not pay lip service to a plea of guilty but to meaningfully consider it in assessing sentence by rewarding such an accused person who makes a clean break of his or her wrong doing.

It should be considered in your favour that you suffered from pre-trial incarceration of about six months from 18 April 2018.  We are however not persuaded by submissions made on your behalf that you were provoked when the now deceased broke your kitchen utensils.  We are also not persuaded that you deserve a custodial sentence of about 3 years as submitted by Mr Mafa when one considers the aggravatory factors in this case.

To begin with the cause of your rage or anger was a very petty and trivial one.  Surely one cannot brutally attack an 81 year old father in law for merely breaking your pots and or plates.  What value can really be placed on such plates and pots compared to human life?

Culpable homicide arising from violent conduct remains a very serious offence punishable with lengthy custodial sentences in the absence of any special mitigatory factors.  The sanctity of human life is treasured by our courts and should always be protected.  Unlike pots and plates once a human life is lost it cannot be replaced.  This type of offence in worryingly prevalent in Masvingo and the courts need to send proper signals to society at large by handing down deterrent sentences in appropriate cases.

Indeed we find it shocking that you had the temerity to assault your father in law.  This is taboo in our African culture and is an abomination for a daughter in law to behave like that.  Besides the only crime your father in law had committed was to crawl into the kitchen looking for food.  Surely he could not lose his life for that.

The sheer brutality you exhibited in this case is both shocking and mind boggling. The clearly frail and 81-year-old now deceased could not have possibly caused any physical threat to you.  He could not even walk but crawl.  Instead you exerted your uttermost brute force upon him.  The force you used was extremely severe.  You broke his limbs and cervical spine.  The level of cruelty is shocking.  One is left wondering as to what has happened to our humanity (Ubuntu).

Overally we find your moral blameworthiness to be very high.  The aggravating factors far outweigh the mitigatory ones.

In the result we believe the following sentence is justified in the circumstances.

“8 years imprisonment of which 2 years imprisonment are suspended for 5 years on condition the accused does not commit within that period any offence of which the use of violence upon the person of another is an element and for which the accused is sentenced to a term of imprisonment without the option of a fine.

The effective sentence is 6 years imprisonment”

National Prosecuting Authority, Counsel for The State

Mutendi, Mudisi and Shumba, pro deo counsel for the Accused.