IN
THE HIGH COURT OF SWAZILAND
CRI.
APP. NO.51/88
In
the matter of:
TRACEY
SIBANYONI
vs
THE
KING
CORAM
F.
X. ROONEY
FOR
THE CROWN A.
DONKOH
FOR
DEFENCE MATSEBULA
JUDGMENT
29
March 1989
Rooney,
J.
On
the 23rd August, 1988 the appellant was convicted of the crime of
theft. The presiding magistrate (M.S. Jute) sentenced her to four
years imprisonment of which term one year was suspended for three
years on condition that the appellant is not convicted of a theft
committed during the period of suspension. On the application of the
prosecutor, acting on behalf of Royal Swaziland National Corporation,
the magistrate ordered the appellant to compensate the Corporation to
the extent of E18.791 and sixty United States Dolars. This is the
total amount which the appellant had stolen from her employers. The
order was made under section 5 of the Theft and Kindred Offences
Order 1975.
This
is an appeal directed against sentence only. Counsel for the
appellant attacked the order for compensation as if it were part of
the sentence. I am unwilling to treat it as such Section 321 of the
Criminal Law and Procedure Act empowers a court to award compensation
against a convicted person for loss of property
2
where
the offence has occasioned such loss. The amount awarded shall not
exceed the civil jurisdiction of such court. Section 5 of the Theft
and Kindred Offences by Public Offices Order 19 75 provides the
Government and other bodies with an expeditious remedy in the case of
a public officer who has been convicted of theft as defined. It in
noway increases the liability of the accused, who is always
potentially liable, whether in civil or criminal proceedings, to make
good the loss she incurred (Ex. Parte. the D.P.P. In re Jeremiah
Dlamini 1970-71 S.L.R. 327 per Nathan CJ. at 331).
Mr
Matsebula for the appellant submitted that the magistrate was not
compelled to make the order for compensation and that he should first
have considered the ability of the appellant to repay the amount
stolen. The terms of section 5 (1) of the Theft and Kindred Offences
by Public Officers Order admit of no such interpretation. The Order
requires that "The court trying the case shall upon the
application.... forth-with award compensation for such loss......"
It is provided in 5 (4) that any award of compensation, made by a
court under this section shall have the effect of a civil judgment of
that court. A civil court has no discretion to refuse to grant a
plaintiff a judgment on account of the deffendan's inability to pay
it. There is no substance in Mr Matsebula's argument. Section 5 (7)
of the Order reads -
5.
(7) In the event of the court finding that a person convicted has
inadequate assets with which
forthwith to pay the amount of compensation awarded against him it
may order such compensation
to be paid in instalments and provide that on the failure to pay any
such instalments
the accused person shall undergo such further period of imprisonment
as it may deem
fit".
3
This
was not invoked by the magistrate. If it had been it would not have
been beneficial to the appellant as it might (notwithstanding the
civil nature of the judgment) have rendered her liable to undergo
further imprisonment if she defaulted in meeting any instalments
ordered.
Mr
Matsebula further submitted that the magistrate in passing sentence
should have had regard to extenuating circumstances such as the
appellant's age, salary and the apparent failure of the Royal Swazi
Corporation to discover the appellant's depredations earlier than was
the case. He further submitted that having made an order for
compensation it was inappropriate for the magistrate to note
that the amount stolen had not been recovered.
In
giving his reasons for sentence the magistrate remarked -"In
deciding on an appropriate sentence the court considered the nature
of the crime, the circumstances of accused and the interests of the
community.
The
court took into account the personal circumstances of the accused as
set out by her attorney and that she was a first offender. She
however showed no remorse. The court considered the nature of the
crime. A large amount of money was stolen over a long period. No
money had been recovered.
This
type of crime is very prevalent and the court concluded that a
sentence with a deterent effect should be imposed.
Since
the court was compelled to make an order for compensation upon
application in terms of section 5 of the Theft and and Kindred
Offences Order 1975 it was not made a condition of the suspended
portion of the sentence that accused repays any money.
After
consideration of all the above the court imposed the sentence
recorded".
4
Although
Mr Donkoh for the Crown conceded that the sentence was a severe one
and this Court might consider reducing it, I am not persuaded that
this would be a proper course.
It
is well a established practice that an appellate court will not
interfere with the sentence passed in a lower court which is within
that court's jurisdiction unless the sentence is so obviously
inappropriate as to induce a sense of shock or the magistrate has
misdirected himself in considering the matter. This is so even where
the sentence under review or appeal is not one which the appellate
court would have considered appropriate to the circumstances of the
case.
It
has not been shown that the magistrate misdirected himself in his
approach to the sentence passed upon the appellant. While I agree
that this was a heavy sentence it was not totally inappropriate and
there are therefore no grounds upon which this Court should interfer
with the magistrate's discretion in the matter of sentence.
I
may add, in regard to the order for compensation, that
notwith-standing the proviso to section 321 of the Criminal Law and
Procedure Act referred to above, the court a quo was empowered to
make an award in excess of its ordinary civil jurisdiction by virtue
of section 5 (2) of the King's Ordr in Council which stipulates that
notwithstanding any other law a magistrate's court shall be entitled
to award the full amount of compensation which the complainant has
suffered.
F.X.
ROONEY
JUDGE
29/3/89
