---

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO. A14/09

In the matter between:

JACQUES MAURICE LOUBSER Appellant

and

THE STATE Defendant

JUDGMENT

1. This is an appeal against the sentence imposed in the Regional Court sitting at Bellville on 15 August 2008. The Appellant was charged with eight counts of fraud, to which he pleaded guilty. The Appellant furnished the Court a quo with a statement in terms of section 112 (2) of Act 51 of 1977. The plea was confirmed by the Court a quo and the Appellant was accordingly convicted of eights counts of fraud involving a total amount of R 183 700,00 (although it is accepted that the Appellant did not receive the full benefit of the funds).

2. The Court a quo heard the evidence of the Appellant in mitigation of sentence. Unfortunately, the recording equipment experienced a problem during the cross-examination of the Appellant by the State Prosecutor and this evidence is not available to this Court sitting on appeal. This places this Court at a marked disadvantage: however it does not appear that any portion of the Appellant's evidence in chief on sentence was disbelieved and the factors mentioned in the Magistrate's judgment appear from the evidence in chief of the Appellant. 1 am accordingly satisfied that 1 can proceed to consider the matter properly in the absence of such recorded evidence.

3. The Magistrate sentenced the Appellant to five years imprisonment of which two years were suspended for a period of five years. Accordingly, the Appellant received an effective term of imprisonment of three years.

4. The approach on appeal in regard to matters of sentencing was described by Trollip JA in S vPillay 1977 (4) SA 531 (A) at 535 E-G as follows:

As the essential inquiry in an appeal against sentence, however, is not whether the sentence was right or wrong, but whether the Court in imposing it exercised its discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence; it must be of such a nature, degree, or seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreasonably.

5. Although the test is sometimes formulated differently, the approach set out by Trollip JA is pertinent to the present matter under consideration. Although the judgment of the Court a quo on sentence is generally-speaking comprehensive and well-reasoned, there are aspects of the judgment that are both puzzling and concerning.

6. The first issue relates to that of the Correctional Officer's report.

6.1. The notes on the appearances of the Appellant indicate that on 21 July 2008, the matter was remanded to 18 August 2008 for plea and sentence. At this remand the attorney acting for the Appellant requested that a Correctional Officer's report be obtained. The Court a quo appears from the notes to have ordered that such a report be obtained.

6.2. On 18 August 2008, the notes indicate the following:

S/P: Accused before Court - o/b

On roll - Plea ito Section 112

C/O Report read.

6.3 My reading of these cryptic notes is that the State Prosecutor advised the Magistrate that the accused was before Court on bail, that the matter was on the roll for a plea in terms of section 112 and that the Correctional Officer's report had been read by the prosecution. I do not read these notes to indicate that the report had been read by the Magistrate himself: the format of the note suggests otherwise. This is reinforced by the next line in the notes, which reads as follows:

Mr Stevens; Confirm above.

6.4. If one turns to the judgment itself, the following reference is made by the Magistrate to the consideration of correctional supervision (at page 16):

So the Court has heard that you are not suitable material for correctional supervision. The Correctional officer in fact has recommended so. The report is not before the Court but the Court accepts the submissions by the State and the defence that that is in fact the report of the Correctional officer ...

6.5 Reference is again made to the Correctional supervision report in the judgment dismissing the application for leave to appeal (at page 21):

... the Court is aware that a term of correctional supervision is not recommended by the Correctional officer who has prepared a report but which does not form part of the Court record because it has not been handed up by the defence or the Slate.

6.6 It must be noted that in his judgment on sentence, the Magistrate does indicate that even if the Correctional Supervision report had been favourable, the Court a quo would "not likely have considered that option bearing in mind the circumstances of this offence".

7. The approach of the learned Magistrate is, with respect, curious. On the one hand, he relies upon the conclusion of the Correctional Supervision officer, but on the other he declines to have regard to the report which has been prepared. This approach might be acceptable if the Appellant had expressly distanced himself from such a sentencing option - even then, such an attempt to fetter the discretion of the trial Court would not be accepted lightly. But in the present instance, it is apparent that the Appellant's legal representatives actively sought to persuade the Court a quo to adopt a sentencing option that avoided direct imprisonment. On appeal, it is precisely for a sentence in terms of section 276 (1) (h) that argument is now made.

7.1 In S v Kotze 1994 (2) SACR 214 (O), Lombard J stressed the need for the trial Court to consider, in due depth, all sentencing options that might apply to a particular accused. In order to do so, and in order to exercise a proper discretion in this regard, it is trite that the trial Court must examine all evidence that may be pertinent to such sentencing options. The report of a Correctional supervision officer is - par excellence - a source of such evidence.

7.2 In the judgment of Kriegler JA in S v R 1993 (1) SA 476 (A), the usefulness of such a report and the relevance of the facts set out therein, was stressed. At 483 B, the learned Judge of Appeal stated the following in this regard:

(D)aar is ooreengekom om 'n verslag van 'n korrektiewe beampte te bekom wat ooreenkomstig die bepalings van art 212(4) (a) van die Strafproseswet voorgele is. Die bedoeling daarmee was om hierdie Hof in staat te stel om, desverkiesend, self 'n vonnis van korrektiewe toesig op te le. Die verslag getuig van deeglike vakkundigheid en hied 'n nugtere beskouing van die appellant se huidige omstandighede, Dit bied ook bykomende inligting aangaande die pleging van die misdaad en appellant se geestesgesteldheid met betrekking tot sy gemeenskapskadelike gedrag. Aangesien nog appellant nog die klaer by die verhoor getuig het, is sodanige gegewens insiggewend.

7.3 Kriegler JA proceeded to examine the procedure to be adopted in regard to such a report (at 492 C - G) and held as follows:

'n Opmerking oor die prosedure is nodig. Die Wetgewer het in art 276A(l)(a) slegs die substantiewe vereiste gestel dat daar 'n verslag 'voor die hof geplaas' word, maar geen prosedure voorgeshyf nie. Daar word, opvallend, geen vereiste ten aansien van bewys gestel nie. Daarmee is skynbaar erkenning gegee aan die gebruik om by vonnisverrigtinge, ondanks die voorskrifte van art 274(1), na goeddunke en na gelang van die besondere omstandighede, af te sien van streng voldoening aan die reels van die bewysreg en van die strqfproses, wat tot op die stadium van

uitspraak op die meriete geld. In 'n geval waar die feitebasis

van die verslag of 'n daarin gestelde opinie of aanbeveling in 'n wesenlike opsig betwis word, moet die opsteller van die verslag getuienis afle. Selfs waar daar nie twis is nie, mag straftoemeters dit gerade ag om tog die opsteller te laat getuig. Korrektiewe toesig is so 'n totaal andersoortige vonnisopsie en bied so 'n wye verskeidenheid moontlikhede dat toeligting uit die getuiebank waardevolle insigte kan bied. Bowendien sou 'n ondraaglik dwingende program nie alleen 'n onreg teenoor die toesiggeval wees nie maar ook verbrekingswanger. Daardeur word niemand se belange bevorder nie. Les bes, die verantwoordelikheid om 'n gepaste vonnis te vel, rus altyd op die regterlike heampte en mag nie, selfs by die oplegging van korrektiewe toesig, geabdikeer word nie, Tydens die uitdiening van sy straf is die toesiggeval in groot mate uitgelewer aan die amptenare van die Departement van Korrektiewe Dienste; om die bepaling daarvan ook aan hulle oor te laat, sou pligsversaking wees, (emphasis added)

7.4. Kriegler JA emphasized that the trial Court may not abdicate responsibility for considering sentencing options to any other person. It must exercise its discretion and do so fully and upon proper consideration of all the facts, and cannot delegate this responsibility to any official, however well-informed or trained.

7.5. In my view, this is precisely what has occurred in the present matter. Having directed that a Correctional supervision report be obtained, the Magistrate has accepted the conclusion of the officer, without having regard to the content of the report or the reasons for that conclusion. This in my view constitutes an unacceptable delegation of responsibility.

8. The second concerning aspect of the judgment was highlighted in argument by Mr Liddell who appeared for the Appellant. The Magistrate states in his judgment (at page 16) the following:

The Court would have considered a fine as an alternative but the Court is of the view that it would be pointless to impose a fine as an alternative to a term of imprisonment when you are in no means to pay that. If in the first place you were unable to pay your bail of R 5 000, this Court can safely assume that you cannot (pay) sic any appropriate fine, any commensurate fine with the amount that is involved in the matter.

8.1. There are three issues which arise from this statement by the Magistrate. The first is that it does not appear that the Court a quo investigated the viability of a fine as an option in any depth, as the basis for discounting the Appellant's ability to pay is solely the fact that at an earlier point in proceedings the Appellant had not paid the bail amount set. This would not appear to constitute a full investigation into the appropriateness of the sentence.

8.2. Secondly, Mr Liddell challenged the merits of the finding that because the Appellant could not pay the fine, therefore it could not be considered as a viable sentencing option. Mr Liddell referred to the case of S v Bokbaard 1991 (2) SACR (622) (C) in support of this challenge. In Bokbaard Conradie J indicated how carefully the sentencing Court must consider the imposition of a fine and the ramifications for the accused in the event of his inability to pay the fine imposed. The judgment is not authority for the proposition that a fine should be imposed despite the impecunious position of the accused. Where a judicial officer finds, as a fact, that an accused is unable to pay a fine, then the imposition of such a fine would be counter­ productive and would not constitute an appropriate sentencing option. I am accordingly not persuaded by Mr Liddel's argument on this leg.

8.3. The third issue which arises from the Magistrate's statement is that, on the face of it, he considered the sentencing option of a fine to have been appropriate in the event of the Appellant being able to pay such fine. In the light of this approach, his failure to consider the option of correctional supervision in more depth, instead moving directly to the option of imprisonment, becomes all the more troubling.

9. The learned Magistrate has therefore misdirected himself in two respects: firstly in failing to receive the report of the Correctional Officer and in failing to investigate the option of Correctional Supervision more fully and, secondly, in failing to consider fully the appropriateness of a fine and the ability of the Appellant to satisfy such fine.

Mr Liddell urged this Court to consider imposing sentence on the Appellant afresh. However, it may well be that Correctional Supervision or the imposition of a fine are not appropriate sentencing options for the Appellant in this matter and that the Magistrate's decision may ultimately be vindicated. In the absence of the report and any further evidence in this regard, it is impossible for the trial Court, or for this Court on appeal, to assess the merits or otherwise of such options.

10. It is accordingly my view that the appeal against sentence should succeed and that the matter ought to be remitted to the trial Court, (i) for the consideration of the report of the Correctional Officer, together with such evidence as may be lead in regard thereto and (ii) for consideration of such evidence as may be lead by the Appellant and/or the State in regard to the appropriateness of otherwise of the imposition of a fine.

11. In so doing, 1 must emphasise that it is not the view of this Court that correctional supervision or the imposition of a fine are necessarily appropriate sentencing options, or that any other particular sentencing option is more appropriate. This Court expresses no opinion in this regard.

12. I would accordingly grant the following order in this matter:

1. The appeal against sentence succeeds and the sentence imposed by the Magistrate is set aside.

2. The matter is remitted to the learned Magistrate:

(i) for the consideration of the report of the Correctional Officer, together with such evidenceas may be lead in regard thereto; and

(ii) for consideration of such evidence as may be lead by the Appellant and/or the State in regard to the appropriateness or otherwise of the imposition of a fine.

3. The Appellant's bail is extended on the same terms and conditions as previously applied.

BROWN, A J

I agree.

ALLIE, J

---