Cape Town - A mugger has won his appeal to have a 15-year prison sentence for robbery with aggravating circumstances reduced after a Western Cape High Court judge found the magistrate’s original sentence to be “disproportionate and unjust”.
Shawn Hali, who was convicted and sentenced in the regional court on a charge of robbery with aggravating circumstances, in March this year, approached the high court to appeal his sentence.
Hali was found guilty of having mugged a young Cape Town College student in Plein Street in the city centre on the afternoon of September 16, 2018, threatening her with a knife while robbing her of her cellphone, which was never recovered.
He also took her back pack and other items, which the police found on him shortly after the incident.
The issue before acting Judge Daniel Thulare was whether the trial court, in imposing sentence, exercised its discretion judicially and properly.
The judge said: “The offence was committed in broad daylight in the city centre. A young, innocent, vulnerable and defenceless female student was walking to the student residence alone and became a soft target.
“In recent times a cellphone is not only a means of communication between a student and her parents for example. It is a necessary tool for studies and research.
“The right to privacy, freedom of movement as well as personal property were violated. A knife was pressed against her stomach to threaten her life and induce fear. It was a traumatic experience for a young woman,” Judge Thulare said.
He said that the sentence should reflect that their safety is a concern for the court and that the justice system will respond swiftly and appropriately.
Judge Thulare said that while the crime was a serious one, the circumstances, however, were that the degree of physical violence was minimal and for all intents and purposes amounted only to a threat of violence by wielding and pressing a knife against the body of the victim and the complainant suffered no physical injuries.
He said that while this in no way sought to undermine the trauma that such threats induced on the victim, the fact that some of the stolen items were recovered soon afterwards should have been accorded due weight by the magistrate during sentencing.
Judge Thulare said that since Hali was arrested on September 16, 2018 and was sentenced on March 5 this year, he had been in custody for about two years and six months awaiting trial.
He said this pre-conviction period of imprisonment was a relevant factor as well for the trial court to consider in relation to the proportionality of the sentence. The impact of the period on the sentence was not explored.
In his ruling he said: “In my view, had the magistrate accorded due weight to the circumstances of this case and due regard to the pre-conviction period, he would have found that the minimum prescribed sentence was disproportionate and unjust.
“The appeal on sentence is upheld. The sentence of the trial court is set aside and the accused is sentenced to 10 years’ imprisonment, antedated to March 5 2021.”