South Africa: Western Cape High Court, Cape Town

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Tom v S (A450/2011) [2011] ZAWCHC 550 (25 November 2011)

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JUDGMENT

SABA, AJ:

This is an appeal against sentence imposed by a regional magistrate sitting in Wynberg on 12 May 2009. Appellant was legally represented throughout the proceedings. He was convicted on a charge of robbery with aggravating circumstances and sentenced to 15 years imprisonment. With the leave of the court a quo he now appeals against sentence.

Evidence led on behalf of the state established that the appellant had, on the evening of 4 February 2008, robbed the complainant of his vehicle and other items. Having found no substantial and compelling circumstances justifying a departure from the prescribed minimum sentence, the court imposed a sentence of 15 years imprisonment.

Counsel for the appellant submitted that the court a quo erred in not taking into account the following circumstances sufficiently, that the appellant is a first offender, he had been in custody awaiting trial for a period of one year and three months before he was sentenced, no injuries were inflicted on the complainant and that the motor vehicle was recovered.

I am in agreement with that submission. In my view the court a quo misdirected itself in not considering the circumstances I have just mentioned above as substantial and compelling circumstances justifying a departure from the prescribed minimum sentence. That is a misdirection which entitles this court to consider the sentence afresh.

In arriving at an appropriate sentence, I have considered the circumstances of the offence and the personal circumstances of the appellant as they appear from the record and for the reasons already stated, I propose the following order:

1. The appeal against sentence should succeed.

2. The sentence imposed by the trial court is replaced with the following: APPELLANT IS SENTENCED TO EIGHT (8) YEARS IMPRISONMENT.

SABA, AJ

I agree. The order of court is as follows: The appeal against sentence is successful. The sentence imposed by the court a quo is set aside and it is substituted as follows: The appellant is sentenced to eight years direct imprisonment.

HLOPHE, JP