Williams v S (A223/2010) [2010] ZAWCHC 428 (4 July 2010)
- Citation
- [2010] ZAWCHC 428
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Western Cape High Court, Cape Town
- Panel
- Allie, R Jaga
- Case number
- A223/2010
More details
- Court
- Western Cape High Court, Cape Town
- Panel
- Allie, R Jaga
- Case number
- A223/2010
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the appellant's youthfulness at the age of 18 is a substantial and compelling circumstance justifying deviation from the prescribed minimum sentence for robbery with aggravating circumstances. The court found that the magistrate's failure to treat youthfulness as a mitigating factor was a misdirection. While the trauma suffered by the complainants and the use of a firearm were aggravating, the absence of physical injury and the appellant's status as a first offender warranted a lesser sentence. The sentences of 15 years' imprisonment on each count were set aside and replaced with 10 years' imprisonment on each count, to run concurrently.
Court disposition
Appeal against sentence upheld. Sentences reduced.
Orders
- The sentences of 15 years' imprisonment on each count are set aside.
- The appellant is sentenced to 10 years' direct imprisonment on count 1.
- The appellant is sentenced to 10 years' direct imprisonment on count 2.
- The sentence on count 2 shall run concurrently with the sentence imposed on count 1.
02
Material facts
Parties
Shaun Williams
AppellantThe State
RespondentAmounts and remedies
- Sentence on Count 1 (years): 10
- Sentence on Count 2 (years): 10
03
Procedural history
Posture
Criminal Appeal / Appeal Against Sentence
04
Questions and positions
Legal issues
- 01
Whether the prescribed minimum sentence for robbery with aggravating circumstances should be imposed on an 18-year-old first offender.
- 02
Whether youthfulness constitutes a substantial and compelling circumstance justifying deviation from the minimum sentence.
- 03
Whether the absence of physical injury to the complainants is a mitigating factor.
Party arguments
- Applicant
- The appellant argued that his age of 18 years and status as a first offender should be considered substantial and compelling circumstances warranting a lesser sentence than the prescribed minimum. He contended that the absence of physical injury to the complainants further justified leniency.
- Respondent
- The respondent maintained that the minimum sentence prescribed by Act 105 of 1997 applies to first offenders and that neither youthfulness nor lack of injury constitutes substantial and compelling circumstances. The respondent argued that the trauma suffered by the complainants and the use of a firearm justified the sentences imposed.
05
Court’s reasoning
Legal principles
- 01
Act 105 of 1997
A court may deviate from the prescribed minimum sentence if substantial and compelling circumstances are present, including youthfulness.
- 02
S v Malgas 2001 (1) SACR 469 (SCA)
The use of a firearm in the commission of robbery aggravates the seriousness of the offence, regardless of whether physical injury occurs.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the appellant's youthfulness at the age of 18 is a substantial and compelling circumstance justifying deviation from the prescribed minimum sentence for robbery with aggravating circumstances. The court found that the magistrate's failure to treat youthfulness as a mitigating factor was a misdirection. While the trauma suffered by the complainants and the use of a firearm were aggravating, the absence of physical injury and the appellant's status as a first offender warranted a lesser sentence. The sentences of 15 years' imprisonment on each count were set aside and replaced with 10 years' imprisonment on each count, to run concurrently.
Obiter and limits
- The lack of injuries to the complainants is attributable to their co-operation rather than any goodwill on the part of the perpetrator.
- Robbery with a firearm, even without physical injury, cannot be equated to theft in terms of its impact on victims and society.
Court disposition
Appeal against sentence upheld. Sentences reduced.
- The sentences of 15 years' imprisonment on each count are set aside.
- The appellant is sentenced to 10 years' direct imprisonment on count 1.
- The appellant is sentenced to 10 years' direct imprisonment on count 2.
- The sentence on count 2 shall run concurrently with the sentence imposed on count 1.
Source and reliance status
Western Cape High Court, Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Western Cape High Court, Cape Town
Judgment
IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: A223/2010
In the matter between:
SHAUN
WILLIAMS …...........................................................................Appellant
Versus
THE
STATE ….................................................................................Respondent
JUDGMENT DELIVERED 4 JULY 2010 Allie, J [1] The appellant was charged with two separate counts of robbery with aggravating circumstances in that he allegedly used a firearm to rob each complainant on a separate occasion, each of their cellphones. The offences were committed 2Vz weeks apart. [2] He was convicted on both counts and sentenced to 15 years imprisonment on each count. The sentences were ordered to run
concurrently. He appeals against the sentences only. [3] The court a quo found that Act 105 of 1997 in which is prescribed a minimum sentence for the offence, already determined a sentence of 15 years imprisonment for a first offender. The magistrate accordingly believed that the legislature had already provided for a first offender and the fact that this was his first offence, was not a substantial and compelling factor. [4] The court a quo went on to conclude that the appellant's age of 18 years was not a mitigating factor. The court a quo said that it had shown mercy by making the sentences run concurrently. [5] While the complainants were not injured, there is no doubt that they were traumatised by being threatened with a firearm. [6] The appellant and society at large have to accept that the lack of injuries are not due to the good will of the perpetrator, but in this case it can be ascribed to the co-operation of the complainants. [7] The offence of robbery where a firearm is used but no one is injured cannot be reduced in its impact upon the victim and society at large to the offence of theft. [8] However, the youthfulness of the offender in this case the age of 18 years cannot be ignored as it is a mitigating factor which serves as a substantial and compelling circumstance to justify a deviation from the prescribed minimum sentence. I accordingly find the court
a quo's dismissal of this mitigating factor to be a misdirection. [9] I would set aside the sentences imposed and replace them with the following sentence. [10] The appellant is ordered to serve the following sentence: 10.1. On count 1,10 years direct imprisonment. 10.2. On count 2,10 years direct imprisonment. [11] The sentence on count 2 shall run concurrently with the sentence imposed on count 1. ALLIE, J I agree R JAGA, AJ
JUDGMENT DELIVERED 4 JULY 2010
Allie, J
[1] The appellant was charged with two separate counts of robbery with aggravating circumstances in that he allegedly used a firearm to rob each complainant on a separate occasion, each of their cellphones. The offences were committed 2Vz weeks apart.
[2] He was convicted on both counts and sentenced to 15 years imprisonment on each count. The sentences were ordered to run
concurrently. He appeals against the sentences only.
[3] The court a quo found that Act 105 of 1997 in which is prescribed a minimum sentence for the offence, already determined a sentence of 15 years imprisonment for a first offender. The magistrate accordingly believed that the legislature had already provided for a first offender and the fact that this was his first offence, was not a substantial and compelling factor.
[4] The court a quo went on to conclude that the appellant's age of 18 years was not a mitigating factor. The court a quo said that it had shown mercy by making the sentences run concurrently.
[5] While the complainants were not injured, there is no doubt that they were traumatised by being threatened with a firearm.
[6] The appellant and society at large have to accept that the lack of injuries are not due to the good will of the perpetrator, but in this case it can be ascribed to the co-operation of the complainants.
[7] The offence of robbery where a firearm is used but no one is injured cannot be reduced in its impact upon the victim and society at large to the offence of theft.
[8] However, the youthfulness of the offender in this case the age of 18 years cannot be ignored as it is a mitigating factor which serves as a substantial and compelling circumstance to justify a deviation from the prescribed minimum sentence. I accordingly find the court a quo's dismissal of this mitigating factor to be a misdirection.
[9] I would set aside the sentences imposed and replace them with the following sentence.
[10] The appellant is ordered to serve the following sentence:
10.1. On count 1,10 years direct imprisonment.
10.2. On count 2,10 years direct imprisonment.
[11] The sentence on count 2 shall run concurrently with the sentence imposed on count 1.
ALLIE,
J
I agree
R JAGA, AJ
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