Dlamini v R

IN THE COURT OF APPEAL OF SWAZILAND

Crim.Appeal Case No.6/03

In the matter between:

MFANAFUTHI JOHANNES DLAMINI                                      APPELLANT

VS

THE KING

CORAM 

For the Appellant     : In Person

For the Respondent  : Mrs Wamala

 LEONJ.P : BECK J.A : ZIETSMAN J.A

JUDGMENT

Beck J.A.

The appellant was charged with rape but was convicted of assault with intent to rape and was sentenced to 5 years imprisonment. He has appealed against both conviction and sentence. The evidence against him is to the effect that he entered the room where the complainant was asleep, that he lay behind her, inserted his penis between her thighs and ejaculated. She is his niece and she was only 7 years old at the time. He is a man in his thirties.

The complainant woke up when the appellant was thrusting between her thighs and he put his hand over her mouth to stifle any screams. When he removed his hand however, she cried out and her cries attracted her grandmother who came from elsewhere in the house in time to see the appellant leaving the child's room. The complainant was in tears and her grandmother, who is the appellant's stepmother, asked the child why she was crying. The complainant told her that the appellant had put his penis between her thighs while she was sleeping. The grandmother berated the appellant in a raised voice and the sound of her scolding was heard by a brother of the appellant who came to the complainants' room to ascertain what the commotion was about.

The grandmother examined the complainant and said that she saw a white discharge that looked like semen on her thighs, which she wiped clean with a cloth. She also saw what appeared to be semen on the sheet on which the complainant had been sleeping.The appellant's brother corroborated the evidence of the grandmother and he also saw the white discharge on the complainant's thighs.The appellant chose to testify but directed his evidence almost entirely to the circumstances of his arrest. He was unrepresented and was informed by the learned trial judge that it was important for him to deal in his evidence with the testimony of the complainant, his step-mother and his brother, but all he had to say about this evidence was that he had not sexually abused the complainant. In addressing us the appellant's only submission with regard to the merits was that all the evidence against him has been fabricated by his step-mother. He has offered no reason as to why she would wish to do such a thing and I have no hesitation in dismissing his contention as baseless.

In my view the trial court correctly held that the evidence led by the Crown proved beyond a reasonable doubt that the appellant assaulted the complainant in the manner she described. I do not consider however that the evidence establishes an intention on the part of the appellant to penetrate the complainant, and Mrs Wamala for the Crown, felt unable to support the conviction of assault with intent to rape. She agreed that the appropriate verdict should have been one of guilty of indecent assault. That, in my view, is correct, and the conviction of assault with intent to rape is accordingly set aside and is substituted by a verdict of guilty of indecent assault. With regard to sentence, the appellant's only submission, other than to complain that he should not have been sentenced at all because he contends that he is innocent of any offence, was to urge us to backdate his sentence to the date of his arrest in September 2002. 

Prior to passing sentence in September 2004 the learned trial judge expressly asked the appellant when he was arrested, and was told the date of his arrest. Immediately thereafter, with that information fresh in his mind, the trial judge passed the sentence of 5 years. It cannot be contended therefore that the time that the appellant had spent in custody while awaiting trial was overlooked when sentence was assessed. Although the conviction has been altered to one of indecent assault I do not consider that a sentence of 5years imprisonment, not backdated, so that the effective period of incarceration is 7years, is one that should be reduced. The nature of this indecent assault on so young a child is seriously reprehensible and is the kind of crime that has become disturbingly prevalent.

Accordingly the appeal against sentence is dismissed.

I agree