THE
HIGH COURT OF SWAZILAND
CRIM.
CASE NO.17/02
In
the matter between:
ANYONYOBA
JOSEPH GWEBU
And
REX
CORAM: MASUKU
J.
For
the Crown: Ms N. Lukhele
For
the Accused: Mr C.S. Ntiwane
JUDGEMENT
ON SENTENCE
25th
SEPTEMBER 2002
You
have been found guilty of the serious crime of culpable homicide,
which involves the taking away of the life of another. As I have
stated on many previous occasions, life is a gift from God and may
not be taken away by one who has not given it, with impunity.
In
considering the appropriate sentence I will have due regard to what I
consider to be lapidary remarks by Jones J. in S VS QAMATA 1997 (1)
SACR 479 at 480. The learned Judge stated the following: -
"It
is now necessary for me to pass sentence. In doing so, it is proper
to bear in mind the chief objectives of criminal punishment, namely,
retribution the prevention of crime, the deterrence of criminals, and
the reformation of the
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offender.
It is also necessary to impose a sentence which has a dispassionate
regard for the nature of the offence, the interest of the offender,
and the interests of the society. In weighing these considerations I
should bear in mind the need:
(a) to
show an understanding of and compassion for the weaknesses of human
beings and the reasons why they commit serious crimes, by avoiding an
overly harsh sentence;
(b) to
demonstrate the outrage of society at the commission of serious
crimes by imposing an appropriate, and, if necessary, a severe
sentence; and
(c) to
pass a sentence which is balanced sensible, and motivated by sound
reasons and which will therefore meet with the approval of the
majority of law abiding citizens. If I do not, the administration of
justice will not enjoy the confidence and respect of society. "
Translating
the above remarks to reality is by no means an easy task for it calls
for one to attune three competing interests, which in legal parlance
is known as a triad, the interests of the accused, the community and
the seriousness of the offence.
Factors
that weigh in your favour in this regard and which your attorney has
pointed out are the following: -
(i) You
exhibited signs of penitence by pleading guilty;
(ii) That
from the agreed statements of facts, it appears that the deceased was
the aggressor;
(iii) That
you have spent an aggregate of about 24 months in custody, having
been
arrested, released and rearrested on the same charges. I must however
mention that whether the sentence will be backdated lies in the
discretion of the Court and cannot be claimed as of right.
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(iv) That
you are 52 years old and are married to two women and have sixteen
(16) children. The Court has however not been told how many of these
children are still minors.
Juxtaposed
with the above must be the unhappy record of previous convictions,
the last one being in 1998. It was in respect of malicious injury to
property which may be said not to be directly relevant to the
conviction now under scrutiny. As submitted by Ms Lukhele, it is an
indication of the type of person you are; given to malice and
insensitivity to others and their property. The other five (5)
convictions all have an element of assault ingrained in them.
Although they are not very recent, they indicate that your violent
nature which you appear to have suppressed for some eleven years is
back in circulation. This is a bad sign.
You
are an old man who has lived more than half a century and should be
very exemplary in your behaviour. The older you become, the wiser you
are expected to be in your actions and reactions. Rashness and
impulsiveness must be the fossil of your younger years. Although the
deceased was the aggressor, and had taken your wife from you, if you
had avoided him and taken flight in the face of his provocation, you
would not be standing before me now and you certainly would not have
been in custody for the past many months.
Having
said the above, I hope that you have learned your lesson and that you
are prepared, at this afternoon of your life to make amends. The fact
that the deceased died at your hands should haunt you for life. I
hope that you do not regard the death of the deceased as a sign of
your machismo, as others do.
The
sentence that I consider appropriate in your case, considering the
conspectus of the attendant facts is one of five (5) years
imprisonment two of which are hereby suspended for a period of three
(3) years on condition that you are not, during the period of
suspension to be found guilty of an offence in which violence to the
person of another is an element.
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This
sentence is to take into account the period of twenty five (25)
months which you have already spent in custody.
T.S.
MASUKU
JUDGE
