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[2010] ZAWCHC 428
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Williams v S (A223/2010) [2010] ZAWCHC 428 (4 July 2010)
IN THE HIGH
COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No:
A223/2010
In
the matter between:
SHAUN
WILLIAMS
…...........................................................................
Appellant
Versus
THE
STATE
….................................................................................
Respondent
JUDGMENT
DELIVERED 4 JULY 2010
Allie, J
[1]
The appellant was charged with two separate counts of robbery with
aggravating circumstances in that he allegedly used a firearm
to rob
each complainant on a separate occasion, each of their cellphones.
The offences were committed
2Vz
weeks
apart.
[2]
He was convicted on both counts and sentenced to 15 years
imprisonment on each count. The sentences were ordered to run
concurrently. He appeals against the sentences only.
[3]
The court a
quo
found
that Act 105 of 1997 in which is prescribed a minimum sentence for
the offence, already determined a sentence of 15 years
imprisonment
for a first offender. The magistrate accordingly believed that the
legislature had already provided for a first
offender and the fact
that this was his first offence, was not a substantial and
compelling factor.
[4]
The court
a
quo
went
on to conclude that the appellant's age of 18 years was not a
mitigating factor. The court a
quo
said
that it had shown mercy by making the sentences run concurrently.
[5]
While the complainants were not injured, there is no doubt that they
were traumatised by being threatened with a firearm.
[6]
The appellant and society at large have to accept that the lack of
injuries are not due to the good will of the perpetrator,
but in
this case it can be ascribed to the co-operation of the
complainants.
[7]
The offence of robbery where a firearm is used but no one is injured
cannot be reduced in its impact upon the victim and society
at large
to the offence of theft.
[8]
However, the youthfulness of the offender in this case the age of 18
years cannot be ignored as it is a mitigating factor
which serves as
a substantial and compelling circumstance to justify a deviation
from the prescribed minimum sentence. I accordingly
find the court a
quo's
dismissal
of this mitigating factor to be a misdirection.
[9]
I would set aside the sentences imposed and replace them with the
following sentence.
[10]
The appellant is ordered to serve the following sentence:
10.1.
On count 1,10 years direct imprisonment.
10.2.
On count 2,10 years direct imprisonment.
[11]
The sentence on count 2 shall run concurrently with the sentence
imposed on count 1.
ALLIE,
J
I
agree
R
JAGA, AJ