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

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.

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.

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

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.

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.

(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

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.

8.3.	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

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

I agree.