JUDGMENT
IN THE SUPREME COURT OF SOUTH AFRICA

CCAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

and

The appellant in this matter was charged in the regional magistrate's court where he faced two charges. The first was robbery with aggravating circumstances, it being alleged that on the 16th November, 2000, at a place called Pitstop, in Woodstock, he robbed the complainant, a certain Ganiefa Ismail, of R100 000 in cash by pushing her and grabbing the money from her and threatening her with a firearm. Charge 2 was that on the same date and at the same place the appellant contravened section 2{1) of the Dangerous Weapons Act, No. 71 of 1968 by being in possession of a dangerous weapon, being an object so resembling a firearm that in the circumstances in which it was possessed by the appellant it would probably be mistaken for a real firearm. To these charges the appellant pleaded not guilty. He was represented at his trial by an attorney, He was convicted on both charges, save that aggravating circumstances were not found to be present. The magistrate took both charges together for the purposes of sentence and sentenced the appellant to eight years' imprisonment. With the leave of the regional magistrate the appellant appeals against his sentence only.

This is a sad and difficult case. At the time of the commission of these crimes the appellant was still a young man, being only 24 years of age. He had a clean record. He was born in Ladysmith, KwaZulu-Natal, but he grew up in Malawi with his father. He studied mechanical engineering successfully at the University of Malawi and graduated there as an engineer. In 1997, at the age of about 22 years, he returned to South Africa. He first went back to Ladysmith and later came to Cape Town. Here he obtained employment as a driver with Pitstop. He also assisted sometimes in Pitstop's workshops, but was paid no extra remuneration for this work. He worked for Pitstop for about two years before the incident occurred which is here in question. He seems from all the evidence to have been a law-abiding, hardworking, useful, productive member of society. In his judgment on sentence the magistrate says that the appellant made a very favourable impression on him as a person. He went on to say that he coul believe that a person like the appellant would commit a crime such as this. The magistrate's impressions are borne out by a reading of the record. The appellant comes across in his evidence as an essentially intelligent, diligent, decent young man, even if somewhat garrufous. He exhibited great contrition in his evidence for what he had done. That remorse appears to be sincere.

However, he was unable to explain satisfactorily why he had acted as he did, save to say that he felt "cheated" by his employer because he was not paid overtime or extra for working in the workshop, and that at the time he felt depressed and helpless. He also made mention in his evidence of the devil. These, of course, are not acceptable explanations for his crimes. Nevertheless, one gets the clear impression that the magistrate had a large measure of sympathy for the appellant and that he was most reluctant to send him to prison. He said in his judgment that he found no pleasure in what he had to do and that he "loathed" imposing a sentence of direct imprisonment on the appellant because of his "very favourable personal circumstances".

To this must be added that the appellant's present employer, a Mr Dylan Johnson, was called in mitigation of sentence.   The appellant worked for him as a driver for about three years whilst his trial was pending. Johnson said that the appellant was a good worker and had never been a problem; that he had frequently been entrusted with large sums of cash, sometimes as much as R30 000, but that he had never misappropriated any of it. He said that the appellant's services were valued by him and that they would be retained, if possible. He clearly has confidence rn the appellant. He says that he has always trusted him and that his trust has never been abused by him,

As the appellant conceded in his evidence, Mrs Ismail is old enough to be his mother. To his credit he did subsequently express concern about her to the police after his arrest and he apologised in his evidence for what he had done to her. Fortunately she sustained no physical injuries in the robbery but she was greatly traumatised by the event. The magistrate accepted, correctly, that on the evidence the appellant did not in fact use the toy pistol in committing the robbery, nor did he threaten anybody with it. All the money in the bags was recovered, but this, of course, was not through any act of remorse or change of heart on the part of the appellant.

It is against this background that the sentence imposed by the magistrate must be considered. I am quite satisfied that the magistrate has not misdirected himself in any way in this matter. Both his judgments on the merits and on sentence are painstakingly careful and thorough. He considered all the possible sentencing options at his disposal. In essence he exercised his discretion, albeit with reluctance, and decided that he had to impose a sentence of direct imprisonment on the appellant.

The question which we now have to ponder on appeal is whether that sentence is heavier than that which we would have imposed and, if so, whether it is so much heavier as to justify our interfering with it.

Normatly robbery of this kind could be expected to attract a sentence of unqualified direct imprisonment for a medium to long term, even in the case of a first offender. However, in my view, the appellant's exceptional personal circumstances call for something of a departure from the normal in this case. I say this mainly for the following reasons.

The appellant, starting from apparently humble beginnings, has been industrious and enterprising enough over a period of some years to obtain a tertiary education and to qualify himself as a graduate in mechanical engineering. Since then he has been gainfully employed almost all the time, earning an income with which he has contributed to the support of his mother and his sister. He has improved his position even during the pendency of his trial to the extent that at the time of his trial, he was earning approximately R3 000 per week working for Johnson, which is considerably more than he was paid at Pitstop, where he received only R350 a week.

Over the last ten years or so, then, both before and after his conviction, and since the appellant reached adulthood, he has shown himself in a number of respects to be basically a useful, hardworking, responsible member of society, and he has not fallen by the wayside, save in this one instance As a result it would not, in my view, be in the interests of society for him to be incarcerated on a long or medium term basis, unless good reason therefor should be found to exist. Insofar as may be acceptable, other forms of punishment ought to be sought for him. One of these is correctional supervision in some or other form. The magistrate did, indeed, consider it, but he came to the conclusion that correctional supervision in terms of section 276(1}(h) of the Criminal Procedure Act was inappropriate in this case because its duration was restricted to a maximum of only three years. It was therefore not a suitable sentence, he found.

As for imprisonment in terms of section 276(1 )(i), the magistrate also found that that would not be an appropriate sentence because it was restricted to a maximum of only five years which, in his view, would not reflect the seriousness of the offence.

Whilst I agree with the magistrate that correctional supervision under section 276(1 )(h) would not be appropriate in the present case because of its restriction to a maximum period of three years, I am unable to agree with him that the maximum period of five years attached to a sentence in terms of section 276(1)(i) renders it inadequate in the special and exceptional circumstances of this case. The latter sentence entails a period of direct imprisonment, which I think is inevitable for the appellant. However, it need not be a long period, provided that he is a suitable candidate for correctional supervision. The Commissioner of Correctional Services may release him quite soon to serve the balance of his term of imprisonment in society, where he can continue to perform a useful function and advance himself.   Such a sentence, it seems to me, is called for in this case, not only because it would best serve the interests of the appellant (such a reason is seldom sufficient by itself in a serious case such as this), but also because society in general would, in my view, probably benefit from it. The corrupting influence of imprisonment is well known. Society probably has more to gain in this matter, in my judgment, from the appellant being kept out of prison than it has from htm being incarcerated for a medium to long term.

In addition, provided that the period of imprisonment imposed under section 276{1)(i) of the Criminal Procedure Act is less than the maximum period of five years, the balance can be imposed in the form of imprisonment which is conditionally suspended. Such suspended imprisonment can then hang over the appellant's head, as it were, and act as a further deterrent to any repetition of his crimes which he may be tempted to commit in the future.

For these reasons, had I been sitting as the Court of first instance in this matter, I would have imposed a period of imprisonment of substantially less than eight years under section 276(1 )(i), together with a further period of imprisonment, conditionally suspended. The difference between that sentence and the eight years' direct imprisonment imposed by the magistrate is very substantial.   I think that it is more than substantial enough to justify interference with the sentence by us on appeal.

In the result, the appeal will be upheld. The sentence imposed on the appellant by the regional magistrate is set aside and is substituted with the following:
"The charges are taken together for the purposes of sentence.
The accused is sentenced to 42 months' imprisonment in terms of section 276(1 }(i) of the Criminal Procedure Act, No. 51 of 1977.

In addition, he is sentenced to imprisonment for a further period of 18 months, which iatter imprisonment is suspended for five years on condition that he is not convicted of any offence of which an element is violence against the person of another, or of contravening section 2(1) of the Dangerous Weapons Act, No. 71 of 1968, committed during the period of suspension. In terms of section 12 of the Arms & Ammunition Act, No. 75 of 1969, the accused is declared to be unfit to possess a firearm".