Man’s 43-yr sentence reduced

MBABANE – The 27-year-old man who was sentenced to 43 years for various offences of housebreaking and theft in Manzini has successfully appealed the sentence.

High Court Judge Bonginkhosi Magagula yesterday set aside Makhosonkhe Dlamini’s 43-year sentence. Judge Magagula substituted the sentence with 23 years imprisonment.

A total of seven years of the new sentence are without an option of a fine. The court further sentenced Dlamini, whose co-accused was 19 years old, to 16 years imprisonment with an option of a fine of E16 000 for the other offences. This means that, should Dlamini pay the fine of E16 000, he will spend seven years behind bars.

The sentence of 43 years had been meted out by retired Principal Magistrate Phathaphatha Mdluli while stationed in Manzini. The convict was facing 12 charges of contravening the Theft of Motor Vehicle Act in that he broke into a car that he found parked next to the road at Hhelehhele and stole items inside the car. He also committed a number of housebreaking and theft offences at various locations.

Harshness

In his appeal, Dlamini complained about the harshness of the cumulative effect of the sentences. He did not challenge the conviction. Judge Magagula described Dlamini as a dramatic fellow who seemed to have apportioned himself the responsibility of being entitled to violate people’s rights and peace at whim.

His grounds of appeal included that Mdluli did not consider the triad; his interests, the offence and the interests of society during sentencing. Dlamini also argued that the principal magistrate paid lip service to the triad. He stated that it did not appear from the record that he gave consideration to each one of the counts.

Judge Magagula said Mdluli had tabulated his reasons in a point form, such as constructive thief, strategist thief waits for the best opportunity to steal, huge quantities of items, evidence in large amounts, loss to the victims and interest of society, among others.

In his reasoning, Judge Magagula was convinced that the magistrate traversed on the crime itself. “He clearly stated that housebreaking and theft in Eswatini, particularly in Manzini, is prevalent,” said the judge.

Judge Magagula also pointed out that on the issue of the offender; “I am also satisfied that he did consider his youthfulness, educational level, personal circumstances, marital status and period of remand.”

The judge said he could only assume that Mdluli must have considered the interests of society as he expressly referred to the victims and in no specific words referred to the interest of society. According to Judge Magagula, there was no outright jurisdiction from the record that one was unfairly considered over the other.

Fine

Dlamini informed the court that Mdluli had erred by not stating the reasons for not giving him an option of paying a fine in respect of housebreaking with intent to steal and theft. “In as much as the learned principal magistrate traverses on the issue that both accused persons were relatively young and are entitled, to some extent, to be given the opportunity to rehabilitate, correct and mend their wayward indispositions, however, there are reasons appearing ex-facie as to why he preferred the a custodial sentence as compared to the option of a fine,” said the judge.

The judge also mentioned that Mdluli failed to give reasons why he could not grant Dlamini an option of paying a fine. “It was incumbent upon him to do so. More especially, since the appellant (Dlamini) was a first time offender. It is exactly on that basis that this court will interfere with his discretion and consider the circumstances of the accused person afresh,” added the judge.

Judge Magagula said Dlamini was a young man who should be rehabilitated back into society. According to the judge, Dlamini, as a first time offender, should have been given an option to pay a fine in respect of those charges where the statute allowed an option of a fine.

Deterrent

“The present matter is not telling why should an option of ordering the accused to pay a fine not be a deterrent enough on its own. In fact, the learned magistrate could have added a suspended sentence. This could have fixed a period within which the accused should not be found to have committed the same offence.”

The judge stated that the reasons given by the magistrate on why he ordered the consecutive sentences in respect of the charges was without merit. Dlamini’s attorney, Noncedo Ndlangamandla, argued that the magistrate did not give sufficient reasons for ordering the sentences to run consecutively. Judge Magagula said the cumulative effect of the 43 years had an effect of severity.

The court concluded that Mdluli failed to state his reasons for not considering that sentencing pertained to the different acts of criminality and when the sentences are added up, the cumulative effect renders them to have a stinging effect. “It is the harshness of the sentence of the cumulative effect in my view that was then supposed to be blended with a dose of mercy,” said the judge.

The Crown was represented by Khumbulani Mngometulu.