Hess and Another v S (A596/2005) [2008] ZAWCHC 251 (22 August 2008)

Hess and Another v S (A596/2005) [2008] ZAWCHC 251 (22 August 2008)

The conviction of the first appellant for rape was set aside because the doctrine of common purpose does not apply to rape, which must be committed through the instrumentality of the perpetrator's own body. The first appellant was, at best, an accomplice, but was not charged as such, and the Criminal Procedure Act does not provide for a competent verdict of accomplice liability in these circumstances. The sentences imposed on both appellants were found to be excessive and induced a sense of shock, especially given their youth, limited roles, and time spent in custody awaiting trial. The disparity between the sentences of the appellants and their co-accused further justified interference....

Citation
[2008] ZAWCHC 251
Parties
Appellant: Eon Hess; Appellant: Bradley Nomdoe; Respondent: The State
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 August 2008
Case Number
A596/2005
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Outcome
Appeal upheld. Conviction for rape set aside for first appellant. Sentences for both appellants reduced.
Judges
Fourie, Botha
Legal Topics
Common Purpose, Accomplice Liability, Sentencing Principles, Rape, Robbery, Kidnapping
Criminal Law Common Purpose Accomplice Liability Sentencing Principles Rape Robbery Kidnapping

Case Brief

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Parties

Eon Hess

Appellant

Bradley Nomdoe

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Sentence

Legal Issues

  1. 1 Is the conviction of the first appellant for rape legally sustainable under the doctrine of common purpose.
  2. 2 Should the sentences imposed on the appellants be interfered with due to misdirection or disparity.
  3. 3 Are the mitigating circumstances sufficient to warrant a reduction in sentence for both appellants.

Ratio Decidendi

The conviction of the first appellant for rape was set aside because the doctrine of common purpose does not apply to rape, which must be committed through the instrumentality of the perpetrator's own body. The first appellant was, at best, an accomplice, but was not charged as such, and the Criminal Procedure Act does not provide for a competent verdict of accomplice liability in these circumstances. The sentences imposed on both appellants were found to be excessive and induced a sense of shock, especially given their youth, limited roles, and time spent in custody awaiting trial. The disparity between the sentences of the appellants and their co-accused further justified interference....

Court Disposition

Appeal upheld. Conviction for rape set aside for first appellant. Sentences for both appellants reduced.

Orders

  • The first appellant's conviction on count 5 (rape) is set aside. The remainder of his convictions are confirmed.
  • The sentences imposed upon the first appellant are set aside and substituted with: counts 1 and 2 (robbery) taken together for sentence, ten years imprisonment; counts 3 and 4 (kidnapping and attempted rape) taken together for sentence, ten years imprisonment; eight years of the sentence for counts 3 and 4 to run...