THE HIGH COURT OF SWAZILAND
Case No. 112/95
the matter between:
THE CROWN: Mr. K. Kilukumi
DEFENDANT: Dr. H. Fine
has been a painful task to try an advocate of this court on the
present charges. More painful has it been to have found him guilty.
The passing of sentence Is most painful of all.
conviction alone is in itself a disaster in your life, but a just and
fair sentence has to be passed.
doing so, the first consideration is the nature and gravity of the
crime you have committed. The assault of which you have been found
guilty is serious, in many respects akin to rape. The difference in
sex of the victim is of course significant and it may be considered
by some that the fact that the victim is of the same sex is an
aggravating circumstance, while others may be of a different and
opposite opinion. Some of the consequences of rape such as the
of ensuing pregnancy are not present. Others such as the transmission
of aids or other like diseases are present. But in so far as the
seriousness of the crime is concerned, it is difficult not to
consider what the appropriate sentence would have been, in the more
common case of a conviction of rape in like circumstances. I have
come to the conclusion perhaps erring in your favour that the
sentence to be imposed will not be as severe, as in a case of rape.
your favour I take into account your personal circumstances as
indicated to me by your counsel. You are a man of 28 years of age,
unmarried but the support of a family of seven. You have in your
career shown ability in the business field, and have apparently risen
in the positions to which you have been appointed at a comparatively
young age. You have prospered to the extent that you qualified
yourself and become an advocate of this court. You have as I have
previously observed a cultivated manner, and could be what many would
describe as charming. All this makes your commission of the crime but
more deplorable and more to be regretted. One cannot but have pity
for you in the situation which you now find yourself.
the other hand all this does not detract from the ugliness and
seriousness of the offence. I would be failing in my duty if I
acceded to your counsel's urging not to send you to prison. There is
not one law for the charming and the privileged and another for
mortals less endowed.
do not believe that any good would be served by imposing a wholly
suspended sentence on condition that you undergo some psychiatric
treatment. There is no evidence from a qualified person to suggest
that you have committed the crime of which you have been convicted
because of some condition susceptible of cure. You must have been
aware of any problem you may have; if such be the case, and it is
perhaps surprising that you did not yourself take steps to have
yourself treated if any professional help could be of any assistance.
For these reasons your counsel's suggestion that I suspend the whole
sentence must be rejected.
Fine has stated that a fine would be inappropriate and with this I
agree. One cannot place a monetary price on a crime such as this. I
not see any alternative to the imposition of a sentence involving
incarceration. As this is your first conviction, a substantial
proportion of the sentence which I will impose will be suspended.
sentence and the portion thereof to be suspended must be such so as
to serve as a punishment, an inducement you not again to make
yourself guilty of a similar offence, and an indication of the
seriousness with which society regards the commission of this sort of
offence. On the other hand I do not believe that the circumstances
require that you spend a protracted period in jail, yet the period to
be served must acquaint you with what is to be expected if any
further transgression should occur.
accordingly sentence you the accused as follows -
will be sentenced to three years' imprisonment of which half, that is
eighteen months, are suspended for a period of three years on
condition that you are not hereafter convicted of having committed a
crime involving an assault of a sexual nature during the period of