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1995
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[1995] ZASCA 144
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S v Sampson and Another (729/94) [1995] ZASCA 144 (24 November 1995)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
CASE NO. 729/94
DONOVAN SAMPSON
1st APPELLANT
GLEN ANDREW
HALL
2nd APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN, MARAIS et SCHUTZ JJ.A
DATE HEARD
: 21 November 1995
DATE DELIVERED
:
24 November 1995
SCHUTZ JA
2
JUDGMENT
SCHUTZ JA
:
The two appellants, young men of
respectively 18 and 20 years of age at the time of their trial, were convicted
in the Regional Court
of robbery, and were sentenced in terms of
s 276(l)(i)
of
the
Criminal Procedure Act 51 of 1977
("the
Act") to
42 months imprisonment, of
which 18 months was conditionally suspended. An appeal to the Eastern Cape
Division against conviction
and sentence failed, but that Court granted leave to
appeal to this Court on sentence only.
The facts are quite simple and are largely undisputed, although the
appellants, neither of whom gave evidence, sought to impose a
3
frolicsome quality on the events. The magistrate was not impressed. Nor
am I.
The complainant, a 15 year old scholar Daniel Lawler, was
waiting to cross Luneville road, Lorraine, Port Elizabeth at about 22.00h
on 19
December 1992 with a view to visiting a friend, when a car containing the two
appellants passed him, made a U-turn and came
back to him. Believing that the
occupants were seeking directions he went up to the car. The second appellant
was nearest him in
the front passenger's seat and the first appellant was in the
driver's seat. They asked him if he had any money on him. The second
appellant
produced what appeared to be a pistol. They then both demanded that he hand them
money. He was girt with a moneybag (referred
to in evidence as a "moonbag").
He
4
slipped it to his feet and kicked it under the car. At some stage the
first appellant took the firearm from the second and pressed
it against the
complainant's forehead. It felt cold, not like plastic material. His attempts to
hide the moonbag were not successful.
The second appellant opened the door,
reached down and took it. The appellants drove off.
The complainant crossed the street and phoned the police. The car number
he gave them was incorrect. Some days later he again saw
the car and he was able
to give the police the correct number. This led to the appellants being called
in, and the recovery of the
moonbag. When it had been taken it had contained,
R160 in notes, pay slips showing his and his employer's names (the complainant
had a part-time job) and some bicycle tools. When the police returned it to him
it contained only R110
5
and some cents and the tools. The pay slips were gone.
The
complainant believed that he was being threatened with a real gun and feared for
his life. It was put to him that the proceedings
were conducted in a jovial
mood. To this he responded, "When they stopped up next me (sic), they were quite
happy, but then they
got serious, very serious."
Lieutenant van Rooyen deposed that when the appellants attended at his
office (after the complainant had identified the car) they
did not dispute the
incident but claimed that it had all been a joke. The first appellant took him
to the car and produced the moonbag
from under the passenger's seat. It
contained only R110 and some cents. There were no pay slips. One of the
appellants took him to
a house where a friend
6
produced a toy pistol, which was an exact replica of a 9mm Browning
pistol.
The defence led no evidence on sentence and made no request for a report
in terms of
s 276
A(l)(a) of the
Act. The
magistrate took into account in favour
of the appellants their youth, the fact that they were first offenders, and
certain personal
circumstances. The first appellant worked at an hotel, earning
R1700 per month. He had passed standard nine, was unmarried and had
no
dependents. The second appellant had matriculated, had a part-time job which
brought in an average of R150 per week, and had R1300
available to pay a
fine.
The magistrate was not impressed by a contention that the appellants had
co-operated with the police. They had not given
7
themselves up of their own choice, and they had advanced an elaborate
false story to the police, to the effect that when they had
realized that their
"joke" had turned sour because their victim was a stranger and not an
acquaintance as at first believed, they
had gone back to return the moonbag but
had been frustrated by their victim's disappearance: and had thereafter been
further frustrated
because of his failure to leave any trace of his identity in
the moonbag. Accordingly the magistrate found, "very little mitigation
in your
co-operation as to pointing out the moonbag and the gun."
The magistrate correctly emphasized the seriousness of the crime of
robbery, which involves both violence and dishonesty. He alluded
to the
difficulty of catching robbers and opined that for this reason the
8
element of deterrence is of particular importance. The fact that most of
the money was recovered had resulted from the efforts of
the complainant, not
the contrition of the appellants.
However, the magistrate correctly said that he should not look at robbery
in abstracto but also at the facts of the particular robbery.
He accepted
(although there was no actual evidence of it) that the object used was a toy
gun. On the other hand, because of its realism
and the manner in which it had
been used, this fact did not detract from the terror induced in the complainant.
I would add that
if the weapon used was a facsimile, it would mean that there
would have been no temptation to shoot if there should have been a hitch
in the
robbery, a temptation so often succumbed to where real firearms are used. This
does not mean,
9
of course, that the use of facsimiles is not a serious matter, because,
if convincingly used, their minatory effect is the same as
that of the
real
thing, and may lead to the same defensive reaction.
In the result the magistrate, whilst mindful of the undesirability of
sending a first offender to gaol when that can be avoided, considered
that a
fine was not appropriate, nor a wholly suspended sentence. At most he was
prepared to suspend a part of the sentence. As already
stated 18 months of the
42 months sentence was conditionally suspended. In addition the magistrate
tempered the remaining 24 months
imprisonment by ordering, in terms of
s
276(l)(i)
of the
Act, that
the appellants might be placed under correctional
supervision at the discretion of the Commissioner of Correctional
Services.
10
In my opinion the magistrate has not been shown to
have
misdirected himself in any way. In particular I do
not consider that he
overemphasized deterrence without giving sufficient weight to
the
circumstances of the particular crime or of the appellants. The
sentence
is not a high one one for robbery, which reflects that the magistrate
took
into account the unusual features of the case, and correctly so.
It was further pressed on us that no actual violence (in the
sense
of manhandling) was used. But that is the usual
nature of robbery under
arms. The menace of the weapon far exceeds the persuasive force of
an
actual assault. And in so far as it has been suggested that the loss
was
relatively small (whether or not there was a partial recovery), it
was
sustained by a youngster to whom it was by no means small.
11
For these reasons the appeal is dismissed.
W P
SCHUTZ JUDGE OF APPEAL
VAN HEERDEN JA)
CONCUR MARAIS JA)