Brief Summary

Criminal Procedure — Appeal against sentence — Admissibility of Pre-Sentence Report — Appellant convicted of multiple sexual offences against a minor and sentenced to life imprisonment — Appellant contended that the trial court erred in admitting a Pre-Sentence Report compiled prior to conviction, alleging it contained information from an abandoned Plea and Sentence Agreement — Court held that the admission of the Pre-Sentence Report did not constitute a miscarriage of justice as the information was factual and relevant to sentencing, and upheld the trial court's decision.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an opposed criminal appeal in the Gauteng Division of the High Court, Pretoria. The applicant (appellant on appeal) was John Bertie Knight, and the respondent was the State.

The appeal arose after the appellant had been convicted in the regional court on multiple serious offences involving a minor child and sentenced to life imprisonment (together with a term of imprisonment on other counts). Because a sentence of life imprisonment had been imposed, the appellant enjoyed an automatic right of appeal under the Criminal Procedure Act 51 of 1977, with the consequence that the appeal court considered the conviction and sentence, although it ultimately confined its substantive attention to sentence once satisfied that there was no misdirection on conviction.

The procedural history was central to the dispute. There had been an initial trial in which the appellant pleaded guilty pursuant to a plea and sentence agreement under section 105A of the Criminal Procedure Act. An earlier appeal (before a full bench) set aside the sentence and referred the matter back for reconsideration de novo, after findings that the section 105A process had not yielded a valid conviction and that the prosecutor’s authority to conclude the agreement could not be established. After the matter returned to the trial court, the appellant abandoned the section 105A agreement and pleaded guilty instead in terms of section 112(2) of the Criminal Procedure Act. During the ensuing sentencing proceedings, the trial court admitted a pre-sentence report and evidence from the probation officer who compiled it, despite objection.

The general subject-matter of the dispute on appeal was whether the admission and use of the pre-sentence report (and related probation officer evidence) rendered the sentencing proceedings unfair and constituted a miscarriage of justice, particularly because the report was said to have been compiled using information derived from the earlier, abandoned section 105A plea agreement process, and because it was compiled before the appellant’s conviction in the de novo proceedings.

2. Material Facts

The appellant (aged 48 at the time) faced charges of kidnapping, two counts of rape, sexual assault, and assault with intent to do grievous bodily harm. The offences were committed against a five-year-old girl who was accosted while playing in the street, forcibly taken into the appellant’s vehicle, and later taken to his flat. There, sexual acts were committed against the child, including sexual penetration, and the appellant strangled the child to subdue her. Police arrived at the appellant’s flat, found the child on the appellant’s bed, and arrested the appellant.

In the de novo proceedings that gave rise to the present appeal, the appellant pleaded guilty to all charges in terms of section 112(2) of the Criminal Procedure Act, admitting the unlawful conduct and the essential elements of the offences. The trial court convicted him accordingly.

For sentence, the trial court imposed eight years’ imprisonment on counts 1 and 5 taken together (kidnapping and assault with intent to do grievous bodily harm), and life imprisonment on counts 2, 3, and 4 taken together (the sexual offences). The sentences were ordered to run concurrently and were antedated to 30 July 2015.

A material factual feature was the production and admission of a pre-sentence report compiled by a probation officer. The defence objected to its admission on two grounds that were treated as substantively established on the record: first, that the report had been compiled using information obtained from the earlier section 105A plea and sentence agreement process that the appellant later abandoned; and secondly, that it had been compiled before the appellant was convicted in the de novo proceedings. The report was compiled on 28 January 2019, while the appellant was convicted in the relevant de novo proceedings only on 8 October 2019. The record reflected that the probation officer obtained information “on the agreement” (the section 105A plea and sentence agreement) and that the report was prepared in the period between the first guilty plea (under section 105A) and the later guilty plea (under section 112(2)).

Despite objection, the trial court admitted the report and directed that the probation officer testify regarding it. The appeal court treated it as apparent that the report contained adverse evaluative material about the appellant (including comments on remorse, honesty, and rehabilitation prospects) and that, having admitted it, the trial court could safely be assumed to have taken it into account, including as a source of the appellant’s personal circumstances.

3. Legal Issues

The appeal presented two potential issues, but the first was dispositive if resolved in the appellant’s favour.

The central legal question was whether the trial court committed a misdirection amounting to a miscarriage of justice by admitting (and considering) the pre-sentence report and the probation officer’s evidence, given that the report was compiled using information derived from a section 105A plea and sentence agreement process that was later abandoned, and given the statutory consequence under section 105A(10) that such an agreement (and negotiations, records, and related admissions) may not be referred to where a trial starts de novo unless the accused consents.

A related issue concerned whether the probation officer acted outside the statutory framework governing pre-sentence reports, because the report was compiled before conviction, which was argued to be inconsistent with the probation officer’s role under the Probation Services Act 116 of 1991.

The dispute predominantly concerned the admissibility of information and procedure (a question of law and the application of statutory provisions to established facts), with consequential evaluation of whether the procedural irregularity tainted the sentencing discretion. A further constitutional dimension was raised, namely whether the admission of the report infringed the appellant’s fair trial rights (including the privilege against self-incrimination and related protections under section 35 of the Constitution). The second issue, which the court did not reach once it upheld the first ground, concerned whether the trial court erred in finding that there were no substantial and compelling circumstances warranting deviation from prescribed minimum sentences.

4. Court’s Reasoning

The court located the enquiry within established appellate principles on sentence, namely that an appeal court will not interfere unless it is satisfied that the sentencing discretion was exercised improperly or unreasonably, and that the focus is on whether there was a misdirection vitiating the discretion rather than whether the sentence was “right” or “wrong”.

The court then approached the matter through the statutory scheme regulating plea and sentence agreements. It emphasised that section 105A(10) provides that when a trial starts de novo as contemplated, the plea agreement is null and void, and no regard may be had or reference made to the negotiations preceding the agreement, the agreement itself, or any record of the agreement in any proceedings relating thereto, unless the accused consents to the recording and use of admissions made during that process. The court treated this statutory proscription as directly implicated because the pre-sentence report was compiled using information obtained from the abandoned section 105A agreement, and the probation officer’s testimony confirmed as much.

The court accepted that, as a general proposition, sentencing courts may receive information that could assist them in arriving at a just sentence. However, it held that the trial court’s approach in this matter failed to account for the specific statutory prohibition in section 105A(10). In the court’s reasoning, once an agreement is declared null and void for purposes of a de novo trial, it is treated as not existing for purposes of reliance in subsequent proceedings. The court considered that, absent the accused’s consent, the prohibition extended to information and admissions sourced from that plea negotiation process, including as incorporated into a pre-sentence report.

In addressing the argument that section 105A(10) did not expressly deal with a scenario where an agreement was “abandoned”, the court reasoned that the subsection had to apply equally to such a situation. It drew support from the passage quoted from Van der Westhuizen (as cited in the judgment), which was used to illustrate that an accused may waive the protection afforded by section 105A(10) by consenting to use of admissions, but that the protection remains operative absent such consent. On the facts, the court found that the appellant did not waive the protection; to the contrary, the defence expressly objected to admission of the report and thereby did not consent to the use of such information.

The court further evaluated the timing and statutory basis for the report. It referred to section 4(1)(k) of the Probation Services Act 116 of 1991, describing the probation officer’s duty to investigate the circumstances of a convicted person, compile a pre-sentence report, recommend an appropriate sentence, and give evidence in court. The court found that, at the time the report was compiled, the appellant had not been convicted in the proceedings then before court; the report was produced during a period when there was confusion in the lower court about whether only sentence or the entire matter was to be reconsidered de novo, and it was drafted as if the appellant had already been convicted and sentenced. The court treated this as reinforcing the inadmissibility and unreliability of the report for purposes of the later sentencing process, including because it was compiled nine months before conviction and was premised on a prior conviction and sentence that had been set aside on appeal.

The court also considered the prejudicial character of the material contained in the report (for example, statements about dishonesty, lack of remorse, and being “not rehabilitatable”). It reasoned that where such information was detrimental and the defence objected to its use, the report and the probation officer’s evidence should not have been admitted, tying this conclusion to the fair trial guarantees in section 35(3) of the Constitution as quoted in the judgment (including the right not to be compelled to give self-incriminating evidence).

Having found that the report was inadmissible under section 105A(10) absent consent, and that it was compiled outside the proper temporal and statutory context, the court concluded that admitting it constituted a misdirection and a miscarriage of justice that vitiated the sentencing discretion. The court then considered the remedial consequence. It rejected the option of simply substituting sentence on appeal because, without the inadmissible report, there were no personal circumstances placed before the appellate court (and, on the record, none had been placed before the trial court independently of the report). In those circumstances, the matter had to be returned to the trial court for sentencing afresh, on the basis of new pre-sentence reports properly obtained.

Because the appeal succeeded on the first ground, the court held it unnecessary to determine the second ground relating to substantial and compelling circumstances.

5. Outcome and Relief

The appeal was upheld.

The sentence imposed by the trial court on 25 October 2019 was set aside.

The matter was referred back to the trial court for consideration of sentence afresh, to be determined on the basis of new pre-sentence reports.

Condonation was granted for the late filing of the respondent’s heads of argument. No separate costs order was recorded in the order as set out in the judgment.

Cases Cited

S v Knight 2017 (2) SACR 583 (GP)

S v Lapping 1998 (1) SACR 409 (W)

Van der Westhuizen (full citation not provided in the judgment)

Legislation Cited

Criminal Procedure Act 51 of 1977 (including sections 105A, 105A(8), 105A(10), 112(2), 309(1)(a))

Judicial Matters Amendment Act 42 of 2013 (section 10, as referred to in the judgment)

Probation Services Act 116 of 1991 (section 4(1)(k))

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (section 35(3), including section 35(3)(h) and (j), and section 35(5) as raised in argument)

Rules of Court Cited

No uniform rule of court was expressly cited. The judgment noted that the appeal was heard virtually in terms of the Gauteng Division’s Consolidated Directives re Court Operations during the National State of Disaster, as issued by the Judge President.

Held

The court held that the admission of the pre-sentence report and the probation officer’s evidence constituted a misdirection and a miscarriage of justice because the report was compiled using information derived from an abandoned section 105A plea and sentence agreement process and was prepared prior to conviction in the de novo proceedings. In the absence of the appellant’s consent as contemplated by section 105A(10), the report and the related evidence were inadmissible and should not have been relied upon in sentencing.

As a consequence, the sentence imposed by the trial court could not stand and was set aside. The matter was remitted to the trial court to impose sentence afresh after obtaining new pre-sentence reports, and the appellate court did not determine the separate complaint regarding substantial and compelling circumstances.

LEGAL PRINCIPLES

The judgment applied the principle that an appellate court interferes with sentence only where the sentencing discretion was not exercised properly or reasonably, including where a misdirection vitiates the discretion.

It applied section 105A(10) of the Criminal Procedure Act 51 of 1977 to the effect that where proceedings commence de novo without reliance on a plea and sentence agreement, the agreement is null and void and there may be no reference to the negotiations, the agreement, or the record of the agreement in later proceedings, unless the accused consents to the recording and use of admissions made during that process.

It applied the principle, as discussed with reference to the passage quoted from Van der Westhuizen, that an accused may waive the protection afforded by section 105A(10) by consenting to the use of admissions or related material generated for section 105A proceedings, but that absent such consent the statutory protection remains operative.

It applied the statutory framework of the Probation Services Act 116 of 1991, in particular the probation officer’s role in investigating the circumstances of a convicted person and compiling a pre-sentence report, to conclude that a report compiled before conviction in the operative proceedings (and premised on a conviction/sentence that had been set aside) could not properly be used in the later sentencing process.

It applied fair trial considerations under section 35 of the Constitution (as framed in the judgment) to reinforce that the admission of adverse, contested material derived from an inadmissible plea agreement process should not be permitted where it undermines the accused’s procedural protections, including protections against compelled self-incrimination, in the context of sentencing.

Knight v S (A731/2016) [2022] ZAGPPHC 553; 2022 (2) SACR 431 (GP) (2 August 2022)