IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

JUDGMENT

(Application for Leave to Appeal)

BINNS-WARD. J

In this matter there is before me an application for condonation for the non-appearance of the applicant for leave to appeal's legal representative on the day the application for leave to appeal was set down and the application for leave to appeal itself.

The application for leave to appeal against sentence is based on four grounds set out in the notice of application. The first ground is "that the sentence of 15 years imprisonment for one count of robbery with aggravating circumstances is shockingly inappropriate". There is no substance in that contention, the sentence imposed for the offence of which the applicant was convicted was the prescribed minimum sentence and the Court was bound to impose it unless the existence of substantial and

compelling circumstances not to do so was proven.

It could not be overlooked in having regard to that factor that notwithstanding the hesitancy referred to the accused had thereafter participated in the further conduct of the perpetrators of the offence with no indication of any intention by him to distance himself from what had occurred.

The other issues were that he was gainfully employed at the time of his arrest and that he had maintenance obligations to a minor child.Those also are, although in the ordinary sentencing sense valid considerations in the context of a minimum sentence regime not a basis to depart from it. I am not persuaded that there is a reasonable prospect that another Court would find that I had erred in not finding the existence of such circumstances.
SS24/10

The other ground on which the application was brought was that the trial court had erred in finding that there are substantial and compelling circumstances present which would allow it to impose a lesser sentence in the prescribed minimum, and then failing to do so. That ground is plainly formulated on a misreading of the judgment - I did not find the existence of any substantial or compelling circumstances to depart from the prescribed minimum sentence.