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[2008] ZAWCHC 230
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Roman and Another v S (A390/2007) [2008] ZAWCHC 230 (1 August 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
A390/2007
DATE
:
1
AUGUST 2008
In the matter between:
CHARLES
ROMAN
1
st
APPELLANT
GERSHWIN
SAULS
2
nd
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
BOZALEK,
J
On
26 November the appellant, Mr Charles Roman, was found guilty in the
Regional Court for the District of Somerset West on two
counts of
robbery with aggravating circumstances and sentenced to seven years
direct imprisonment on each count. In a notice dated
2 December 2002
h
received by the Court on 10 December that year, he noted his
intention to appeal against the sentences imposed and the grounds
of
his appeal. For reasons which are not apparent the matter only came
to the attention of the High Court relatively early in 2008.
The
spur for this appears to have been an unsuccessful application by the
first appellant's co-accused, Mr Gershwin Sau!s
r
for leave to appeal against his convictions and sentences. That
application commenced in May 2004 and was eventually heard and
refused by the Magistrate on 8 April 2005. When the matter was
received by the High Court it appears to have been treated as a
petition by both accused for leave to appeal in terms of
Section
309(C)
of the
Criminal Procedure Act 51 of 1977
.
This
appears from an order made by
Dlodlo,
J
and
Stevn,
AJ
on 30 April 2008, referring to the two accused as "petitioners",
which reads as follows;
"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Sauls, Advocate Joubert, has withdrawn accused number 2's appeal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
first question is, then, whether appellant's appeal is properly
before this Court, or put differently, whether he has a right
to have
his appeal heard. When appellant noted his intention to appeal
against sentence no leave to appeal was necessary. The only
exception
at that time to the unqualified right to appeal against convictions
and/or sentences of lower courts pertained to judges
certificates for
jail appeals. In
S
v Ntuli
1996(1) BCLR 141 CC 1996(1) SA 1207 CC, 1996(1) SACR 94 CC, it was
held that the requirement of a judge's certificate discriminates
unfairly against prisoners who lack the means to pay for legal
assistance. The declaration of an invalidity was postponed for 18
months, and an application for an extension of the postponed period
was later refused in
Minister
of Justice v Ntuli
1997(2) SACR 19 Constitutional Court. This led to the first versions
of Section 309 B
r
C and D being placed on the statute book, the intention thereof
apparently being to make the leave to appeal regime which applies
to
appeals from High Courts applicable also to appeals from the
Magistrates Courts. However, in
S
v Stevn
2001(1) BCLR 52 CC 2001(1) SA 1146 CC, it was held that the required
leave to appeal from lower courts was unconstitutional. The
declaration of invalidity was postponed for six months to allow the
authorities to correct the position. On the 1 January 2004
the new
sections 309 8, C and D came into operation, by virtue of the
Criminal Procedure Amendment Act 42 of 2003
. This revised procedure
is not retrospective however, and only applies to appeals noted after
1 January 2004. In my view the appellant's
right to appeal is extant
and is unaffected by the order made by
Dlodlo,
J
and
Stevn,
AJ
on 30 April 2008. That order, in all probability given in error, on
its own terms does not dispose of the appellant's existing
appeal,
but purports only to refuse a petition brought by the appellant
which, as I have noted, does not appear to exist; more
importantly
nor does the primary jurisdictional requirement for such a petition
appear to have existed, namely, a refusal by the
lower court of an
application for leave to appeal on behalf of the appellant. Nor do I
consider that it is necessary, before appellant's
appeal can be
entertained by this Court, for the order of 30 April 2008 to be set
aside or corrected insofar as it affects or purports
to affect
appellant's right to appeal.
in
Mkhize
v Swemmer and Others
1967(1) SA (DCLD) 186 it was held that an order made by a Court when
it was
functus
officio
was
a nullity. At page 197(c)
Fannin,
J
stated as follows;
"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
same principle was recently approved and applied in
Combrinck
v Nhlapo
2002(5) SA 611. See also
Todt
v Ipser
1993(3)
SA 577 AO at 589 c-d. The order of 30 April 2008 does not purport to
deal with the merits of the appellant's appeal against
sentence but
to refuse him leave to appeal to this Court, a right which appellant
enjoyed at the time and which he exercised. In
the circumstances 1 am
of the view that the order in question may be disregarded and it
remains open for this Court to deal with
the merits of the
appellant's appeal.
The
main ground of appeal was that the sentence imposed by the magistrate
induces a sense of shock. The magistrate found that substantiaf
and
compelling circumstances existed which justified a deviation from the
minimum sentence applicable to both counts, namely, 15
years
imprisonment. He found that appellant's age
h
19 years old at the time of the commission of the offence, the fact
that the appellant had been in custody for approximately 12
months,
awaiting finalisation of the trial, and that no evidence was
presented by the State that a real firearm was used in the
robberies,
constituted substantial and compelling circumstances.
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.
It
is trite law that a Court must have regard to the cumulative effect
of sentences imposed, see in this regard
S
v Koutandos and Another
2002(1) SACR 219 at g-h,
S
v Kwenamore
2004(1) SACR 385 SCA and
S
v Coals
1995(1) SACR 33 AD at pg 36 f and the authorities there cited
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.
Taking
ail relevant circumstances into account I consider that an effective
SENTENCE
OF 9 (NINE) YEARS IMPRISONMENT
would be appropriate. I would therefore
UPHOLD
THE APPEAL AGAINST SENTENCE
by confirming the sentences imposed on counts 1 and 2, but
ORDERING
THAT 5 (FIVE) YEARS OF THE SENTENCE ON COUNT 2 RUN CONCURRENTLY WITH
THE SENTENCE IMPOSED ON 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,
SAMELA,
AJ