Ngozo v The King (296/2018) [2018] SZHC 262 (29 November 2018);

 

 

 

 

 

IN THE HIGH COURT OF THE KINGDOM OF ESWATINI

 

 

JUDGMENT

 

 

HELD AT MBABANE                                           Civil Case No. 296/18

                  

MUZI NGOZO                                                                    APPLICANT  

                  

 

and

 

 

THE KING                                                                       RESPONDENT

 

 

Neutral citation:           Muzi Ngozo v The king (296/18) [2018] SZHC 262(29^th November, 2018)

 

CORAM                         MASEKO J

FOR APPLICANT:                    MS N NDLANGAMANDLA                         

FOR RESPONDENT:     MR T. MAMBA (DPP’S CHAMBERS)                  

 

 

 

DATE OF HEARING:        08/08/2018      

 

DATE OF RULING:           29/11/2018

 

PREAMBLE:        Criminal Procedure – Consideration of Sentencing on appeal – factors to be taken into account - Discretion of the trial court in sentencing-

HELD:                  That the sentence of Eight (8) years imprisonment is appropriate in the circumstances, to serve as a deterrent. Appeal dismissed.

 

[1]      On the 25^th July 2018, the Appellant launched an application for bail pending appeal.  However the Appellant abandoned his application bail pending appeal and the matter was allocated a date of hearing of the appeal.  The appeal was heard by this court on the 8^th August 2018.

BRIEF HISTORY  

[2]      On the 9^th July 2018, the Appellant was caught red handed with his penis out and ready to be inserted into a 23 months old infant.  Appellant had placed the child on his lap and was caught red – handed by PW1 Temlandvo Sithole as he was busy trying to insert his penis into the child’s vagina.  He had removed the nappies and the child was just there and fully exposed before the Appellant.  The Complainant was saved by the arrival of PW1 who snatched the child from the Appellant.

[3]      The Appellant was arrested immediately thereafter and was brought to court on the following day the 10^th July 2018whereupon being arraigned, he pleaded guilty to the change of indecent Assault.  The crown proceeded to lead evidence to prove the commission of the offence.

[4]      The Appellant elected to remain silent and also made no submission on his behalf when invited to do so by the court a quo.

[5]      Upon being convicted he was invited to make submissions in mitigation of sentence and he pleaded for a lenient sentence and that he was a labourer in the Forestry Industry removing bark from the timber logs.

[6]      The court a quo sentenced the Appellant to 8 years imprisonment without the option of a fine.  The court a quo further explained Appellant’s rights to Appeal and Review. There are no reasons for the sentence ex facie the record of proceedings and Ms Noncedo Ndlangamandla criticised the failure by the court a quo to record its reasons for the sentence and submitted that such failure was a misdirection entitling this court to interfere with the sentence because the court a quo was under a legal duty to consider the submissions in mitigation of sentence and record the reasons for all to see why it has imposed such a sentence.

THE NOTICE OF APPEAL

[7]      On the 24^th July 2018, the Appellant filed a Notice of Appeal on the following grounds:

1. The court a quo erred in fact and in law by failing to consider the triad when arriving at a proper sentence.
2. The court a quo erred in both fact and in law by failing to afford the Appellant the option of paying a fine for the offence of indecent assault.
3. The sentence imposed by the court a quo is harsh and induces a sense of shock.

THE APPEAL

[8]      During arguments Ms Ndlangamandla submitted on behalf of the Appellant that the court a quo did not balance the competing aspects of the triad which should be considered by a court imposing a sentence, and that the court a quo did not make consideration of the same at any point in time when it imposed the 8 years imprisonment without the option of a fine sentence on the appellant. Therefore that the sentence of the court a quo is irregular and should be aside.

[9]      On the other hand Mr T. Mamba for the Crown submitted that trial court did not err in sentencing the Applicant to eight (8) years imprisonment without the option of a fine because the offence was committed on a very young child of 23 months old and that therefore the sentence was appropriate and did not induce a sense of shock.  Mr Mamba therefore urged this court to dismiss the appeal against sentence accordingly.

[10]    Both Counsel filed substantial Heads of Arguments and Bundles of Authorities.

[11]    Counsel for Appellant referred to case of Mefika Ngwenya v Rex Criminal Appeal No. 47/2014 where the principles relating to sentencing were dealt with by Annandale AJA as he then was sitting with MCB Maphalala ACJ (as he then was) and R Cloete AJA (as he then was) at page 9 where he quoted OTA JA in the case of Mbatha and Another v Rex Criminal Appeal Criminal Appeal No. 05 of 2013 as follows;

“I must say, that I am far from impressed with with these factors which in my view, constitute the now very familiar, old and tired repertoire of songs rendered by such Appellants, who labor under the misconception that the Supreme Court is a fountain of mercy, where they can just swing in and pick up a reduction of sentence notwithstanding the gravity of the offence committed, its prevalence, the public perception of it; and most importantly, the sentencing discretion which law ascribes pre – eminently to the trial court which saw the witnesses and heard their evidence.

The learning is that this court cannot usurp this discretion merely upon its own whims and caprices.  Its power to interfere is circumscribed within parameter of a material misdirection or irregularity in the exercise of same, resulting in a miscarriage of justice.   For instance, where the trial court biased, or where it considered irrelevant facts or failed to consider relevant  ones; exceeded its sentencing discretion; imposed a sentence not permitted by law or where the sentence imposed is so unreasonable or disturbingly misappropriate to the gravity of the offence committed that it induces a sense of shock…

The sentencing discretion is as such not an arbitrary discretion.  It is a judicious exercise predicated upon a consideration of all the relevant factors, more particularly, the triad of circumstances consisting of the offence, the offender and the interest of society.  See S v Zinn 1969(2) SA 577 (A), Bhekiwe Motsa v Rex Criminal Appeal No. 37/2010...”

[12]    In this case referred to above, the appeal against the eight year imprisonment sentence was dismissed.

[13]    Counsel for Appellant also referred to the case of Daniel Mkhethwa Dlamini v Director of Public Prosecutions case No. 109/2015 wherein Hlophe J in dealing with a matter involving a 5 year old complainant whose private parts were licked by an elderly man of over 64 years stated the following at paragraph 12 of the Judgement.

“Although it became clear that no violence was used, I was convinced after – having read the court a quo judgement that the matter was a serious one.  It involved sexual abuse of a girl child of about five years old at the time by an elderly man of over sixty – four years of age.  Although the complainant may not have been violated to the same extent as perhaps would be in a consummated rape, I was not convinced the sentence was on the face of it not so harsh so as to induce a sense of shock.  The violation to her was very serious nonetheless, considering her age and the permanent detrimental effect it had on her life going forward.  Furtherstill the appropriate disparity in a rape and indecent assault sentences involving complainants of the same age had no doubt been taken into account.  The practice on sentencing, in matters of rape of children of that age by an elderly man of Appellant’s standing in society and to the child is known to be around 15years imprisonment…”

[14]    At paragraph 14, His Lordship Hlophe J elaborated as follows in dealing with the judicial discretion on sentencing

“Clarifying on whether a discretion can be said to have been exercised judicially, the following was said in S v De Jager and Another 1965 (2) SA 6161 (A) particularly at page 629 –

“It is the trial court which has the discretion, and a court of appeal cannot interfere unless the discretion, was not judicially exercised, that is to say, unless the sentence is vitiated by irregularity or misdirection or is so severe that no reasonable court could have imposed it.  In this latter regard an accepted test is whether the sentence induces a sense of shock that is to say if there is a striking disparity between the sentence passed and that which the court of appeal would have imposed”.

[15]    Counsel for the Appellant also referred this court to the case of Vusi Zwane v Rex Criminal Appeal No. 5/2002 where Masuku J in dealing with the subject of sentence stated the following at page 7 of the Judgement.

“The duty to sentence an accused lies exclusively with the trial court.  Only a few and circumscribed circumstances permit the Appeal court to interfere with the exercise of that discretion.  Outlining such circumstances, Mahomed CJ (as he then was) stated as follows in S v Shikunga 2000(1) SA 613 @632F – I:-

“It is trite law that the issue of sentencing is one which vests discretion in the trial court.  An appeal court will only interfere with the exercise of this discretion where it is felt that the sentence imposed is not a reasonable one or where the discretion has not been judiciously exercised.  The circumstances in which a Court of Appeal will interfere with the sentence imposed by the trial court are where the trial court has misdirected itself on the facts or the law (Sv Rabie 1975 (4) SA 855 (A); where the sentence that is imposed is one which is manifestly inappropriate and induces a sense of shock (S v Synders 1982 (2) SA 694 (A); or is such that a patent disparity exists between the sentence that was imposed and the sentence that the Court of Appeal would have imposed or where there is an under – emphasis of the accused’s personal circumstances ………”

[16]    On the other – hand Counsel for the crown referred this court to the case of Mfanafuthi Johannes Dlamini v The King Criminal Appeal No. 6/2003 where Beck JA, sitting with Leon JP and Zietsman JA stated the following at page 4.

“Although the conviction has been altered to one of indecent assault I do not consider that a sentence of 5 years imprisonment, not backdated, so that the effective period of incarceration is 7 years, is one that should be reduced.  The nature of this indecent assault on so young a child is seriously reprehensible and is the kind of crime that has become disturbingly prevalent.”

[17]    In this matter just referred to above, the then Court of Appeal was dealing with the case of assault with intent to rape a seven (7) year old victim.  Further the observed the prevalence of these sexual assault cases on young and vulnerable victims, and this was in the year 2003, infact the judgement was delivered on the 23^rd November 2003, almost fifteen (15) years down the line, we still have this scourge of attempted rape all being perpetrated against women and children and in particular the most vulnerable and defenceless being the young victims.  It is the duty of the courts to impose appropriate but stiff sentences on such offenders like the appellant who prey on defenceless and helpless and helpless victims who cannot even raise an alarm let alone offer any form of resistance to their brutal actions.

[18]    The Appellant, in casu, pounced on the 23 months old complainant under the pretext of a visit and with calculated precision of committing his sexual assault at the slightest opportunity that availed itself.  Had it not been the timeous return of PW1, the complainant would have suffered the worst lifelong and traumatic injuries and may have been exposed to sexually transmitted diseases, in particular, HIV and AIDS if PW1 had delayed by even three to five minutes.  It is inconceivable that within a blink of an eye after PW1 left to pour water on the child’s nappies in the kitchen within the homestead the Appellant grabbed this supposedly opportunity of a lifetime to him, took the child, removed her nappy, took out his erect penis, put the child on his erect penis and was then disturbed by the timeous return of PW1 to where the child and Appellant were only to discover this brutal attempt to penetrate the child.

[19]    I am of the considered view that even though the learned Magistrate in the Court a quo did not mention her reasons for the eight (8) years imprisonment sentence, this does not affect the sentence itself because of the gravity of the offence and the articulate scheming by the Appellant with which he committed the offence.  The sentence is not excessive and certainly does not induce a sense of shock, instead it is fair and fits the crime and the criminal; and is further a fair sentence in protecting vulnerable members of society both young and old from cruel people like the Appellant. Society deserves to be protected from people like him who grab the slightest opportunity to strike terror and cause havoc on defenceless victims and potentially causing lifelong injuries and trauma.

[20]    I have deliberately not mentioned the name of the complainant in order to protect her from recurring trauma and mental breakdown upon her reaching the age of understanding and appreciating these things.  I can only hope she will never know of this traumatic and brutal attempt on her person because if she discovers she will surely undergo psychological trauma.

[21]    I must state that even the legislature has seen it fit to enact a piece of legislation namely, The Sexual Offences and Domestic Violence Act No.15 of 2018, whose primary objective is the prevention and the protection of all persons from harm from other sexual acts and acts of domestic violence and to provide for matters incidental thereto.

[22]    For the sake of completeness I shall refer to Part V which is titled “Offences Involving Children” and I shall quote verbatim Section36 (1) and (2)

          Indecent treatment of children 36 (1) a person who –

1. Unlawfully and indecently deals with a child;
2. Unlawfully procures a child to commit a sexual violation;
3. Unlawfully permits himself or herself to be indecently dealt with by a child;
4. Wilfully and unlawfully expose a child to a sexual violation by that person or any other person;
5. Without legitimate reason, wilfully exposes a child to any indecent object or any indecent film, videotape, audiotape, picture, photograph, image or printed or written matter; or
6. Without legitimate reason, takes any indecent visual image of a child-

     Commits an offence and liable on conviction:-

1. If the child is of or above the age of twelve years old, be liable to a term of imprisonment not exceeding twenty years;
2. If the child is under the age of twelve years be liable to a term of imprisonment not exceeding twenty – five years; or
3. If the child is, to the knowledge of the offender, a lineal descendant of the offender or of the child or for the time being, has the child under the care of the offender, be liable to a term of imprisonment not exceeding twenty years;

(2) In this section “deals with “means doing an act which would constitute an assault as defined in this Act.

[23]        “Assault” is defined in the interpretation section of this Act to    mean.

“Striking, touching, or moving, or otherwise applying force of any kind to, the person of another, either directly or indirectly, without the consent of that other person, or with the consents of the other person if the consent  is obtained by fraud, or any unconsented bodily act or gesture attempt or threat to apply force of any kind to the person of another without the consent of the other person, under such circumstances that the person making the attempt or apparently a present ability to effect the purpose of that person;

[24]    “Assault” is defined in the Interpretation Section of this act to mean.

“Striking, touching, or moving, or otherwise applying force of any kind to, the person of another, either directly or indirectly, without the consent of other person, or with the consent of is obtained by fraud, or any unconsented bodily act or gesture attempt or threat to apply force of any kind to the person of another without the consent of the other person, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the purpose of that person;

[25]    “Child” is described as notwithstanding any other law to the contrary, a person under the age of eighteen years.

[26]    As stated above, the legislature has enacted this Act No 15 of 2018 to deal with the never ending but prevalent scourge of sexual offences perpatiated against women and children.

The sentences as prescribed therein send a clear message to offenders and would be offenders that the country does not condone this scourge of sexual violations on women and children.  The sentences are stiff and it is crystal clear that they are crafted to accommodate the seriousness of the offences by prescribing a ceiling of twenty – five years imprisonment.

[27]    I have no doubt in my mind that if the Appellant had been charged for contravening Section 36(a), he could easily have been convicted and sentenced to a period of imprisonment not exceeding twenty years.  This therefore means that the sentence could well have been over fifteen years imprisonment, owing to the age of the victim alone i.e 23 months old.  I repeat that the sentences prescribed in terms of the Act are stiff but appropriate to address the prevalent sexual violations perpetiated on defenceless and vulnerable women and children.

[28]    In the case of Welcome Letlabika v The State case No. A489/2005 decided by the Cape of Good Hope Provincial Division (CPD) per Zondi J sitting with Van Reenen J where he stated the following at pages 3 -4.

“It is trite law that punishment is pre – eminently a matter for the discretion of the trial court and that the appeal court would be slow to interfere with that discretion unless that discretion was not judicially and properly exercised. The question is whether the sentence is vitiated by or disturbingly inappropriate irregularity or misdirection However not every misdirection will justify the court of appeal’s interference with the sentence.  The misdirection must be a material one and a misdirection would be material if the trial court misconstrued the facts, failed to take cognisance of factors that should have been taken into account or it has emphasised the retributive and preventative aspects of punishment”.

[29]    I hereby state again that even though the learned Principal Magistrate Her Worship F Msibi did not state reasons for her sentence, the peculiar circumstances of the case as detailed above and due to the prevalence of these offences being perpetrated on minor children, and also considering the tender age of the victim in casu 23 months old, this failure to state the reasons is not a material factor because  no facts were misconstrued and the sentence is not disturbingly inappropriate and excessive such that it induces a sense of shock.  The sentence is instead befitting to the crime and the criminal.

[30]    In dealing with an appeal form the Manzini Magistrate Court where then Learned Acting Principal Magistrate D. Khumalo had sentenced the Appellant Jango Lontos Mkhavela to five years imprisonment for indecent assault on a 4 year old complainant, Mamba J sitting with Maphalala PJ ((As he then was) in the aforesaid case of Jango Lontos Mkhavela was at pains and instructive in restating the procedure in dealing with appeals against sentence as follows.

“It has been said over and over in this court and Supreme Court of Appeal that sentencing is pre – eminently a matter within the discretion of the trial court.  This court as an appellant court, may only interfere with the exercise of that discretion if it was improperly exercised or that the sentence meted out by the court below is so harsh that it induces a sense of shock or that it is so hugely different from that which this court could have imposed, or that the court committed a misdirection or irregularity that is so gross that it warrants this court to intervene and consider the issue of sentence afresh.  I am unable to find any such matter in this appeal”.

[31]    In casu, I am too like Mamba J, unable to find any gross misdirection or irregularity to warrant this court to intervene and interfere with this sentence.

[32]    In the circumstance I accordingly grant the following order;

1. The appeal against sentence is hereby refused and dismissed.
2. The Sentence of 8 years imprisonment without the option of a fine as imposed on Appellant by Principal Magistrate F. Msibi on the 10^th July 2018 is hereby confirmed.

It is so ordered.

 

 

 

NKOSINATHI MASEKO

JUDGE