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[2006] ZAWCHC 75
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Le Roux v S (A82/2004) [2006] ZAWCHC 75 (2 June 2006)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
DATE
:
2
JUNE 2006
CASE
NUMBER
;
A82/2004
In
the matter between:
EDWARD
LE ROUX
Appellant
And
STATE
Respondent
JUDGMENT
(Appeal against Sentence)
NDITA,
J
:
On
4 March 2003 the appellant and Omar Benjamin were convicted in the
Regional Court, Parow, of robbery with aggravating circumstances
on
the first count and unlawful injury to property in the second count.
He pleaded not guilty to both counts and after evidence
was led he
was convicted as charged and sentenced to 15 years' imprisonment on
the first count, and two years' imprisonment on
the second count, to
be served concurrently. He enjoyed legal representation throughout
the trial. He now appeals against sentence.
The
essential facts which have resulted in the appellant's conviction can
be summarised as follows. On 8 July 2002,
Jacobus
Prinsloo, a taxi driver, had parked his vehicle opposite the Food
World stores at Elsies River and proceeded to the medical
centre in
Owen Street to enquire about his spectacles. Inside the vehicle he
left Donovan, who is the taxi conductor. When he returned
to his
vehicle he observed that eight young men had surrounded it. The
appellant and Omar were amongst the group. The appellant
stood at the
driver's side of the vehicle whilst Benjamin demanded money and
threatened to stab the complainant with a knife, which
he took from
the pocket of his pants.
The
complainant tried to run away from the car but the group of young men
pursued and caught up with him. A struggle ensued between
him and the
group as he was trying to escape. At that stage the appellant
threatened him with a knife. The incident happened near
the Rasta
house but peopEe came out of the flat and tried to intervene on the
complainants behalf. A sum of R240.00 was stolen
from the complainant
in the course of the struggle. He also observed that his watch,
valued at R160.00 had been removed from his
wrist.
When
he returned to his vehicle he observed that two of the vehicle tyres
had been slit with a knife. Donovan was still inside the
vehicle.
They both went to the police station to report the matter.
Donovan
testified,
inter
alia,
that
a group of men, including appellant and his co-accused, approached
appeffant's taxi. Appellant's co-accused asked for money
and
appellant got into the taxi. The appellant got inside the taxi and
threw out some documents from the (indistinct) and took
out a watch
belonging to the appellant.
In
terms of
section 51
of the
Criminal Law Amendment Act 105 of 1997
,
the minimum sentence of robbery with aggravating circumstances is 15
years, but the courts may impose a lesser sentence if it
is satisfied
that substantia] and compelling circumstances exist which justify an
imposition of such a sentence. The magistrate
was of the view that no
substantial and compelling circumstances existed in this case which
justified the imposition of a Jesser
sentence. He accordingly
sentenced the appellant to 15 years' imprisonment and it has been
argued on behalf of the appellant that
the trial court misdirected
itself in finding that there are no substantia] and compelling
circumstances that justify a departure
from the otherwise prescribed
minimum sentence of 15 years.
I
have given careful consideration to the question of sentence and I
have come to the conclusion that the magistrate erred in finding
that
there are no substantial and compelling circumstances in this case
which justify the imposition of a lesser sentence. Clearly,
the
offence is a serious one and warrants the imposition of a heavy
sentence. However, this factor must be weighed against the
following
mitigating factors;
a) that
although the appellant is not a first offender, ail his previous
convictions relate to the possession of firearms and ammunition
without being a holder of a licence to possess the same. Now having
said that 1 am mindful of the fact that these previous convictions
are relevant to the facts of this case.
b) The
appellant has awaited trial in custody from 14 October 2002 to 4
March 2003 when he was eventually sentenced.
c) The
amount of money stolen was certainly considerable in his
circumstances, but relative to the amount sometimes robbed in other
cases in that it was not enormous.
d) Although
the complainant was threatened with a knife, he was not actually
stabbed and he did not sustain any serious injuries
during the
robbery.
At
the time of the commission of the offence the appellant was 21 years
old.
Of
greater importance is that the sentence of 15 years in respect of
Benjamin Omar, who was 17 years eight months at the time
of the
commission of the offence, has been set aside on appeal and replaced
with six years' imprisonment.
On
a basis of disparity of sentences, in my view, the sentence should be
reduced. In this regard, see the judgment of my Brother
Davis,
J
in
Hansen
v Regional Magistrate, Cape Town
1992
SACR 430.
However, it should be stated that the degrees of
participation of Benjamin and the appellant differ. The appellant was
the main
aggressor He was the one who used the knife and was much
older than Benjamin. For these reasons he deserves a heavier
sentence,
in my view.
Having
regard to the cumulative effect of these factors, they do qualify, in
my view, as substantial and compelling circumstances
justifying the
imposition of a lesser sentence than 15 years' imprisonment. In all
the circumstances I am of the view that a sentence
of 10 years'
imprisonment would be appropriate.
I
therefore propose that the appeal be upheld and the sentence of 15
years' be replaced 10 years' imprisonment.
NDITA,
J
MOTALA,
J
:
The appeal is upheld. The sentence of the magistrate is set
aside and replaced by the following sentence: "The accused
is
sentenced to 10 years' imprisonment."
MOTALA,
J