Ndwandwe v R (39/11) [2011] SZSC 50 (30 November 2011);

 

IN THE SUPREME COURT OF SWAZILAND

 

 

HELD AT MBABANE     CRIM.APPEAL CASE NO: 39/11

 

 

In the matter between:

MANDLENKOSI DANIEL

NDWANDWE                                            APPELLANT

 

AND

 

THE KING                                               RESPONDENT

 

 

CORAM:                                  EBRAHIM, JA

                                                FARLAM, JA                                                                   M.C.B. MAPHALALA, JA

                                                               

 

FOR APPELLANT                    IN PERSON           

FOR RESPONDENT                 L. HLOPHE       

 

 

HEARD ON 04^TH NOVEMBER 2011

DELIVERED 30^TH NOVEMBER 2011

 

 

Summary

 

Criminal Appeal – Conviction of aggravated rape of nine year old girl –  appeal sentence of eighteen years imprisonment - appellant on ARV treatment when committing the offence – both appellants and complainant test HIV positive - No misdirection by the Trial Court – Sentence not grossly excessive or harsh – appeal dismissed.

 

 

 

JUDGMENT

 

M.C.B. MAPHALALA  J.A.

 

[1]    The appellant was convicted in the court a quo for an offence of rape with aggravating factors; and on the 18^th July 2011, he was sentenced to eighteen years imprisonment without an option of a fine.  In his Notice of Appeal he prays for a reduction of five years of the sentence imposed by the learned judge on the basis that the sentence is too harsh and severe; he does not challenge his conviction.

 

[2]    In his heads of argument he submits that he demonstrated  the   sincerity   of   his  remorse  by   co-operating fully with the investigating officer, pleading guilty to the charge, as well as tendering an apology to the complainant and her parents.   He further submits that he is a first offender, married with eleven children and is the sole breadwinner for his sickly mother and his immediate family; in addition, he submits that he is terminally sick.

 

[3]    The appellant was indicted in the court a quo for rape; and it was alleged by the crown that during the period 2008 up to the 6^th December 2009 and on various dates at Nkambeni Area he unlawfully and intentionally had sexual intercourse with Nomcebo Masonto Zwane, a female minor aged nine years and who in law was incapable of consenting to sexual intercourse.

 

[4]    The offence for which the appellant was indicted was accompanied by aggravating circumstances as envisaged by Section 185 bis (1) of the Criminal Procedure and Evidence Act No. 67 of 1938 as amended for the following reasons:   First, the complainant was a minor aged nine years; secondly, the complainant stood at a loco parentis relationship with the appellant since he was an adult of about forty years of age during the period of rape; thirdly, the appellant exposed the complainant to the risk of contracting sexually transmitted infections such as HIV/Aids since he did not use a condom; fourthly, the appellant sexually assaulted the complainant repeatedly over a period of time.

 

[5]    When the appellant was arraigned for trial, he pleaded guilty to the charge, and he was duly represented by an Attorney of his choice.  The crown accepted his plea.  Both Counsel agreed to proceed in terms of Section 238 (2) of the Criminal Procedure and Evidence Act which provides as follows:

 

“Any Court which is trying any person on a charge of any offence may convict him of any offence alleged against him in the indictment or summons by reason of a confession of such offence proved to have been made by him, although such confession is not confirmed by any evidence:

 

Provided that such offence has, by competent evidence, other than such confession been proved to have been actually committed.”

 

5.1   The Trial Judge found that the confession and Medical Report constitute sufficient evidence for purposes of Section 238 (2) of the Criminal Procedure and Evidence Act.

 

[6]    The appellant recorded a confession with a Magistrate which was submitted in court by consent; he admitted that he was involved in a relationship with the complainant since 2008 and that he has had sexual intercourse with her four times in his residence without a condom.  He conceded that the last time he had sexual intercourse with the complainant was on the 6^th December 2009; he further conceded that on the said day, there was penetration of her private part.

 

[7]    The Medical Report of the complainant was handed in court by consent.   The doctor’s findings were that her labia majora and vestibule were bruised; and the doctor  opined that this was evidence of recent forced penetration.  The hymen was also bruised and torn; and, the fourchette was bruised.  The doctor concluded that this was evidence of a recent forced vaginal penetration.  In addition the complainant tested positive to HIV/Aids.  Similarly, there is a second medical report of the appellant in which he tested HIV positive and was already on ARV treatment.

 

[8]    In addition to the confession and the Complainant’s Medical Report, the court also took into account the plea of guilty in convicting the appellant of the crime of Rape.  Quoting the cases of Rex v. Valdema Dengo Review case No. 843/88 and that of Rex v. Justice Magagula case No. 330/02 His Lordship stated that the position of the law in rape cases is settled that the crown has to prove beyond reasonable doubt the identity of the accused, the fact of the sexual intercourse and the lack of consent.  His Lordship correctly concluded that all three legal requirements were satisfied.

 

[9]    The complainant knew the appellant very well and they had sexual intercourse from 2008 to the 6^th December 2009; in addition, they resided in the same neighbourhood.  In this regard there can be no doubt as to the identity of the accused.   The plea of guilty made by the appellant, his confession as well as the Medical Report of the complainant are sufficient to establish the fact of sexual intercourse. It is common cause that the complainant was nine years of age when the offence was committed; hence, she could not consent to sexual intercourse as stated in the case of R. v. Z. 1960 (1) SA 739 (A) at 742 D-E where the court stated the following:

 

“According to our practice a girl under the age of twelve years cannot give consent to sexual intercourse.  Even if she consents, sexual intercourse with her according to our law is rape.”

 

[10]  In arriving at the appropriate sentence, His Lordship took into account the personal circumstances of the appellant that he pleaded guilty to the offence as a sign of remorse, that he was a first offender, that he made a confession, that he offered apologies to the complainant and her family, and that he is married with eleven children. The learned Judge also took into account the prevalence of the offence of rape in this country.  He also took into account the seriousness and gravity of the offence.   In particular he took into account the fact that the offence is accompanied by aggravating factors; in addition, he took into account Exhibit “C” which is the Medical Report of the appellant which shows that he was HIV Positive at the time when he committed the offence, and that he was on ARV treatment.  Exhibit “C” was admitted in evidence by consent, and it is proof that the appellant had sexual intercourse with the complainant fully aware of his HIV status.

 

[11]  Section 185 bis (1) of the Criminal Procedure and Evidence Act No. 67 of 1938 is applicable in this case because the appellant was indicted with rape accompanied by aggravating factors.  It provides the following:

 

“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 an option of a fine and no sentence or part thereof shall be suspended.”

 

[12]  Similarly section 313 (2) of the Criminal Procedure and Evidence Act precludes the court from suspending a sentence in respect of persons convicted of offences listed in the Third Schedule; these offences include Murder, Rape, Robbery and any conspiracy, incitement or attempt to commit the said offences.  The section provides the following:

 

“If a person is convicted before the High Court or any magistrate’s court of any offence other than one specified in the Third Schedule, it may pass sentence, but order that the operation of the whole or any part of such sentence be suspended for a period not exceeding three years, which period of suspension, in the absence of any order to the contrary, shall be computed in accordance with sub-sections (4) and (5) respectively.”

 

[13]  It is trite law that the imposition of sentence lies within the discretion of the trial court, and, that an appellate court will only interfere with such a sentence if there has been a material misdirection resulting in a miscarriage of justice.  It is the duty of the appellant to satisfy the appellate court that the sentence is so grossly harsh or excessive or that it induces a sense of shock as to warrant interference in the interests of justice.  This principle has been followed and applied consistently by this court over many years, and it serves as the yardstick for the determination of criminal appeals brought before this court:

 

• Musa Bhondi Nkambule v. Rex Criminal Appeal No. 6/09
• Nkosinathi Bright Thomo v. Rex Criminal Appeal No. 12/10
• Vusi Musi Lukhele and Another v. Rex Criminal Appeal No. 23/04
• Benjamini B. Mhlanga  v. Rex Criminal Appeal No. 12/07
• Sifiso Zwane v. Rex Criminal Appeal No. 5/ 05

 

[14]  I have considered the grounds of appeal filed by the appellant; however, they do not disclose any material misdirection by the court a quo resulting in a miscarriage of justice.  It is now settled in this court that the range of sentences for aggravated rape lies between eleven and eighteen years as demonstrated in the Criminal Appeal of Mgubane Magagula v. Rex Criminal Appeal No. 32/2010.

 

[15]  I am satisfied that the learned judge in the court a quo applied his mind properly when he considered the triad.   The sentence imposed is appropriate in the circumstances.  He balanced and weighed the personal circumstances of the appellant, the interests of society with regard to the prevalence of the offence as well as the seriousness and gravity of the offence.  Having said this, I am convinced that the prevalence of aggravated rape on both women and children calls for deterrent sentences beyond the range currently imposed by  this court.   This is particularly necessary in an era where society is faced with incurable sexually transmitted diseases including HIV/Aids; however, this is by no means down-playing the effects of the trauma, shock, loss of dignity, torture, inhuman and degrading treatment to which the victims of rape are subjected.

 

[16]  This appeal has no merit and it is accordingly dismissed, and, the sentence imposed by the court a quo is confirmed.

 

DELIVERED IN OPEN COURT ON 30^TH NOVEMBER 2011.

 

 

 

 

                                                                    M.C.B. MAPHALALA

                                                        JUDGE OF APPEAL

 

 

 

I agree:                                             A.M. EBRAHIM

                                                        JUDGE OF APPEAL

 

 

 

I agree:                                             I.G. FARLAM

                                                        JUDGE OF APPEAL