S v Hughes

• Judge: Van Rooyen R
• Judgment Date: 17 May 2004
• Docket Number: A979/03
• Hearing Date: 17 May 2004
• Court: Transvaal Provincial Division

Van Rooyen AJ:

[1] The appellant was convicted of : (1) fraud; (2) of robbery with aggravated circumstances; (3) possession of a car in conflict with section 36 of Act 62 of 1955; (4)-(9) six charges of theft of motorcars; (10) of escaping from custody and (11) robbery with aggravated circumstances.

[2] He pleaded guilty to the charges and was sentenced to the following terms of imprisonment: (1) five years; (2) 15 years; (3) two years; (4)-(9) five years each; (10) one year; (11) 15 years.

[3] The learned regional magistrate took into consideration that the appellant's childhood was not conducive to an adult life without crime, and that the appellant has cerebral palsy as well as dyslexia. Insofar as minimum sentences were prescribed for robbery with aggravating circumstances, the regional magistrate held

2004 JDR 0263 p2

Van Rooyen AJ

that there were no substantial and compelling circumstances present to reduce the minimum sentences set by Parliament. The substantial damage caused to the owners of the stolen cars was taken into consideration as an aggravating circumstance. As a result of the multiplicity of convictions the court, however, held that the sentences should run concurrently so that the effective term of imprisonment would be 15 years.

[4] The appellant stated in his grounds of appeal that the 22 months that he awaited sentence should be taken into consideration so as to reduce the effective sentence. As a result of my review function I will, however, approach the sentences from a wider angle.

[5] A Probation Officer's report was available to the Court a quo. Although it was clear that the appellant could distinguish between right and wrong and act according to such insight at the time of the crimes, I am of the view that not sufficient weight was given by the Court a quo to the obvious diminished criminal capacity of the appellant. This diminished capacity was also exploited by others at times, especially a Mr B (B). [1] A good example of such exploitation of appellant, is to be found in the first robbery charge : appellant did not wish to use a firearm but he was, according to him, convinced by B and another person to use a firearm without ammunition. Appellant was the one who would confront the complainant and rob his car, whilst B waited a half kilometer from the scene, after having dropped appellant at the scene of the crime. The fraud charge also indicates, although to a lesser extent, the influence of a third party. The role of B as an

2004 JDR 0263 p3

Van Rooyen AJ

influencing force also surfaces several times during the plea explanation of the appellant and in the Report of the...