CRIM. APPEAL NO. 12/99
In the matter between
DAVID MAFITSIFITSI MSIBI
Vs
REX
Coram
JUDGMENT
(24/05/2000)
In this matter the Appellant has noted and argued an Appeal only against sentence. That argument is only on the basis that the sentence imposed was not backdated. He had been accused no. 1 in the High Court on the number of charges; along with very important of other accused it is unnecessary to go into detail. He has been convicted of two counts of armed robbery. The facts alleged are in chronological order:
Firstly, on the 2nd of June 1996, he gained entry into the house of Mr. Mamba that was in Tambankulu area, you threatened to shoot him if he did not bring the keys to the Score Supermarket, and if he does not lead the robbers to the house of the woman who had keys to the safe in the supermarket. She was also threatened by the armed men who gained entry not only to the shop, but also to the safe in the shop, and they got away with more than Fifteen Thousand Emalangeni. The second count on which he was convicted was alleged that three weeks later on the 23rd June 1996, he along with another person gained entry in the Dvokolwako area to the Ndzinisa home. Again three persons with firearms and succeeded in robbing three children of the owner of the bus service and a shop. The amount involved being Eighteen Hundred Emalangeni, Nine Thousand Emalangeni and almost Four Thousand Emalangeni respectively totalling almost to Fifteen Thousand Emalangeni.
The Appellant testified that he was thirty-nine years old, had looked after cattle and therefore never attended school, you have two wives and a girlfriend as well as a number of children, whom you maintained presumably before he was arrested on these charges, from money which you obtained illegally in banks and started using when you came out of prison. He was apparently released from prison not long before the present offences. His record shows that he has learnt little from his past clashes with the law. It is unnecessary to detail all the previous convictions recorded against him, but he has been given the option of a fine of short-term imprisonment, which did not discourage him.
In 1994, he was convicted on three counts of attempted murder, robbery and illegal possession of a firearm. The sentences of six, five and five years respectively for these for order to run concurrently. He could therefore not have been long after of jail when he convicted the present offences. In respect of those he was sentenced to fourteen years on each count the sentences to run concurrently. He has complained that the sentences were not backdated to the date of his arrest can’t be appealed. To make such an order is a matter within the discretion of the trial judge. There is no indication that the learned Chief Justice misdirected himself in failing to do so. The time has come when the public must be protected from people like you, which can only be achieved by a long custodial sentence is fully justified. According to the police evidence they have been faced by various spate of armed robbery during the period when these two offences were committed. Leniency towards the Appellant of the past have no purpose, he learned nothing from the treatment meted out previously. On his own evidence on the trial, it is clear that he does not suffer from remorse, and has no intervention to make good the loss he infected on his victims, more importantly we know from the record that he and one of his co-accused escaped from custody while the trial was in progress, and they were at large for an undetermined period during which there was a separation of trial, so that the fate of the remaining accused could be determined. There is nothing in the record that persuade me that the trial court exercise improper discretion during the sentencing process, such perhaps that it might have been advisable to warn the Appellant that he runs the risking future of being declared a habitual criminal and spending his days to the end in prison.
In my view, the appeal has no merit and should be dismissed.
