Paddington Kapfudza v Lawrence Billiant & 2 others [2025] ZWCHHC 8 (26 March 2025)

2 HCC 21/25 HCCR 1549/24 THE STATE Versus HANDSOME MAMIYODWA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 28 March 2025 Assessors: 1. Mr Mashavave 2. Mrs Mateva Sentencing Judgment R. Nikisi, for the State F. S. Ruchike, for the accused MUZOFA J: Introduction [1] The accused a 44-year-old man was convicted with murder in contravention of s47 (1) of the [Criminal Law Codification and Reform] Act. He is a family man with nine children, most of them are adults except for two. He was a vegetable farmer. [2] The brief facts are that the accused and the deceased are related. The deceased was the accused’s brother-in-law. On the 28th of April 2024 they were together drinking beer at one Anos Muzenda’s Shebeen. They left together heading to their different homes. [3] The deceased never got to his home. The following morning deceased’s wife searched for her husband. The deceased’s body was retrieved from Sanyati River. The accused was apprehended by the public on suspicion that he caused the deceased’s death. [4] The accused denied the offence. Although he admitted being with the deceased, he said the deceased suddenly screamed tore his t-shirt and ran off. He tried to pursue him to no avail. He then picked the deceased’s t-shirt and took it to his homestead. He challenged the warned and cautioned statement and indicated that the members of the public who arrested him severely assaulted him. However, at the police station he was not assaulted but he still harbored the fears from the prior assaults. So the statement was not made freely and voluntarily. [5] In coming to our decision we found that the circumstantial evidence in this case admits of no conclusion except that the accused caused the deceased’s death. The accused was the last person who walked with the deceased. Foot prints of one person was tracked to the river. The deceased did not die from drowning but an assault. The only inference was that the foot prints belonged to the accused, and that the deceased was thrown into the river by the accused. The accused’s previous inconsistent statement to his sister Shylet Katando corroborated the State case. We also found that had the deceased behaved the way the accused stated the accused decided not to disclose to anyone. [6] The law provides for a minimum sentence of 20 years imprisonment where the murder is committed in aggravating circumstances s47 (4) (a) of the Criminal Code. See also Mandaza HH 257/24. In any circumstances of the case the court shall impose any definite imprisonment period. A non-custodial sentence is not provided for in murder cases. The wording of the section refers to imprisonment terms only. [7] Both counsel were in agreement that there are no aggravating circumstances in this case. Nothing aligns with the listed grounds that can be said to be aggravated. In our assessment there are no aggravating circumstances. [8] In mitigation we considered that the accused is a family man with family responsibilities. The accused nor his family did not contribute anything towards the funeral expenses nor even offer to pay any compensation. He has been in custody from the time he was arrested in April 2024. He has spent almost a year in custody. In a proper case where as accused person has suffered from a lengthy pre-trial incarceration period the Court would reduce the sentence to be imposed, see S v Difiri 2001 (2) ZLR 411 (H). The period that the accused spent in custody shall be taken into account in sentencing [9] Voluntary intoxication is mitigatory. The assumption is that the accused’s mental faculties were impaired due to alcohol or drugs. It is unfortunate that there was not much placed before us as to the extent of intoxication. This court has lamented the paucity of information before it when it comes to sentencing. We get little or irrelevant information in terms of s12 of the Sentencing guidelines. In this case the defence could have canvassed what the accused drank, its potency, the quantity and the effect. [10] The penalty provision under s47 (4) of the Criminal Code does not provide for a non-custodial sentence. In such cases deterrence may be the main thrust but the Court will bear in mind that it should guard against excessive devotion to deterrence which may lead to disproportionate sentence. See S v Bhero 1994 (2) ZLR 66 (S). As the saying goes, the accused should simply get what he deserves. While it remains important to punish the accused in this matter for reasons already stated we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say. [11] There was no premeditation in this case. However the accused’ moral blameworthiness becomes high due to his conduct to try and conceal the evidence. He dumped the body in Sanyati river probably for the body to flow away or be eaten by any scavengers. He killed his own relative. [12] We agree with both counsel that the appropriate sentence must be in the region of 15 years. Taking into account the period in custody, the following sentence is imposed. 14 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Saizi Law Chambers the accused’s pro deo Legal Practitioners 2 HCC 21/25 HCCR 1549/24 2 HCC 21/25 HCCR 1549/24 THE STATE Versus HANDSOME MAMIYODWA HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 28 March 2025 Assessors: 1. Mr Mashavave 2. Mrs Mateva Sentencing Judgment R. Nikisi, for the State F. S. Ruchike, for the accused MUZOFA J: Introduction [1] The accused a 44-year-old man was convicted with murder in contravention of s47 (1) of the [Criminal Law Codification and Reform] Act. He is a family man with nine children, most of them are adults except for two. He was a vegetable farmer. [2] The brief facts are that the accused and the deceased are related. The deceased was the accused’s brother-in-law. On the 28th of April 2024 they were together drinking beer at one Anos Muzenda’s Shebeen. They left together heading to their different homes. [3] The deceased never got to his home. The following morning deceased’s wife searched for her husband. The deceased’s body was retrieved from Sanyati River. The accused was apprehended by the public on suspicion that he caused the deceased’s death. [4] The accused denied the offence. Although he admitted being with the deceased, he said the deceased suddenly screamed tore his t-shirt and ran off. He tried to pursue him to no avail. He then picked the deceased’s t-shirt and took it to his homestead. He challenged the warned and cautioned statement and indicated that the members of the public who arrested him severely assaulted him. However, at the police station he was not assaulted but he still harbored the fears from the prior assaults. So the statement was not made freely and voluntarily. [5] In coming to our decision we found that the circumstantial evidence in this case admits of no conclusion except that the accused caused the deceased’s death. The accused was the last person who walked with the deceased. Foot prints of one person was tracked to the river. The deceased did not die from drowning but an assault. The only inference was that the foot prints belonged to the accused, and that the deceased was thrown into the river by the accused. The accused’s previous inconsistent statement to his sister Shylet Katando corroborated the State case. We also found that had the deceased behaved the way the accused stated the accused decided not to disclose to anyone. [6] The law provides for a minimum sentence of 20 years imprisonment where the murder is committed in aggravating circumstances s47 (4) (a) of the Criminal Code. See also Mandaza HH 257/24. In any circumstances of the case the court shall impose any definite imprisonment period. A non-custodial sentence is not provided for in murder cases. The wording of the section refers to imprisonment terms only. [7] Both counsel were in agreement that there are no aggravating circumstances in this case. Nothing aligns with the listed grounds that can be said to be aggravated. In our assessment there are no aggravating circumstances. [8] In mitigation we considered that the accused is a family man with family responsibilities. The accused nor his family did not contribute anything towards the funeral expenses nor even offer to pay any compensation. He has been in custody from the time he was arrested in April 2024. He has spent almost a year in custody. In a proper case where as accused person has suffered from a lengthy pre-trial incarceration period the Court would reduce the sentence to be imposed, see S v Difiri 2001 (2) ZLR 411 (H). The period that the accused spent in custody shall be taken into account in sentencing [9] Voluntary intoxication is mitigatory. The assumption is that the accused’s mental faculties were impaired due to alcohol or drugs. It is unfortunate that there was not much placed before us as to the extent of intoxication. This court has lamented the paucity of information before it when it comes to sentencing. We get little or irrelevant information in terms of s12 of the Sentencing guidelines. In this case the defence could have canvassed what the accused drank, its potency, the quantity and the effect. [10] The penalty provision under s47 (4) of the Criminal Code does not provide for a non-custodial sentence. In such cases deterrence may be the main thrust but the Court will bear in mind that it should guard against excessive devotion to deterrence which may lead to disproportionate sentence. See S v Bhero 1994 (2) ZLR 66 (S). As the saying goes, the accused should simply get what he deserves. While it remains important to punish the accused in this matter for reasons already stated we are cognisant of the fact that retribution is no longer the underlying principle in our criminal justice system. An eye for eye makes everyone blind, so they say. [11] There was no premeditation in this case. However the accused’ moral blameworthiness becomes high due to his conduct to try and conceal the evidence. He dumped the body in Sanyati river probably for the body to flow away or be eaten by any scavengers. He killed his own relative. [12] We agree with both counsel that the appropriate sentence must be in the region of 15 years. Taking into account the period in custody, the following sentence is imposed. 14 years imprisonment. National Prosecuting Authority, the State’s Legal Practitioners Saizi Law Chambers the accused’s pro deo Legal Practitioners