Khumalo and Another v King (NULL) [1994] SZHC 98 (13 December 1994);

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IN THE HIGH COURT OF SWAZILAND


Crim. Appeal No. 85/94


In the matter between:


1. THEMBA KHUMALO

2. LUCKY MTHETHWA


Vs.


THE KING


CORAM : Hull, CJ.


FOR THE APPELLANTS In person


FOR THE CROWN Mr. Ngarua


Judgment (ex tempore) (13/12/94)


The appellants were convicted in 1992 on charges relating to house breaking and involving business premises. The first appellant was also convicted of a further count of unlawful possession of cannabis.


The first appellant is not a first offender but his previous convictions occurred some considerable time ago.


The presiding Magistrate imposed the following sentences in respect of the first appellant: count 2, two years imprisonment; count 3, two years imprisonment; count 4, two years imprisonment; and count 6, one year's imprisonment. He ordered that the sentences were to be served consecutively, and back-dated until 3rd April 1992. Effectively he therefore imposed a jail sentence of seven years on the first appellant.


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I should however note in passing that the counts of housebreaking on which he was convicted involved substantial sums of money.


The Magistrate sentenced the second appellant on count 2, to two years imprisonment; on count 3, to two years imprisonment; and on count 4, to one year's imprisonment. Again he ordered that the sentences should be served consecutively, and back-dated (according to the record) to 1st April 1992. The second appellant is a first offender. At the time of the trial he had turned twenty-five but I believe I am correct in saying that at the time of the alleged offences he was twenty-four.


The first appellant is a rather more mature man. He was thirty five at the time at which the sentences were imposed.


Two unfortunate features of this case are first of all that the trial Magistrate did not deliver reasons for his judgment, and secondly that the appeals took an unduly long time to come on for hearing. The failure to give reasons for judgment did raise in my mind a question as to whether or not I was in a position to judge from the record whether the Magistrate had rightly come to the conclusion that the two appellants were guilty on the charges on which he convicted them. In respect of the fourth count, count 4, that consideration does not matter because I am of the view that the conviction cannot be sustained. There is no sufficiently clear evidence on which to enable me to say that the appellants were properly convicted on that count.


On the second and third counts as far as both appellants are concerned, and on the sixth count as far as the first appellant is concerned, I have come to the conclusion that the absence of reasons does not prevent me from coming to a view as to the propriety of the convictions. I am satisfied that there is evidence on which the Magistrate could have arrived at the conclusions at which he did arrive. It is also apparent from the record that in the material respects the appellants, who gave evidence, did not challenge the evidence on which the convictions on those two counts essentially rest. I will give further reasons in due course but I am satisfied that the appeals against conviction on counts 2 and 3 in respect of


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both appellants and on count 6 in respect of the first appellant should be dismissed.


As far as the appeals against sentence are concerned, the sentences are in my opinion, as I have already indicated, manifestly excessive.


It is true that housebreaking has for some time been a prevalent offence, and an offence about which there is great public concern.


However, one must keep a sense of perspective. All of the offences, leaving aside the conviction for dagga (or cannabis), were committed within the same month. It is true that they were committed at night.


It is true that they involved commercial premises. Nevertheless I do not consider that the approach adopted by the Magistrate - simply to impose a sentence for each charge and then to add them together – was the right approach or produced the right result. In the case of both

appellants, but more particularly in the case of the second appellant who was twenty-four and a first offender, it produced a disparate result in my view.


To illustrate this, I will point out that there are many occasions on which mature businessmen or professional men have been convicted by courts of crimes such as embezzlement involving substantial sums of money, and sometimes at trial but often on appeal have ended up with sentences in the region of between two and a half and four years imprisonment, where they are first offenders; and I do not think in the case of the second appellant that a sentence of five years on a person of his age and station in life can be justified, for that reason, and I also think the sentence imposed on the first appellant is excessive.


Therefore in the result I make the following orders:


On the appeals against convictions, dealing first with the first appellant, his appeal against conviction on count 4 is allowed, and the conviction is quashed. His appeals against conviction on counts 2, 3 and 6 are dismissed.


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Dealing with the second appellant, his appeal against conviction on count 4 is allowed and the conviction is quashed. His appeals against conviction on counts 2 and 3 are dismissed.


Dealing now with the appeals against sentences, and dealing first with the first appellant, his appeals against sentence on counts 2, 3 and 6 are allowed, to the following extent : The sentences imposed by the trial Magistrate are set aside and the following sentences substituted: count 2, two and a half years imprisonment; count 3, two and a half years imprisonment; count 6, one year imprisonment, all sentences to run concurrently. The time that he has already spent in custody on these charges is to be taken into account in calculating the sentences.


Dealing with the second appellant, his appeals against sentence on counts 2 and 3 are allowed to the following extent, in other words, the sentences imposed by the trial Magistrate are set aside and the following substituted: Count 2, two and a half years imprisonment; count 3, two and a half years imprisonment; both sentences are to run concurrently. The time spent in custody on these charges is to be taken into account in calculating the length of the sentences.


In case either of the appellants does not know what "concurrently" means, it means that each of the sentences will run at the same time, the effect of that being that on the charges in respect of which the convictions are sustained, the appellants' sentences are effectively reduced in the case of the first appellant from seven years to two and a half years, and in the case of the second appellant, from five years to two and a half years - the other modification, however, being that as to when they run from, they will be calculated taking into account the time you have already served in custody on these charges.


DAVID HULL


CHIEF JUSTICE