IN THE SUPREME COURT OF SWAZILAND
JUDGMENT
Criminal Appeal No. 40/12
In the matter between
MCEBO MJENGA DLAMINI Appellant
and
REX Respondent
Neutral citation: Mcebo Mjenga Dlamini v Rex (40/2012) [2013] SZSC 12 (31 May 2013)
Coram: RAMODIBEDI CJ, OTA JA, and ODOKI JA
Heard: 7 MAY 2013
Delivered: 31 MAY 2013
Summary: Criminal law – Murder charge - Appellant convicted of culpable homicide on his own plea which was accepted by the Crown – Sentenced to 9 years imprisonment – Appeal against sentence only – Appeal dismissed – Both conviction and sentence confirmed – Appeal on the backdating of sentence upheld – Sentence backdated by one (1) year and 10 days being the period the appellant spent in custody before he was sentenced.
JUDGMENT
RAMODIBEDI CJ
[1] At the commencement of his trial for the alleged murder of one Mcoshwa Reuben Dlamini (“the deceased”) the appellant pleaded guilty to culpable homicide, a plea which was accepted by the Crown.
[2] The allegation against the appellant, as foreshadowed in the indictment, was that upon or about 24 December 2009 and at or near Jabulani area in the Shiselweni Region he unlawfully and intentionally killed the deceased. It was further alleged that he did so jointly with two others, who had since disappeared, in furtherance of a common purpose.
[3] The appellant was sentenced to 9 years imprisonment. He has appealed to this Court on the ground that the sentence is too harsh for him to bear and that it induces a sense of shock. He also contends that the sentence should be backdated to the date of his arrest.
[4] The facts leading up to the appellant’s conviction and sentence are common cause. They were set out in a “Statement of Agreed Facts” jointly signed by the Crown counsel and the appellant. In the statement the appellant gave the following account of the relevant facts:-
“5. On the fateful day, the accused was returning home from a drinking spree in town in the company of two companions. The trio came across the deceased who shouted at them and said they should disperse. An argument ensued and the accused and the deceased engaged in a fight. The deceased was injured on the head and the trio left him lying motionless on the ground. The deceased was discovered dead the very next morning at the scene where he was injured when fighting the accused.”
[5] For the sake of completeness, it is important to record that the appellant further made the following material admissions, namely,
(1) that the deceased died as a result of the appellant’s unlawful and negligent conduct;
(2) that there was no intervening cause of death other than the appellant’s unlawful and negligent conduct in assaulting the deceased; and
(3) that the cause of the deceased’s death was due to traumatic intracranial haemorrhage arising from the injuries inflicted upon him by the appellant. The post-mortem report in that regard was handed in at the trial by consent.
[6] In light of the foregoing factors, it seems to me that the appellant was well-advised not to appeal against his conviction. He was correctly found guilty of culpable homicide on his own plea. In this regard, the learned trial judge correctly relied on s 238 (1) (a) of the Criminal Procedure and Evidence Act 1938. In its amended form, that section provides that if a person arraigned before the High Court or a Principal Magistrate’s court pleads guilty to any offence other than murder the court may sentence him/her for such offence without hearing any evidence.
[7] Insofar as sentence is concerned this Court has stressed repeatedly enough that the imposition of sentence lies pre-eminently within the discretion of the trial court. It is, however, a judicial discretion which must be exercised upon proper and relevant considerations. It is not an arbitrary discretion. An appellate court is ordinarily not entitled to interfere with sentence unless there is a misdirection resulting in a failure or miscarriage of justice. See, for example, Musa Bhondi Nkambule v Rex, Criminal Appeal No. 6/09; Jabulani Mzila Dlamini and Another v Rex, Criminal Appeal Case No. 16/2011.
[8] In this Court the appellant tried to blame the deceased’s death on his companions. He thus suggested that it was unfair that he alone had to face a sentence of 9 years imprisonment whilst the other co-perpetrators were at large. This submission is entirely without merit. The appellant must be prepared to face the consequences of his senseless unlawful killing of the deceased. As is apparent from the statement of agreed facts, it was the appellant alone who engaged in a fight with the deceased. There is no mention in the statement that his companions also assaulted the deceased. Even if they did so, however, that would be no justification in itself to absolve the appellant.
[9] As it was enjoyed to do so, the trial court meticulously took into account the triad consisting of the offence, the offender and the interests of society. See the celebrated case of R v Zinn 1969 (2) SA 537 (A) at 540 which has repeatedly been followed in this jurisdiction. See, for example, Bheki Goodwill Gina v Rex, Criminal Appeal No. 2/09.
[10] Again, as it was obliged to do so, the trial court followed the guideline laid down by this Court in Musa Kenneth Nzimav Rex, Criminal Appeal Case No. 21/07 to the effect that a sentence of 9 years imprisonment is warranted in culpable homicide convictions only at the most serious end of the scale of such crimes. The court correctly, in my opinion, took the view that this was such a case. An innocent life was lost, resulting in the deceased’s family losing a breadwinner. Importantly, the appellant was not provoked in any way. In these circumstances, and bearing in mind that no misdirection has been shown to exist, I am satisfied that the sentence of 9 years imprisonment imposed upon the appellant was fully justified.
[11] It will be recalled from paragraph [3] above that the appellant contends that his sentence should have been backdated to the date of his arrest.
[12] It is common cause that the appellant was arrested on 5 January 2010. He was only admitted to bail on 15 January 2011. All of this was recorded in the statement of agreed facts in question. It follows that the appellant was in custody pending his trial for one (1) year and 10 days. In fairness to her, Miss Hlophe for the Crown properly conceded in these circumstances that the appellant’s sentence should be backdated by one (1) year and 10 days, being the period he spent in custody before he was sentenced.
[13] In the result the appeal partly succeeds and partly fails. The following order is made:-
-
The appellant’s appeal against his sentence of 9 years imprisonment is dismissed.
-
The appellant’s sentence is backdated by one (1) year and 10 days, being the period he spent in custody before he was sentenced.
___________________________ M.M. RAMODIBEDI
CHIEF JUSTICE
I agree ____________________________ E.A. OTA
JUSTICE OF APPEAL
I agree ___________________________
B.J. ODOKI
JUSTICE OF APPEAL
For Appellant : In Person
For Respondent : Miss L. Hlophe
