About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 169
|
|
Herwill v S (A447/2006) [2008] ZAWCHC 169 (11 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A447/2006
DATE:
11
APRIL 2008
In
the matter between:
LOOP
HERWILL
Appellant
And
THE
STATE
Respondent
MEER,
J
JUDGMENT
[1]
On 24 April 2002 appellant, as accused number
Z,
was
convicted in the Bellville Regional Court on two counts of robbery
committed on 23 August and 24 August 1998 respectively
and on two
accompanying counts pertaining to the unlawful possession of a
firearm on the occasion of each of the aforementioned
robberies, in
contravention of the relevant provisions of Act 76 of 1969.
[2]
Appellant, who represented himself in the court
a
quo,
was
sentenced to the minimum sentence of 15 years' imprisonment
prescribed in Act 105 of 1997 on each count of robbery. He was,
in
addition, sentenced to five years' imprisonment on each count for
the unlawful possession of a firearm. Appellant was accordingly
sentenced to an effective period of 40 years imprisonment. Appellant
appeals against his sentence only.
[3]
The grounds of appeal in essence are that the sentence of 40 years'
imprisonment was grossly disproportionate, that substantial
and
compelling circumstances for departing from the prescribed minimum
sentences ought to have been found, that the magistrate
erred in not
considering a sentence of correctional supervision and, moreover, in
not considering the consecutive serving of
the sentences.
[4]
Ms
Allie
for respondent was contending there to be no substantial and
compelling circumstances warranting a departure from the minimum
sentence, nonetheless conceded that the cumulative effect of the
sentences totaling 40 years was excessive.
[5]
The magistrate, in sentencing the appellant, took cognisance of and
distinguished the pivotal role he had played in both robberies
as
opposed to the roles played by his two co-accused. She noted that
appellant was instrumental in the planning of both robberies,
was
the person who bore the firearms in both robberies, issued the
threats and took a share of
the
spoils
in both instances. The fact that accused 1 and 2 did not actually
handle the firearms was a factor considered in the imposition
of the
respective sentences, resulting in accused 1 and 2 getting lesser
sentences than appellant.
[6]
Substantial and compelling circumstances were found to exist in
respect of accused 1. Whilst the judgment refers to consideration
being taken of appellant's personal circumstances, these
circumstances are not apparent from the judgment. Cognisance was
taken
also of appellant's previous conviction in 1994 for
housebreaking with the intention to steal and theft, for which he
was given
a four year suspended sentence during which period the
instant offences were committed. The learned magistrate moreover
aptly
emphasised the serious nature and impact of armed robbery, the
interest of society and rated appellant's prospects for
rehabilitation
as slim. In the case of appellant there were found to
be no substantial and compelling circumstances.
[7]
I am unable to fault the magistrate's reasoning for distinguishing
the respective sentences imposed on the appellant and each
of his
co-accused, taking into consideration their respective roles in the
commission of the offences. It would, however, seem
that
notwithstanding the serious nature of the offences, cognisance was
not taken of the fact that appellant had already spent
four years in
prison which, together with hts personal circumstances, a man of 23
years with one previous conviction ought, at
the very least, to have
resulted in the concurrent operation of the sentences imposed, an
option which the magistrate considered
but did not exercise. The
cumulative effect of the sentences, namely 40 years' direct
imprisonment, can be said to be excessive
in all of the
circumstances. The learned magistrate ought to have provided for the
concurrent running of the sentences. I note
that the magistrate
correctly pointed out that a sentence of correctional supervision
was not permissible given the application
of the minimum sentence
legislation to the offences.
[8]
Regard being had to the above 1 would, on appeal, accordingly
substitute the sentence imposed upon the appellant with a sentence
as follows:
Count
1
- 15 years
1
imprisonment
Count
2
- five years' imprisonment
Count
3
- 15 years' imprisonment
Count
4
- five years' imprisonment
The
sentences in respect of counts 1 and 3 shall
run
concurrently.
The
sentences in respect of counts 2 and 4 shall run concurrently.
The
appellant is accordingly sentenced to an effective term of 20 years'
imprisonment.
[9]
Having interfered with the sentence of the appellant on appeal, the
circumstances of this case require in accordance,
inter
alia,
with
the authority granted to me on appeal in terms of section 22(b) of
the Supreme Court Act 59 of 1959, I adjust the sentences
of his
co-accused in the court
a
quo
given
my endorsement of the magistrate's reasons for distinguishing the
sentences of appellant from that of his co-accused on
the basis of
their respective roles in the commission of the offences.
[10]
In respect of accused 1, Peter Moosak, 1 substitute the sentences
imposed with the sentence as follows:
''
Accused
1
Count
1
- 10 years' imprisonment
Count
2
- five years' imprisonment
Count
3
- 10 years' imprisonment
Count
4
- five years
1
imprisonment
The
sentences in respect of counts 1 and 3 shall run concurrently.
The
sentences in respect of counts 2 and 4 are suspended for four years
on condition that accused 1 is not found guilty of the
contravention
of section 2 of Act 75 of 1969 committed during the period of
suspension.
Accused
1, Peter Moosak, is accordingly sentenced to an effective period of
10 years' imprisonment".
[11]
In respect of accused
2,
Mario
Meyer, I substitute the sentence imposed with the sentence as
follows:
"
Accused
2
Count
1
- 15 years' imprisonment
Count
2
- five years' imprisonment
Count
3
- 15 years' imprisonment
Count
4
- five years
1
imprisonment
The
sentences in respect of counts 1 and 3 shall
run
concurrently.
The
sentences in respect of counts 2 and 4 are suspended for four years
on condition that accused 2 is not found guilty of the
contravention
of section 2 of Act 75 of 1969 committed during the period of
suspension.
Accused
2,
Mario
Meyer, is accordingly sentenced to an effective period of 15 years'
imprisonment".
MEER,
J
GOLIATH.
J
:
I agree.
GOLIATH.
J