IN THE COURT OF APPEAL OF SWAZILAND

Criminal Appeal No. 15/2004

HELD AT MBABANE

In the matter between SANDILE MAGAGULA
and
THE KING

Coram

Appellant

Respondent

3"..:OYVJX . -A STEYN, JA TEBBUTT, JA

JUDGMENT

BROWDE, JA

It has been repeated time and again in cases in which it is sought on appeal,as in this case, to attack the sentence passed in the Court of first instance, that sentence is pre-eminently a matter

for the trial court to decide.  It is a discretionary matter which will only be interfered with by the Appellate Court in exceptional circumstances.   One such circumstance is if the effective sentence is so heavy as to be what is often referred to as startlingly inappropriate. This in our judgment is such a case. What follows  herein should not be construed as in any way detracting from the strong language used by the trial Judge in regard to the rape committed by the appellant and the humiliation and suffering experienced by the complainant as a result.    The sentence of 15 years for that crime and the aggravating   circumstances    surrounding   is   ur>cgsaHab!r-. However when there is added to that sentence 5 years for each of the three counts of robbery to run consecutively the effective sentence is 30 years imprisonment. That in our view falls within the ambit of being "startlingly inappropriate."   It should be borne in mind that the first count of robbery involved the theft of E250 while the other two counts E5 and E14 respectively. Also that all the robberies were committed on the same day and could reasonably; though not necessarily, have been regarded as

one escapade. In our opinion justice requires that the appeal against the sentence be upheld to this extent. The sentence on the rape count is confirmed as well as the 5 years imprisonment on each of the robbery counts. The three periods of 5 years shall however   run   concurrently   with   each   other   and   not

consecutively.

This means that the effective sentence is reduced from 30 years to 20 years imprisonment.

I 7k
DELIVERED IN OIT.K        a j iL:S...? \ y OF NOVEMBER 2004

I AGREE

I AGREE

P.H. TEBBUTT