IN THE HIGH COURT OF SWAZILAND
JUDGMENT
HELD AT MBABANE CASE NO. 307/17
In the matter between:
NKOSINGIPHILE ANSWER DLAMINI APPELLANT
And
MAGISTRATE D. MAGAGULA 1st RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS 2nd RESPONDENT
THE ATTORNEY GENERAL 3rd RESPONDENT
Neutral Citation: Nkosingiphile A. Dlamini v Magistrate D. Magagula and two others (307/17) [2018] SZHC 102 [ 2018 ](31st May 2018)
CORAM: J.S MAGAGULA J
DATE HEARD: 11th April 2018
DATE DELIVERED: 31st May 2018
[1] This is an appeal against sentence imposed by the 1st Respondent herein. The Appellant was sentenced to seven (7) years without an option of a fine for the offence of attempted rape.
[2] The grounds of appeal are set out as follows in the notice of appeal:
“ 1. The Court a quo erred in fact and in law by sentencing the Applicant to seven (7) years without an option of a fine;
2. The court a quo erred in fact and in law by failing to approach the evidence of the complainant with the necessary caution;
3. The court a quo erred in fact and in law by not giving sufficient weight to the Appellant’s personal circumstances, the fact that Appellant has two minor children who are dependent on him for their daily needs. Again Appellant is a young adult on the threshold of adulthood;
4. The sentence was so severe that no reasonable court would have imposed it:
(i) The sentence appealed against induced a sense of shock upon the appellant.”
[3] On the first ground of appeal I must state from the word go that there is no requirement in law for a court to grant an accused person the option of a fine where there is also provision for a custodial sentence. To grant such option lies in the discretion of the court. This does however mean that an appeal court cannot grant such option where it considers that such option ought to have been granted in view of the circumstances of the case. I shall however revert to this point when I deal with the ground on severerity or harshness of the sentence meted out by the court a quo herein.
[4] On the second ground of Appeal I note that the evidence of the complainant was never realy disputed by the Appellant who actually pleaded guilty to the charge preferred against him. In my view there was nothing to be cautious about in the evidence of the complainant. If at all such caution ought to hae been exercised, there is nothing to suggest that ti was not exercised. I therefore find no merit in this ground of appeal.
[5] On the third ground of appeal, the learned Magistrate clearly states in the first paragraph of his judgment on sentence that he takes into consideration that the Appellant has shown remorse for what he did and that he is first offender. I have no reason therefore to find that he did not take such personal circumstances of the Appellant into account or did not give sufficient weight to them. Also the Appellant never told the court that he had two children who depended on him. Instead he told the court that he had one child who was staying with her mother in Nhlangano whilst accused apparently stayed at Siteki. He never told the court how he maintains this child if at all. The learned Magistrate is actually the one who asked the Appellant his age. I therefore have no reason to find that he did not take such into consideration. I accordingly find no merit in this ground of appeal also.
[6] Although some exaggerated language is used in framing the 4th ground of appeal the real complaint is that the sentence is too harsh in the circumstances of the case.
The circumstances of this case are briefly that the Appellant successfully lured the complainant into is house and then attempted to rape her at knife point. In the process he actually inflicted two stab wounds upon the complainant. He persisted with his assault on the complainant until she managed to losen herself from his grip and ran to the police station for protection.
[7] In my view this is a very serious offence. Attempted rape on its own without the use of such lethal weapon as a knife is viewed in very serious light by our society. The use of a knife to actually inflict wounds upon the complainant clearly aggravates the offence. Whilst I do not agree that the Appellant ought to have been granted the option to pay a fine for this office, I do however consider that the fact that the Appellant pleaded guilty and tendered apologies to the complainant and her relatives, and the fact that he was a first offender, ought to have reduced the sentence to something less than the seven (7) years.
[8] For the foregoing reasons the sentence imposed by the court a quo is hereby set aside and replaced with the one set out hereunder.
8.1 The Appellant (accused) is sentenced to five (5) years imprisonment.
__________________
J. S MAGAGULA J
For the Appellant: Mr V. Thomo
For the Respondent: Mr N. Lukhele
