---

 REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

(1)           REPORTABLE: NO

(2)           OF INTEREST TO OTHER JUDGES: NO

(3)           REVISED.

 

                                                                             CASE NO: A- P220/17

 

In the matter between:

 

MARQUES DE ALMEIDA: DANIEL DA SILVA                                               Appellant

                                                                                                          

and

 

THE STATE                                                                                                            Respondent

 

JUDGMENT

 

INGRID OPPERMAN j

INTRODUCTION

[1]          This is an appeal against sentence only.  On 8 March 2017, the appellant, was convicted in the Johannesburg regional court of attempted murder having been legally represented during his trial.  

[2]          He was sentenced to 8 (eight) years imprisonment. The appellant, aggrieved by this, sought leave to appeal against his sentence. The regional court refused leave to appeal. An application to the High Court for leave to appeal against sentence in terms of s 309C of the Criminal Procedure Act 51 of 1977 (the CPA) was also refused which order was, pursuant to a ‘petition’, set aside by the Supreme Court of Appeal (the SCA) and he was granted leave to appeal to this court in respect of the sentence imposed.

 

FACTS UNDERPINNING THE CONVICTION

[3]          On 5 September 2015, the appellant was at a restaurant and bar, named Lucitano, which was owned by the complainant, Mr Carlos Dos Santos. After playing a game of pool against a Mr Manny Rodriquez, Mr Rodriquez made a comment which the appellant perceived to be derogatory. This led to a verbal altercation between the two and a brief physical scuffle.

[4]          The complainant intervened, requesting that the appellant leave the establishment. While escorting him from the bar, the complainant physically assaulted the appellant. The appellant and the complainant disagreed as to the cause and nature of the assault.  The appellant stated that it was unprovoked, while the complainant contended that the appellant had swung his arm backwards towards him (the complainant was walking slightly behind the appellant). The appellant also stated that he was assaulted with a hard object (probably a pool ball), while the complainant had stated that he merely hit him twice with an open hand.

[5]          It was, however, undisputed that the assault left the appellant with a broken nose, bruising, abrasions on his head and a cracked tooth. According to a state witness, the assault would probably have continued were it not for the intervention of restaurant patrons. Whatever the cause, therefore, it is clear that the appellant had suffered several injuries as a result of the assault.

[6]          Following the assault, the appellant left the bar.  While he says that he remained, dazed, in his vehicle outside the bar, the State’s version was that he drove away only to return later.

[7]          It is common cause that he later re-entered the bar (between one to two hours later) and discharged a single shot from his firearm which connected with a door near where the complainant had been standing. The appellant stated that he had re-entered the bar to demand an explanation for his assault, and that when the complainant verbally abused him and advanced threateningly towards him, fearing for his safety, he discharged a warning shot. The State contended that the appellant had fired the shot unprovoked on his return with the intention to shoot the complainant.

[8]          The magistrate found that the appellant, knowing of the complainant’s  “reputation as a person who became aggressive and … did not hesitate in beating people”, had returned to the bar to avenge the complainant’s assault on him earlier in the evening. He rejected that the appellant had merely fired a warning shot into the floor of the bar area.

[9]          The magistrate concluded that:

“[b]y discharging a firearm in a confined space, in this instance the bar area, the accused well knew that his conduct might have caused the death of the complainant or any of the other persons present.  The accused was reckless, whether such result ensued or not. The accused is accordingly found guilty of the offence of attempted murder.”

[10]       The appellant was accordingly convicted of attempted murder with intention in the form of dolus eventualis.

 

 

 

FURTHER EVIDENCE ON APPEAL

[11]       On 3 October 2019, some 2 weeks before the hearing of this appeal, the appellant gave notice that he would be applying, at the hearing of this appeal, for an order granting him leave to adduce the affidavits accompanying the application, as further evidence in the appeal. The evidence sought to be adduced was in the form of two affidavits: one deposed to by the appellant and the other, his business partner. Although the admission of this further evidence was initially opposed, the state ultimately limited its opposition to receipt of the evidence contained in paragraphs 3 to 6 of the appellant’s affidavit. Such paragraphs deal with the circumstances of the appellant’s 8 year old minor son (the minor son). Having considered the content of the paragraphs as well as the opposition, being that there was insufficient time between 3 October 2019 and the date of the hearing of the appeal, to investigate the correctness of the facts, we have decided to receive the evidence. We do not believe there was insufficient time to investigate the facts.  Be that as it may, the facts recorded deal largely with the situation between the appellant and the minor son since the appellant’s release from prison on 29 September 2018 and thus his current living and schooling arrangements. The appellant was incarcerated on 3 November 2017, the date of the imposition of the sentence of 8 years imprisonment. The appellant was released on bail pending the finalisation of this appeal.

[12]       For reasons which will become apparent later, we have decided to impose sentence afresh and, instead of remitting the issue of sentence to the trial court, we consider it beneficial and in the interests of justice that we have these facts before us as some time has passed since the appellant was sentenced and released from prison.

[13]       This Court has the power to receive further evidence on appeal.[1] This is particularly so in cases concerning the sentencing of a primary (and in this case, sole) caregiver to a child. [2] We accordingly grant an order admitting the affidavits as further evidence in this appeal.

 

SENTENCE

The Test

[14]       The principles underpinning the power of a court on appeal to interfere with the sentence imposed by the trial court are well established in our law.  In S v Romer [3] they were discussed as follows:

‘[22]  It has been held in a long line of cases that the imposition of sentence is pre-eminently within the discretion of the trial court. The appellate court will be entitled to interfere with the sentence imposed by the trial court only if one or more of the recognised grounds justifying interference on appeal have been shown to exist. Only then will the appellate court be justified in interfering. These grounds are that the sentence is ‘(a) disturbingly inappropriate; (b) so totally out of proportion to the magnitude of the offence; (c) sufficiently disparate; (d) vitiated by misdirections showing that the trial court exercised its discretion unreasonably; and (e) is otherwise such that no reasonable court would have imposed it.’ See S v Giannoulis; S v Kibido; S v Salzwedel & others.

 [23] In S v Matlala it was held that in an appeal against sentence the fact that the sentence imposed by the trial court is wrong is not the test. The test is whether the trial court, in imposing it, exercised its discretion properly or not. Consequently, the circumstances in which an appellate court will interfere with the exercise of such discretion are circumscribed. In S v Sadler Marais JA, writing for a unanimous court, had occasion to re-state them when he said the following:

‘The approach to be adopted in an appeal such as this is reflected in the following passage in the judgment of Nicholas AJA in S v Shapiro 1994 (1) SACR 112 (A) at 119j-120c:

“It may well be that this Court would have imposed on the accused a heavier sentence than that imposed by the trial Judge. But even if that be assumed to be the fact, that would not in itself justify interference with the sentence. The principle is clear: it is encapsulated in the statement by Holmes JA in S v Rabie 1975 (4) SA 855 (A) at 857D-F:

“ In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal ─

(a) should be guided by the principle that punishment is ‘pre-eminently a matter for the discretion of the trial Court’, and

(b) should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised.

The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate”.’ (footnotes omitted)

 

[15]       Although disagreeing on the appropriateness of correctional supervision in a serious offence such as attempted murder, counsel for the State conceded that the regional court indeed committed a material misdirection by ignoring the three pre-sentencing reports. Though not bound by this concession, we too hold the view that this constitutes a misdirection entitling this court to interfere with the sentence.

 

The Facts

[16]       The following was common-cause when evidence was presented on an appropriate sentence for the appellant:

16.1.       He was 55-years old with no previous convictions for violent crimes (he had two minor convictions for traffic offences).

16.2.       He is not an aggressive person, is honest and hardworking, and is well respected by his clients, friends and employees.

16.3.       His conduct was precipitated by the assault of the complainant.

16.4.       It is highly unlikely that he will commit such a crime again.

16.5.       He is no longer in possession of a firearm.

16.6.       He is gainfully employed and runs a “grade-A” panel-beating business with his partner, Mr Andy Ioannou, which is accredited to service Porsche, Lamborghini and Ferrari vehicles.  The business employs 18 people.  It will be severely affected in the event of the appellant’s absence as he is responsible for the day-to-day management of the workshop.

16.7.       He is the sole caregiver to, and breadwinner for, his minor son, whose mother passed away in 2016.

16.8.       He supports and pays maintenance for his 17 year old son      (now a major), Liam, and maintains a close relationship with him and his mother, Jenny Prins. The appellant also has an elder son, Marco, who is 29 years old and lives with his mother.  He maintains a positive, stable and good relationship with Marco.

16.9.       The appellant is a dedicated and responsible father to his children.

[17]       Pre-sentencing reports were prepared by Ms Wolmarans, a registered social worker with 19 years’ experience in pre-sentencing evaluations; Ms Nape Mapitsa, a correctional services official in the employ of the Department of Correctional Services for the past 20 years; and, Ms Nkosi, a probation officer and registered social worker in the employ of the Department of Social Development.

[18]         Ms Wolmarans, Ms Mapitsa and Ms Nkosi all presented their findings to the Court and were cross-examined.

[19]       Ms Wolmarans recommended that the appellant be sentenced to a period of correctional supervision, a fine and a fully suspended sentence of direct imprisonment. She expressly concluded that a sentence of direct imprisonment was not appropriate. In making her recommendation, Ms Wolmarans noted that the appellant is the sole and primary caregiver and breadwinner of his minor son, whose mother passed away in 2016. In the event of the appellant’s imprisonment, the minor son would have to be removed and placed in alternative care. Ms Wolmarans’ view was that this would cause “permanent emotional damage” to him. He is remorseful and sorry for the trauma the incident caused the complainant and his own family. She commented that he does not have an aggressive personality and is “not a threat to the society”.  She concluded that “there is no prospect that he will commit a further offence”, he is a stable person with a stable work record and his business would be severely affected by his absence if imprisoned and he has proven, by his compliance with his bail conditions, that he would keep to his sentence conditions.

[20]       Ms Mapitsa confirmed, in her report and under oath, that the appellant is a suitable candidate for correctional supervision.

[21]       The magistrate, not satisfied with the reports and evidence presented to him, called for a further report from the Gauteng Department of Social Development.  A report was accordingly compiled by Ms Nkosi.

[22]       Ms Nkosi’s report confirmed Ms Wolmarans’ recommendations in all material respects.  She noted that the appellant had shown remorse, was willing to be rehabilitated, was an “asset to society” and was not a danger to the community.

[23]       Ms Nkosi emphasised, in particular, that the appellant “is a father of three children of which two are minors and [that] he is the sole primary caregiver of the youngest one”. She noted that his family said that “[h]e is … a dedicated father who strives to be a positive role model to his children”.       Ms Nkosi added that it was not feasible to place the minor child with his maternal grandparents as they had relocated to Mahikeng and were not in a position to nurture him or cater for him financially.

[24]       In addition, Jenny Prins, the mother of the appellant’s second child, Liam, indicated that, while she was “happy to assist with [the minor child] on a part time basis”, she was “not in a position to assume full responsibility” for him. Ms Nkosi thus concluded as follows:

“The family fears the negative impacts the children will suffer should the accused be subjected to a sentence of imprisonment, both minor children are going through crucial stages of their development.  Of further concern is the accused's youngest child, he has recently experienced the death of his biological mother which has led to him residing with the accused.  According to Bowlby's theory of attachment, a strong emotional and physical attachment to at least one primary caregiver is critical to personal development (Teater, 2014).  Taking this information into consideration, it is evident that removing the accused's youngest child from yet another primary caregiver will have a devastating effect on the child's personal development.  Since the accused is the primary caregiver of his youngest child and there is no one willing or able to raise the child, should the accused be detained the child will have to be placed in the care of Child Welfare Social Workers who will seek shelter for the child.”

[25]       Ms Nkosi recommended that the appellant be sentenced to correctional supervision. She “urged” the court “to take into consideration the core of the offending behaviour and the consequences a custodial sentence would have on the children”.

 

Evaluation of sentence imposed

[26]       When sentencing an offender, a court is required to consider the four objectives of punishment: deterrence, prevention, rehabilitation and retribution.[4]  The objects must be viewed in light of the Zinn triad which requires a sentencing court to consider “the crime, the offender and the interests of society”.[5]

[27]       In respect of each of these elements, and the objects of punishment, the magistrate ignored, or placed inadequate emphasis on, various facts which should have mitigated the sentence the appellant received.

[28]       In respect of the crime, the magistrate quite correctly held, that the charge in respect of which he was convicted, was a serious one. However, the following facts significantly attenuated the severity of the offence for the purpose of sentencing:

28.1.       The appellant was convicted on the basis that he acted with intent in the form of dolus eventualis. This is in appropriate circumstances a mitigating factor in sentencing[6] as it tends to reduce the moral blameworthiness of the offender.[7]  We consider it to be a mitigating circumstance within the context of this case.

28.2.       He was convicted of attempted murder. A person convicted of an attempted crime should not be punished as severely as a person who committed the completed crime[8] as less harm has been caused to the complainant.[9]

28.3.       Neither the complainant nor any other person suffered a physical injury as a result of the appellant’s conduct (indeed, the appellant was the only person injured on the evening in question).[10]

[29]       With respect to the appellant’s personal circumstances, the following mitigating factors received almost no attention by the magistrate:

29.1.       At the time of sentencing, the appellant was 55-years old. A long sentence for an offender of an advanced age, such as the appellant, can be felt disproportionately harshly, particularly as a long sentence lessens the possibility for reform.[11]  Advanced age can therefore mitigate the sentence received.

29.2.       Apart from two convictions for contravening traffic legislation – which the magistrate rightly held were not relevant – the appellant was a first-time offender. This is a well-known mitigating factor and, given its prominence, there is a “general reluctance of the Court to send a first offender to gaol”.[12]  This is because the person, in particular a person of the appellant’s age, not being a repeat offender, is less likely to repeat the crime and to be inherently criminal[13] and is more likely to be reformed.[14]

29.3.       Added to this, both social workers that interviewed the appellant confirmed that he is a peaceable member of society who has no history of violent conduct or crime and presents no danger to society. Indeed, Ms Wolmarans’ report states that the appellant “is not a threat to the society and there is no prospect that he will commit a further offence” and that “there is no indication of any violent or aggressive behaviour in his past conduct and therefore no reason to remove him from society” (our emphasis).

29.4.       The appellant co-owns a vehicle body repair business and is responsible for the day-to-day management of the workshop.  He has been involved in the business, which employs 18 people, for the past 27 years. The appellant’s consistent employment is evidence that he is a productive and useful member of society[15] – which is a factor that should have influenced the magistrate to mitigate the sentence he received.

29.5.       The appellant is the primary and sole caregiver for his minor child and provides financially for Liam, his 18 year old son.  These factors, in addition to the loss of employment and business, have been held by the Appellate Division (as it was then) to be “substantial grounds” for the imposition of a non-custodial sentence.[16]

29.6.       It was also the testimony of the two social workers whose reports were before the Court that the appellant recognised that his conduct was unacceptable, accepted the Court’s verdict, and was remorseful. The appellant had even gone so far as to offer the complainant an amount of R100 000 for any loss of business suffered by the complainant as a result of the incident.  This offer was ultimately rejected.  That the appellant was remorseful was denied faintly, and without any substantiation, by the state. The magistrate’s judgment, moreover, did not contradict the social workers’ findings that the appellant was remorseful.  Remorse is a well-known mitigating factor.[17]

29.7.       The appellant’s conduct was provoked by the severe and humiliating assault he received at the hand of the complainant.  That assault left him dazed and disorientated and with abrasions on his head, a broken nose and a cracked tooth. While these facts do not exculpate the appellant, that he was provoked[18] and acted in anger[19] should have mitigated the sentence he received as they diminish culpability.

[30]       In our view, the interests of society and the possible deterrent effect of the sentence predominated in the magistrate’s judgment. The appellant’s personal circumstances were, he said, outweighed by the seriousness of the offence and the interests of the community. In making this finding, the magistrate:

30.1.       overemphasised the deterrent effect of the custodial sentence, particularly as the appellant’s conduct could not be attributed to greed or personal gain, but simply a loss of temper; and

30.2.       failed to take into account the fact that society has an interest in ensuring that useful and productive members of society should not be subjected to the damaging consequences of imprisonment unnecessarily.[20]  Society’s interests are also served by the appellant’s care and financial support for his minor child, in particular, but also his older son Liam.[21]

[31]       The magistrate also failed properly to appreciate the implications of the objects of punishment in the appellant’s case. The appellant is not a danger to society and there is no prospect that he will reoffend.  This fact is, according to the Supreme Court of Appeal, an especially relevant mitigating factor as it means that individual deterrence (i.e. the deterrence of future crimes by the particular offender) does not play a major role in the case.[22]  The same is true of the object of prevention.[23] General deterrence, while remaining relevant, should not be overemphasised so that an accused person is sacrificed on the altar of deterrence.[24]  Despite this, it is clear from the sentencing court’s judgment that deterrence played a disproportionate role in the decision of the magistrate to sentence the appellant to eight years’ imprisonment. Retribution, which our courts suggest is of lesser importance among the objects of sentencing,[25] is not decisive in this case.  The appellant’s crime is not of such seriousness that his sentence must “reflect the shock and indignation” of the community.[26] Rehabilitation is generally not served by prolonged imprisonment.[27]  By contrast, corrective supervision, is well-known for its reformative potential.[28]

[32]       To use as a starting point, past sentencing patterns as a provisional standard for comparison when deciding whether a prescribed sentence should be regarded as appropriate, is an acceptable method, see S v Malgas [29].

[33]       We accordingly consider certain past decisions of our courts:

33.1.       In Langa,[30] the Supreme Court of Appeal upheld a sentence of four years’ imprisonment in circumstances where the accused had been convicted of one count of attempted murder in respect of a gunshot he fired, which hit another customer in the arm, during an altercation at a tavern.  The accused was also sentenced to 10 years’ imprisonment in respect of the murder of another patron at the tavern. But the Court ordered that the sentences should run consecutively, as opposed to concurrently, owing to the fact that the two charges did not flow from substantially the same conduct. The sentence of four years’ imprisonment was, therefore, imposed solely and exclusively in respect of the charge of attempted murder in circumstances that bear resemblance to the facts of the present case, save that a bystander was actually struck by a stray bullet in that case (whereas only the appellant was injured on the evening in question in the present case).

33.2.       In Maritz,[31] a police officer was convicted of murder for having killed a person in his custody, ostensibly in self-defence.  The trial court held that he possessed dolus eventualis (as is the case in the present case) and sentenced him to eight years’ imprisonment, two of which were suspended.  On appeal, the Appellate Division (as it was then) overturned this sentence and reduced it to one of only four years’ imprisonment, two of which were suspended.

33.3.       A sentence of eight years’ imprisonment was, by contrast, imposed by the Supreme Court of Appeal in Humphreys.[32]  In the matter the accused, a taxi driver, had caused the death of 10 of his passengers, all minors, through what the Court described as flagrant negligence. He was, accordingly, convicted of 10 counts of culpable homicide.  The appellant, in other words, received the same sanction as a person whose gross negligence caused the death of 10 children, who were all in his care at the time.

[34]       Having regard to the sentencing pattern, which emerges from the cases quoted hereinbefore, we are driven to conclude that the sentence imposed by the court a quo, was shockingly inappropriate to the facts of this crime. The aggravating factors considered by the court a quo do not justify the sentence which was imposed.

[35]       The magistrate also failed to give appropriate weight to various mitigating factors, and in many instances failed even to recognise or mention applicable considerations.[33]  The words of Ponnan JA for the Supreme Court of Appeal in van de Venter apply with equal force to the magistrate’s judgment in this case:

“None of the mitigating factors that I have alluded to merited even a mention in the judgment of the trial court.  They ought to have.  Nor were they balanced against what were perceived to be the aggravating features in the commission of the offences.  In failing to afford any recognition to those factors in the determination of an appropriate sentence, the trial court disregarded the traditional triad of the crime, the offender and the interests of society.  Instead, the learned judge appears to have emphasised the public interest and general deterrence in arriving at what he considered to be a just sentence, whilst ignoring the other traditional aims of sentencing – such as personal deterrence, rehabilitation and reformation.”[34]

 

 

 

The appropriate sentence

[36]       Correctional supervision does not merely describe a sentence, but is a collective name for a wide variety of measures of which the common feature is that they are applied outside a prison.[35]  The essential penal elements of the sentence are house arrest during specific hours each day; rehabilitational, educational or psychotherapeutic programmes; regular community service in various forms; and abstinence from criminal or improper conduct and from use or abuse of alcohol and drugs.[36]

[37]       In deciding whether to impose correctional supervision or a custodial sentence, sentencing courts are called to draw the critical distinction between those offenders who ought to be removed from society and those who, although deserving of punishment, should not be removed.[37]  In assessing this, a Court will consider whether the convicted person presents a danger to society,[38] the possibility of reform,[39] and whether the crime is so serious that prison is unavoidable.[40]

[38]       The fact that an offender is a primary or sole caregiver has, pursuant to the jurisprudence of the Constitutional Court and Supreme Court of Appeal, assumed special significance in a court’s decision as to whether to impose a custodial or non-custodial sentence.  In this context, the sentence of correctional supervision has been commended by the Courts.  In S v M the Constitutional Court stated that the sentence, if used in appropriate cases, could “serve to protect society without the destructive impact incarceration can have on a convicted criminal’s innocent family members”.[41]  And in S v Potgieter the Appellate Division (as it was then) considered the sentence appropriate where “[i]mprisonment could, and probably would, have a devastating effect on [the appellant] and her children”.[42]

[39]       Correctional supervision should not be seen as a “soft option”[43] but as a suitably severe sentence for even a serious crime.[44]  It is “[i]n some ways… harder than imprisonment”, “involves a good deal of psychological strain” and “takes a great deal of restraint and determination on the part of a probationer” who “does not have his freedom” but “is not cut off from the community altogether”.[45]  The Supreme Court of Appeal has pointed out that it can be more oppressive than short-term imprisonment.[46]

[40]       In this regard it is notable that correctional supervision has been deemed to be an appropriate sentence for even the most serious offences.  In illustration of this point, we note that the Supreme Court of Appeal[47] and other courts[48] have, on a number of occasions, imposed the sentence of correctional supervision for a conviction of murder; correctional supervision has been considered appropriate for a conviction of attempted murder where the complainant was seriously injured;[49] and correctional supervision has been imposed for offences under the Sexual Offences Act and for the commission of indecent acts with a minor.[50]

[41]       Having regard to all the facts of this case, we hold the view that correctional supervision is appropriate. This is particularly so as the appellant presents no danger to society.  The appellant has no history of violent offences and both social workers who interviewed him described him as a peaceable person.  Their uncontroverted evidence is that this was a once-off incident, and that there is no prospect that he will commit another violent crime. Both social workers’ reports suggested that the appellant was a good candidate for rehabilitation and reform and had the necessary support structures to achieve these objects.

[42]       While attempted murder is undoubtedly a serious offence, it is, in the circumstances of the present case, not so serious as to necessitate the appellant’s removal from society.  A number of factors, including that no person was hurt as a result of his conduct and that he only had intent in the form of dolus eventualis, mitigate the moral blameworthiness of the appellant’s conduct. In our view, the appellant is not in the category of offenders that ought to be removed from society.

[43]       In these circumstances, the fact that the appellant is the sole and primary caregiver of his minor child, acquires special significance.  The minor child’s interests must be assessed independently, and accorded due weight.  It was the evidence of both social workers that the absence of the appellant would, particularly given that the minor child had lost his mother during 2016, have a devastating impact on the child.  This reinforces our view that correctional supervision is an appropriate sentence in this case.

[44]        Given this conclusion, the magistrate ought to have sentenced the appellant to a period of correctional supervision in accordance with the principles laid down in S v M.[51]

[45]       The Supreme Court of Appeal in Nndateni outlined the considerations which must be weighed by an appellate court in deciding whether to determine the sentence itself [52] or remit it back to the magistrate’s court. The Court  of appeal should consider how much time has elapsed since the conviction and sentence; whether the appellant would be prejudiced by the further delay occasioned by remitting the case; and whether the Court has sufficient information to exercise its discretion properly.

[46]       In this case, these considerations point in our view, to the fact that this Court should finally determine the appellant’s sentence. The appellant was convicted on 8 March 2017 (which was two and a half years ago at the time of writing), and sentenced on 3 November 2017 (over a year and 11 months at the time of writing).  These are appreciable time periods, particularly given the appellant’s role as the minor child’s sole caregiver. Not only the appellant, but also the minor child and Liam, will be prejudiced by the further delay in the finalisation of his sentence.  In S v M, the Constitutional Court held, which finding applies equally here, that it was “clearly in the interests of the children and of all concerned that the matter achieves finality”.[53]  The Supreme Court of Appeal in De Villiers made the same point, referring to the Constitutional Court’s statement that the “continued uncertainty as to the status and placing of [a] child cannot be in the interests of the child”.[54] This Court has ample information before it to determine an appropriate sentence for the appellant, including comprehensive, carefully researched, and well-drafted reports from two social workers and a correctional supervision officer which concern, among other things, the minor child’s interests and appropriate sentences.  The Court also has a record of the oral testimony of these persons.  This fact was prominent in the Constitutional Court’s decision to determine itself the accused’s sentence in S v M.[55]  This is not a matter in which the sentencing court ought to have called for further information before sentencing.

[47]       Having regard to all the circumstances of this case, including the fact that the appellant has spent 10 months in prison after sentencing, is a father of three children, a first offender, is remorseful and all the other factors referred to herein, both aggravating and mitigatory, and in particular the Zinn-triad, I consider it appropriate to order two years imprisonment which is to be suspended for a period of two years on certain conditions plus two years of correctional supervision as envisaged in terms of section 276(1)(h) of the CPA for a period of two years.

 

ORDER

[48]          I accordingly grant the following order:

48.1.       The appeal is upheld.

48.2.       The sentence imposed by the court a quo on 3 November 2017 is set aside and replaced with:

‘1. The accused is sentenced to two years of imprisonment, wholly suspended for a period of two years on condition that the appellant is not convicted of an offence listed in Schedules 5 and 6 of the Criminal Procedure Act 51 of 1977, during the period of suspension which sentence is antedated to 3 November 2017.

2.  The accused is sentenced to 24 (twenty-four) months of correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977, during which period the following conditions shall apply:

2.1      the accused must report to the Head of Johannesburg Community Corrections which is located at 20 Albert Street, Braam Fischer Towers Building, Johannesburg (011 376 8854). The accused will be admitted into the system of Correctional Services at the office of Administration and Liberation under the management of the designated official;

2.2      the accused will be subjected to monitoring at a place and at times as determined by the National Commissioner of Correctional Services. The accused will be placed in the high risk management category;

2.3      the accused will be subjected to house detention for the duration of the correctional supervision periods at times decided upon by the National Commissioner of Correctional Services (or an official with delegated authority) taking the following into account:

2.3.1 employment;

2.3.2  religious activities;

2.3.3  consultations with medical practitioners; and

2.3.4    free time to attend to personal matters (including any matters incidental or related to the minding of the minor child);

2.4      the accused is to reside at 68 FIRST AVENUE WESTDENE for the duration of the correctional supervision sentence. Should there be a need to move from the address on record he will be expected to inform the Commissioner of Correctional Services in writing about such a change of address;

2.5      the accused is to be restricted to the Magisterial District of Johannesburg. Should the accused need to leave the Magisterial District for any reason, he must apply for such in writing with the National Commissioner of Correctional Services (or an official with delegated authority);

2.6      the accused must perform 16 hours of community service per month for the duration of his correctional supervision sentence;

2.7      the accused must subject himself to an assessment with a social worker who may prescribe a program or intervention deemed appropriate;

2.8      the accused must provide proof of his employment on a quarterly basis;

2.9      the accused is prohibited from committing any  offence listed in Schedules 5 and 6 of the Criminal Procedure Act 51 of 1977;

2.10   the accused is precluded from consuming intoxicating liquor and drugs not prescribed by a medical practitioner;

2.11   the accused must comply with any reasonable instruction issued by the Commissioner of Correctional Services in the administration of the sentence imposed.’

48.3         The sentence imposed in paragraph 2 is not antedated.

48.4         The appellant is declared unfit to possess a fire-arm.

 

 

 

 

                                                                   

     

                                                                                     I. Opperman

                                                                         Judge of the High Court

                                                        Gauteng Local Division, Johannesburg

 

 

 

                                                                                                        I Agree

 

 

 

                                                                  

                                                                                             C.J. Coertse

                                                                   Acting Judge of the High Court

                                                       Gauteng Local Division, Johannesburg

 

 

 

 

Heard:  15 October 2019

Judgment delivered: 1 November 2019 

Appearances:

For Appellant:  Adv F Ismail and P Smith

Instructed by:  Ulrich Roux & Associates

For Respondent: Mr Mashega

Instructed by: Office of the Director of Public Prosecutions                          

---