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South Africa: Western Cape High Court, Cape Town
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[2008] ZAWCHC 241
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Isaacs and Another v S (A76/2006) [2008] ZAWCHC 241 (15 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A76/2006
DATE
:
15
AUGUST 2008
In
the matter between:
R
ISAACS
J
SOLOMONS APPELLANTS
versus
THE
STATE RESPONDENT
JUDGMENT
OLIVIER.
A J
In
the matter of Isaacs and Solomons, the appellants were charged on 24
November 2004 in the regional court, Strand, on a charge
of armed
robbery.
Both
appellants were represented and pleaded guilty on the alternative
charge of robbery.
It
appears from their plea explanations submitted in terms of
section
112.2
of the
Criminal Procedure Act 55 of 1977
, that on 26 January
2001 and at a caravan park they had robbed a woman sitting in a
motor vehicle using a toy gun. In their plea
explanations, both
appellants contend that they were under the influence of drugs. Both
appellants confirmed their plea explanation.
The
judgment records that the charges pertain to events that took place
on 26 September 2002 (which should, I assume, read 2001)
which
latter date apparently is the correct date.
Both
appellants had previous convictions and those were admitted.
On
the same day, the magistrate sentenced both appellants to eight
years imprisonment.
It
is against these sentences that they appeal.
The
judgment records that the Court took into account the submissions
made by the legal representatives from the bar regarding
their
personal circumstances. They elected not to testify in this regard.
The magistrate, however, did not record in his judgment
what these
submissions were and they do not appear from the record.
Both
appellants in their notice of appeal note as one of three reasons
for their appeals that the magistrate had erred in not
taking Into
consideration their age, and I quote:-
"His
domestic situation with regard to a number of dependants" in
the one instance, and:-
"Domestic
situation with regard to children and other dependants (and age)"
In
the other instance.
Mr
Isaacs admitted his previous convictions, which included four
convictions for theft and two convictions for escaping or attempting
to escape.
Mr
Solomons, who also admitted his previous convictions, had two
previous convictions for housebreaking and one for murder.
The
magistrate clearly took into account the respective ages of the
appellants. The notices of appeal only reflect that the appellants
raised, with regard to their personal circumstances, over and above
the fact of their age, the fact that they have dependants
and
children.
The
magistrate had recorded that he took Into account all of the
submissions made by the legal representatives as to the personal
circumstances of the appellants. The appellants did not venture into
the witness stand themselves. No evidence was placed before
the
Court as to their personal circumstances. The appellants do not now
contend that other relevant personal circumstances were
not taken
into account, and the judgment by the magistrate records that those
ex
parte
statements
were indeed taken into account.
It
is a trite principle of our law that the imposition of a sentence is
a matter pre-eminently for the discretion of the trial
court. A
court of appeal will only interfere with the sentencing discretion
of the trial court if it has misdirected itself in
a material
respect or if the sentence is inappropriate or that no reasonable
Court would have imposed such a sentence, or where
the discretion
was not exercised reasonably or properly,
S
v Rabte. 1975(4) SALR 855 (A) at 857D-E. State v Peters. 1987(3) 717
(A) at 727F-H. and S v Malqas, 2001(2) SA 1222
(SCA)
at
paragraph 12
.
In
my view, there is a distinction to be drawn between the two
appellants. It appears that Mr Solomons was the one carrying the
toy
gun and it was he who initiated the robbery, whilst Mr Isaacs, it
would appear, decided on the whim of the moment to
join in.
Their respective blameworthiness in this regard is not the same. The
magistrate, in my view, failed to properly take
this factor into
account when imposing the sentences.
Both
appellants, however, are previous offenders, and even if the
prescribed sentences were to be applied, which does not do so
in the
present instance, the sentence would not appear, on the face of it,
to be entirely appropriate.
In
the premises, and in view of the lesser role played by the appellant
1 in commissioning of the offence and his slightly less
appalling
record, I would
REDUCE
THE SENTENCE OF APPELLANT 1 TO ONE OF EIGHT YEARS IMPRISONMENT. OF
WHICH THREE YEARS IS SUSPENDED
.
For the above reasons, I would firstly
CONFIRM
THE SENTENCE OF APPELLANT
2
,
secondly
ALTER
THE SENTENCE OF APPELLANT 1 TO A SENTENCE OF EIGHT YEARS
IMPRISONMENT, OF WHICH THREE YEARS IS SUSPENDED
on
condition and provided that he is not convicted of robbery or theft
during the period of suspension, and he is sentenced to
imprisonment
without the option of a fine.
OLIVER,
AJ
MOOSA.
J: I agree and the Court orders that the suspension be for a period
of five years, subject to the condition as has been set out
by my
learned brother
MOOSA,
J