IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE REVIEW CASE NO.08/10
District Record No.HLA 56/10
SAMBULO THABISO NDZINISA
Date of consideration: 8 June, 2010
Date of judgment: 8 June, 2010
 The accused person was arraigned before the Shiselweni Magistrate’s Court on a single count of rape. It was alleged that he had had unlawful carnal knowledge of Nobuhle Xaba a female then aged 8 years and incapable at law of consenting thereto.
 Following his plea of guilty to the offence, the accused was indeed found guilty and sentenced to 7 years’ imprisonment, which was back dated “to the time of arrest”. I will revert to this issue later in the judgment.
 The matter has come before me on automatic review. I have no qualms at all regarding the conviction of the accused person. In particular, the accused admitted all the constituent elements of the crime of rape in addition to his aforesaid guilty plea. Although the statement of agreed facts could and should have been prepared to place the setting in which the offence occurred in proper perspective, I am of the view that the plea of guilty was nonetheless unequivocal.
 Magistrates are exhorted to insist on the preparation and production of statements of agreed facts in such instances so as to place the Court in full appreciation of the circumstances in which the offence to which the accused person pleaded guilty will have taken place.
 I am, however, a little disturbed by the sentence imposed. The offence was no doubt serious, particularly having regard to the complainant’s age of 8 years. At the same time, sight must not be lost of the fact that the accused was himself a minor at the time. Furthermore, the Court accepted that he was intoxicated when he committed this offence. It can be accepted that persons who are inebriated have their judgment impaired by the alcohol they will have consumed. There can be no doubt that this was the case with the accused.
 It is also plain that the trial Court in its judgment, stated that it took note of the fact that the accused pleaded guilty. There is no reason, in the circumstances, why this plea shall not be regarded as an inducium of contrition on his part. Pleas of guilty, it must be stated, should unless imperatively called for, be appropriately rewarded by reducing the sentence from the regular one in recognition of the accused’s redeeming of the Court’s time; penitence (where shown or proved) and the fact that witnesses are spared the agony and trauma of having to appear in Court to adduce evidence.
 The accused, it will also be clear, was a first offender. Regard had to these facts and his relatively young age, it is clear that youth and inebrieation must have taken sway over him in committing this offence. When one reads judgments passed by Magistrates’ Courts, in the ordinary cases of rape, one deciphers that Courts normally impose a sentence of seven years. Where there are aggravating circumstances alleged and proved, a minimum sentence of nine years is normally imposed.
 I am of the view that the sentence of seven years, in the circumstances of this case, serious as the case is, is on the harsher side. As indicated, the setting in which the crime was committed, coupled with the accused’s age and his plea would, when considered in tandem with the need to emphasise the rehabilitative, rather than the retributive aspect of punishment on a person of his age, require a lesser sentence than that which was imposed by the trial Court.
 I now revert to the issue indicated in paragraph  above. The Court ordered the accused’s incarceration to run from the date of his arrest. That date was not identified in the judgment though some date is recorded in the warrant of committal as being 2 March, 2010. This is not the correct approach. The warrant of committal must contain all the particulars indicated in the Court’s sentence, as forming part of the Court’s order. It should not contain more or less than the Court’s Order.
 I had occasion to comment on the need to ensure that the dates from which a sentence is to run is properly recorded in The King v Thuthukani Ndumiso Fakudze Review Case No. 06/10. In that case, the date of arrest was not indicated both in the sentence and the warrant of committal. At paragraph  to  I commented as follows;-
“This is most unsatisfactory. It is the duty of the sentencing Court to stipulate all the necessary information and detail regarding a sentence imposed by it. This will then be transplanted, so to speak, to the warrant of committal. Matters of sentencing have an effect on the convict’s right to liberty. The nature and duration of a sentence, particularly of imprisonment, are matters that must be clearly set out in the judgment and must not be subject of surmise, debate or doubt.
A reviewing or appellate Court must not be left to grope in the dark in its quest to determine a sentence imposed; when it was to run and possibly end. This is so because an appellate or reviewing Court may, in assessing the propriety of the sentence, consider pre-trail incarceration. This becomes an impossible feat in the circumstances. If the date of arrest is not in evidence, the prosecution normally has an investigation diary that invariably records the date of arrest which the accused can be in a position to confirm.”
I reiterate these remarks.
 Having regard to all the pertinent circumstances of this case, I am of the view that the sentence of seven years imprisonment is disturbingly inappropriate, justifying an interference therewith by this Court. In my opinion, the sentence at (3) below, would meet the justice of the case. I therefor make the following Order:-
The proceedings be and are hereby certified to be in accord with real and substantial justice.
The sentence of seven (7) years imprisonment be and is hereby set aside.
The accused be and is hereby sentenced to five (5) years’ imprisonment in the relevant correctional facility.
(4) The sentence is backdated to the accused’s date of arrest, which the learned trial Magistrate is hereby required to establish, if necessary with the prosecution and enter same, with a note to this Court that same has been done.
DONE IN CHAMBERS ON THIS THE 8TH DAY OF JUNE, 2010.
JUSTICE OF THE HIGH COURT