IN DIE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the appeal of:

en

JUDGMENT

VELDHUIZEN. J

[1] On 3 July 2008 the appellant was convicted in the Regional Court on a charge of robbery with aggravating circumstances. The magistrate found that the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 ("the Act") applied and after finding that there were no substantial and compelling circumstances sentenced the appellant to the prescribed minimum sentence of 15 years imprisonment.

[2] The appellant, with leave of the trial court, appeals to this Court against the sentence imposed.

[3] Mr Clark, the complaint, testified that on the morning of 20 May 2006 in Hermanus, he opened the front door of his dwelling early in the morning. He smoked a cigarette on the veranda. Leaving the front door open, he went to the kitchen and put the kettle on. Upon hearing footsteps, he proceeded to investigate. He was faced by three black men wearing balaclavas. It would appear that at least two of the attackers were armed with firearms. After handing over the keys to his safe, the contents were removed. His wife and daughter had woken and were ordered to lie on the floor. His daughter of 12 years of age was taken away and instructed to open the garage door. The robbers made off with R20 000, firearms, cell phones and the motor vehicle belonging to the complainant's wife.

[4] The appellant was at the time of his trial 32 years of age. The magistrate treated the appellant as a first offender. He has two young children and since the passing away of his wife, his mother has been caring for them. He contributed to their maintenance whenever he worked. It further appeared from his evidence that he had contracted AIDS.

[5] In my view, the fact that the appellant was a first offender at the age of 32 years and being HIV positive, virtually had a death sentence hanging over his head, together with the fact that, no thanks to the appellant, the occupants of the house were not injured, constitute substantial and compelling circumstances warranting a lighter sentence than the prescribed minimum sentence of 15 years imprisonment.

[6] It follows that in my view the magistrate misdirected himself with regard to the question whether substantial and compelling circumstances were present and we are therefore at large to consider sentence afresh.

[7] I have already related the accused's personal circumstances as well as the circumstances relating to the crime. This crime is certainly a serious one. It appears to have been well planned and this increases the appellant's moral blameworthiness. It is also an important fact that people should feel safe in their homes and when their privacy is invaded in this manner, the courts should impose stiff sentences.

[8] Having regard to all the circumstances, all the purposes of sentencing will be met if a sentence of 12 years imprisonment is imposed.