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.

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.