S v Sobandla

• Jurisdiction: South Africa
• Citation: 1992 (2) SACR 613 (A)

S v Sobandla
1992 (2) SACR 613 (A)

1992 (2) SACR p613

Citation	1992 (2) SACR 613 (A)
Court	Appellate Division
Judge	Howie AJA
Heard	September 14, 1992
Judgment	September 22, 1992
Counsel	W L Kingsley for the appellant (at the request of the Court); M J de Jager for the State

Flynote : Sleutelwoorde

B Housebreaking — Housebreaking with intent to rob and robbery — Sentence — Accused sentenced in regional court to eight years' imprisonment after conviction for housebreaking with intent to rob and robbery and common assault — Accused, in his early forties, married and with children, assembling three teenage youths and breaking into home of shopkeeper, a C former business acquaintance, tying up shopkeeper's wife and children and taking R180 in cash from wife's handbag — Accused thereafter surrendering himself to police and apologising profusely to shopkeeper although afterwards denying his guilt until late in his trial — At time of offence accused in desperate financial straits, with insufficient money to feed his wife and children — Three previous convictions proved against accused, one being ignored and other two occurring when accused already in D financial difficulties — Trial court weighing up aggravating factors as against mitigating factors and of opinion that prevalence of offence in its area of jurisdiction warranting, in interests of community, gaol sentence of exemplary duration to deter others and to protect society — Appeal Court finding that mitigating circumstances not accorded due weight and that accused sacrificed on altar of deterrence, resulting in his E receiving unduly severe sentence — Court holding that all jurisprudential aims of punishment would be served by sentence of five years' direct imprisonment and three years' suspended imprisonment.

Sentence — Imposition of — Factors to be taken into account — Prevalence of offence and interests of community — Trial court weighing up aggravating factors as against mitigating factors and of opinion that F prevalence of offence in its area of jurisdiction warranting, in interests of community, gaol sentence of exemplary duration to deter others and to protect society — Mitigating circumstances not accorded due weight and accused sacrificed on altar of deterrence, resulting in his receiving unduly severe sentence — Where this occurring in quest for exemplary G sentence, trial court exercising its discretion improperly or unreasonably.

Headnote : Kopnota

The appellant had been convicted in a regional court of housebreaking with intent to rob and robbery and of common assault. The two counts were taken together for purposes of sentence and he was sentenced to eight years' imprisonment. His appeal against the sentence having been dismissed by a H Provincial Division, the appellant appealed to the Appellate Division. It appeared that the appellant, a man in his early forties, had assembled three teenage youths for the purpose of breaking into the home of a shopkeeper at about 18:30 on a winter's evening when, to the appellant's knowledge, the shopkeeper would still be at his shop. The appellant provided everyone with balaclavas and handed one of the youths a knife, I another of the youths being similarly armed. The gang thereupon proceeded to the shopkeeper's house and rang the bell. When his wife opened the door they forced their way in, bound and gagged her, tied up her young children and searched the house for money, taking R180 in cash from her handbag. While they were thus engaged the shopkeeper returned home and as the gang fled he apprehended one of the youths. The appellant surrendered himself J to the police at 04:00 the next morning and

1992 (2) SACR p614

A asked to see the shopkeeper, whom he knew well and with whom he had had many business dealings when he, the appellant, had been a shopkeeper himself. He apologised to him profusely for what had happened and explained that he had planned and carried out the robbery because he was in desperate financial straits, with insufficient money to buy food for his wife and children.

B The evidence disclosed that the mid-1980s unrest in the local black community, together with accompanying trade boycotts, had ruined appellant's business. He had then tried to make money by gambling but repeated losses had only worsened his position. Illness in his family had caused mounting medical bills which he was unable to pay and the prospects were that all his assets would be attached at the instance of his C creditors. At the trial the appellant pleaded not guilty and contested the incriminating evidence against him until late in the hearing, when he relented and in abject terms admitted his guilt in all respects. Three previous convictions were proved against the appellant, the first being ignored, the second, in 1986, having resulted in a fine and the third, some four months before the present incident, having attracted a suspended D sentence. In assessing sentence, the trial court emphasised the appellant's record and the obvious aggravating features of the case; treated the case as one of armed robbery despite the absence of evidence that knives were brandished, or even produced, at any stage; considered that the pursuit of a false defence rendered appellant's professed remorse equivocal; and was of the opinion that the prevalence of housebreaking and E robbery in its area of jurisdiction warranted a gaol sentence of exemplary duration to deter others and to protect society.

Held, that while the appellant had obviously been grossly misguided...