IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT)

CASE NO: A143/2010
In the appeal of:

vs

[2] The charge had been read with the provisions of section 51 of the Criminal Law Amendment Act, ("the Act"), which prescribes a minimum sentence of 15 years to be imposed on first offenders for such robbery upon conviction. The trial court found that there were no substantial and compelling circumstances warranting deviation from the prescribed sentence and proceeded to impose a sentence of 15 years direct imprisonment.

[3] The state's evidence was briefly that on 9 January 2006 the complainant was working at Fred's Discount Store as a cashier. At about 2 o'clock in the afternoon the appellant entered the shop and asked for the price of cinnamon. He said he wanted to buy it but did not have money and stepped outside to wait for the child to give him money. It was quiet in the shop. Complainant was restless as the manner in which the appellant carried himself and addressed her was domineering. Appellant came in again asking for water. Complainant told him she could not leave the shop. He went out again. He came back again with his hands in the pocket. He then took out a firearm and loaded it and pointed it at the complainant and demanded money or complainant's life. He demanded only bank notes. Complainant put the money on the till. Appellant took it and ran away. Complainant then got a chance to press the panic button. The amount stolen was R400.00. As a result of the incident complainant suffered nightmares and was traumatized by the incident.

[4] The following grounds of appeal were raised on behalf of the appellant:

[7] It is not for the courts to simply impose the prescribed minimum sentence without probing into circumstances relevant to the offence at hand. Judicial officers are required to reflect on the sentences they should impose. It is incumbent upon a court in every case, before it imposes the prescribed sentence, to assess upon a consideration of all the circumstances of a particular case, whether it is indeed proportionate to the particular offence. Robberies vary widely in terms of their nature, their consequences, the items stolen, the mode of commission, the degree of violence used, the nature and extent of injuries inflicted on the victims and the impact they have on the victims and their families.

[12]   The following are aggravating circumstances:

[13]   The following are mitigating factors:
(i) 	The appellant was 20 years old at the time of the commission of the offence.

[14] By their nature, the mitigating factors far outweigh the aggravating factors. Furthermore, I have identified the following as substantial and compelling circumstances warranting deviation from the prescribed minimum sentence:
a)	This is not the type of robbery envisaged by the Criminal Law Amendment Act 105 of 1997.
b)	Except for the traumatic consequences of an offence, no physical injuries were caused to the complainant.
c) An amount of R400.00 was stolen.
d) The mode of commission of the offence reflects clouded judgment on the part of the appellant.

"Court's are required to approach the imposition of sentence conscious that the Legislature has ordained the particular prescribed period of imprisonment as the sentence that should ordinarily be imposed, for listed crimes in specific circumstances, in the absence of weighty justification. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypothesis favourable to the offender, undue sympathy, aversion to imprisonment of first offenders, personal doubts as to efficacy of the policy underlying the legislation and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded".

[19] The circumstances surrounding the commission of the offence suggest that it was premeditated and planned. The only appropriate sentence is that of direct imprisonment in view of the appellant's previous convictions, seriousness and prevalence of the offence nationwide.

[20] In cases of serious crimes, the personal circumstances of an offender do not come to the fore.

"In what respects was it no longer to be business as usual? First, a court was not to be given a clean slate on which to inscribe whatever sentence it thought fit. Instead, it was required to approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances. In short, the Legislature aimed at ensuring a severe, standardized, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response. When considering sentence the emphasis was to be shifted to the objective gravity of the type of crime and the public's need for effective sanctions against it. But that did not mean that all other considerations were to be ignored. The residual discretion to decline to pass the sentence which the commission of such an offence would ordinarily attract plainly was given to the courts in recognition of the easily foreseeable injustices which could result from obliging them to pass the specified sentences come what may"

[23] I acknowledge the psychological impact the incarceration has on appellant's two minor children and the statement that he supported them. At the time he committed the offence he knew of his responsibility towards his children. He cannot shelter behind the children and avoid appropriate punishment. He has not been shown to be the primary caregiver for the children.

[24] A substantial period of ten years imprisonment seems to me to be sufficient to bring home to the appellant the gravity of his offence, and to exact sufficient retribution for his crime. Fifteen years is grossly disproportionate.

[25]   In the circumstances I propose the following order:
a)	The conviction is confirmed.
b)	The appeal against sentence succeeds.
c) 	The sentence imposed on the appellant is set aside and is substituted as follows:
The accused is sentenced to undergo 10 (ten) years imprisonment. The sentence is backdated to 15 May 2007.

								NGWEWU, A J

I agree with the outcome, but for different reasons which I prepared in writing. I hand down those reasons to form part of the record.