IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE: BHISHO
									CASE NO.: CC 35/2007

In the matter between:

THE STATE

and

1. The following accused persons, namely Msobomvu Qhinga (accused No 1), Lungile Jamiso (accused No. 2), Camagu Zimela (accused No. 3), Luvuyo Mcaphukisi (accused No. 5), Lizo Lumbe (accused No,6), Lindile Lincoln Magi (accused No. 7) were convicted of on the following counts:

3. One charge of attempted murder (count 2) relates to security guard Thandisizwe Somtsora who was shot in his thigh and sustained a fracture and a broken nerve. The other charge relates to gunshots which were fired at police officers, including Mthobeli Mdingi, who were attempting to stop the get-away Toyota van on the Newiands main road in which the accused were.

5. Personal circumstances of the six accused are as follows:

5.2   The second accused Lungile Jarniso is 40 years old. He has two dependent children aged 16 and 12 respectively and has no parents. He has been in custody since 21 August 2006. It was submitted that he is diabetic and that no one looks after his parental home. His previous convictions are as follows: Culpable homicide - convicted on 19 October 1988 - sentenced to six cuts with a light cane and imprisonment for 18 months which was conditionally suspended for five years. On 02 June 1993 he was convicted of theft and was sentenced to pay a fine of R250,00 or to undergo 50 days' imprisonment. On 07 July 1993 he was convicted of theft and was sentenced to six cuts with a light cane. On 15 September 1999 he was convicted of robbery and was sentenced to undergo imprisonment for eight years. On the same date he was convicted of being in possession of a firearm without a licence and was sentenced to imprisonment for two years. He was also convicted on that date of being in possession of ammunition without a licence and was sentenced to imprisonment for one year. This sentence was ordered to run concurrently with that of being in possession of a firearm without a licence. He was on prison parole when the offences were committed.

5.5. Accused No. 6 - Lizo Lumbe is 27 years old. He has two dependants. They are his grandmother and his brother. He has no children. At the time of his arrest he did welding and earned R1,400,00 per month. He has no previous convictions.

6. Counsel who represent the six accused submitted that the accused persons have been in custody since August 2006 (about two years and seven months). They submitted further that no human life was lost as a result of the robbery, that only one security guard was shot in the thigh and that one of the robbers informed the injured security guard that they were not there to shoot but to take money. Finally they submitted that these facts constitute substantial and compelling circumstances. In respect of the sixth accused it was submitted that he is a first offender,

7. Mr Erasmus who represents the State argued that the accused planned to commit the robbery, that the offences they committed are serious and prevalent countrywide.   He argued further that planned criminality is morally more reprehensible than acting impulsively and without planning. He went on and said that the accused acted in a brutal and brazen manner which demonstrated lack of respect and consideration for human life and property. Shots were fired at the police who were on duty attempting to stop the accused who were in the get-away Toyota van.
8. All the accused, except number six Lizo Lumbe, have been convicted of robbery before. All the accused are first offenders in respect of the two counts of attempted murder. The first three accused were on parole for robbery when they committed the present offences.
9. The accused have not taken the Court into their confidence and say whether they were prompted by need to commit the robbery. The prescribed sentences are not to be departed from lightly and for flimsy reasons and without truly convincing reasons and in the absence of weighty justification. It seems that accused 1, 2, 3, 5 and 7 have not been deterred by sentences imposed for their previous convictions.
10. The victims of the four robberies were not injured when they were being robbed. Although the robbers were carrying firearms, no shots were fired during the robberies. In the hall where pension money was robbed not a single shot was fired. Security guard Thandisizwe Somtsora who had been incapacitated was assured by one of the robbers that they (the robbers) were not there to shoot but to take the money. It has already been said that it is not known how much money was robbed. The getaway van was left where it could easily be found in Mdantsane and was indeed recovered. In my view these facts do constitute weighty justification to depart from prescribed sentences. I therefore find that substantial and compelling circumstances are present. I should not lose sight of the fact that the accused have been in custody for a long time.

11. The crimes of which the accused have been convicted are serious and prevalent in this country, in sentencing those who are guilty of such offences, courts should send a loud and clear message that the offences will not be tolerated. In my view the following sentences are appropriate:

Sentences on counts one, two, three, four, and five shall run concurrently. The sentence on count six shall run cumulatively.

ACCUSED 1, 2, 3, 5 AND 7: TWENTY EIGHT (28) YEARS IMPRISONMENT
ACCUSED 6: TWENTY TWO (22) YEARS IMPRISONMENT

	AEB DHLODHLO 
	JUDGE OF THE HIGH COURT
	ACTING DEPUTY JUDGE PRESIDENT