IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE Criminal Appeal No. 34/2011
In the appeal between:
SITHEMBISO SEVEN DLAMINI Appellant
And
THE KING Respondent
Coram : A.M. EBRAHIM, JA
I.G. FARLAM, JA
M.C.B. MAPHALALA, JA
For Appellant : In Person
For Respondent: Mr. S. Fakudze
Heard : 4 November 2011
Delivered : 30 November 2011
Summary:Rape ? Sentences of 15 years imposed on each of two counts ordered to run concurrently ? victims girls aged three and four years ? sentences confirmed on appeal.
JUDGMENT
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FARLAM, JA
[1] The appellant in this matter appeared in person both in this court and in High Court where he appeared before Sey J.
[2] He had been convicted by the Senior Magistrate in the Pigg’s Peak Magistrate’s Court on two counts of rape of young girls aged four years (count one), and three years (count two). The Crown alleged that aggravating circumstances as mentioned in section 185 bis of the Criminal Procedure and Evidence Act 67 of 1938, as amended, were present, the particulars furnished in each case being that ‘at the commission of the offence he did not use a condom thereby putting the complainant at risk of contracting [sexually] transmitted diseases and infections’.
[3] The appellant pleaded guilty on count one and not guilty on count two: the basis of his defence on this count being that he was very drunk and did not know if he raped the complainant.
[4] The evidence led at the trial established his guilty on both counts and the magistrate duly convicted him of rape with aggravating circumstances on both counts. Because he was of the view that the appellant deserved a greater punishment than he had the power to inflict the magistrate, acting in terms of section 292 of the Criminal Procedure and Evidence Act, committed the appellant to the High Court for sentence.
[5] The case came, as I have said, before Sey J, who sentenced the appellant to fifteen years imprisonment on each count and ordered that the sentences imposed should run concurrently and be backdated to the date of the appellant’s arrest on 15 August 2010.
[6] The Crown did not prove the aggravating circumstance mentioned in the charge sheet on each count, because it did not prove that the appellant was suffering from a sexually transmissible disease (cf. Fanafana Nkosinath Maliba v The King (a judgment of this court delivered on 31 May 2011 in Criminal Appeal 5 of 2011, which is not yet reported but is available on the internet on the website of Swazilii.org) at para [6]). It follows that the operation of section 185 bis (1) of the Criminal Procedure and Evidence Act was not ‘triggered’ on the facts of this case and the minimum sentence of nine years imprisonment was not compulsory. See Maliba’s case, supra, at para [13].
[7] The appellant appeals against the sentences imposed upon him and asks for a reduction of five years of the 15years imposed on each count. He contended in argument that he was, as he put it, sincerely remorseful and stated that he demonstrated his remorse by co-operating with the trial court throughout his trial. He also pointed out that he is a first offender. He referred to the fact that he was drunk when the offences were committed and said that as a result thereof his thinking was ‘clouded’ and caused him to be oblivious to the consequences of what he was doing. He said that he had learnt his lesson and had resolved to abstain always from drinking alcohol in future. He concluded his argument by asking for what he called a second chance in life. He said that his 15 years sentence was too harsh for him to bear and stated that as a young man, (according to the charge sheet he was 26 years old in 2010) he found his sentence traumatic.
[8] I do not think that the failure by the Crown to prove the only aggravating circumstance mentioned in the charge sheet provides a reason to interfere with the sentences imposed by the trial court. On the facts before the court the offences committed by the appellant were serious. The courts in this Kingdom have rightly regarded the rape of children, particularly very young children, as very serious, calling for sentences, of sufficient severity to deter those responsible from committing similar offences in the future and to bring home not only to the offenders being sentenced but to others minded to commit similar acts the seriousness of such crimes and society’s abhorrence therefor.
[9] A instructive collection and analysis of sentences imposed in cases of this kind is contained in the as yet unreported judgment of this court in Mgubane Magagula v The King, Criminal Appeal 32 of 2010, delivered on 30 November 2010. From that judgment it appears that the sentences imposed in this case are well within the appropriate range for offences of this kind and no basis exists for interfering. Indeed this appeal, like the appeal in Magagula, can correctly be described as ‘entirely devoid of merit’.
[10] The following order is made:
The appeal is dismissed and the sentences imposed in the court below are confirmed.
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I.G. FARLAM
JUDGE OF APPEAL
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I agree A.M. EBRAHIM
JUDGE OF APPEAL
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I agree M.C.B. MAPHALALA
JUDGE OF APPEAL
