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[2008] ZAWCHC 195
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Adams v S (A320/2006) [2008] ZAWCHC 195 (9 May 2008)
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A320/2006
DATE:
9
MAY 2008
In
the matter between:
ENRICO
ADAMS
Appellant
and
THE
STATE
Respondent
JUDGMENT
STEYN,
AJ
:
[1]
The appellant in this matter was found guilty of robbery with
aggravating circumstances in the Wynberg Magistrate's Court on
17
January 2005. He was sentenced on the same day to 15 years
1
direct imprisonment. On 18 May 2006 the appellant applied for leave
to appeal against sentence only and such leave was granted.
Accordingly, the appeal today is against sentence only.
[2]
As far as the crime is concerned, the accused and another robbed the
claimant of property with a total estimated value of R31
400 and a
BMW motor vehicle. A firearm was involved. The complainant was under
the influence of alcohol and vulnerable. The accused
pretended that
he wanted to assist the claimant and then, after forcing him to take
him and his accomplice to his apartment, robbed
him of his belongings
after tying him up. The robbery took place on 21 June 2002. The
appellant was 17 years of age on this date.
[3]
As regards sentence it is trite law that a court of appeal will only
interfere with the discretion of the trial court in the
event of a
misdirection or in the event that the sentence imposed could be
described as shockingly inappropriate. The magistrate
found that the
provisions of section 51 of Act 105 of 1997 applied to the present
matter prescribing a minimum sentence of 15 years'
imprisonment and
that no substantial and compelling circumstances existed which
justified the imposition of a lesser sentence than
the prescribed
sentence.
[4]
It was submitted on behalf of the appellant who, as mentioned above,
was 17 years of age when the crime was committed, that
the magistrate
was misdirected when he sentenced the appellant without any regard to
the provisions of section 51 (3)(b) of
Act 105 of 1997.
Section
51(3)(b) of Act 105 of 1997 provided as follows in January 2005:
"if
any court referred to in subsection (1) or (2) decides to impose a
sentence prescribed in those subsections upon a child
who was 16
years of age or older but under the age of 18 years at the time of
the commission of the act which constituted the offence
in question,
it shall enter the reasons for its decision on the record of the
proceedings".
It
is also and in any event submitted on behalf of the appellant that
the magistrate was misdirected in not giving sufficient weight
to
the youth and immaturity of the appellant at the time of the
commission of the offence. He refers to the Court to the case
$
v Nkosi
2002(1) SACR 135 (W). In that judgment it was held that
youthfulness of an offender is a weighty factor in
considering
the culpability of an accused.
[5]
The magistrate considered the age of the appellant at the time of the
trial when he was 20 years old and the fact that he had
a young
child. However, the magistrate found that the aggravating
circumstances of the matter were more important than these mitigating
factors. The age of the appellant at the time of the offence and the
provisions of section 51(3)(b) of Act 105 of 1997 give the
trial
court a discretion to award any appropriate sentence or to award the
prescribed minimum sentence but prescribes that the
reasons for the
decision to award the prescribed minimum sentence should be entered
on the record.
[6]
The trial court disregarded these provisions and the age of the
appellant at the time the crime was committed. Accordingly,
it is the
view of this Court that the magistrate committed a misdirection and
the sentence imposed is inappropriately harsh in
the circumstances.
The Court is accordingly empowered to interfere with the sentence
which was imposed by the trial Court.
[7]
I would amend the sentence to eight years' imprisonment. The order is
back-dated to the date of sentencing by the magistrate
in terms of
the provisions of section 282 of the Criminal Procedure Act. The
order declaring the appellant unfit to possess a firearm
remains in
force.
STEYN,
AJ
VELDHUIZEN.
J
:
I agree. The appeal is upheld. The conviction is confirmed, the
sentence is set aside and replaced with the one suggested by my
learned colleague.
VELDHUIZEN.
J