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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

In the matter between Case No: CA & R 244/07

RONALDO MAGIDIGIDI Appellant

And

THE STATE Respondent

Date Heard: 21 May 2008

Date Delivered: 23 May 2008

Summary: Appeal against sentence – minimum sentencing provisions neither referred to in charge sheet nor during trial – application of Act – whether sentence in excess of prescribed one competent.

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JUDGMENT

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CHETTY, J

[1] The appellant was arraigned for trial in the regional court, Port Elizabeth on a charge of robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act 51 of 1977 and two further charges under the Firearms Control Act 60 of 2000. He was acquitted on the latter charges but convicted of robbery simpliciter and sentenced to imprisonment for seven years. He now appeals, with leave granted by this court against the sentence.

[2] Before considering the merits of the appeal it is necessary to restate that the offence of robbery with aggravating circumstances is listed in Part II of Schedule 2 to the Criminal Law Amendment Act 105 of 1997 (the Act), a conviction of which attracts a mandatory sentence of 15 years imprisonment (s 51 (1) (b) (i)) absent a finding of substantial and compelling circumstances as envisaged by s 51 (3). Neither the charge sheet, the transcript of the proceedings (prior to the judgment on the application for leave to appeal) nor the judgments, both on the merits and sentence contain any reference to the minimum sentence provisions in s 51 of the Act. Such omission is however in the present context of no real moment. Whilst it is desirable that statutory sentencing provisions be reflected in a charge sheet there is no suggestion that its omission rendered the appellant’s trial unfair. At no stage during the proceedings did the state seek to invoke the machinery of the Act. It was only during his judgment on the application for leave to appeal that the magistrate realised that the Act was of application but by then the trial had been concluded and the appellant sentenced. The latter had been convicted of robbery simpliciter and although such offence fell within the purview of Part IV of Schedule 2 and for which a minimum sentence of 5 years was prescribed (s 51 (2) (c) (i)), the trial court sentenced the appellant to seven years imprisonment.

[3] I have considered the implications of the aforestated omissions in the charge sheet by reason of the submission by counsel for the state that the magistrate had misdirected himself on the facts by finding that the state had failed to prove that the robbery had not been committed with aggravating circumstances. It is unnecessary to consider this issue. There is no appeal by the state against the magistrate’s finding hereanent and the conviction stands. In opposing the appeal for a reduction of sentence counsel for the state submitted that it is implicit from the judgment that in imposing a sentence of seven years imprisonment, the magistrate in effect found that there were substantial and compelling circumstances which warranted a departure from the prescribed sentence of fifteen years imprisonment (s 51 (2) (a) (i)). Consequently the appellant could scarcely be heard to complain. In the alternative, counsel submitted that the matter be remitted to the trial court for it to consider afresh the question of substantial and compelling circumstances.

[4] The difficulty I have with the submission is twofold – firstly, by submitting that the imposition of a lesser sentence than that prescribed by s 51 (2) (a) (i) impliedly suggests that the magistrate in effect made a finding that there were substantial and compelling circumstances would be speculative in the extreme. The judgments show that the magistrate was oblivious to the minimum sentence provisions and to attribute such knowledge to him by virtue of the sentence ultimately imposed is unwarranted. Secondly, the appellant was not, as adumbrated above, convicted of an offence listed in Part II of Schedule 2. The appeal must be determined as if Act 105 of 1997 was not of application.

[5] The thrust of the argument advanced on behalf of the appellant is that the latter’s personal circumstances were accorded insufficient weight particularly when adjudged against the fact that a minimal amount of money was robbed from the complainant who, save for having been tripped, suffered no serious injury. The evidence adduced however establishes that this was a brazen daylight robbery committed by the appellant and his cohort who was armed with a firearm. They clearly acted with a common purpose, the appellant tripping the complainant, his partner in crime pointing the firearm at the hapless victim thus affording the appellant the means and opportunity to rob the complainant of his possessions. However meagre the spoils of their endeavours were, this factor does not in my view amount to a mitigating circumstance. The fact remains the complainant was unceremoniously flattened, throttled and robbed. The offence was serious and one for which direct imprisonment, given the prevalence of such offences, pre-eminently called for. Notwithstanding the appellant’s age and the fact that he is a first offender I an unable to conclude that the magistrate misdirected himself or that the sentence imposed induces a sense of shock. There is no proper basis warranting interference and in the result the appeal against sentence is dismissed.

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D. CHETTY

JUDGE OF THE HIGH COURT

Roberson, AJ

I agree.

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J.M ROBERSON

ACTING JUDGE OF THE HIGH COURT

Obo the Appellant: M.G McCullum

Obo the Respondent: J.E Van Heerden

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