THE State VS Tinashe Lawrence GORE

### Preamble
1
HMA 14/19
CRB 15/19
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THE STATE

VS

TINASHE LAWRENCE GORE

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 14 MARCH, 2019

ASSESSORS:		1.	Mr. Gweru

2.	Mrs Chadema

CRIMINAL TRIAL	- SENTENCE

Ms S. Masokoverefor the State

Mr J. Mupoperifor the accused

MAWADZE J:The accused now stand convicted on his own plea of guilty of the charge of contravening section49 of the Criminal Law (Codification and Reform) Act [Cap 9:23] which relates to culpable homicide.  Initially the accused had been arraigned for murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Cap 9:23].  The murder charge was reduced to the lesser charge of culpable homicide with the consent of the State.  The matter therefore proceeded on the basis of a statement of agreed facts.

Both the accused and the now deceased were aged 21 years at the material time.  The accused resides in Musiwedzingo village Chief Mukanganwi, Bikita, Masvingo.  The now deceased was a resident of Mafurere village Chief Mazungunye, Bikita, Masvingo.

The agreed facts are that on 26 October 2018 the accused and the now deceased were inside Makota bottle store at Zinopangwa business centre.  A dispute arose between them over a game of snooker resulting in the two wrestling each other.  One Liberty Makota intervened and restrained the accused and the now deceased from fighting after which the now deceased left for his residence at around 2000 hours.  Later that evening at abought 2300 hours the accused decided to proceed to the now deceased’s residence.  The now deceased who had retired to bed was woken up by the accused.  The accused lured the now deceased to the gate on the pretext of discussing their previous misunderstanding.  The accused then struck the now deceased with a beer bottle once on the head and ran away.

The now deceased collapsed and was ferried to Bikita Rural Hospital that night where he was pronounced dead on arrival.

As per the post mortem report the now deceased sustained nasal bleeding, superficial bruising on the left frontal area, massive haematoma on left frontal area and massive haematoma on the left parietal area.  The cause of the now deceased’s death is the head injury arising from the assault on the head with the beer bottle.

In arriving at the appropriate sentence the court has taken on board submissions by counsel relating to the mitigatory and aggravating factors.

Indeed, the accused at 21 years of age is a youthful offender.  However, he recently married and has an 8 months old baby.  As he is unemployed with no meaningful savings or assets his very young family solely relies on his manual labour.  The accused’s incarceration is therefore likely to bring immense suffering to his young family and may actually end this marriage especially if it is for a very long period.

The accused is a first offender who generally deserves leniency and can only be incarcerated if that is the only appropriate sentence.  The hope is that he would reform and desist from crime.

By tendering a plea of guilty the accused has not wasted our precious time.  The four state witnesses who were in attendance were excused without giving evidence.  Less state resources were therefore expended in prosecuting the accused who clearly is contrite.

It is in accused’s favour that he paid some compensation of a cow and calf to the now deceased’s family who had demanded 26 herd of cattle.  Although this is insignificant compared to the loss of life it is a sign of remorsefulness.

The court is cognisant of the fact that the accused and the now deceased were initially involved in a brawl or fight over a game of snooker.  Despite the tragic consequences the accused delivered a single blow albeit with fatal consequences.

We have been persuaded to consider the cases of The State v Justine Watanhuka HH 342-13 and The State v Fredrick Chafadza HMA 27-18 and impose a wholly suspended sentence.  Suffice to state that these two cases are clearly distinguishable from this case at hand.  In the case of The Statev Justine Watanhuka suprathe deceased was the aggressor who was overpowered and attacked with the very weapon he was using.  Similarly, in the case of TheState v Fredrick Chafadza the deceased in that case was a victim of a deflected blow.

In the event that we decided to impose a custodial sentence Mr Mupoperi for the accused submitted that we should impose a minimal custodial term.  Reliance for this proposition was placed in the case of The StatevSilence Chandirekera and Anor HMA 04 – 18 and The State v LucksonMadunga HMA 33 /18 in which the accused persons were sentenced to effective terms of 1 ½ years and 1 year respectively.

It is a fact that the offence of culpable homicide arising from violent conduct is a very serious offence.  The saddening aspect is that these types of cases are very prevalent in Masvingo Province and most of them arise from petty disputes like disagreements over snooker game.  This court wonders why our young people quickly resort to violence with tragic consequences at the slightest provocation.  Incasua 21 year old now deceased lost his life over a game of snooker.

What elevates the accused’s moral blameworthiness is that there is an element of premeditation in the commission of the offence.  We say so because after being restrained at the bottle store the accused who had ample time to cool down and reflect on what he intended to do decided some hours later to follow the now deceased for purposes of attacking him.  The accused armed himself with a bottle.  He then lured the now deceased as if he wanted to simply discuss the matter but suddenly attacked the now deceased and fled.

The accused’s degree of negligence is very high.  He used a lethal weapon, a beer bottle.  The single blow was directed to the deceased’s head.  It is clear severe force was exerted in view of the injuries inflicted and that the now deceased died moments later.

It therefore should be made abundantly clear to the accused and others of like mind the human life is precious and should be valued by everyone.  Once a life is lost can not be replaced.  The accused should learn to control his temper and desist from violence.

After carefully weighing all the factors the court is of the view that a minimal term of imprisonment is proper in the circumstances.

In the result the accused is sentenced as follows,

“2 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused does not commit within that period any offence involving the use of violence upon the person of another for which the accused is sentenced to a term of imprisonment without the option of a fine.

Effective sentence   -   1 year imprisonment”

National Prosecuting Authority, counsel for the state

Saratoga Makausi Law Chambers, pro deocounsel for the accused.