The appellant was convicted in the Regional Court, Orlando on three counts of robbery with aggravating circumstances read with s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007, one count of unlawful possession of a semi-automatic firearm, and one count of unlawful possession of ammunition. The trial court imposed a globular sentence of 20 years' imprisonment on all three robbery counts taken together, with 15 years for the firearm offence (11 years suspended) and 1 year for ammunition, resulting in an effective sentence of 25 years' imprisonment. The appellant's appeal to the Gauteng Local Division was partially successful - the conviction on count 1 was set aside. However, the court below left the sentence unaltered at an effective 25 years' imprisonment. The appellant had spent almost a year in custody awaiting trial. Only two cellular phones were stolen during the robberies, and no injuries were caused to the complainants.
The appeal against sentence in respect of counts 2 and 3 was upheld. The globular sentence imposed by the trial court in respect of counts 1, 2 and 3 was set aside and replaced with individual sentences of 15 years' imprisonment for count 2 and 15 years' imprisonment for count 3, to run concurrently with each other. The sentences in respect of counts 4 (firearm) and 5 (ammunition) remained unaltered. Taking all sentences into consideration, the appellant would undergo an effective period of imprisonment of 20 years. In terms of s 282 of the Criminal Procedure Act 51 of 1977, the sentence was antedated to 3 May 2012.
The binding legal principles established by this judgment are: (1) Where a globular sentence has been imposed on multiple counts and a conviction on one or more of those counts is set aside on appeal, the appellate court is obliged to reconsider the sentence afresh and determine an appropriate sentence for the remaining counts, as the legal basis for the globular sentence has fallen away. (2) An accused cannot be made to serve a sentence for a conviction that has been set aside on appeal, as this amounts to an injustice. (3) While the imposition of globular sentences is not prohibited by law and falls within the discretion of the sentencing officer, such sentences are generally undesirable and should only be imposed in exceptional circumstances due to the practical difficulties they create on appeal or review, particularly where an accused has pleaded not guilty. (4) The proper approach where multiple counts are involved is to impose individual sentences on each count and, where amelioration is desired, to invoke s 280(2) of the Criminal Procedure Act to order that sentences run concurrently.
The Court made several non-binding observations: (1) It noted that there may be circumstances where globular sentences can be effectively used, such as where they ameliorate the effect of sentences that individually may appear shockingly inappropriate, or where an accused pleaded guilty on multiple closely connected offences and individual sentences may cumulatively amount to a shocking sentence. (2) The Court characterized the task of addressing the problematic globular sentence in this case as having "to unscramble a scrambled egg," emphasizing the practical difficulties created. (3) The Court observed that the facts advanced by the appellant (youthfulness, no injuries, minimal property taken, pre-trial detention) were "ordinary circumstances" that did not qualify as cogent or sufficiently weighty to justify departure from prescribed sentences under the principles in S v Malgas. (4) The Court noted that the prescribed sentences in this case were not disproportionate to the crimes, the criminal, and the legitimate needs of society. (5) The judgment serves as a general warning to judicial officers to "consider the desirability of such a sentence carefully before imposing it, bearing in mind the kind of problems it may cause."
This case is significant in South African criminal law for its treatment of globular sentences and their practical implications on appeal. The judgment reinforces the principle that while globular sentences are not prohibited by law, they are generally undesirable and should only be imposed in exceptional circumstances. The case highlights the serious difficulties that arise when convictions on some counts are set aside on appeal but a globular sentence has been imposed - it becomes practically impossible to apportion the sentence properly. The judgment reiterates that trial courts should rather impose individual sentences on each count and use s 280(2) of the Criminal Procedure Act to order concurrent sentences if amelioration is desired. The case also emphasizes that an accused cannot be made to serve a sentence for a conviction that has been set aside, as this would amount to an injustice. This judgment serves as an important cautionary guide to judicial officers regarding the exercise of sentencing discretion in cases involving multiple counts.