Sifunda v S (CA&R123/09) [2009] ZAECGHC 89 (25 November 2009)

4

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

CASE NO: CA&R123/09

DATE HEARD: 25/11/09

DATE DELIVERED:25/11/09

NOT REPORTABLE

In the matter between:

LUYANDA SIFUNDA APPELLANT

and

THE STATE RESPONDENT

JUDGMENT

PLASKET J

[1] The appellant was convicted in the Regional Court, Port Elizabeth of robbery with aggravating circumstances. He was sentenced to 15 years imprisonment, the prescribed minimum sentence for that offence in terms of the Criminal Law Amendment Act 105 of 1997. He appeals against sentence.

[2] The facts are that, on the night of 20 July 2008, the complainant caught a taxi driven by the appellant. His companion pointed a firearm at her, pressing the barrel against her forehead. This man took the complainant’s cellphone and handed it to the appellant. Her handbag containing bank cards, her identity document and her purse was also taken.

[3] The appellant and his companion showed no sign of allowing the complainant to leave the taxi so she took the initiative: she opened the door and jumped out of the moving taxi. Not surprisingly she suffered various abrasions as a result. Her wounds were treated in hospital and she was discharged.

[4] In his judgment on sentence the magistrate took into account that the appellant’s victim was a vulnerable young woman who was robbed while using a public transport system and that ‘dit kan nie in ʼn geordende gemeenskap toegelaat word dat persone wat aan die gemeenskap ʼn diens verrig en daarvoor vergoed word, op hierdie wyse teenoor weerlose jong dames optree nie’. He considered the robbery to be a serious one in the circumstances.

[5] He also took into account the personal circumstances of the appellant: that, at 29 years of age, he was reasonably young; that he had passed matric; that he worked as a taxi driver, earning R350.00 per week; that he has a dependant minor child whom he maintains; and that he had spent seven months in custody.

[6] On the basis of all of these facts, the magistrate concluded that no substantial and compelling circumstances were present to justify a departure from the prescribed minimum sentence of 15 years imprisonment.

[7] A court of appeal does not have a free hand to interfere with the sentence imposed by a trial court. It may only do so if the sentence is vitiated by misdirection or, in the absence of any specific misdirection, if the sentence is so severe as to induce a sense of shock.

[8] A sentence that is prescribed by the Criminal Law Amendment Act for a particular offence is ordinarily to be imposed – see S v Malgas 2001 (1) SACR 469 (SCA), at paragraphs 8 and 25B -- and is not to be departed from lightly or for flimsy reasons – see S v Malgas at paragraphs 9 and 25D. If, however, the prescribed sentence, is unjust, in the sense of being ‘disproportionate to the crime, the criminal and the needs of society’ that, in itself, is justification for a departure from the prescribed sentence. See S v Malgas at paragraph 25I.

[9] In this instance, the magistrate has correctly recognised the seriousness of the offence: the appellant took advantage of his position as a taxi driver to look for and rob a vulnerable woman on her own. It is also clear from the record that the crime was planned in advance. As against the seriousness of the offence, the personal circumstances of the appellant tend to pale.

[10] In my view, the magistrate did not misdirect himself in finding that no substantial and compelling circumstances were present. As the sentence is furthermore proportionate to the ‘crime, the criminal and the needs of society’, it cannot be said to be so severe as to induce a sense of shock.

[11] In the result, the appeal is dismissed and the sentence is confirmed.

_______

C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

J. J. NEPGEN