Lukhele And Another v R (23 of 2004) [2004] SZSC 110 (1 November 2004)

IN THE COURT OF APPEAL OF SWAZILAND

Criminal Appeal No. 23/2004 /

HELD AT MBABANE

In the matter between

Culpable Homicide and this plea was accepted by the Crown. The agreed facts were the following:

1. Upon or about 22^nd June, 2002 the accused did wrongfully and unlawfully kill Mfanukhona Shongwe.

2. The injuries from which the deceased died of were inflicted upon him by both the accused who assaulted him with a spear and a slasher respectively. The 1^st accused used the spear whilst the 2^nd accused used a slasher.

3. The deceased died due to "multiple injuries" inflicted upon him by the accused.

4. The report on post mortem examination of the body of the deceased be handed into court by consent to form part of the evidence in the matter.

5. The accused were arrested and charged for killing the deceased on the 25^th June 2002 and have been in custody ever since.

6. There was an earlier altercation between the deceased and the accused, but this fight was eventually stopped.

7. Then after a while, whilst the accused were in the company of PW3 came across the deceased, (sic) The deceased then challenged the accused to a fight. The deceased was unarmed.

A fight broke out in which the deceased was injured and subsequently died from the injuries.

The appellant and his co-accused were both sentenced to 7 years imprisonment after the appellant gave evidence in mitigation of sentence. Unfortunately for him he chose to give a version exonerating himself completely which was incompatible with the statement of agreed facts.

The appellant now appeals to us against the sentence. His co-accused in

the High Court, Mbongiseni Dlamini, has noted no appeal. It is quite clear from his plea and the agreed facts that whatever the provocation was - it appears that the deceased challenged the appellant to a fight - the deceased was unarmed while the appellant and his co-accused were armed with a spear and what is referred to as a slasher. The injuries suffered by the deceased were lethal which is hardly surprising having regard to the weapons used against him.

The sole question is, therefore, whether the sentence imposed by Matsebula J, namely 7 years imprisonment backdated to 25 June 2002, since which date the appellant has been in custody, is so startlingly inappropriately harsh, as to warrant our interference. Sentence is a matter for the discretion of the Court of first instance. The learned Judge

referred to the inordinately high rate of homicide cases in Swaziland and that in his opinion the sentences for these cases need "to be reviewed upwards." He expressed the view that the interests of society demand that an appropriate sentence for "this kind of killing" be imposed. He decided that such was 7 years imprisonment. That is, in my opinion, a heavy sentence for culpable homicide when the deceased instigated the fatal fight as happened in this case. However I cannot say that it is startlingly inappropriate.

It was alleged on behalf of the appellant during argument on the question of sentence that the appellant is an ill man and that for that reason his sentence should be reduced. Because this Court might have been influenced by that submission we decided to have the appellant, who had a history of illness, examined in the hospital in Mbabane where he has spent a long time since being in custody. The medical report pursuant to that examination has been handed to us and it appears that the past records pertaining to his stay in the hospital could not be traced. However the doctor who examined him states that the appellant in the past suffered from tuberculosis for which he was treated. The treatment ended in July 2004 and tests now show "no active TB. Physically the patient is fine." One can fairly assume, therefore, that if the condition