In the matter between:

And

MEER, J

				JUDGMENT

[3] The grounds of appeal in essence are that the sentence of 40 years' imprisonment was grossly disproportionate, that substantial and compelling circumstances for departing from the prescribed minimum sentences ought to have been found, that the magistrate erred in not considering a sentence of correctional supervision and, moreover, in not considering the consecutive serving of the sentences.

[6] Substantial and compelling circumstances were found to exist in respect of accused 1. Whilst the judgment refers to consideration being taken of appellant's personal circumstances, these circumstances are not apparent from the judgment. Cognisance was taken also of appellant's previous conviction in 1994 for housebreaking with the intention to steal and theft, for which he was given a four year suspended sentence during which period the instant offences were committed. The learned magistrate moreover aptly emphasised the serious nature and impact of armed robbery, the interest of society and rated appellant's prospects for rehabilitation as slim. In the case of appellant there were found to be no substantial and compelling circumstances.

[7] I am unable to fault the magistrate's reasoning for distinguishing the respective sentences imposed on the appellant and each of his co-accused, taking into consideration their respective roles in the commission of the offences. It would, however, seem that notwithstanding the serious nature of the offences, cognisance was not taken of the fact that appellant had already spent four years in prison which, together with hts personal circumstances, a man of 23 years with one previous conviction ought, at the very least, to have resulted in the concurrent operation of the sentences imposed, an option which the magistrate considered but did not exercise. The cumulative effect of the sentences, namely 40 years' direct imprisonment, can be said to be excessive in all of the circumstances. The learned magistrate ought to have provided for the concurrent running of the sentences. I note that the magistrate correctly pointed out that a sentence of correctional supervision was not permissible given the application of the minimum sentence legislation to the offences.

[8] Regard being had to the above 1 would, on appeal, accordingly substitute the sentence imposed upon the appellant with a sentence as follows:

The sentences in respect of counts 1 and 3 shall
run concurrently.
The sentences in respect of counts 2 and 4 shall run concurrently.
The appellant is accordingly sentenced to an effective term of 20 years' imprisonment.

[10] In respect of accused 1, Peter Moosak, 1 substitute the sentences imposed with the sentence as follows:

The sentences in respect of counts 1 and 3 shall run concurrently.
The sentences in respect of counts 2 and 4 are suspended for four years on condition that accused 1 is not found guilty of the contravention of section 2 of Act 75 of 1969 committed during the period of suspension.
Accused 1, Peter Moosak, is accordingly sentenced to an effective period of 10 years' imprisonment".

The sentences in respect of counts 1 and 3 shall
run concurrently.
The sentences in respect of counts 2 and 4 are suspended for four years on condition that accused 2 is not found guilty of the contravention of section 2 of Act 75 of 1969 committed during the period of suspension.

MEER, J