IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between: 

and

JUDGMENT

GERBER, AJ:

The accused was legally represented in the court a quo. The accused pleaded guilty to the charge and a written statement in terms of section 112(2) of the Act was duly handed in. In his aforesaid statement, the accused admitted guilt to robbery with aggravating circumstances. The accused stated that he owed a certain Nigerian, who was not identified by name by the accused, money. He declared that the said Nigerian requested him to assist with the robbery of the two complainants as, according to the Nigerian, they had a lot of money. The accused stated that on the day in question he accompanied the Nigerian into a house. The Nigerian had a knife in his possession. Whilst the Nigerian threatened the complainants with a knife, he searched them. He admitted that they had threatened the complainants and thus forced them to relinquish their property.

He admitted that after the complainants had shown them where the safe was, he tied them up with cables. They took a safe, containing a firearm and cash in a total value of R19 100,00. He thereafter assisted the Nigerian to put the safe in a vehicle and they left.  He stated that the Nigerian kept the loot and he received no part thereof. He was later arrested. Upon enquiry from the magistrate, the accused admitted the section 112(2) statement. The magistrate thereafter convicted the accused on the charge.

"The specified sentences are not to be departed . from lightly and for flimsy reasons. Speculative hypothesis favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded."

On the other hand, there are a number of aggravating factors which must also be taken into consideration. The robbery took place in a home, a place where the occupants were entitled to feel safe and secure. Although the accused might have played a lesser role in the commission of the offence than the Nigerian, he was nonetheless a very active participant. He was aware of the fact that the complainants were threatened with a knife. He searched them, tied them up and assisted the Nigerian to remove the items from the house.   Valuable items were stolen, including a firearm.

The criminal record of the accused is also a very important aggravating factor. Despite his fairly young age, this was the fourth time that the accused had been convicted of a crime relating to dishonesty. The shorter terms of imprisonment imposed on the previous occasions, has apparently not had the desired effect. In the premises, I am not persuaded that the magistrate was wrong and/or committed any misdirection when she concluded that there were not substantial and compelling circumstances which justified a lesser sentence than the minimum sentence prescribed by the legislature.

In the circumstances, I am satisfied that the appeal against the sentence should be dismissed.

The appeal against the sentence is dismissed.
GERBER, AJ