S v JOKASI 1986 (2) ZLR 79 (S)

Flynote

Criminal procedure (sentence) — murder — infanticide — factors to be considered — emotional disturbance of mother and premeditation not mutually exclusive — appropriate sentence range.

Headnote

The most important factor to take into account in sentencing a mother convicted of murdering her newly-born child is her emotional state at the time of the killing. Premeditation in the killing is not necessarily exclusive of emotional disturbance. The latter frequently underlies the former.

Per McNally JA: The time has come for research and study into the offence and for a re-assessment of the attitude of the courts to the question of sentence in cases of infanticide. It is undesirable generally to impose a sentence in excess of five years.

Per Beck JA: The courts should not have fettered their discretion to impose upon a person convicted of infanticide a sentence that falls within the range of sentences imposed for murder of a mature victim, but will and do nevertheless recognise that in the great majority of cases there are factors of stress to which the accused was subject which will call for a sentence of considerably less severity.

Per Gubbay JA: It cannot be said that where the death of an infant was carefully premeditated, motivated by self-interest and attended by little emotional stress that the killing is hardly removed from the conventional conceptions of murder; there are at least three reasons why the killing of an infant should be regarded less reprehensible than ordinary murder; it cannot agonise upon the contemplation of approaching death; it leaves no gap in the family circle; it does not create a sense of insecurity in a society.