IN THE COURT OF APPEAL OF SWAZILAND Crim.Appeal Case No.14/04
In the matter between: CARLOS KHOZA ISAAC MAHLALELA VS THE CROWN 1st Appellant 2nd Appellant Respondent
R.N. LEON J.P. CEL. BECK J.A. N.W. ZIETSMAN J.A. CORAM
JUDGMENT Zietsman J.A. The two appellants, together with one Brian Earnshaw, were tried in the High Court at Mbabane on two counts, one of murder and one of housebreaking with intent to steal and theft. They all pleaded not guilty to the murder charge but guilty to the charge of housebreaking and theft. Brian Earnshaw was found guilty an both counts. On count 1 (the murder charge) he was sentenced to 18 years' imprisonment and on count 2 (the charge of housebreaking and theft) he was sentenced to 9 years' imprisonment. The two sentences were ordered to run concurrently. No notice of appeal was filed by Earnshaw and when the appeal was called in this Court he confirmed the fact that he was not appealing against his convictions or sentences.
The two appellants were convicted of housebreaking and theft and were each sentenced to 9 years' imprisonment, backdated to 13th February, 2000. They appeal only against their sentences. Several admissions were made by the defence at the trial and only one witness was called to give evidence for the Crown. Brian Earnshaw was the only defence witness. The facts of the matter, testified to by the Crown witness Eric Masuku, are, as far as the present appellants are concerned, largely undisputed. This witness described how he and the two appellants met Earnshaw on 21st January, 2000. They armed themselves with knives and iron rods and then went to the Tri-Cash store at Sidvokodvo with the intention of breaking into the store and stealing goods in the store. They found a man (the deceased) sleeping outside the store. He was attacked and stabbed several times by Earnshaw and then left outside the store. Thereafter Masuku, Earnshaw and the two appellants broke into the store and stole goods in the store with a total value of El5, 588-64. The housebreaking and theft was not disputed by Earnshaw when he gave evidence. The only real point in issue raised by him was the identity of the person who stabbed the deceased. Earnshaw stated that it was not he, but the crown witness Eric Masuku, who stabbed the deceased. This allegation by Earnshaw was rejected by the trial Judge. It is undisputed that the two appellants, having armed themselves with weapons, broke into the Tri-Cash store and stole goods in the store to a total value of E15 588,64. According to the record, at the time of the trial the first Appellant was 24 years of age and the second appellant 29. In the course of their submissions to us they alleged that their ages were 21 and 26 respectively at the time of the commission of the offence. There is evidence that
a farge quantity of liquor was consumed by them immediately before the offence was committed and there is some evidence that they had also smoked dagga. It is clear however that they were perfectly capable of committing the offence. The second appellant has a previous conviction which relates to the Immigration Act. The first appellant has no previous convictions. The trial judge correctly regarded them both as first offenders when considering appropriate sentences. Before us the appellants somewhat tentatively submitted that they had merely followed Earnshaw and that they were not really guilty of the offence. This is in conflict with their pleas at the trial and with the undisputed evidence that they accompanied Earnshaw to the shop, that they were present when the shop was broken into and that they thereafter entered the shop and removed goods therefrom. It is common cause that the appellants armed themselves with weapons and that in the course of the housebreaking a person was murdered. It is however clear from the record that neither of the appellants was involved in the assault upon the deceased. The witness Eric Masuku stated in fact that both of the appellants tried to prevent Earnshaw from assaulting him. Before us the appellants referred to certain factors which they submitted should be taken into account in their favour. They are both first offenders and they both pleaded guilty to the charge. They had consumed a large quantity of liquor and had apparently also smoked dagga and they allege that they were tempted and influenced by Earnshaw to commit the offence. The trial judge, when considering appropriate sentences for the housebreaking and theft, stated that aggravating circumstances existed in respect of all of the accused. He does not detail the aggravating circumstances but it appears from his judgement on sentence that he was influenced by the brutal manner in which the deceased
hail been murdered. The two appellants were however acquitted dn that charge, and as stated above the evidence is that they tried to prevent and stop the assault upon the deceased. The housebreaking and theft was clearly a serious offence. The shop was broken into in the night and goods exceeding E15 000.00 were taken therefrom. After considering all the circumstances were have came to the conclusion that a sentence of an effective 9 years' imprisonment is excessive in respect of each of the appellants. It is our view however that the sentences will be appropriate sentences if 3 years of the 9 years are conditionally suspended. The differences between such a sentence and the sentence imposed by the trial judge justifies interference by this Court. The order which we make is that in respect of each of the appellants the conviction is confirmed. The sentence of 9 years' imprisonment is confirmed, but in respect of each of the appellants 3 years of the sentence is suspended for 3 years on condition that the accused is not found guilty of the offence of housebreaking with intent to steal and theft, committed during the period of suspension.
N.W. ZIETSMAN J.A.
I agree
R.N. LEON J.fc
I agree
C.E.L. BECK J.A.
Delivered on the day of November 2004