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

In the matter between: 

and

JUDGMENT

The appellant, who had pleaded not guilty in the Regional Court at Paarl, was convicted on one count of robbery with aggravating circumstances and on 15 April 2010 sentenced to 12 years direct imprisonment. He unsuccessfully applied for leave to appeal against both his conviction and sentence. On petition he was granted leave to appeal against his sentence only.

In order to consider the sentence imposed by the trial court, it is necessary to briefly refer to the events of 10 October 2009 when the appellant committed the offence. The complainant testified that on the morning of that day she was approached by the appellant whilst she was walking towards a shop. He struck up a conversation with her. She was not keen to speak to him and tried to end the conversation without success. The appellant then asked her for directions and she accompanied him to point out the address which he was seeking. He began to discuss strange topics and she became extremely nervous.

Whilst they were still speaking, another man approached them from the opposite side of the road. The appellant referred to him as Charles. Charles threatened the complainant with a knife which he held against her neck. The complainant was terrified and decided that rather than risk her life, she would hand over the cash which she had in her possession. She handed over R1 500,00 cash to Charles and the appellant, whereafter they fled the scene. The complainant reported the incident to the police and identified the appellant from a photograph in an album shown to her by the police. The appellant v./as arrested or, 14 October 2009 and has been in custody since that date.

The appellant's version was that he was nowhere in the vicinity when the offence was committed. He denied any knowledge of the crime. He called his girlfriend as an alibi, but there were material inconsistencies between her evidence and that of the appellant's. The appellant's girlfriend also eventually conceded that the appellant had told her what to say in court. The magistrate accepted the evidence of the state witnesses and rejected the evidence of the appellant and his witness.

The appellant had two previous convictions, one of culpable homicide for which he received a sentence of four years direct imprisonment and the other for murder, for which he received a sentence of eight years direct imprisonment. The offence of robbery with aggravating circumstances is one which falls within the minimum sentencing legislation contained in section 51(2) of the Criminal Law Amendment Act 105 of 1997. The appellant as a first offender for robbery with aggravating circumstances became liable to be sentenced to direct imprisonment for a period of not less than 15 years unless the trial court was satisfied that substantial and compelling circumstances existed which justified the imposition of a lesser sentence.

The court found that (a) the appellant's age (46 years old; (b) the fact that he is the father of two children, who were aged 22 years and eight months respectively at the time; (c) that he

had  been  in custody since   14 October 2009: and  id) that the
appellant had not re-offended for a period of approximately five years prior to the commission of the offence, constituted substantial and compelling circumstances which resulted in the trial court sentencing the appellant to 12 years direct imprisonment. The magistrate also took into account the fact that the complainant had not been injured during the commission of the offence.

The appellant argued that the trial court misdirected itself in that: (a) it failed to attach appropriate, if any, weight to the fact that the appellant is a first offender for the crime of robbery with aggravating circumstances; (b) attached undue weight to the appellant's previous convictions; (c) misdirected itself in failing to give notice of its intention to take judicial notice of the prevalence of robbery within its jurisdictional area; and (d) failed to attach sufficient, if any, weight to the fact that the appellant, although acting in common purpose, was not the knife wielder.

It is so that the magistrate failed to attach any weight to the fact that the appellant is a first offender for the crime of robbery. However, this omission on its own does not warrant the conclusion that there was a material misdirection on his part, if regard is had to all of the other material factors which he took into account in finding that substantial and compelling circumstances existed to justify the imposition of a lesser sentence. The magistrate's comments as to the prevalence of crime in general within his court's jurisdictional area were made in the context of the need to also weigh up the interests of the community in arriving at an appropriate sentence. The magistrate's failure to inform the parties in advance of his intention to make these comments does not constitute a material misdirection on his part.

The magistrate did not attach undue weight to the appellant's previous convictions. On the contrary he regarded the fact that the appellant had not re-offended for approximately five years prior to the commission of the offence as a substantial and compelling circumstance which would justify the imposition of a lesser sentence. That the magistrate did not specifically deal with the fact that the  appellant,   although  acting  in common purpose, was not the knife wielder. does not mean that he did not consider this, particularly inasmuch as he expressed the view that the fact that the complainant was not injured should count in the appellant's favour.

In all the circumstances of the matter, the sentence imposed by the magistrate was not disturbingly inappropriate. There was no material misdirection on his part There is thus no basis for this court to interfere with the sentence which he imposed.   I would, therefore, propose the following order: