IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

JUDGMENT

BOZALEK, J

"In terms of Section 309(C)(7) of Act 51 of 1977 as amended the petition/application is refused."

The terms of the order are puzzling, at least insofar as the appellant is concerned, since, on a perusal of both the appeal file and the petition file, there appears to be no record of any petition proceedings having been launched by appellant.

I shall restrict myself to the circumstances of the appellant since the second accused's legal representative, ie I am referring to Mr
Gershwin Sauls, Advocate Joubert, has withdrawn accused number 2's appeal which has accordingly been struck from the roll.

"The rule is that judicial decisions will ordinarily stand until set aside by way of an appeal or review, but to that rule there are certain exceptions, one of them being that where a decision is given without jurisdiction it may be disregarded without the necessity of a formal order setting it aside."

The circumstances of the robberies were that the appellant and his two fellow accused approached a group of persons enjoying the amenities at Firgrove dam and robbed two of them at gunpoint. The first victim, a woman, was robbed of a watch and jewellery and cash to the value of some R5 000. When her companion hastened to her assistance he was robbed of sunglasses and petty cash to the value of some R650. No injuries of any significance were caused to any of the complainants and a ring and a small amount of cash was recovered from the accused who were arrested very shortly after the incident.
At the time of sentencing the appellant's only previous conviction was for the possession of cannabis in 1998 for which he received a fine. He was unmarried with no dependants. The magistrate treated the appellant as a first offender, finding furthermore that his role in the robbery was no greater than those of his fellow accused. The magistrate correctly viewed the offences in a serious light and thus justifying direct imprisonment. There is however no indication in his sentencing remarks that he considered ordering that all or part of the sentence imposed on count 2 run concurrently with that on count 1.

Such an approach was in my view clearly indicated in the present matter, since the two robberies were closely associated in time and place. In the light of the appellant's youth, his comparatively cfean record and the fact that the robberies appear to have been opportunistic rather than planned, I am of the view that the total sentence of 14 years imprisonment imposed on appellant indeed induces a sense of shock and justifies this Court interfering.

tn the result this Court is at large to impose a sentence which it considers appropriate. In my view the sentence imposed upon the appellant in respect of count 1 - seven years, was in itself weighty and, for justice to be served, a substantial portion of the sentence imposed in respect of count 2 should run concurrently with that in respect of count 1.

The appeal against sentence is upheld, the sentence imposed being substituted by the following:

Count 1-7 (seven) years imprisonment; Count 2-7 (seven) years imprisonment

In terms of Section 280 of the Criminal Procedure Act 5 (five) years of the sentence imposed on count 2 will run concurrently with the sentence imposed on count 1. The sentence is antedated to 26 November 2002.
BOZALEK, J

I agree,