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1986
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[1986] ZASCA 71
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S v Steyn (63/86) [1986] ZASCA 71 (30 May 1986)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the appeal of:
MARCELLE STEYN
1st appellant
and
CRAIG PRICE
2nd appellant
versus
THE STATE
respondent.
Coram: JANSEN, SMALBERGER, JJA, et GALGUT AJA.
Date of Hearing
: 9 May
1986.
Date of Judgment
: 30 May 1986
JUDGMENT
GALGUT AJA
:
The two appellants were jointly charged in the Regional Court for the
division of Southern Transvaal with committing three counts
of robbery with
aggravating
/ circumstances
2
circumstances. In addition second appellant was charged with a fourth count
of robbery with aggravating circumstances and a fifth
count of being in
possession of a fire-arm, without a licence, in contravention of sec. 2 of Act
75 of 1969. They each pleaded guilty
to the respective charges brought against
them and after statements in terms of sec. 112(2) of Act 51 of 1977 had been
handed in,
they were each found guilty as charged. Sentences of imprisonment
were
imposed on each count. Details of the charges and sentences
are set out later in this judgment.
The sentences imposed in each case were ordered to run concurrently. In the
result the effective periods of imprisonment imposed were
in the case of first
appellant four years imprisonment, and in the case of second appellant five
years imprisonment. Each appellant
appeals only against the sentence.
The relevant dates and places at which the robberies were committed by the
two appellants and the details
/ of
3
of the amounts taken are as follows:
Count 2
: On 3 September 1972, R700 in cash from the
United Building
Society, Linden.
Count 3
: On 7. September 1982, R600 in cash from
the
Netherlands Bank, Greenside.
Count 4
: On 10 September 1982, R6 000
in cash from Barclays
Bank, Kensington.
In addition the second appellant (Price) on 6 August
1982 robbed Nedfin Bank, Randburg of R6 000 in cash.
This was count 1. He was also found guilty of being in possession of a .22
Beretta Pistol without being the licenced holder thereof.
This was count 5.
The sentences imposed on both appellants were
two
years imprisonment on count
2;
two years
imprisonment on count 3; and four years imprisonment on count 4. Second
appellant was sentenced to a further four years
imprisonment on count 1 and six
months imprisonment on count 5.
/ In
4
In the case of first appellant it was ordered that the sentences on counts 2
and 3 were to run concurrently with the sentence on count
4. The effective
period of imprisonment was therefore 4 years. In the case of second appellant it
was ordered that the sentences
on counts 2,3 and 5, and three years of the
sentence on count 1 were to run concurrently with the sentence on count 4. The
effective
period of imprisonment was, in his case, 5 years.
The appellants appealed to the Transvaal Provincial Division against the
sentences only. Their appeals were dismissed. Leave having
been granted by the
Court a
quo
, they now appeal to this Court against the sentences
imposed.
The robberies were committed in the
following
manner. In counts 2,3 and 4 they made use
of a motor-cycle which had been borrowed. They both wore crash helmets and dark
glasses
to prevent identification. First appellant
/ waited
5
waited outside the building on the motor-cycle with its engine idling, the
purpose being to achieve a quick getaway. Second appellant
entered the building
and handed a written note to the cashier or teller. One of the notes used was
handed in at the trial. It reads:
" This is a robbery. Do not make any contact with anybody whatsoever. I am
armed. If anybody tries to stop me, I will shoot without
hesitation. If you
press off any alarms, you will pay for it. Just put R6 000 in this bag, starting
with the used notes. If you try
to stop me when I leave, I will kill you."
In count 1 second appellant, who acted alone, followed a similar procedure in
the bank save that he did not have the pistol on this
occasion. The pistol in
count 5 belonged to his father. It had no magazine or bullets. The pistol
remained at all times in second
appellant's pocket First appellant's age at the
time was seventeen years and three months and second appellant was seventeen
years
and
one month.
/ After
6
After the appellants had been found guilty, evidence in mitigation was led on
behalf of both appellants. In the case of first appellant
a clinical
psychologist, Mr Cumes, and a probation officer, Mr De Coning, testified. For
reasons which will appear later, I deem
it necessary to set out their evidence
in some detail.
Mr Cumes was registered with the South
African
Medical and Dental Council; he was a
lecturer in the depart-ment of psychology at the University of the
Witwatersrand; he also carried
on a private practice. He carried out a series of
interviews with first appellant and his parents
and prepared two reports
which were read out and handed in at the trial. He testified and adhered to his
reports and was cross-examined
thereon. It appears from his evidence and reports
that first appellant's parents had been divorced; that thereafter his mother
married
a Mr Harvey; that the latter marriage had also broken up; that as a
result of the charges against first appellant his mother and
Mr Harvey had come
together again; that first appellant and
7
his stepfather had for some time prior to the break-up "been in
conflict"; that first appellant's biological father showed no real
concern for
him and had not fulfilled his role as a father. Extracts from Mr Cumes's report
made in November 1982 read:
"
Conclusions and Recommendations
Marcelle Steyn is, at 17, a boy with
problems on a number of different
levels.
These can be summarized as follows:
( a )
(b) Even without these charges, he
has had
difficulties with school adjustment and
with adapting to work
since leaving
school. He has had no clear direction,
being neither able to
find it for himself,
nor having been given satisfactory gui-
dance by his parents in this regard.
(c) His parents marital difficulties have
created a climate of tension and
dis
unity in the home. His mother and
stepfather have been too
preoccupied
with their own struggle and their
own occupational involvements to recog
nize their son's difficulties, and
take
appropriate corrective action. Conse
quently Marcelle's problems have
wor
sened and he has gradually withdrawn
from his family and become one of
a
number of boys whose behaviour, lacking
appropriate guidance, has
deviated from
/ an
8
an acceptable standard.
(d) There are indications of personality pro-blems that could, in the future,
express themselves in more severe form, not so much
as delinquency but rather as
psy-chiatric disorder.
The following recommendations are addressed to the parents:
Mr and Mrs Harvey need to put their
house in order.
They will need in addition to give attention to Marcelle's future. In my view
his leaving school was premature, and his parents should
consider re-negotiating
the issue of school attendance with him. They need to appreciate that he is not
emotionally mature or stable
enough to deal satisfactorily with the adult world,
and that should he be obliged to do so prematurely, the consequences for him
are
likely to be most unfavourable.
The final recommendation is addressed to the Court:
Since I do not see Marcelle Steyn's primary problem as one of criminality,
but rather one of emotional instability, immaturity and
confusion, I do not see
imprisonment as being either in society's or in the boy's interests. I would
rather see Marcelle and his
parents deal directly with the problems as they have
been outlined above, recognizing that the behavour that has led to this trial
is, in Marcelle's case, a cry for help."
/ The
9
The following extracts from his second report, which was made
in March 1983, are significant:
"The family responded to the recommendation that Marcelle return to school, and
a small college was chosen which apparently supervises
its pupils closely.
Marcelle reports that he has adjusted well. He in fact took the issue of
returning to school to his parents initially,
and they support his wishes in
this regard. Mr and Mrs Harvey agree that Marcelle has settled well, has made
friends, and brings
them home. They consider his progress satisfactory.
In a telephone conversation on 16th March.
1983, with Mr J.P. Burmeister ,
principa1 of Rand
Tutorial College, I was told that he and his
teachers
are happy with Marcelle, and that there
have been no complaints about him. He
has co
operated both behaviourally and scholastically and
is making
satisfactory progress
In the interview with me, Marcelle appeared to have at the present a more open
and communicative relationship with his parents. Despite
the impending court
case, he seemed to be a more settled and happier young man.
With regard to the noxious factors in the family
,
Mr and Mrs Harvey and
Marcelle were all unanimous that certain changes had taken place. They spend
more time together and the barriers
between them appear to have broken down.
Marcelle has 'returned', as it were, to the family and is more positively
involved both
with his parents and his brothers. He
reportedly
/ now
10
now brings his friends home. My observations of
the way the family members
now related to one a-
nother supports their view that there is a
greater
coherence in the family
In summary, from the point of view of a clinical psychologist, Marcelle Steyn's
serious contravention of the law emerged out of a
situation that has to some
extent now been rectified."
Mr De Coning, the
probation officer from the Department of Health and Welfare had previously had
three years service in the Department
of Prisons. He handed in a report to which
he adhered in evidence. He investigated the personal circumstances of first
appellant
and also had interviews with first appellant (five or six) and also
with his parents. He had read Mr Cumes's report and testified
that he agreed
with everything there said. Extracts from Mr De Coning's report, which were
repeated in his evidence,
read :
"Die beskuldigde net slegs periodieke kon-tak met sy biologiese vader behou.
Volgens die beskuldigde en sy moeder het die biologiese
vader by verskeie
geleenthede die kinders belowe dat hy hulle op 'n gegewe tyd sal kom haal vir
besoek en dan net nooit opgedaag
nie. Hierdie
/ situasie
11
situasie het die beskuldigde as verwerping be-
leef
Ondersoek het aan die lig gebring dat die ouers (i.e. his mother and
stepfather) so betrokke was by hul eie huweliksprobleme dat die
werklike
emosionele behoeftes van die beskuldigde nie geidentifiseer en ontmoet is
nie.
Hierdie ongebalanseerde gesinsituasie het die beskuldigde gelaat sonder 'n
belewenis van emosionele sekuriteit. Weinig gestruktureerde
dissipline is
gevolglik deur die ouers toegepas wat tot gevolg gehad het dat die beskuldigde
geen daadwerklike gestruktureerde verwysings-raamwerk
opgebou het waarmee hy kon
identifiseer en waarvolgens hy sy optrede kon rig nie.
Hy was egter geneig om
homself emosioneel te onttrek van die gesin.
Hierdie gedragspatroon kan geëvalueer
word in die lig van die
beskuldigde se belewenis
van verwerping van die biologiese vader en
'n
gebrek aan emosionele sekuriteit van sy moeder
en stiefvader
Gedurende Oktober tot Desember 1982 het die beskuldigde by 'n steenkoolmyn te
Ogies gewerk waarna hy as voltydse student by die Rand
Tutorial College
ingeskryf het om sy st.10 te voltooi. Volgens die skoolhoof is die beskuldigde
se vordering bevredigend en word
geen probleme ondervind ten opsigte van kollege
bywoning en uitvoering van pligte nie. Die beskuidigde verbaliseer sy insig ten
opsigte
van die belangrikheid om homself skolasties verder te bekwaam na
aanleiding van sy onder-
vindings in die werksituasie
/ Ondersoek
12
Ondersoek het aan die lig gebring dat die beskuldigde in wese nie krimineel
geneigd is nie, alhoewel betrokke by 'n oortreding van
so ernstige aard. Hy is
nie geneig tot oneerlik-heid nie wat ook deur bronne geraadpleeg beves-tig
is.
Sy basiese betrokkenheid by misdaad kan gesien word as 'n sameloop van
ontwrigtende gesins-omstandighede en emosionele konflikte wat
hom ontvanklik
gemaak net vir misdaad, eerder as 'n wesenlike kriminele geneigdheid.
Tydens
die ondersoek het dit duidelik geblyk dat die beskuldigde daadwerklike
skuldgevoelens ervaar jeens sy onaanvaarbare misdaadgedrag.
. . .
GEVOLGTREKKING
Oorweging is geskenk aan gevangenisstraf: aangesien die Gevangenisdiens oor
professionele personeel beskik wat die beskuldigde kan
bystaan.
Die
beskuldigde se emosionele onvolwassenheid en problematiek op emosionele vlak
laat twyfel of hy homself binne die gevangenisopset
sal kan hand-haaf, en word
dit betwyfel of die beskuldigde as sodanig emosioneel sal ontwikkel dat hy na
ont-slag sy plek sinvol
sal kan volstaan in die same-lewing. 'n Verdere
oorwegende faktor is die feit dat die beskuldigde nie in wese krimineel geneigd
is
nie. Dit is die inening van die proef-beampte dat die beskuldigde sinvol kan
baat by professionele aandag binne die ope gemeenskap.
/ AANBEVELING
13
AANBEVELING
Indien die Hof in ooreenstemming is met die voorafgaande word dit aanbeveel
dat die Hof oorweging skenk aan die volgende:
(a)
Vonnis ingevolge art. 290
van die strafproseswet 51 van 1977 asook;.
(b)
Vonnis ingevolge art. 297(1)(b) op die volgende
voorwaardes:
(i) dat die beskuldigde hom sal
onderwerp aan die toesig van 'n proefbeampte en enige vorm van behandeling
wat deur die proefbeampte nodig geag en voorge-skryf word;
(ii) dat die beskuldigde nie van woon-plek mag verander alvorens die beampte
vooraf in kennis gestel word nie:
(iii) dat die beskuldigde hom gedurende die tydperk van opskorting nie
skuldig maak aan misdryf van on-eerlike aard nie.""
I do not find it necessary to detail the provisions of the said sections 290
and 297(1)(b), save to say that the latter provides for
a suspended
sentence.
The following extracts from Mr De Coning's evidence are significant.
/ "Edelagbare,
14
" Edelagbare , soos ek ook in die verslag tereg aan die Hof probeer dit
uitspel het, is die be -skuldigde emosioneel 'n onvolwasse
persoon op hierdie
stadium, en sien ek hom nie as 'n persoon wat homself emosioneel toereikend sal
kan hand-haaf binne 'n gevangenisopset
nie, en ook maklik misbruik sal kan word,
na aanleiding van sy emo-
sionele problematiek. Emosioneel
gesproke Edelagbare, net die
beskuldigde beslis 'n emosionele agterstand wat sy ouderdom betref.
So, hy is
so te sê 'n baie jong sewentien? — Dis korrek Edelagbare.
Het u enige ander vorm van straf oorweeg, soos die oplegging van houe, of
vonnis tot aanhouding in 'n verbeteringskool of iets
van
dié
aard?— Edelagbare, ek het in my aanbe-veling het ek lyfstraf aanbeveel
ingevolge, onder punt (a) 8(a) (sic!), Artikel
290. Tweedens het ek verder
aanbeveel ingevolge art. 297, 'n opgeskorte vonnis op voorwaarde dat hy onder
toesig geplaas word, met
gevangenisstraf oorweeg soos uiteengesit in die
verslag. Wat 'n verbeteringskool betref Edelagbare, in die verslag het ek
uitgespel
dat ek nie kon waarneem of feitegegewens kon versamel wat daarop kon
dui dat die beskuldigde krimineel geneigd is nie, en om daardie
aspek is hy nie
'n kandidaat vir 'n verbeteringskool nie, waar daar spesifiek gespesiali-seer
word in die bantering van die kinders
met kriminele geneigdheid. So ek het die
vonnisse oorweeg."
/ Mr De Coning
15
Mr De Coning was also of the view that first appellant took part in the
robberies because his friend, the second appellant, had problems
which arose
when second appellant's motor-cycle was stolen. As to this aspect more
later.
In the case of second appellant a clinical psychologist, Mr Christodoulou,
and a probation officer, Mr Cairns, gave evidence. The
second appellant's
father-had two sons by a previous marriage. Second appellant was born of the
present marriage and was the youngest
child in the home. The evidence is to the
effect that conditions in the home were far from satisfactory and at one stage
the marriage
nearly broke up. Very little attention was given to appellant (and
his brother and stepbrothers) There was no discipline in the home.
Second
appellant had been expelled from school. He went to work and saved money to pay
for a motor-cycle. Mis father had warned
/ him
16
him that it might be stolen. A week after it had been bought it was in fact
stolen. Second appellant was afraid to tell his father
of the theft and said it
was being repaired. He thereafter acquired another motor-cycle, identical,to the
stolen one, with the money
acquired from the robberies. He later attended the
same tutorial college as the first appellant, where he passed standard 8. It is
against the above background that the extracts, set out below, from the evidence
of the probation officer, Mr Cairns, and of
the clinical psychologist
,
Mr Christodoulou, must be weighed.
Mr Cairns was a probation officer from the Department of Health and Social
Welfare. He investigated the circumstances of second appellant.
He had had
interviews with second appellant's father and stepmother and had also on four
occasions had interviews with the second
appellant. He had thereafter prepared a
report which was read out and handed into the court. I quote
/ the
17
the following extracts from the report:
"The accused is the youngest of 4 children, the two elder sons being from Mr
Price's previous marriage.
Mrs Price has previously received treatment for depression and hypertension and
has on one occasion taken an overdose of sleeping
tablets.
During a period of frequent arguments
(with her husband) the accused was sent
to
stay with his elder brother. On another
occasion he would stay with
friends
Business pressure upon the marriage has at times been so great that separation
has been contemplated.
However, at High School he came into conflict with the headmaster with regard to
type of sport. Instead of playing rugby at school
he would excell at soccer
privately He also participated and excelled in non-school sports such as
baseball and boxing. Such a behaviour
indicates an alienation from school
activities whereby he was unable to influence his acceptability amongst his
school peers via
sport.
He was regarded by the headmaster as a
misbehaved boy and a bad influence
upon the
other children. He was noted to be dis
respectful to female
teachers, ultimately
he was expelled from the school
/ Of
18
Of paramount importance was the fact that the school secretaries viewed Craig
as a well behaved boy. Based on their relationship with
him they found it
difficult to believe in his misbehaviour.
Thus he exhibited pro-social behaviour in the presence of non-authority
figures. The initial attitude of the school forcing the accused
to participate
in sport types against his own will precipitated non-conformist behaviour,
gradually gaining momentum
through confrontation with teachers
Rand
Tutorial College, where he completed his St. 8 in 1982, report that his
behaviour-was fairly good and his work was satisfactory
considering pressure
related to the crime.
He has however been
confused about his future and at present is best
motivated to apply for an apprenticeship with the Defence Force for whom he has
now
become eligible. The structure in such circumstances would be ideal for the
accused and would afford him greater direction in his
career.
When his parents'
car was stolen they responded with fury and intentions
of revenge. The theft of the accused's motorbike instilled in him similar
emotions
and in fact he proceeded to implement the feelings of revenge against
society.
The accused worked industriously for a year in odd jobs for friends' parents
in order to save for the purchase of the motor-bike .
Two weeks after its
purchase the
motorbike was stolen
A strong promulgating factor on the
part of
/ the
19
the accused is not so much that he wished to strike out at his parents but
rather to a-void rejection by his father by replacing
the bike that was stolen.
His father had warned him against its theft. With most of the stolen money he
replaced his stolen bike
identically - his father remained under the impression
that it had been in for repairs.
It would appear that the crime was not so much committed by a potential habitual
criminal but rather a youth seeking a form of acceptance
initially from his
family."
Mr Cairns concluded his report
(and repeated this in evidence) as follows:
"Committal to a reform school may well be unsuitable to his character. It could
well be a turning point in his life whereby he would
manipulate and learn from
other deviants. He does not normally tend in a criminal direction, for his
present crime, however he requires
his first major deterrent.
Imprisonment would provide a similar effect to that of reform school. It would
be more advantageous to society to attempt to utilize
other forms of deterrent
rather than place him in a situation wherein he would be directed more fully in
deviancy.
A whipping to be supplemented by a suspended sentence could function as a
deter-rent for any similar repetition.
Super-
/ vision
20
vision under a probation officer could provide the necessary guidance and
counselling to both the accused and his parents.
RECOMMENDATION
In view of the abovementioned factors it is recommended that Craig Sutherland
Price be dealt with in terms of Section 290 and Section
297(1)(b) of the
Criminal Procedures Act of 1977 and that he be placed under the supervision of
(a) probation officer."
Mr
Christodoulou is a qualified clinical psychologist and registered as such with
the South African Medical, and Dental Council. He
holds a Mastersdegree in
clinical psychology and has been in private practice since 1974. He has dealt
extensively with maladjusted
adolescents and in particular with ones who have
had criminal tendencies. His report was read out and handed in at the trial. He
adhered to it in his evidence. It is very short and adds little to what was said
by Mr Cairns. He stressed in evidence that second
appellant is "still a very
immature person" and added:
/ "I would
21
"I would say that the precipitating factor-was the loss of the motorbike,
which generated an emotional, emotionally immature revenge
feeling at that
specific point in time. It started a series of fantasy reaction which lead to a
negative behaviour. I would say that
there was a loss of control because of his
emotional immaturity which lead to the various criminal acts being performed,
but I don't
see that they will continue if Craig is allowed the opportunity to
learn to check his behaviour."
The following question and his answer thereto is significant
"Should a period of imprisonment be considered in this, in this kind of case,
what effect would you think that would have on Craig?--
Taking into account his
ability to be influenced, purely because of his emotional immaturity and his
age, I'd say it will have a
more detrimental effect than a positive effect on
him.
Would it have any positive effect at all?--None whatsoever in my view."
Mr Christodoulou's report ends as follows:
"For any form of punishment to be effective in this situation, it would
appear that the punishment and its immediate reactions would
be the most
successful in the form of caning followed by a form of suspended sentence, as he
would be able to relate to these on
his immature schoolboy level of
thinking."
/ There
22
There was but little investigation as to what happened to the stolen money.
It was not suggested that either accused still had any
of it when they were
arrested shortly after the last robbery. What does appear from the record is
that second appellant told Mr Cairns
that of the R6 000 which was taken on 6
August he took R100 and hid the balance in a sluit; that when he returned on the
following
day to pick it up, it had disappeared. It also appears from the
evidence of the investigating officer that he was told that of the
R6 000 taken
on 10 September some fell oat of the container while it was being held on the
pillion of the motor-cycle and that the
appellants did not stop to pick it up
because there were many blacks in the vicinity. It appears that first appellant
received approximately
Rl 100 of the stolen money with which he bought clothes
for himself; that second appellant bought a new motor-cycle, which was identical
to the stolen one and that the cost thereof was approximately R3 000.
/ I pause
23
I pause to point out that the crimes in counts 2,3, 4 and 5 were committed
within a period of 7 days and that 'the evidence suggests
that the reason why
second appellant committed the robberies in counts 2,3 and 4 was because he had
lost the money taken earlier
in count 1.
The Magistrate in his reasons for
sentence referred to numerous decided cases and set out the factors which have
to be considered
when deciding what is a proper sentence, viz. the seriousness
of the offence, the interests of society, the personal circumstances
of the
accused as also the following two aims of sentence, namely deterrence and
reformation of the transgressor. Me then went on
to say (I quote relevant
passages from his reasons for sentence. The lettering is mine. ) :
(a) "Robbery, especially where aggravating circumstances are present, is a
serious crime. It is also a crime which is very prevalent
in the jurisdiction of
this Court."
(b "This has lately become, what I will term, the
popular method of robbing building societies and
/ banks
24
banks."
(c) "The Court has more specifically considered the
i
views and the recommendations, not only by the two probation officers, but
also the two clinical psychologists, and the evidence given
by the investigating
officer. The Court has
inter alia
seriously considered those parts that
cover information about your social and domestic background. Information about
you, the offenders,
and especially the opinions regarding sentence, and the
opinions as to the likely effect on you of imprisonment, probation, or some
other form of punishment. "
(d) "The Court has considered the possible negative
effect which imprisonemnt could have upon you, and has considered the various
alternatives to imprisonment, such as postponement of
sentence, and/or that you
be placed under the supervision of a probation officer, or in the custody of a
suitable person, reformatory.
corporal punishment, a fine, or a suspended
sentence, and the Court does not lose sight of the beneficial effects of a
suspended
sentence, especially a sentence suspended for example on condition
that you submit yourself to the supervision or control of a probation
officer,
/ or
25
or any other condition referred to in subsection l(a)(i) of Section 297 of
Act No 51 of 1977."
(e)"The purpose of a probation officer's report
is to provide the Court with all available information which will assist in
understanding the problems of the juvenile being dealt
with, thereby enabling
the Court to determine an appropriate punishment in all the circumstances."
(f)
"However, as was stated in
the case of the
State v H and Another
1978 (4) SA p 385, the probation
officer's recommendation is merely an expression of opinion for the guidance of
the Court."
(g)
"He (the judicial officer)
must not slavishly follow the recommendation of the probation officer
,
and merely substitute the latter's view for his
own."
(h) "The Court is convinced that the sentences
recommended by the probation officers and by defence counsel will be ineffective
and
will amount to an over-emphasising of your personal circumstances and of
your age."
/ (i) "The
26
(i) "The Court is also convinced that in all the circumstances, you deserve
to be sent to prison. The shock of a prison sentence may
reform you, and the
prison psychology department may be able to treat you."
I find myself in agreement with what is said in
(a),(b),(e) and (g) above.
Ad (c), (d) and (f) above
It is correct
that the recommendations of probation officers and clinical psychologists (and
of course qualified psychiatrists) are
expressions of opinion. However, as was
said in the very case quoted by the Magistrate
(S v H and Another
1978
(4) SA 385
(E) at p 386), where necessary such opinions "must be tested and
subjected to critical analysis. " Cf. also
S v Mngomezulu
1972 (1) SA 797
(A) at 798G to 799H. The necessity for and importance of a probation officer's
report when dealing with a juvenile offender appears
from what is said in S v
Jansen and
Another
1975 (1) SA 425
(A) at p 427 H to 428 A and the
/ cases
27
cases there cited. As to how a psychiatrist's report is to be used, and this
would apply also to reports by clinical psychologists
and probation officers,
appears from what is said in
Mngomezulu
's case cited above at p 798G to
H.
In the present case the facts on which the psychologists and probation
officers based their opinions were not in dispute. These were
that the
appellants came from disrupted homes in which there was no discipline and in
which little attention was given to these youths;
that they were immature even
for youths of seventeen; that they were truthful youths and did not have
criminal tendencies; that during
the period from September 1982 till 30 June
1983 (the date on which sentence was passed) first appellant was at a tutorial
college
where his behaviour was good and it was expected that he would
matriculate; that second appellant had continued to work and was behaving
well
and was in fact expecting to go into the Defence Force. It was
/ on
28
on these undisputed facts that these highly qualified psychologists who had
had much to do with immature adolescents, based their
opinions and stressed that
the appellants should not be sent to gaol. The probation officers were from the
Department of Health and
Social Welfare. Both were experienced men. They were
each of the view that the respective appellants did not need, nor would they
benefit by, the discipline and teachings of a reform school. And certainly it
was their view that appellants did not need a period
in gaol to reform them. On
the contrary, as 1 read De Coning's evidence,
it suggests that
emotionally im-mature adolescents (such as appellants were) might well, if sent
to gaol, be returned to society with
warped personalities
Ad (h) above
The Magistrate gives no reason for coming to the conclusion that the
sentences recommended will be ineffective. If one has regard
to the experience
and qualifi-
/ cations
29
cations of the probation officers and the psychologists
and the facts on which they based their firm views, one would have expected
that he would give reasons for- differing from them.
Ad (i) above
The issue before the Magistrate was not whether
appellants deserve to be sent to prison but what was a proper sentence.
Moreover,
as stated above, it was the view of the probation officers that a
prison sentence might well have an adverse effect and that they
did not need
reform. They were emotionally immature adolescents; they did not need the
benefits of a reform school. It must also
be remembered that Mr De Coning did
not overlook the fact that the prisons had a psychological department for long
term prisoners,
but despite this urged, and gave reasons why, gaol would not be
beneficial.
To sum up what has been set out above. The
/
Magistrate
30
Magistrate gave no reason for differing from the psychologists and the
probation officers who were experienced in their respective
fields and who based
their opinion on facts which were not disputed; he gave no reason for saying
that the suggested sentences "will
be ineffective"; he did not explain why he
formed the view that by not sending them to prison "will amount to an
over-emphasizing
of your personal circumstances and of your age".
It follows that I am of the view that the
Magistrate erred in the following respects. He did not attach sufficient
weight to the evidence of the probation officers and the
psychologists. Their
opinions were based on undisputed facts. They were all experienced in their
field; he failed to realise that
the issue was not whether the appellants
deserved to go to prison but what was an appropriate sentence. He did not have
sufficient
regard to the immaturity of the two appellants; he did not give due
con-
/sideration
31
sideration to the evidence that these two youths would probably not benefit,
in the sense of being reformed, from a period in gaol
but might be ruined
thereby.
No good purpose can be served by setting out the reasons given by the Court
a.
quo
for not interfering with the sentences imposed by the Magistrate.
It is sufficient to say that it appears from the judgment of the
Court a
quo
and the reasons given for granting leave to appeal to this .Court
that the learned Judges a quo were of the view that another Court
might well
find that the prison sentences were inappropriate.
On all the facts, and having regard to the recommendations of the
psychologists and probation officers and their reasons therefor,
this is a case
where the future control of the appellants outside the walls of a prison will
probably lead them back to be useful
members of society, whereas long periods of
imprisonment would have
/ the
32
the opposite effect.
For the reasons set out above this Court is
free to
interfere with the sentences imposed on the appellants. Due regard being had to
the opinions and recommendations of the psychologists
and probation officers and
their reasons therefor, I am of the opinion that the prison sentences imposed
should have been suspended
on appropriate conditions; one of which would have
been to place them under the supervision of a probation officer. A difficulty
arises because almost three years have elapsed since the passing of sentence by
the Magistrate on 30 June 1983. The fact that it
has taken so long for the
appeal to reach this Court is not due to any fault of the appellants. This Court
must now impose a sentence
which would have been appropriate on 30 June 1983. On
that date both appellants were under eighteen. Had they then been placed under
the supervision of a probation officer the provisions of sec.
/ 291(1)(b)
33
291(b) of Act 51 of 1977 would have applied.
Hence the period of supervision would have expired when each appellant turned
21. They will , however, both turn 21 shortly. In the
special circumstances of
this case it would not be wrong to now order that the period of supervision be
extended till each appellant
reaches the age of 23.
In the result the appeals of both appellants succeed.
It is ordered that the following be added to the order made by the
Magistrate:
"A. The above effective period of four
years
imprisonment imposed on accused number one is
suspended for five years on the conditions set out in paragraphs C and D
hereunder.
B. The above effective period of five
years
imprisonment imposed on accused number two
is suspended for five years on the conditions
set out in paragraphs C and D hereunder.
C That the accused is not found guilty of
/
theft
34
theft or robbery committed during the said period of 5 years and for which he
is sentenced to imprisonment without the option of a
fine.
D. That each accused submits himself to the
supervision of a probation
officer until he
reaches the age of 23. The Department of
Health and
Welfare is asked to allocate a
probation officer for this purpose.
E. The Registrar of this Court; is directed
to send a copy of this
judgment to the
Department of Health and Social Welfare.
O. GALGUT
JANSEN, JA) CONCUR SMALBERGER, JA) CONCUR