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[2022] ZAECMKHC 73
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Loannides v S (CA &R 201/2021) [2022] ZAECMKHC 73 (5 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – MAKHANDA]
CASE
NO: CA &R 201/2021
Date
Heard: 31 August 2022
Date
Delivered: 5 October 2022
In
the matter between:
Jason
Ioannides
Appellant
And
The
State
Respondent
JUDGMENT
SMITH
J and NTLAMA-MAKHANYA AJ:
[1]
The appellant was convicted in the East London Regional Court of
housebreaking with
intent to assault and assault with intent to do
grievous bodily harm. On 31 May 2019, he was sentenced to eight
years’ imprisonment,
of which three years were suspended for a
period of four years on certain conditions. He appeals against
sentence only with the
leave of the court a quo.
[2]
It is trite that the imposition of an appropriate sentence is
pre-eminently a matter
for the trial court. A court of appeal will
only interfere with the sentence if the trial court has committed a
material irregularity
or the sentence is so disproportionately harsh
that the ineluctable inference is that the trial court did not
exercise its sentencing
jurisdiction properly.
[3]
The appellant contends that the magistrate failed to exercise his
sentencing discretion
properly. He contends, in particular, that the
magistrate failed properly to consider correctional supervision as a
sentencing
option.
[4]
Mr. Koekemoer, who appeared on his behalf, submitted that it does not
appear from
the judgment on sentence that the magistrate has given
proper consideration to the correctional supervision report and that,
in
any event, the report was lacking in certain material respects.
[5]
In addition, he argued that the
magistrate overemphasized considerations such as the prevalence
of
the offence in his district and the need for deterrence. He also
erred in his factual finding that the appellant has a preponderance
for violence and should be deterred from committing similar offences
in the future. The fact that the magistrate overemphasised
the
gravity of the offence in the interests of the community at the
expense of the appellant’s personal circumstances, is
a
misdirection which entitles this court to interfere with the
sentence, or so the argument went.
[6]
Before us, Mr Koekemoer concentrated his argument almost entirely on
the submission
that the failure by the magistrate to give proper
consideration to a non-custodial sentence is a serious misdirection
which vitiates
the sentence. He accordingly submitted that we should
set the sentence aside and refer the matter back to the trial court
for reconsideration,
with a directive that a proper and comprehensive
correctional supervision report be prepared and placed the court.
[7]
The assault on the complainant and her boyfriend was particularly
horrendous. The
appellant and his co-perpetrator went to the
complainant’s flat in the early hours of the morning, kicked
the door open and
then started to assault them with a knuckle-duster
and a baseball bat. The magistrate found that the attack was
premeditated. The
complainant suffered serious injuries and had to
receive four stitches on the left side of her face, two of her lower
teeth were
broken and her arm was injured to the extent that she
could not use it for two weeks. The appellant furthermore also
threatened
to kill her while she was in hospital.
[8]
The correctional supervision report contained, inter alia, the
following material
comments:
(a)
The accused is 44 years
old and has no previous convictions. He has three children, aged 16,
5 and 3 years, respectively. His mother
indicated that the appellant
supports his children financially and socially. The report concludes
furthermore that ‘[I]t
is clear that the lives of these young
children would be affected if the appellant is incarcerated’.
(b)
The appellant accepted
the fact that he had done wrong and that shows a sense of remorse.
(c)
He has a strong support
system, in particular, because he will be supported by his mother and
sister.
(d)
The manager of his
business is also willing to support him if a community-based sentence
is imposed.
(e)
The complainant is
aware of the fact that the appellant is very dedicated to his
children, and since he has acknowledged his wrongdoing,
she is now
willing to forgive him.
[9]
Next to the entries relating to house detention, community service
support programs
and restrictions to one magisterial district, the
correctional official has simply entered ‘YES’ in respect
of all,
without providing any detailed recommendations for the
court’s consideration.
[10]
It is indeed so that the magistrate addressed the contents and
recommendations of the report
in a rather perfunctory manner. After
acknowledging the fact that the correctional official has recommended
a non-custodial sentence
and narrating the appellant’s personal
circumstances, he embarks on a detailed description of the
circumstances of the crimes
in order to demonstrate their serious
nature. However, nowhere in his judgment on sentencing does it appear
that he gave due consideration
to the conditions suggested by the
correctional officer namely, inter alia, house arrest, community
service and restriction to
one magisterial district.
[11]
In addition, in considering whether a non-custodial sentence will be
appropriate the magistrate
has failed properly to take into account
the accused’s personal circumstances, which are as follows. He
is 44 years old and
is a first offender. He is not married but is the
father of three children; a son aged 16 and daughters aged three and
five, respectively.
He is an educated man, with a tertiary education
and owns businesses, namely a Pub and Grub restaurant, as well as a
butchery.
His son lives with him, while his two daughters reside with
their mother. It was also common cause that the appellant supports
all three his children.
[12]
The magistrate ultimately found that: ‘In the present case,
this case the crime has been
clearly premeditated and there was no
suggestion that you had acted in any heightened emotional state of
mind. It was found in
that case that the direct imprisonment was not
inappropriate. Your conduct in this case cannot be condoned in any
way. Brutal treatment
of woman cannot be excused on the basis that
one is in a rage or even drunk’.
[13]
In terms of
section 276(1)
(h) and
276
(1) (i) of the
Criminal
Procedure Act, 51 of 1977
, correctional supervision is a sentencing
option in respect of all offences, even in serious crimes such as
murder. The purpose
of this sentencing option is to distinguish
between two types of offenders namely, those who ought to be removed
from society by
imprisonment and those, although deserving of
punishment, should receive a non-custodial sentence. (S V R 1993 (1)
SACR 209
(A), at 22-G.
[14]
Correctional supervision is not a lenient alternative to direct
imprisonment, and with the imposition
of appropriate conditions
(depending on the circumstances of a particular case), it may
constitute harsh and exacting punishment,
while allowing the accused
to function in the community, be with his family, and provide for his
minor children, thus creating
more suitable conditions for
rehabilitation.
[15]
A trial court must therefore, in the exercise of
its sentencing discretion, give proper consideration to
correctional
service as a sentencing option. The reasons for its decision in this
regard must be clearly evident from the judgment.
(S V Grobler
2015
(2) SACR 210
(SCA), at para. 8)
[16]
It is, in my view, evident from the magistrate’s judgment on
sentencing that he did not
give proper consideration to the
appropriateness of correctional supervision as a sentencing option.
He has, in particular, not
considered the punitive and exacting
effects of conditions such as house arrest, community service and
restriction to a particular
magisterial district. It appears that in
concentrating on the seriousness of the crime, he appeared to have
been of the view that
correctional supervision would be a
disproportionately light sentence, without considering the
consequences of the abovementioned
conditions. The judgment also does
not evince that he has given due consideration to the effects a
custodial sentence would have
on the appellant’s minor
children.
[17]
In the light of this finding it is not necessary for us to consider
the other grounds of appeal
advanced by the appellant namely, that
the sentence was disproportionately harsh so as to point to a failure
by the magistrate
to exercise his sentencing jurisdiction properly.
[18]
In summary then, we find that the magistrate has failed to give
proper consideration to correctional
supervision as a sentencing
option and that the report that served before him was, in any event,
deficient in material aspects.
This latter factor has clearly further
impacted negatively on the exercise of his discretion in this regard.
The appeal must accordingly
succeed to this extent.
[19]
In the result the following order issues:
1.
The appeal is upheld
and the sentence imposed by the court a quo is set aside.
2.
The matter is remitted
to the court a quo to impose sentence afresh after obtaining from the
correctional officer a more comprehensive
report containing
stipulations and conditional factors regarding the possible
imposition of non-custodial sentence.
JE
SMITH
JUDGE
OF THE HIGH COURT
N
NTLAMA-MAKHANYA
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
For
Appellant
: Adv JR Koekemoer
Instructed by: Allams
Attorneys
East London
For
Respondent :
Adv AA Nohiya
National Director of
Public Prosecutions
Makhanda