Bataria And 2 Otehrs v Rex (8 of 2002) [2002] SZSC 32 (7 July 2002)


IN THE COURT OF APPEAL OF SWAZILAND


Appeal Crim. Case No.8/2002


In the matter between:


MALUNGE BATARIA First Appellant


WILLIAM LOGWAJA BATARIA Second Appellant


DELIWE MATSENJWA Third Appellant


VS



REX Respondent


CORAM : LEON J.P.


TEBBUTT J.A.


BECK J.A.


Appellants: In person


For Respondent : Mrs N. Lukhele


JUDGMENT


Beck J.A.


The appellants were all convicted of having murdered the husband of the third appellant on the night of 6th October 1998. Extenuating circumstances were found in relation to each appellant. The first two appellants were sentenced to 15 years imprisonment, backdated to the date of their arrest on 19th October 1998, The third appellant was sentenced to 10 years imprisonment, backdated to the date of her arrest on 7th October 1998. They have all appealed against sentence only.


The murder of the deceased was premeditated. It was instigated by the third appellant, who is the aunt of the first two appellants. It was arranged between the three of them that


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the first two appellants would come to her house at night at a time when the deceased would be asleep. The third appellant undertook that she would leave the door to her house unlocked so that they could enter silently, whereupon she would leave. She instructed them that after they had killed the deceased they should break a window so as to suggest that they had gained entry to the house by that means. She said that after giving them time to commit the murder and to return to their home she would raise an alarm and report that unknown people had broken into her house and attacked her husband.


On the night of 6th October 1998 this plot was put into effect. The first two appellants went to the third appellant's house armed with an axe and a knife. They found the door unlocked as promised and they entered silently through it. The third appellant immediately left the house and the first two appellants proceeded to chop and stab the deceased to death in his bed. Having done so, they broke a window and went home.


Premeditated, planned assassination is one of the most serious forms of murder and it is suggestive of moral blameworthiness of the highest order. In this case, however, the motive for the killing of the deceased has an important bearing upon the moral culpability of the three appellants. The deceased was an ill tempered and. violent man who physically abused the third appellant and their children to such an extent that she had begun to fear for her life. She sought the help and intervention of her chief, of the so-called community police, and of the regular police, but obtained no assistance from any of these sources. On one occasion she fled to the home of an elderly uncle for refuge, her parents being dead. This only resulted in angry confrontations between the deceased and the third appellant's uncle, who eventually felt compelled, for his own safety, to ask the third appellant never to seek refuge at his home again.


All these avenues of relief having been denied to her she turned to her two nephews and asked them to murder the deceased in the manner I have described. They were reluctant to agree, but they eventually yielded to her persistence and because of the family ties they agreed to do her bidding in order to help her. When they were arrested they made a clean breast of what they had done by making written confessions before a magistrate, and the learned trial judge was satisfied that they were filled with remorse. Both of them were in their early twenties at the time and both were first offenders.


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The learned trial Judge was alive to all these considerations in favour of the first two appellants and he gave due weight to them. In relation to the third appellant the learned trial Judge was equally alive to the misery of her life at the abusive hands of the deceased and he was aware that she had a number of young children to care for and of the fact that her parents are deceased. Against all these circumstances of extenuation and mitigation he had to weigh on the other hand the all important interests of society in deterring people from taking the law into their own hands and also the aggravation of moral guilt that is inherent in the deliberate, conspiratorial plotting to commit a murder.


It has not been suggested that the learned trial Judge misdirected himself in any way when he came to decide on sentence. The appellants contend that the sentences that he imposed are severe to the point of creating a sense of shock. I cannot agree, In my view the learned trial Judge achieved a balance of justice seasoned with mercy that cannot be said to be so disproportionate to the combined consideration of the nature of the crime, the interests of society and the interests of the appellants, as to entitle this Court to interfere with the sentences that he imposed in the exercise of his judicial discretion.


Accordingly the appeals against sentence by each of the three appellants are dismissed.


C.E.L. BECK J.A.


I agree


R.N. LEON J.P


I agree


P.H. TEBBUTT J.A.


Delivered in open Court on 7th June 2002


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However, making them run consecutively and so causing a cumulative sentence of 30 years imprisonment is, in my view, so severe as to warrant interference by this Court. I would, accordingly, allow the sentences on counts 3 and 7 i.e. the robbery charges, to run together. The conviction for receiving stolen property is a separate offence and I would not allow the sentence on that count to run concurrently with the others. That charge too merits a heavy sentence. In my view a sentence of 5 years imprisonment would be a condign one and it will run consecutively to the others.


In the result, therefore, the following order is made


1. The appeals on counts 3 and 7 against both conviction and sentences are dismissed.


2. The appeal against conviction on count 2 succeeds to the extent that the conviction is altered from one of robbery to one of receiving stolen property well knowing it to be stolen


2.1 The sentence on count 2 of 10 years imprisonment is set aside and there is substituted therefor one of 5 years imprisonment.


2.2 The sentences of 10 years imprisonment on counts 3 and 7 are confirmed but they are ordered to run concurrently with one another and are backdated to 16 February 1999.


2.3 The sentence of 5 years imprisonment is to run consecutively to

those on counts 3 and 7.


DELIVERED in open court this 7th day of June, 2002


P.H.TEBBUTT, JA


I AGREE R.N


LEON, JP


I AGREE C.E.L.


BECK, JA

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