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

In the matter between:

BOZALEK, J:

The appellant unsuccessfully sought leave to appeal from the magistrate against conviction and sentence. On petition to this court, leave was granted to appeal against sentence only. The facts are briefly as follows. On 13 May 2003, Ms Anja Badenhorst, the complainant, dropped a friend off at 01:00 a.m. in Barnard Street, Beltville. She had stopped on the side of the road in front of a shop. While the complainant was seated in the car, a stone was thrown through the driver's window. Thereafter a hand reached in to grab the keys out of the ignition. The door was opened and she was pulled out of the vehicle. Her friend was also pulled out on the passenger side.

The evidence indicates that three men were involved in the incident. The complainant tried to grab the keys back, but was not successful. She grabbed her jacket out of the car as her cell phone was in the pocket. She was thrown to the ground in the struggle that ensued. Complainant got up and ran around the corner to call the police. When she returned, her friend approached her and they returned to the vehicle. The key was still in the ignition. The attempted robbery had been foiled by the vehicle's immobiliser. The complainant felt a sharp pain in her shoulders and discovered three puncture wounds on her back. The complainant's handbag carrying the keys to her flat was stolen.   She, however, retrieved these when her handbag was found in another vehicle driven by the appellant and carrying two others.

On the same night a Mr J P Swart was driving a Toyota Conquest in Herbert Street in the area nearby Barnard Street, Bellville, when two men stepped in front of his vehicle. Upon stopping his vehicle, a third man attacked him with a screwdriver. Swart tried to drive away and realised that his female passenger was being pulled out of the vehicle by the other men. These men were engaged in a struggle with her for her cell phone. Swart got out and grabbed his keys out of the ignition. He ran to assist his friend and to retrieve her cell phone from the men struggling with her.

During this time one of the men drove off with his vehicle and Swart discovered that the keys had remained in the ignition, since the key ring had become detached from the keys when he tried to grab them out of the ignition. A policeman who lived close by drove them around the area to search for the vehicle. The eventually came upon an accident involving Swart's stolen vehicle and a police vehicle. His vehicle's windows were broken, the lights were shattered and it was punctured with bullet holes. The passenger, Ms Marlise Vivier, testified that one of the men tried to grab her cell phone and threw her to the ground in the struggle. She would not give up her cell phone and the men banged her head on the tarmac. They then drove off in Swart's Conquest.

The appellant was 20 years old when the offences were committed. He was not married and has a six year old child who lives with her mother. He reached Grade 10 but failed the exams because he did not write the midyear exams in June as he was in custody on these charges in that particular year. He studied motor mechanics briefly but stopped due to a lack of finances. None of the above circumstances, individually or combined, was regarded as substantial and compelling circumstances by the magistrate.

In this regard it should be said that the magistrate was highly sceptical of several aspects of the appellant's evidence including his rehabilitation and his reasons for committing the crimes. From a careful reading of the record this scepticism is, in my view, largely unjustified and based upon an incorrect or somewhat superficial assessment of the evidence in mitigation of sentence. It is, however, an aggravating circumstance that the women in both vehicles were attacked and sustained injuries during the incidents. While the magistrate recognised the seriousness of the offences and found that such offenders are not welcome in the community, his frustration at the level and prevalence of crime appears to have weighed too heavily in comparison to other factors relevant to sentence and the existence of substantial and compelling circumstances.

Nor did the magistrate appear to have adequate regard to the fact that the appellant now earns a regular income and is using it for the benefit of his mother and child. There is no evidence indicating that his financial contribution is sporadic. The court noted that shots had been fired in the incident, that one of the appellant's friends had been killed and that the appellant had been shot but concluded that there was no long term effect according to the appellant's evidence.

This view appears to place little or no weight on the appellant's evidence that the incidents and the loss of his best friend impacted on him to such an extent that he decided to change the course of his life and manifested this by finding employment and contributing financially to his mother's home as well as his child's maintenance. Thus the appellant's stable employment   and   regular   income   and   contribution  to   two households was ignored in the magistrate's view that the appellant contributed only sporadically to maintenance of his mother and child.

The magistrate erred, in my view, in according undue weight to the nature of the offences and the interest of society and having insufficient regard to the offender as a person, including most notably his prospects of rehabilitation, itself an important consideration in assessing the interests of society. Further, in my view, the magistrate's error in underemphasising certain factors and overemphasising others amounted to a misdirection in the determination of whether substantial and compelling circumstances existed. These misdirections were material.    I do not consider, however, that any serious fault can be found with the sentences imposed on counts 2 and 3.

In the light of the above I consider that this court is justified in intervening in relation to the sentence imposed on the first count. Having regard to ail relevant factors, I consider that substantial and compelling circumstances exist which justify a departure from the minimum sentence and further that a sentence of eight years imprisonment on count 1 is appropriate. Accordingly the following order is proposed
1.	the appeal against sentence in respect of count 1 is upheld and the sentence of 15 years imprisonment is set aside and substituted with a sentence of eight years imprisonment.
2.	the sentence of five years imprisonment on count 2 is confirmed as is the sentence of R3 000,00 or two years imprisonment on count 3.
3.	the order that three years of the sentence on count 2 is to run concurrently with the sentence on count 1 is confirmed, with the result that the effective sentence imposed upon the appellant is one of 10 years imprisonment.   The substituted sentence is antedated in terms of section 282 of the Criminal Procedure Act 51 of 1977 to 26 August 2008.

FOURIE, J