Gule v R (3/11) [2011] SZSC 62 (31 May 2011);

 

SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE                                 CRIMINAL APPEAL CASE NO: 03/2011

 

 

In the matter between:

 

 

MFANASIBILI GULE

 

V

 

THE KING

 

                                                               

CORAM                                                    M. M. RAMODIBEDI CJ

                                                                S. A. MOORE JA

                                                                DR. S. TWUM JA

 

 

 

FOR THE APPELLANT                              IN PERSON

 

FOR THE RESPONDENT                           MR. S. FAKUDZE

 

 

 

DATE OF HEARING                                        04^TH MAY 2011

DATE OF SENTENCE                              31^ST MAY 2011

 

Summary:

 

Rape accompanied by aggravating circumstances – Appellant did not use a condom – Two acts of intercourse – Appeal against sentence of 10 years imprisonment imposed by The High Court Dismissed.  All relevant dates should be recorded by Judge or Magistrate.

 

 

 

 

 

__________________________________________________________________

 

JUDGMENT

__________________________________________________________________

 

MOOREJ.A

 

INTRODUCTION

 

[1]    The Appellant in this case was convicted by the Senior Magistrate in Piggs Peak Magistrate’s Court for the offence of rape.  The particulars alleged that on the 13 June 2010, the Appellant did intentionally have unlawful sexual intercourse with Zanele Mamba a female aged 30 years without her consent.  It was further alleged that the act of rape was accompanied by aggravating circumstances as envisaged by Section 185 bis of the Criminal Procedure and Evidence Act 67/1938 in that, in committing the offence, the Appellant did not use a condom, and thus put the Complainant at risk of contracting sexually transmitted diseases and infections. He also repeatedly raped the Complainant.

 

[2]    At the conclusion of the trial in which the Appellant was not represented, and in which he gave evidence upon oath, the Magistrate found him guilty of the crime of rape with aggravating circumstances. The Magistrate found the Appellant deserving of greater punishment than he was empowered to inflict.   Accordingly, invoking the provisions of Section 292 of the Criminal Procedure and Evidence Act 67 of 1938 as amended, he committed the Appellant so the High

 

Court for sentence where, in his view, the appropriate penalty  could be administered.  It was by that process that the Appellant found himself before Sey J in the High Court whose considered view was that the Appellant had committed a very serious offence for which he must be punished severely.  Upon consideration of the circumstances of the offence to which I shall turn in a moment, the Judge was fully justified in imposing a sentence of 10 years imprisonment upon the Appellant.

 

[3]    The facts as found by the Magistrate were that the Appellant had known the Complainant and her husband for some time previously.  The husband and the Appellant were drinking partners.  The Appellant was also a visitor to the home of the spouses.  The Complainant wife did not find his visits entirely welcome because the Appellant always asked for food.  The Complainant’s essential evidence in support of the charge of rape was brief, precise, to the point, and free of any rambling irrelevancies.

 

It reads:

 

“On the 13^th June 2010, at night he (sic) was at home.  I was asleep.  As I was sleeping in my house a person forcefully opened the door.  He entered and it turned out that it was the accused.  The accused shone his torch at me.  He then joined me in my bed.  The accused did not say a word.  He just entered and shone the torch at me.  He joined me in bed.  In bed he just climbed on top of me.  In fact he first took off his pair of trousers before he joined me in bed.  In the bed he climbed on top of me he inserted his penis into my vagina. 

 

He had sexual intercourse with me without my consent.  I was pregnant like I am pregnant now when the accused raped me.  On that night, the accused raped me 2 times.”

 

[4]    She then went on to provide the additional ingredients of the offence and collateral testimony.  She spoke about her recent complaints to her daughter-in-law who lived nearby, and to her husband when he came home.  She described her reports to the Police and her medical examination.  She rejected suggestions that she had fabricated the whole story because the Appellant was in habit of taking her husband away on drinking sprees, that she was telling lies, and that her husband had had sexual intercourse with her that night.

 

        APPEAL

 

Paragraph 2 of the “application of appeal” reads thus:

 

“My main ground for my appeal is that I was erroneously, wrongfully and unfairly convicted and sentenced.”

 

[5]    This Notice of Appeal was bolstered by elaborate and repetitive grounds which might be condensed in this way:

 

(i)     The Complainant fabricated a story and contradicted herself.

(ii)    She swore falsely that she raised an alarm.

1. There was no support for her evidence that the Appellant forcefully opened the door from her

 

daughter-in-law, or from the police, or evidence of damage to the door.

1. The doctor who examined the Complainant did not observe any bruises or injuries to prove that there was a struggle as was to be expected in a genuine case of rape.
2. The mild bruising of the fourchette which the doctor noted in his report on examination is explicable by the doctor’s description of the Complainant as sexually active.  If the Complainant had been raped as alleged there would have been serious bruising of the labia majora and labia minora which would have caused pain during the doctor’s examination and would not have allowed for the ‘easy’ examination which the doctor conducted.

 

[6]    Upon a careful consideration of the evidence as a whole, the Trial Court was perfectly entitled to accept the testimony of the prosecution witnesses as truthful and reliable because of its unvarnished plausibility and high evidential quality.  That testimony was unsuccessfully attacked by the Appellant with suggestions which were rejected, and by sworn testimony which the Court by its, verdict found to be beyond reasonable doubt false. 

 

[7]    The Appellant’s story is that he had gone to the Complainant’s house in search of keys which he had lost.  If that was his true reason for going there, he would have enquired about the missing keys immediately upon his arrival.  But, surprisingly, in his narrative before the Court, he gives no reason for going to the Complainant’s house.  This is what he said in evidence:

 

“When I knock the Complainant came out and he (sic) did not say a word.  She went to her daughter-in-law’s house and reported that I had come to rape her.  I told the daughter-in-law that the Complainant was telling her lies.  I had not raped her.”

 

[8]    The Complainant swore that she raised an alarm before each of the two episodes of non consensual intercourse.  She did not describe the alarm.  However, her daughter in law who was in a nearby home at the relevant time swore in answer to the question put to her in cross-examination by the Appellant:

 

“Q:      Did the Complainant raise an alarm?

 A:      I heard her saying ‘I will report you to the police because of what you are doing to me’.”

 

[9]    The question of damage to the door is not probative of an essential ingredient of the offence of rape.  At most, that question might possibly bear upon the Complainant’s credibility.  She did not give evidence that the door was damaged.  Nor did the Appellant.

 

[10]  The effective answers to the issues raised by the Appellant stemming from the doctor’s examination are that rape may be carried out without any injury whatever to the victim.  What is more, the doctor noted in his report that the “mild bruising” which he observed was “Evidence of forceful vaginal penetration.”  Both the Complainant and her husband denied, and the Court was fully justified in accepting their denials, that they had had sexual intercourse that night.  The Complainant swore that there were no keys in her house, that she raised an alarm when attacked, and maintained that she was telling the truth.  The Magistrate highlighted important portions of the Complainant’s testimony:  that she knew the Appellant as he is also from Nkamanzi where she resides; that having forced the door open, he shone a torch at her; that the Appellant had sexual intercourse without the Complainant’s consent and without the use of a condom; and that he raped her twice.

 

[11]  On the evidence as a whole, The Magistrate found, as he was eminently entitled to do, that the Appellant was guilty of rape with aggravating circumstances.  Counsel for the Crown submitted that:

 

“The Crown led cogent and reliable testimonies of four witnesses in proving the case against the Appellant.  Their testimonies were not materially challenged by the Appellant.  There is nothing in the record that suggests that there was gross irregularity committed by the Magistrate’s Court in the course of the trial.  Appellant was given a fair hearing as he was allowed to cross examine all the witnesses so as to test the veracity of their testimonies.”

 

        In the event, the appeal against conviction is wholly unmeritorious and must accordingly fail.

 

       

 

 

SENTENCE

 

[12]  When the matter came before Sey J in the High Court, The Appellant pleaded in mitigation that:

 

1. He has children who stay in Big Bend
2. The people in the community don’t like him that much
3. He was asking the Court to be lenient
4. In the community people were pointing fingers at him
5. His elder brother is deceased and he is alone at home
6. The witness for the Complainant testified that the Complainant did not call out for help.

 

[13]  Having also noted that the Appellant was a first offender, the Judge took into consideration the fact that the “rape was accompanied by aggravating circumstances as envisaged by Section 185 bis of the Criminal Procedure and Evidence Act 67/1938.”  The Judge then continued:

 

“At the commission of the offence, the accused did not use a condom thereby putting the Complainant at risk of contracting sexually transmitted diseases and infection.  Secondly, the accused repeatedly raped the Complainant even though she was pregnant at the time.  Although I have also taken into consideration all the mitigating factors put forward by the accused, I am of the considered view that the accused has committed a very serious offence for which he must be punished severely.  In the circumstances I shall not be lenient and I shall impose a sentence on you which would act as a deterrent.  You are hereby sentenced to ten years imprisonment with no option of a fine.”

 

 

[14]The Appellant did not submit further written arguments on the matter of sentence.  He was content to rely upon his contention that it was wrong and unfair.  Apart from the factors in mitigation and aggravation set out in paragraphs 12 and 13 supra which were rightly considered by the Court a quo, an examination of recently decided cases has now become an essential component of the sentencing process so that there may be uniformity in sentencing.

 

[15]In Ngubane Magagula v The King Criminal Appeal No. 32/2010 under the rubric “The Appropriate Range” this Court referred in paragraph [20] of the Computer judgment to tables A and B which were set out earlier paragraphs [16] and [17] respectively.  Paragraph [20] reads:

 

“From Tables A and B set out in paragraphs [16] and [17] above, it would appear that the appropriate range of sentences for the offence of aggravated rape in this Kingdom now lies between 11 and 18 years imprisonment – which is the mid range between 7 and 22 years – adjusted upwards or downwards, depending upon the peculiar facts and circumstances of each particular case.  The tables also reveal that this Court has treated the rape of a child as a particularly serious aggravating factor, warranting a sentence at or even above the upper echelons of the range.”

 

[16]  In Ngubane Magagula v The King, the aggravating factors were that the victim was a child and that the Appellant had not used a condom.  In the case before us, the aggravating factors are articulated in the excerpt from the judgment reproduced in paragraph [13] supra.

 

[17]  In fashioning the appropriate sentence for the offence for which the Appellant was convicted it was the duty of the sentencing Judge to consider:

 

 

1. the circumstances of the offence
2. the circumstances of the offender
3. the public interest
4. the mitigating and aggravating factors applicable to the offence arising out of all of the material before her;
5. The law and practice relating to sentencing in Swaziland
6. The sentencing guidelines, norms and trends obtaining in contemporary Swaziland as disclosed in the most recent  decisions and pronouncements of the Supreme Court and, where appropriate, those of the High Court.

 

[18]  The judgment of this Court in Ngubane Magagula v The King was handed down and published on 30^th November 2010.  Sentence in this case was apparently passed on that same date.  I say apparently because the record does not clearly disclose the date upon which sentence was passed.  It is of cardinal importance that the record should disclose upon its face all of the relevant dates concerned in a criminal trial.  These dates include where relevant:

 

1. Dates of the offences
2. Dates of arrests
3. Dates of escape and recapture
4. Dates of admission to bail

 

1. Dates of release on bail
2. Dates of liberty on bail
3. Dates of conviction
4. Dates of sentence
5. Dates when appeal noted
6. Dates when grounds of Appeal filed

 

The above list is not exhaustive.

 

 

[19]  The legislator evidently regarded the offence of which the Appellant stands condemned as deserving of severe punishment.  Section 185 bis of the Criminal Procedure and Evidence Act 67/1938, date of commencement: 1^st January 1939 provides that:

 

“(1) A person convicted of rape shall, if the Court finds aggravating circumstances to have been present, be liable to a minimum sentence of nine years without the option of a fine and no sentence or part thereof shall be suspended.” Emphasis added.

 

[20]  The effect of the above provision is that the legislature intended that the Appellant should serve a minimum of nine years imprisonment.  However, a sentencer in 2010 should be guided, not by conditions prevailing in Swaziland in 1939 when World War II erupted, but by the conditions obtaining in contemporary Swaziland, and by the factors enumerated for consideration in paragraphs [18] supra and more particularly by guidelines established by this Court such as those contained in Ngubane Magagula v The King for offences of rape.

 

[21]  Sey J determined the appropriate sentence by reference to the pre Ngubane Magagula v The King sentencing law and practice.  But even by those standards the sentence of the Court a quo cannot be faulted for violating any existing canon of sentencing.   If anything, it could properly be viewed as lenient.

 

        CONCLUSION

 

[22]  Before departing from this case, this Court thinks that it ought to point out that many of the sentences which it has upheld were not disturbed simply because they fell within the permissive and compassionate discretion of the Courts below, even though this Court, because of the gravity of the offence, would have imposed a substantially higher award.  Indeed, the case before us is a case in point.  While upholding the award of the Court a quo for the reasons which we have given, the grave circumstances disclosed on the record have moved us to draw attention in Section 327 (c) and (d) of the Criminal Procedure and Evidence Act which empowers this Court to:

 

“(c) Give such judgment as ought to have been given at the trial; or impose such punishment (whether more or less severe than or of a different nature from the punishment imposed by the court below) as ought to have been imposed at the trial; or,

 

(d) Make such other order as justice may require.”

 

 

[23]  Accordingly therefore, this Court now serves notice that, especially in the midst of the current epidemic of offences of rape, serious consideration would be given – subject to affording Appellants a meaningful opportunity of being heard – to invoking the above provisions where sentences of the Courts below are disturbingly and inappropriately low having regard to the principles articulated within the body of this judgment.

 

 

ORDER

 

The order of this Court is that:

 

1. The appeal be dismissed.
2. The conviction and sentence be affirmed.

 

 

________________________

S.A.Moore J.A

 

                                                       

                                                        ________________________

I agree                                              M. M. Ramodibedi C.J.

       

 

                                                        _________________________

I agree                                              Dr.   S. Twum J.A

 

 

 

 

Delivered in open Court on this 31^st day of May 2011.