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[2010] ZAWCHC 559
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Yaleso v S (A521/2010) [2010] ZAWCHC 559 (12 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A521/2010
DATE
:12
NOVEMBER 2010
In the matter between:
XOLA
YALESO
…..............................................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
JUDGMENT
GERBER, AJ:
The
appellant ("the accused"), was arraigned in the Regional
Court of the Western Cape, held at Cape Town, on a count
of robbery
with aggravating circumstances as referred to in section 1 of the
Criminal Procedure Act, Act 51 of 1977 ("the
Act"). It was
alleged that on or about 10 March 2009 and at 34 Upper Park Road,
Walmer Estate, the accused unlawfully and
intentionally assaulted the
two complainants in that he threatened them with knives and tied
their hands and feet with cables and
with force removed from them a
safe containing a firearm and R19 100,00 in cash. The accused was
convicted on the charge and sentenced
to 15 years imprisonment. With
leave of the court a
quo,
he
know appeals against the sentence only.
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.
Prior to sentence, the
accused admitted that between 2001 and 2003 he had been convicted on
three counts of housebreaking with
the intent to steal and theft.
For the first offence the accused had been sentenced to 18 months
imprisonment, of which half
was suspended. For the second offence he
was sentenced to 30 months imprisonment in terms of section
276(1)(i) of the Act, plus
a further two years imprisonment which
was suspended. For the third offence he was sentenced to 24 months
imprisonment. Prior
to him committing the offence at hand, the
accused had, therefore, already spent considerable time in prison
for offences relating
to dishonesty.
The
accused's personal circumstances, as put before the court a
quo
by
his legal representative were: he was 29 years old and he resided
with his grandmother in Nyanga. Scholastically he had completed
Grade 12. Although he was unmarried, he had a two year old child
whom he cared for. He was employed as a shelf-packer for
approximately
three years and earned a salary of approximately
R650,00 per week. He had been in custody for approximately three
months. It
was furthermore submitted that the accused had remorse
for his actions, as was evident from his plea of guilty.
The
particular offence is included in Part II of Schedule 2 of section
51 of Act 105 of 1997, which prescribes a minimum sentence
of 15
years imprisonment for this offence, except if the Court finds that
there are substantial and compelling circumstances
to justify a
lesser sentence. The magistrate held that there were no such
substantial and compelling circumstances in this matter
and imposed
the minimum prescribed sentence. In
S
v Malqas
2001
(1) SACR 469
(SCA) at 481j-482b,
Marais
.
JA,
inter
alia
stated
the following in regard to prescribed sentences:
"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."
See
also
S
v Vilakazi
2009
(1) SACR 552
(SCA).
Robbery,
especially if there are aggravating circumstances present, is a
serious crime. All relevant factors pertaining to sentence
must,
however, be taken into account to ensure that the sentence imposed
is justified. See
S
v Ntsheno
;
S
v Dlamini
:
S
v R
2010
(1) SACR 295
(GSJ) and
S
v Chowe
2010
(1) SACR 141
(GNP) at 149h-150a.
It is, of course,
important that proper consideration be given to the accused's
personal circumstances when sentence is considered.
It can also be
accepted that the accused showed remorse for his actions. From the
section 112(2) statement, it would appear that
the Nigerian was the
initiator of the crime and the accused followed suit. It also does
not appear as if the complainants suffered
any serious physical
harm. The accused also did not share in the spoils of the crime.
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
SALDANHA.
J
:
I agree. It is so ordered.
SALDANHA. J