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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE PROVINCIAL DIVISION)

CASE NO: 48/07

DATE DELIVERED:

IN THE MATTER BETWEEN:

EDWIN LESSING APPELLANT

AND

THE STATE RESPONDENT

JUDGMENT

LIEBENBERG, J:

[1] The appellant was convicted in the regional court of robbery with aggravating circumstances and sentenced to 15 years imprisonment in terms of the provisions of Act 105 of 1997. The appellant comes on appeal against the sentence.

[2] The appeal is directed at the magistrate’s decision that no substantial and compelling circumstances exist for deviating from the prescribed sentence.

[3] According to the facts found by the magistrate, the complaint and a female friend, Jolene, were walking in Durban Road, Schauderville in Port Elizabeth between 15h00 and 16h00 on 20 November 2006 when they met the appellant and another male. The appellant is well known to the complainant. They were at school together for 10 years. According to the complainant there was a time when they were friends. When they met on the afternoon in question the appellant was with his friend, Abdul Aziz. The appellant and Aziz walked past the two women and the appellant asked for the time. After the appellant and his companion passed them, the appellant turned around and approached the two women from behind. The appellant told the complainant to give her cell phone to him. He then grabbed her from behind and held her. Jolene grabbed hold of the appellant and as a result the complainant could free herself and she ran away. The appellant freed himself from Jolene and followed the complainant. He caught up with her where she entered the site of an uncompleted building. There the appellant grabbed hold of her again. He held a knife to her neck and thereafter threw her to the ground. Her head was knocked against some bricks. From her evidence under cross examination it is unclear whether the appellant hit her head against the bricks or whether her head struck the bricks as she was thrown to the ground. As the benefit of this uncertainty must go to the appellant it must be accepted that the latter situation prevailed. As she fell to the ground her cell phone fell from her hand and the appellant took her cell phone from her and ran off with it. The evidence of the complainant and Nicole was that the appellant’s companion took no part in this attack on the complainant. As a result of her head striking the bricks the complainant sustained certain injuries for which she was treated at the hospital. There is no evidence that these injuries were of a serious nature.

[4] At the time of the robbery the appellant was 20 years of age. He had two previous convictions for theft. The nature of the sentences imposed for these offences shows that they could not have been of a serious nature.

[5] The magistrate’s reasons for sentence does not show that she gave proper consideration to the question whether substantial an compelling reasons exist not to impose the prescribed sentence. The only reference by her to this issue is where she stated that the prescribed sentences should not be deviated from “lightly”. She dealt with the circumstances in favour of the appellant and the other considerations relevant to sentence such as the serious nature of the crime, the persistence of the appellant to chase and rob the complainant after she was allowed to free herself from him and ran away, the interests of society the prevalence of the crime. In my view, however the magistrate erred in not giving proper consideration to the existence of substantial and compelling circumstances.

[6] The crime of robbery is always regarded as serious. In the present case, however, the offence was at the lower end of the scale of seriousness. Although a knife was held to her neck at some stage it was not used on the complainant, but instead she was thrown to the ground in order to take her cell phone. It has not been shown that her injuries were of a serious nature. The value of what was taken from her is also a relatively small amount. A consideration of the facts of this case shows that the offence can by no means be regarded as of the nature which the legislature must have had in mind when prescribing the sentence of 15 years imprisonment.

[7] A further factor which weighs heavily in favour of the appellant is his young age.

[8] When the nature of the offence in this case, the nature and value of the property robbed from the complainant, the fact that the complainant suffered no serious injuries or other consequences, the young age of the appellant and the fact that his previous convictions did not include acts of violence and appear to have been of a relatively minor nature, are taken into consideration then one is constrained to hold that the sentence of 15 years imprisonment prescribed by the act is manifestly unjust under the circumstances. It follows that there are substantial and compelling circumstances compelling one to deviate from the prescribed sentence. It further follows that by not finding that such circumstances exist the magistrate misdirected herself. Consequently the sentence must be set aside and we are, therefore, at large to impose an appropriate sentence.

[9] When all the above factors are taken into account, I am of the view that 5 years imprisonment is an appropriate sentence in this case.

[10] In the result the sentence imposed by the magistrate is set aside and substituted with a sentence of 5 years imprisonment. This sentence is backdated to the date upon which the magistrate originally imposed sentence.

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H.J. LIEBENBERG

JUDGE OF THE HIGH COURT

EKSTEEN, AJ:

I AGREE.

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J.W. EKSTEEN

ACTING JUDGE OF THE HIGH COURT

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