Herwil v S (A585/2008) [2010] ZAWCHC 359 (1 February 2010)

Herwil v S (A585/2008) [2010] ZAWCHC 359 (1 February 2010)

The appeal court found that although the appellant committed multiple serious offences, including robbery with aggravating circumstances, rape, assault with intent to do grievous bodily harm, and illegal possession of a firearm, most of these offences were committed on the same day in the course of a single criminal episode. The rape, however, was a distinct and gratuitous act of violence. The court held that the effective sentence of 30 years imprisonment for these offences was appropriate, but that the cumulative effect of this sentence and the 40-year sentence imposed in another matter would operate harshly and be largely ineffective, as it could result in imprisonment until the...

Citation
[2010] ZAWCHC 359
Parties
Appellant: Lood Herwil; Respondent: State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 February 2010
Case Number
A585/2008
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal against sentence partially upheld; sentences adjusted to run concurrently except for rape count.
Judges
Allie, Goliath, Louw
Legal Topics
Sentencing Principles, Totality Principle, Minimum Sentences, Concurrent Sentences, Rape, Robbery With Aggravating Circumstances
Criminal Law Sentencing Principles Totality Principle Minimum Sentences Concurrent Sentences Rape Robbery With Aggravating Circumstances

Case Brief

Summary, issues, holding and outcome

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Parties

Lood Herwil

Appellant

State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Whether the cumulative effect of the sentences imposed on the appellant is so excessive as to justify interference by the appeal court.
  2. 2 Whether the sentences should run concurrently with the effective sentence imposed in the other matter.
  3. 3 Whether the sentence for rape should run separately from the other sentences.

Ratio Decidendi

The appeal court found that although the appellant committed multiple serious offences, including robbery with aggravating circumstances, rape, assault with intent to do grievous bodily harm, and illegal possession of a firearm, most of these offences were committed on the same day in the course of a single criminal episode. The rape, however, was a distinct and gratuitous act of violence. The court held that the effective sentence of 30 years imprisonment for these offences was appropriate, but that the cumulative effect of this sentence and the 40-year sentence imposed in another matter would operate harshly and be largely ineffective, as it could result in imprisonment until the...

Court Disposition

Appeal against sentence partially upheld; sentences adjusted to run concurrently except for rape count.

Orders

  • The sentences imposed by the court a quo on counts of robbery with aggravating circumstances, assault with intent to do grievous bodily harm, and unlawful possession of a firearm shall run concurrently with the effective sentence of 40 years imprisonment imposed by the Bellville Regional Court on 24 April 2002.
  • The sentence of 10 years imprisonment imposed by the court a quo on the rape count shall not run concurrently with any of the sentences imposed by the Bellville Regional Court or with any other sentences imposed by the court a quo on 14 November 2002.