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Patrick Chitumba, Midlands Bureau Chief
DRUNKENNESS can be considered as a mitigatory factor when the court is assessing an appropriate sentence for an accused person, Bulawayo High Court Judge Justice Maxwell Takuva has said.
Sentencing a 39-year-old Mberengwa man to 15 years in prison for the gruesome murder of his 34-year-old friend over $5, Justice Takuva said the law allows drunkenness as a mitigatory factor.
He was sitting at the Gweru High Court Circuit.
Takawira Ndlovu appeared before Justice Takuva with assessors Mrs Chipo Junia Baye and Mr Wellington Matemba facing one count of murder.
He was convicted against his plea of not guilty to crushing the head of his friend, Never Zhou, with a wooden stool weighing 2kg leading to his death and was sentenced to an effective 15 years in prison.
“The court accepts that the accused was intoxicated at the time of the commission of the murder. The law allows intoxication as a mitigatory factor when a proper sentence is being assessed. There is a lot of debate with some arguing that intoxication should be considered as an aggravating factor.
“Some argue that it is wrong for the law to punish a sober person more than a drunk person. In other words there is a debate on whether or not to consider intoxication as a mitigatory factor. One view is that this should be an aggravating factor,” said Justice Takuva.
The judge said the Criminal Law (Codification and Reform) Act on the other hand makes drunkenness an offence.
“If you voluntarily get yourself intoxicated and go on to commit an offence, you will be convicted of a crime under section 222 of the Codification.
That is the thinking of the citizens in the country. As the law stands, intoxication is a mitigatory factor and in this case, the accused was drinking from 2PM up to 7PM,” he said.
Justice Takuva said Zhou had been pestering Ndlovu for $5 to buy homemade beer from the time they arrived at Siphilisiwe Nyamande’s homestead for a homemade beer drinking party.
He said while Zhou had been an aggressor at first, Ndlovu later ignored pleas from fellow villagers to unnecessarily cause his friend’s death.
“The deceased is the person you knew and instead of showing mercy, you decided to crush his head. After that you didn’t offer any assistance, you simply walked away. We have a duty to satisfy the society’s expectations by balancing retribution and rehabilitation in arriving at the sentence and you are sentenced to 15 years in prison,” said Justice Takuva.
Ndlovu in his defence told the court: “He asked me for $5 to buy beer and when I told him that I didn’t have it, he stabbed me on the lower lip once. I then struck him several times with a wooden stool, leading to his death.”
Prosecutor, Mr Mirirai Shumba, told the court that on September 22, 2010, Ndlovu and Zhou were at Nyamande’s homestead, Mazinyani Village, Chief Bankwe, Mberengwa, drinking homemade beer.
Mr Shumba told the court that when the beer got finished at around 5PM, Ndlovu approached Zhou and took him to a secluded place outside the homestead.
After a short period Ndlovu came charging after the deceased shouting that he (deceased) had stabbed him.
The pair chased each other into a kitchen.
“Eventually they got out of the kitchen hut and it is then that the accused armed himself with a wooden stool and struck the deceased with it once on the head,” the court heard.
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Online Reporter