Sambo v Rex (2/2012) [2013] SZSC 07 (31 May 2013);

 

 

 

 

 

IN THE SUPREME COURT OF SWAZILAND

 

JUDGMENT

                                                                                               

                                                                        Criminal Appeal Case No. 2/2012

 

 

In the matter between

 

 

JOSEPH ARLINDO CHICCO SAMBO                    Appellant            

 

and

 

REX                                                                              Respondent

 

 

Neutral citation:            Joseph Arlindo Chicco Sambo v Rex (2/12) [2013] SZSC 07 (31 May 2013)

 

Coram:                          EBRAHIM JA, DR. TWUM JA, and OTA JA.

 

 

Heard:                           6 May 2013

 

Delivered:                      31 May 2013

 

 

 

Summary:        Criminal law and procedure; accused  charged with murder; plea bargaining; accused pleads guilty to less serious offence of culpable homicide; different degrees of culpable homicide; considerations for exercise of powers of Director of Public Prosecutions in accepting plea for lesser offence; 10 years imprisonment condign punishment for culpable homicide.

 

 

JUDGMENT

 

DR. TWUM J.A.

 

[1]     This is an appeal from the judgment of Maphalala J (as he then was), sitting in the High Court, Mbabane.  He convicted the appellant on his own plea of guilty on three counts, namely: culpable homicide, causing grievous bodily harm and contravention of section 14 (2) of the Immigration Act No. 17/1982.  He sentenced him to an effective term of 10 years imprisonment as hereinafter set out.

 

[2]     The facts leading to this conviction and sentence exemplify a pathetic saga of man’s inhumanity to man.  The appellant is a citizen of Mozambique.  He sojourned into this Kingdom without appropriate permit or licence.  In other words, he was an illegal immigrant.  It was not clear for how long he had been here and for what purpose. Contrary to conventional wisdom, he did not adopt a lifestyle commensurate with his immigrant status. 

 

[3]     The record shows that there was also resident in the Kingdom a woman from Mozambique called Rose Langa.  She was reputed to be a girlfriend of the appellant though he considered her to be his wife by virtue of some custom he claimed to have performed back home.  That notwithstanding, Rose had formed an amorous liaison with another man called Fabito Makamo.

 

[4]     On or about 20^th November, 2007, Rose Langa was sitting in front of a room with her paramour. Apparently, the appellant had had information where Rose was and was proceeding there.  Before the appellant could take a firm hold of Rose’s arm, she wriggled out of his grip and ran into the room and locked herself in, leaving her paramour to face the appellant.  The upshot of all these goings-on was that a fight ensued between the appellant and Fabio Makamo, the paramour.  It spilled into the street. Mr Makamo’s friend, called Petros Langa, decided to intervene to stop the fight.  When the dust literally settled, Fabio Makamo had been stabbed in the chest by the appellant and was bleeding profusely.  Mr Petros Langa himself had been stabbed in the shoulder as well as in the chest and on his buttocks by the appellant.

 

[5]     Not unnaturally a lot of people rushed to view the fight.  In the confusion that ensued, the appellant escaped and he was not apprehended until 25^th March 2009.  Meanwhile, Mr Makamo had died from his stab wound and Mr Petros Langa had to have hospital treatment for 7 days. 

 

[6]     Upon his arrest, the appellant was arraigned before the High Court, Mbabane, presided over by MCB Maphalala J, as he then was.  He was charged with 3 counts, namely: murder, causing grievous bodily harm and contravention of section 14 (2) and (3) of Act 78/1982.

 

[7]     No viva voce evidence was led at the trial.  Rather, before the trial commenced, defence and prosecuting counsel, composed a “statement of agreed facts” wherein the appellant now pleaded guilty to a charge of culpable homicide of Mr Makamo (instead of murder); guilty of causing grievous bodily harm to Mr Petros Langa who sought to separate the two fighters; as well as guilty of breaking section 14 (2) of the Immigration Act 78/1982, making him an illegal immigrant.  The statement was tendered in court by consent and accepted by the court.  His Lordship ascertained from the appellant whether the statement accorded with his instructions and upon an affirmative answer, he convicted him accordingly, on his own plea!  He was sentenced to imprisonment as follows:-

          (i)      Count (1) (culpable homicide) – 10 years.

          (ii)     Count (2) causing grievous bodily harm – 3 years.

          (iii)    Count (3) breach of Immigration Act 1982 – 1 year imprisonment with an option of E1000.00 fine.

          The prison sentences were all back-dated to 25^th March 2009 – the date he was arrested and placed in lawful custody to abide his trial.  The prison sentences were ordered to run concurrently.  In effect, he was to serve a total period of 10 years in prison.

 

 

          The appeal

[8]     By a letter dated 16^th January 2012, written by the appellant from Matsapha Correctional Centre, he purported to appeal against both his conviction and sentence.  However, in view of his plea of guilty to all the charges upon which he was convicted, in law, he could not validly appeal against the conviction.  This is because, the learned trial judge was bound to record a verdict of guilty to those charges.  That was the conviction.  The so-called appeal against conviction is therefore dismissed accordingly.

 

[9]     I now discuss the appeal against sentence.  The appellant complained that the 10 year sentence meted out to him was too harsh and severe for him to bear.  He said it was so harsh and severe that it induced a sense of shock and trauma.  He added that the commission of the crimes was unpremeditated and that it occurred on the spur of the moment. What a turn-up for the books.

 

[10]   The ‘statement of agreed facts’ reproduced in the record of proceedings at pages 7-9 (Exhibit 1) shows that the appellant went to find his girlfriend with a knife concealed on his person.  The appellant engaged Mr Makamo in an unlawful fight.  The fight spilled into the street nearby.  There was no evidence that the appellant was having the worse of the exchanges and that his life was in danger.  Neither the deceased nor Mr Petros Langa was shown to have been carrying any weapon.  However, the appellant suddenly took a knife from his pocket and stabbed the deceased on his chest.  And as if that was not enough, he stabbed the “peacemaker” as well, in the chest and on his buttocks.

 

[11]   These acts of wanton wounding so ferociously directed at these men, can hardly be described as unpremeditated or unintentional, as the appellant would have this court to believe.  They were directed at one of the most vulnerable parts of the human anatomy – the chest cavity which houses the heart and lungs of human beings.  Little wonder the victims of the knife attacks bled so profusely and Mr Makamo who probably had the more severe thrust, succumbed to death upon arrival at the hospital.  The “peacemaker”, for the record, received hospital treatment for 7 days.  I am not persuaded that the attack on Mr Makamo was unplanned; otherwise what was the need for the appellant to have concealed a knife on his person.

 

 

[12]   It cannot be emphasized too strongly that people who draw knives under the least provocation and inflict mortal wounds on their adversaries cannot expect to be dealt with leniently.  Our courts would be astute to ensure that such people do not over-reach the criminal justice system by pleas in mitigation unsupported by credible facts.  For example, in this case,  I place little value on the appellant’s claim that Rose Langa was his wife and that he had a minor child to support.  Even if it was a fact that the appellant was the husband of Rose Langa, there was no excuse for the appellant to attack the deceased with a knife.  The “peacemaker” who survived had no quarrel with the appellant.  He was the Biblical “peace-maker” who was trying to separate the amorous rivals. 

 

[13]   My Lords, before I am done, permit me to voice my concern about the outcome of the plea-bargaining in this case,  without seeming to question the constitutional propriety of the Office of the Director of Public Prosecutions to accept an accused’s person’s offer to plead guilty to a lesser offence in place of a more serious charge.  The Law Office is exhorted in future, to be more astute in deciding whether to accept a plea of guilty of culpable homicide for a plea of not guilty to a charge of murder.  In the case of Lomcwasho Thembi Hlope v The King Criminal Appeal 7/2010.  I said this:

“There are obviously varying degrees of culpable homicide offences.  In the case of Bongani Dumisani Amos Dlamini v Rex Criminal Appeal No. 12/2005, this court endorsed a sentence of 10 years imprisonment in what the trial Judge described as an extraordinary serious case of culpable homicide at the most serious end of the scale of such crime.”

 

I regard the current case as an extremely serious case which perhaps, upon hindsight, should have been tried as a charge of murder.  The fact that the appellant was seen concealing a knife on his person moments before accosting his girlfriend (or wife) seems to me that he had malice aforethought to kill the paramour as well as his so-called wife.  After all, he did not need a knife to fight his wife.  And the killing of the paramour in the unlawful fight, it is submitted, was accompanied by that same malice aforethought.  My concern is that the killing of the paramour came perilously close to murder and perhaps the appellant’s plea of guilty of culpable homicide should not have been accepted.

 

[14]   As the learned trial judge rightly pointed out, the appellant appeared to be a very violent person who is a danger not only to other people, but to himself.  I agree entirely with the court a quo that the courts of this Kingdom, (and if I may add, Parliament,) have a duty to protect innocent members of the society against the type of violent behaviour exhibited by the appellant.

 

[15]   The appellant pleaded in his so-called appeal for a reduction of 4 years in his 10 year sentence.  There is a veiled innuendo in this plea suggesting that the maximum sentence for culpable homicide is 6 years.  There is no such rule of law.  Sentencing involves a judicial discretion.  This is informed by the circumstances attending the offence and the relevant law. 

 

[16]   Sentencing is a matter predominantly within the discretion of the trial court and an appellate court should not interfere with the exercise of its discretion unless that court had misdirected itself.  In casu, the trial court’s approach to the sentence, was in my view, unassailable.  I confirm that the 10 years imprisonment was a condign punishment for the 3 offences committed by the appellant.  The only proper appeal before this court – the appeal against sentence – is unmeritorious and it is dismissed.  The order for the sentence to be back-dated to 25^th March 2009, the date of his arrest, is confirmed.

          Ordered accordingly.

 

                                                                              _____________________                                         

                                                                   DR. SETH TWUM

                                                                    JUSTICE OF APPEAL

 

          I agree.                                    

 

____________________

                                                                   A.M. EBRAHIM

                                                                   JUSTICE OF APPEAL

 

 

I also agree.                                               

____________________

                                                                   E.A. OTA

                                                                   JUSTICE OF APPEAL

 

COUNSEL:

For Appellant      :        In person

For Respondent   :        Mr Sikhumbuzo Fakudze