---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 79/2014

Date heard: 17 September 2014

Date delivered: 18 September 2014

In the matter between

SIVUYILE STUNGU                                                                                                    Appellant

And

THE STATE                                                                                                            Respondent

Appeal against sentence – minimum sentence of 15 years for robbery with aggravating circumstances for first offender – sentence a matter of discretion of trial court – appeal court will not interfere unless trial court misdirected itself or has not reasonably exercised its discretion – no basis for interference established – appeal dismissed.

JUDGMENT

GOOSEN, J.

[1] The appellant was convicted of robbery with aggravating circumstances in the Port Elizabeth magistrates’ court and sentenced to 15 years imprisonment. Leave to appeal against this sentence was granted on petition.

[2] The victim of the robbery is a […..]-year-old […..]. On the night of 18 June 2012. The complainant was returning from a garage where he had attempted to purchase a prepaid electricity coupon. He was returning home in the dark. He was confronted by the appellant who was in possession of a knife. The appellant held the knife at the complainant’s neck and searched him in order to find valuables. The appellant was then joined by another person who also wielded a knife. This co-perpetrator also searched the complainant. An amount of R50.00, being the money that the complainant was to have used to purchase electricity, was taken from him. The appellant attempted to stab the complainant a number of times. As a result, the complainant sustained defensive wounds to his hands, as well as a wound to his face. At some point in the attack, people in the area recognised the attackers and their names were called out. The complainant managed to flee into a nearby house. Not content to make good their escape the two attackers followed the complainant apparently to “finish him off” since he could recognise them. The police were called and, fortunately, the appellant and his co-perpetrator were arrested.

[3] The appellant is […..] years of age. He has no previous convictions. The magistrate did not find any substantial and compelling circumstances present which would warrant imposition of a sentence other than the prescribed minimum sentence of 15 years imprisonment.

[4] The imposition of sentence is preeminently a matter of discretion exercised by a trial court. A court of appeal will not interfere with a sentence unless it is found that the trial court misdirected itself in relation to the sentence, or if the sentence imposed induces a sense of shock because it is disproportionate to the crime. In such instance the interference is premised on a finding that the discretion was not reasonably exercised (see S v Ncheche 2005(2) SACR 386 (W); S v Obisi 2005(2) SACR 350 (W); S v Kgosimore 1999(2) SACR 238 (SCA)).

[5] It was submitted on behalf of the appellant that the trial court had erred in failing to take into account the personal circumstances of the appellant and in not striking a balance between the interests of the appellant and those of the society. A reading of the record, however, indicates that the only personal circumstances placed before the court were that he is a first offender and aged [….] years. No evidence was led in mitigation of sentence. The magistrate took these facts into account.

[6] It has been stated on numerous occasions that the usual mitigating circumstances are to be taken into account in determining whether there are substantial and compelling circumstances present (cf. S v Malgas 2001 (1) SACR 469 (SCA) at par 9). The Supreme Court of Appeal has also frequently cautioned trial courts not to depart from the prescribed sentences for flimsy of insubstantial reasons (see Malgas (supra); see also S v Nkunkuma and others (101/13) [2013] ZASCA 122 (23 September 2013). The mitigating factors dealt with by the magistrate in this instance plainly do not amount to substantial and compelling circumstances which would warrant a departure from the prescribed minimum sentence. The magistrate therefore did not commit any error or misdirection in this regard.

[7] Robbery with aggravating circumstances is a very serious offence. It is all too prevalent in our society. In this instance a knife was used and attempts were made to stab the complainant. The complainant is a middle aged man who was defenceless against his attackers. He was attacked whilst returning home. He was robbed of the little money he had in his possession. He was fortunate not to suffer any serious injuries.

[8] In our view, it cannot be said that the sentence imposed is disproportionate or that it is shockingly inappropriate. There is accordingly no basis to find that the magistrate did not reasonably exercise his discretion in sentencing the appellant.

[9] I therefore make the following order:

The appeal is dismissed.

G. GOOSEN

JUDGE OF THE HIGH COURT

 

SWARTBOOI, AJ.

I agree.

 

S. SWARTBOOI

ACTING JUDGE OF THE HIGH COURT

 

APPEARANCES:    For the Appellant

Adv. H. Charles

Grahamstown Justice Centre

 

For the Respondent

Adv. D. Els

Director of Public Prosecutions

---