Brief Summary

Criminal Law — Appeal — New evidence — Court of appeal's discretion to consider new evidence and impose a new sentence in exceptional circumstances. Appellant, Pieter Jaftha, was convicted in 1998 for driving under the influence of alcohol, marking his third offence. He received a three-year imprisonment sentence. After a significant delay in communication regarding his appeal's dismissal, Jaftha sought to present new evidence, demonstrating his rehabilitation and changed circumstances over the past decade. The State did not contest the new evidence and acknowledged the exceptional delay. The court held that the original sentence was no longer warranted and imposed a fine of R10,000 or two years' imprisonment instead.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings concerned an appeal against sentence in a criminal matter, ultimately heard by the Supreme Court of Appeal. The appellant, Pieter Ettienne Jaftha, appealed against the sentence imposed following his conviction for driving a motor vehicle while under the influence of alcohol. The respondent was the State.

The matter originated in the Montagu Magistrates’ Court, where Mr Jaftha pleaded guilty and was convicted on 22 April 1998 of contravening section 122(1)(a) of the Road Traffic Act 29 of 1989. The magistrate imposed a sentence of three years’ imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977. Mr Jaftha appealed to the Cape High Court, which dismissed the appeal in 1999.

A significant procedural complication arose because the dismissal of the appeal was, for unexplained reasons, not communicated to the Montagu Magistrates’ Court, with the result that a warrant for Mr Jaftha’s arrest was only acted upon approximately nine to ten years later, in 2008. After learning of the dismissal, Mr Jaftha sought and obtained condonation and leave to appeal to the Supreme Court of Appeal. The appeal before the Supreme Court of Appeal concerned both the alleged correctness of the original sentencing approach and, crucially, whether new evidence relating to changed circumstances could be admitted on appeal to justify reconsideration of the sentence.

The general subject-matter of the dispute was therefore the scope of an appellate court’s power to revisit sentence where there has been an exceptional delay after sentencing, coupled with post-sentence rehabilitation and materially changed personal circumstances.

Material Facts

Mr Jaftha was convicted of contravening section 122(1)(a) of the Road Traffic Act 29 of 1989 for driving under the influence of alcohol on 29 November 1997. He was 32 years old at the time of conviction. This was his third conviction for the same type of offence. The court treated as material the fact that the third offence was committed after conviction but before sentence for the second offence had been imposed.

The prior convictions were relevant to sentence. The first offence (May 1991) resulted in a fine and a wholly suspended term of imprisonment. The second offence (committed 23 August 1997) resulted in a fine partly suspended (alternatively imprisonment partly suspended) and a five-year suspension of his driving licence. It was common cause that he had paid the fines imposed previously.

In the third offence, the magistrate regarded as aggravating that Mr Jaftha’s blood alcohol level was four times above the legal limit, that he drove with two passengers, and that he committed the offence within a short period after being charged with a similar offence. Reports from a correctional supervision officer and a social worker recommended correctional supervision and indicated, at that time, that he did not have a drinking problem, had stable employment in a family flower business, and had young children dependent on him.

After sentence, Mr Jaftha pursued an appeal to the Cape High Court, and he was released on bail. Although the High Court dismissed the appeal in 1999, the magistrates’ court was not informed of that outcome. The consequence was that Mr Jaftha was not taken into custody to serve the sentence at that time. Around July 2008, an investigating officer informed Mr Jaftha’s family that a warrant existed and that his appeal had failed. Mr Jaftha then promptly approached the High Court for leave to appeal further and obtained condonation on the basis that he was not to blame for not having been informed of the dismissal.

A central factual development relied upon by the Supreme Court of Appeal was that, during the long period after sentence, Mr Jaftha alleged (in an affidavit) that he had realised he had a drinking problem, had stopped drinking altogether, had become part of a successful family export business, and had established a stable family life through marriage. The State did not object to the affidavit being placed before the Supreme Court of Appeal and did not dispute the truth of these allegations. The State also accepted that the approximately ten-year delay was exceptional and that sentence should be revisited.

Legal Issues

The court was required to determine whether there were any misdirections in the magistrate’s sentencing that would justify appellate interference on ordinary sentencing-appeal principles. This component of the dispute concerned primarily the application of sentencing principles to the record and facts available at the time of sentence.

The central and decisive issue, however, was whether an appellate court may, in exceptional circumstances, receive and consider new evidence arising after sentencing, and then alter the sentence because the passage of time and subsequent developments render the original sentence inappropriate. This issue involved a question of law (the extent of the appellate court’s power and the applicable principles) and the application of that law to largely uncontested post-sentence facts, together with an evaluative sentencing judgment about the appropriateness and utility of custodial punishment after a decade-long delay.

Court’s Reasoning

The Supreme Court of Appeal first addressed the contention that the magistrate misdirected himself in imposing sentence. The court rejected the asserted misdirections. It held that the guilty plea did not meaningfully demonstrate remorse in circumstances where Mr Jaftha had been apprehended while driving under the influence and effectively had little choice but to plead guilty. It further held that the possible activation of a suspended sentence from the second conviction and payment of the suspended portion of a fine were irrelevant to the proper sentencing for the third offence. The court also held that the prior suspension of the driving licence was not a misdirection: it was an appropriate protective measure and did not undermine the need to address the criminal conduct through sentence.

On the complaint that the magistrate placed weight on the prevalence and social consequences of drunken driving without affording Mr Jaftha an opportunity to respond, the court considered that it is ordinary and legitimate for sentencing courts to refer to the prevalence of a crime and the need for deterrence. It did not regard this as improper reliance on personal knowledge or judicial notice requiring a response from the accused.

As to the argument that the magistrate should have rejected professional reports suggesting Mr Jaftha did not have an alcohol problem, the Supreme Court of Appeal held that there was no evidence before the sentencing court to justify a finding that he did have such a problem. In that context, the court did not accept that the magistrate committed a misdirection in the manner contended. Having found no misdirection, the court stated that it would not ordinarily interfere with the sentence on conventional grounds, consistent with the approach taken by the High Court in 1999.

The court then turned to the admission of further evidence and reconsideration of sentence. It affirmed the general principle that sentencing ordinarily proceeds on the basis of facts known at the time sentence is imposed. However, relying on authority recognising an exception, it held that the rule is not invariable: where exceptional or peculiar circumstances arise after sentence, an appellate court may take such circumstances into account and may alter the original sentence if justified.

Applying those principles, the Supreme Court of Appeal treated the approximately ten-year delay—caused by miscommunication between court officials and not attributable to Mr Jaftha—as extraordinary. It placed weight on the fact that the State did not oppose admission of the affidavit, did not contest its contents, and accepted both the exceptional nature of the delay and the propriety of revisiting sentence. In those circumstances, the court held that the sentence imposed ten years earlier should be set aside and a new sentence considered.

The court considered whether the matter should be remitted to the trial court to hear evidence concerning rehabilitation and sentence afresh. It declined to do so because the State accepted the truth of the evidence that Mr Jaftha no longer drank alcohol and because, given the circumstances, it considered there was no practical purpose in imposing a custodial sentence a decade after conviction and sentence. The court therefore exercised its appellate power to impose sentence itself.

In determining the substituted sentence, the court emphasised that the offence remained serious, aggravated by its being a third conviction for driving under the influence. Even accepting rehabilitation, it considered that the sentence needed to retain a punitive and deterrent component. Balancing these considerations, it concluded that a sentence of a substantial fine, with imprisonment as an alternative, was appropriate in the circumstances.

Outcome and Relief

The Supreme Court of Appeal upheld the appeal. It set aside the judgment of the Cape High Court and substituted it with an order allowing the appeal against the magistrate’s sentence.

The court substituted the sentence of three years’ imprisonment with the following sentence: a fine of R10 000 or two years’ imprisonment.

No separate costs order was recorded in the judgment.

Cases Cited

R v Verster 1952 (2) SA 231 (A)

R v Hobson 1953 (4) SA 464 (A)

Goodrich v Botha 1954 (2) SA 540 (A) at 546A–D

S v Karolia 2006 (2) SACR 75 (SCA)

Legislation Cited

Road Traffic Act 29 of 1989, section 122(1)(a)

Criminal Procedure Act 51 of 1977, section 276(1)(i)

Criminal Procedure Act 51 of 1977, section 276(1)(h)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that, although sentencing ordinarily depends on facts known at the time sentence is imposed and no sentencing misdirection had been shown on the original record, an appellate court may in exceptional circumstances admit and consider new evidence relating to events occurring after sentence. Where an extraordinary post-sentence delay not attributable to the accused, together with uncontested evidence of rehabilitation, renders the original custodial sentence inappropriate, the appellate court may set aside that sentence and impose a substituted sentence itself.

On the facts, the approximately ten-year delay caused by administrative miscommunication, the State’s acceptance of the delay as exceptional, and the State’s non-contention of the accused’s rehabilitative evidence justified the setting aside of the custodial sentence. A substituted sentence of a fine (with an alternative of imprisonment) was imposed to reflect both the seriousness of repeated drunken driving and the need for deterrence and punishment.

LEGAL PRINCIPLES

An appellate court will not ordinarily interfere with sentence absent a material misdirection or irregularity, and it generally assesses sentence on the basis of facts available to the sentencing court at the time sentence was imposed.

The general rule limiting sentencing to the original factual matrix admits of an exception: in exceptional or peculiar circumstances arising after sentence, an appellate court may receive further evidence and reconsider sentence where justice requires it.

Where a substantial and extraordinary delay in the execution or finalisation of sentence occurs through official miscommunication and is not attributable to the accused, and where post-sentence evidence of rehabilitation is uncontested, a custodial sentence imposed long previously may be revisited and replaced with a sentence that remains punitive and deterrent but better fits the present circumstances.

An appellate court may, where appropriate and practically justified, impose a substituted sentence itself rather than remit the matter, particularly where the relevant new facts are accepted and further evidentiary proceedings would serve no purpose.

Jaftha v S (687/2008) [2009] ZASCA 117; 2010 (1) SACR 136 (SCA) ; [2010] 1 All SA 403 (SCA) (25 September 2009)