IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN1

in the matter between:
1.	
2.	
and

JUDGMENT 
(Application for Leave to Appeal)

MAQUBELA, A J:

When sentencing the appellants, the trial court said that because of the nature of the offence of which they had been convicted, namely robbery with aggravating circumstances, the court was obliged in terms of the Criminal Law Amendment Act 1997, to impose the minimum sentence of 15 years imprisonment. The Court went further to state that it could only deviate from the sentence if the court finds that there are substantial and compelling circumstances which warrant a lesser sentence. Also ft has been stated in numerous High Court cases that these sentences should not be lightly deviated from, because they should be the benchmark when considering sentences.

"A  very   impressive   career   with   regard   to   his criminal activities." 

The grounds of appeal are as follows:

1, 	The appellant's financial status and their social circumstances should be regarded as mitigating factors rather than 	aggravating ones. 
2.	The trial court put undue emphasis on the 	seriousness of the crime and the deterrent attributes of the sentence.

3.	
4.	The trial court should have taken into consideration the following:

(a)	The complainant suffered minima! economic Eoss.
(b)	A toy gun was used in the crime.
(c)	Punitive effect of a long term prison sentence would have a multiple adverse effect as both the 	appellants have dependants and were employed at 	the time of the commission of the crime.
(d)	The special circumstances of the case require that the sentences should be tampered with mercy.

Now, in addition, the trial court over-emphasised the interest of society above the personal circumstances of the appellants and the special circumstances of the case. It is then submitted that this Court should set aside the sentence and substitute same with a more appropriate one.   This Court is, however, asked by the respondent to confirm the conviction and dismiss the appeal.

"If the sentencing court on consideration of the circumstances of the particular case is satisfied that they rendered the prescribed sentence unjust and that it would be disproportionate of the crime, the criminal and the needs of society so that any justice would be done by imposing that sentence, the court is entitled to impose a lesser sentence. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed, paying due regard to the benchmark which the legislature has provided."

The relevant Section 51(2)(a) of the Criminal Law Amendment Act, 105 of 1997, provides that a third or subsequent offender of any such offence should be sentenced to imprisonment for a period not less than 25 (twenty five) years. This is obviously applicable to second appellant, but would be grossly disproportionate to the offence in question.

The balance which has to be struck in a case like this present one takes into account the crime itself, the degree of its specific seriousness as opposed to the general regard to its nature.

ALLIE, J