IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CRIMINAL APPEAL NO. 17/2011
In the matter between:
MBONGENI MKHWANAZI APPELLANT
VS
THE KING RESPONDENT
CORAM
EBRAHIM J.A.
DR. TWUM J.A.
MAPHALALA J.A.
HEARD : 2ND NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Culpable homicide – appeal – reduction of, or suspension of part of sentence -; back-dating of sentence; inadvertence – sentence not taking into account bail between date of arrest and date of sentence – duty of Supreme court to correct sentence.
DR. S. TWUM J.A.
[1] This is an appeal from the judgment of Her Ladyship, M.M. Sey, J, sitting at the High Court, Mbabane, dated 15th December 2010. It is against sentence only.
[2] On 24th May 2008 at about 20.00 hours an altercation broke out between the deceased and the appellant. This degenerated into a fight. The appellant assaulted the deceased with fists and kicks and the deceased fell to the ground. He sustained injuries. In the early hours of 25th May, 2008, the pain as a result of his injuries became unbearable and he was taken to hospital where he died on 26th May 2008.
[3] The appellant was arrested on 1st June 2008 and charged with the offence of culpable homicide. He was detained in lawful custody pending his trial.
[4] On 11th August 2009 the appellant was released on bail and remained on bail until the trial was completed.
[5] The appellant and the Crown agreed on the facts underlying the offence and a “Statement of Agreed Facts” was prepared and signed by counsel for the Crown and counsel for the appellant, as well as by the appellant himself. This was, by consent handed in to the court. As the appeal is only against sentence, the statement of Agreed Facts is not reproduced as the appeal turns on nothing in that statement.
[6] After a trial at which the Crown’s case was based substantially on the “agreed facts”, and the plea of guilty by the appellant, he was convicted as charged. On 15th December 2010, he was sentenced to 8 years imprisonment. The sentence was back-dated to the date of his arrest.
[7] On 9th April 2011, the appellant filed an appeal against his sentence. By a letter dated 13th October 2011, addressed to the Registrar of this Court, he particularized his grounds in his “Heads of Argument” for the consideration of this Court.
[8] The quintessential supplication made in his Heads of Argument was suspension of part of/or a reduction in the sentence. He supported this by saying that he was a sick person and that the sentence was so severe that he might die in prison.
[9] In his Heads, the appellant blamed the deceased for attacking him first. He said that eventually led to the tragedy. He also submitted that he was sorry for what happened and as a sign of his remorse he said he and his family contributed to defray the medical expenses of the deceased as well as his funeral expenses.
[10] Crown Counsel, for his part, submitted in the Respondent’s “Heads of Argument” that the sentence of 8 years imprisonment was not so grossly harsh or excessive as to warrant the interference of this Court. He pointed out that in any event, the appellant benefited on account of the period whilst he was on bail which was not taken into account in his sentence.
[11] It is trite that there are varying degrees of culpability in culpable homicide offences and our courts have recognized this. Some offences are obviously at the most serious end of the scale of such crime; others are not. In this case the record does not disclose that any knife or other offensive weapon was used – only “fists” and “kicks” were administered on the deceased by the appellant.
[12] The deceased was 22 at the date of his death. On or about 15th December 2010 when the appellant was sentenced, he was 26 years old. He was probably 24 when the incident happened. In his “Heads of Argument” he said the deceased was drunk.
[13] From the Summary Evidence on record, Meshack Msakato Mazibuko, who was listed as P.W.1, would have testified that it was the appellant who started assaulting the deceased first with “fists” and “kicks” and the deceased fell on the ground. This person would further have testified that he tried to assist the deceased “but he was already injured”, whatever that meant.
[14] A careful examination of the post mortem report reveals a great deal more of the deceased’s injuries than would otherwise have been known. These suggest that the injuries were very serious indeed, as though the deceased was lying on the ground and was being kicked repeatedly by the appellant. The following are noted:-
(i) “brain and meringnes and celebral vasculature” were congested and pectechial haemorrhages were present.” (page 10 paragraph 21)
(ii) pectechial haemorrhage was present in the heart. (page 11 para 27)
(iii) (a) Intestines: Small and large vermiform appendix – mesenteric blood vessels, raptured.
(b) contusions present on the transverse colon of the large intestines and on the loops of the small intestines.
(iv) Lungs (para 26) congested
(v) Liver gall bladder and biliary passages, raptured.
(vi) Pancreas congested.
(vii) Spleen raptured.
(viii) Abdomen Contusions 14 x 8 cm; and 12 x 7 cm.
(ix) Skull Nothing abnormal.
[15] The Pathologist concluded his post mortem report by stating that the deceased’s death was due to injury to the abdomen.
[16] The “kicks” must have been delivered with considerable force. After a very careful and anxious consideration of the facts revealed on the record, particularly, the post mortem report, and guided by the authorities on culpable homicide as were reviewed by this court in the case of LOMCWASHO THEMBI HLOPE v REX Cr Ap. Case No 7/10, I have come to the firm conclusion that the sentence of 8 years’ imprisonment passed on the appellant by the learned trial judge was, in all the circumstances, perhaps, too lenient. I will not disturb it, particularly, as it falls within the benchmark of 9 years approved in the authorities reviewed in the Hlope case (supra). The conclusion of this Court on this part of the appeal is that the appeal on reduction of sentence is dismissed and no part of it will be suspended.
[17] Backdating of sentence and bail before or during trial.
In the judgment the learned trial judge ordered that the sentence should be back-dated to the “1st of June 2008 which was the date of arrest of the accused.” That is perfectly legitimate. This practice developed, no doubt, because of the lengthy delays to which criminal trials are often, and so regrettably, subject. The practice was to avoid perhaps unanticipated prejudice of pre-conviction incarceration not being taken into account by the sentencing judge. Now, under s.16(9) of the Constitution:
“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period that person spent in lawful custody in respect of that offence before the completion of the trial shall be taken into account in imposing the term of imprisonment.”
[18] Section 16(9) of the Constitution does not use the expression “back-date” but it is accepted as a convenient précis of what s.16(9) is intended to achieve.
[19] In casu, the Respondent submitted in the Heads of Argument that “the appellant benefited from the judgment” because the Judge only ordered that his sentence should be “back-dated to the 1st of June 2008,” oblivious of the fact that the appellant was admitted to bail on 11th August 2009 and remained free until 15th December 2010 when he was sentenced. What happened is obvious. The learned trial judge forgot when passing sentence to order that that period during which the appellant was on bail should be added back to the term of his imprisonment. In my view, this aberration should be corrected. As I have pointed out above, s.16(9) is intended to ensure that an accused person does not serve more than the term of imprisonment passed on him by the Courts. By the same taken, the Constitution does not intend that an accused person should have an undeserved windfall if the period he is out on bail is not brought into account. In casu, it is obvious that the learned trial judge did not intend to confer a bonanza on the appellant.
[20] In practice, evidence may not be readily available to a sentencing judge whether or not the accused person was admitted to bail after his arrest. In my view, whether not the judge specifically orders that bail periods should also be taken into account, it is the duty of persons who have authority to prepare a convicted person’s committal warrant to search the record diligently to ensure that periods spent on bail are added back to the sentence in determining when he would complete serving his sentence.
[21] Section 5(3) of the Court of Appeal Act (74/1954) provides:
“On appeal against sentence, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law, (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal.”
[22] The record shows that the appellant was released on bail from 11th August 2009 to 15th December 2010 when he was sentenced. That is a period of some sixteen (16) months. I hereby set aside the order of the trial Court when sentencing the appellant and substitute the following:-
“8 years imprisonment without the option of a fine. The sentence will be back-dated to the 1st of June 2008 which was the date of arrest of the accused. The period between 11th August 2009 and 15th December 2010 when he was admitted to bail shall be taken into account in reckoning his ultimate date of release from prison on account of this sentence.”
_________________
DR. SETH TWUM
JUSTICE OF APPEAL
I agree.
__________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I also agree. ____________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
COUNSEL APPELLANT IN PERSON
FOR RESPONDENT MACEBO D. NXUMALO
