Summary of Judgment

1. Introduction

The proceedings were a criminal appeal limited to sentence in the (then) Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal). The appellant, Sydney Majodina, appealed against the custodial sentence imposed following his conviction for driving under the influence of liquor. The respondent was the State.

The matter originated in the magistrates’ court, where the appellant was tried on 6 May 1993 for contravening section 122(1)(a) of the Road Traffic Act 29 of 1989 (driving under the influence of intoxicating liquor). He was convicted on the main charge and sentenced to three years’ imprisonment, together with an order that his driving licence be permanently cancelled. There was no appeal against conviction.

An appeal to the Northern Cape Division succeeded in part: that court considered the magistrates’ sentence inappropriately severe and substituted it on 23 August 1993 with 18 months’ imprisonment, ordering concurrency with any suspended sentences that might be put into operation.

Thereafter, the appellant sought (with condonation) leave to appeal further and also sought an order to set aside the sentence and remit the matter to the magistrates’ court to hear further evidence, namely evidence from a clinical psychologist consulted in May 1994. The court a quo granted that application in a manner apparently following the procedure discussed in earlier authority. The Appellate Division was thus required to determine, first, whether the matter should be remitted for further evidence on sentence and, secondly, whether the substituted sentence should be interfered with, including whether correctional supervision ought to have been imposed instead of direct imprisonment.

The general subject-matter of the dispute concerned sentencing for repeated intoxicated-driving offences, the possible relevance of alcohol dependency as a mitigating circumstance, and the limits of appellate interference with sentencing discretion.

2. Material Facts

It was common cause that the appellant’s blood alcohol concentration was 0.28 grams per 100 ml, substantially above the statutory threshold relevant to the alternative charge and strongly corroborative of intoxication.

According to the State’s evidence at trial, the appellant’s driving drew the attention of a traffic officer after the vehicle drove into a kerb and then moved from side to side across the road. Both the district surgeon and the traffic officer described the appellant as strongly under the influence of liquor. The appellant disputed the extent to which his faculties were affected by alcohol and alleged that traffic officers had a grudge against him because he had previously testified against them. That defence was rejected by the trial court. Because the appellant did not appeal the conviction, these disputed issues concerning guilt were not revisited on appeal, and the appellate court treated the conviction as final.

For purposes of sentence, the appellant’s personal circumstances were placed before the sentencing court. At the time of trial he was 41 years old, married, and the father of four children, including a university first-year student, school-going children, and a four-year-old child. He was the sole breadwinner, employed by a local municipality as a training officer earning R4000 per month.

A central feature of the sentencing context was the appellant’s criminal history, particularly prior alcohol-related driving offences. The court relied on the fact that the appellant had four prior convictions involving alcohol and driving between 1983 and 1990, together with two prior convictions for reckless or negligent driving (1980 and 1985) and a conviction for assault (1990). Of particular importance was that at the time of the present offence (12 February 1993) there were two suspended sentences “hanging over” the appellant, arising from previous matters (later further suspended).

After the Northern Cape Division substituted an 18-month custodial sentence, the appellant obtained a report from a clinical psychologist (dated 22 May 1994) expressing the view that he was alcohol dependent and should be referred to an institution for long-term treatment. Supporting material further indicated that he had been dismissed from his municipal employment after his conviction in the present matter. The appellant relied on this new information to seek a remittal to lead further evidence on sentence.

The appellant’s explanation for not having led this evidence at trial was that he had not initially wanted to admit to himself or others that he had a drinking problem, and that as an unrepresented accused he did not appreciate that a drinking problem could affect sentence. The psychologist’s report, however, recorded that the appellant described daily alcohol use, inability to cope without alcohol, and drinking to the point of losing consciousness, with a history suggesting longstanding abuse—features which the court considered to be at least partially reflected in the pattern of prior convictions.

3. Legal Issues

The central legal questions the court was required to determine were, first, whether this was a case in which an appellate court should take the exceptional step of remitting the matter for the hearing of further evidence on sentence, and in particular whether the appellant satisfied the requirements for such a remittal.

Secondly, the court had to determine whether, on the record as it stood, the sentence of 18 months’ direct imprisonment imposed by the court a quo warranted interference, including whether either the trial court or the court a quo had erred by not imposing correctional supervision instead.

These issues involved a combination of application of law to fact (whether the established requirements for receiving further evidence were met, and whether the test for appellate interference with sentence was satisfied) and evaluative judgment (whether the sentence could properly be characterised as inappropriately severe in light of the appellant’s personal circumstances, prior convictions, and the seriousness of the offence).

4. Court’s Reasoning

The court approached the application to remit the matter for further evidence as an exceptional procedure subject to “well-known requirements”. The first requirement identified was that an appellant must provide a reasonably acceptable explanation for why the evidence was not led at the original trial. The court referred to authority to the effect that this requirement is ordinarily foundational, although it may in exceptional circumstances be relaxed.

Applying that principle, the court noted the chronology: the psychologist was consulted only in May 1994, approximately a year after trial and nine months after the sentence appeal in the Northern Cape Division had been finalised. The court assessed the appellant’s explanation critically against the contents of the psychologist’s report and the appellant’s prior record. Given the report’s description of entrenched daily drinking and loss-of-consciousness episodes, together with a long history of misuse and a record reflecting repeated alcohol-related driving offences, the court found it difficult to accept that the appellant had been unaware at the time of trial that he had a drink problem. The court also emphasised that the appellant’s numerous prior convictions meant that court procedure could not be said to have been unfamiliar to him, undermining the claim that he did not know such matters could be relevant to sentence.

The court further evaluated the timing of the consultation with the psychologist. It regarded it as significant that the psychologist was approached only after other efforts to avoid direct imprisonment had failed on appeal. In this context, the court considered that the appellant had not met the first requirement of providing an acceptable explanation for the failure to lead the evidence earlier. Counsel for the appellant correctly conceded that the matter was not “extraordinary”, and the court held that it was therefore unnecessary to consider other requirements that might apply to the reception of further evidence on appeal.

Despite the breadth of the leave granted by the court a quo, a further question arose as to whether leave extended to arguing the sentence appeal on the existing record even if the remittal application failed. The State’s counsel conceded the point, and the court proceeded to consider the sentence on its merits.

On the sentencing question, the court accepted that correctional supervision is generally a particularly suitable sentence for offences such as driving under the influence where a fine may be inadequate, and it indicated that courts should not hesitate to use that sentencing option, especially for a second offence. The court then contrasted that general suitability with the appellant’s actual circumstances: he had six relevant previous convictions, four directly involving alcohol-related driving, and at the time of the present offence there were two suspended sentences outstanding.

The appellant relied strongly on a prior decision in which direct imprisonment had been replaced with correctional supervision despite a serious previous record. The court, however, emphasised that each case must be decided on its own facts and that there were material differences between the cases. In particular, the court characterised the appellant’s argument as effectively requiring the court a quo to have imposed correctional supervision in the expectation that the suspended sentences would again be further suspended—a stance the court did not accept as a basis to find misdirection.

The court endorsed the approach of the trial court and the court a quo that the appellant had been given enough chances and nonetheless again drove under the influence. It stated that once the court a quo concluded the original magistrates’ sentence could not stand, it was within that court’s discretion to impose a new sentence, and it had indeed considered correctional supervision but decided that direct imprisonment was appropriate.

Finally, the court applied the established appellate principle that a court of appeal may interfere with sentence only where there is a material misdirection or irregularity, or where the sentence is inappropriately severe. In light of the appellant’s repeated relevant prior convictions and the circumstances, the court concluded that 18 months’ imprisonment could not be described as inappropriately severe. It further held that the mere fact that an appellate court might have preferred correctional supervision did not justify interference with the sentence imposed in the absence of a reviewable misdirection.

5. Outcome and Relief

The appeal against sentence was dismissed.

The court refused to remit the matter to the magistrates’ court for the hearing of further evidence, holding that the appellant had failed to meet the primary requirement of providing a reasonably acceptable explanation for why the evidence was not led at trial, and there were no extraordinary circumstances warranting relaxation of that requirement.

The sentence of 18 months’ direct imprisonment imposed by the Northern Cape Division remained in place. No separate costs order is recorded, consistent with criminal appeal practice where costs do not ordinarily follow the result.

Cases Cited

S v Turner 1975 (3) SA 285 (N); S v N 1988 (3) SA 450 (A); S v De Jager 1965 (2) SA 612 (A); S v Labuschagne 1995 (2) SASV 200 (W); S v W 1995 (1) SASV 606 (A).

Legislation Cited

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

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the appellant failed to satisfy the threshold requirement for remittal to hear further evidence on sentence, namely a reasonably acceptable explanation for not leading the evidence at the original trial. As the case was not extraordinary, it was unnecessary to consider further requirements for the reception of additional evidence.

On sentence, the court held that the court a quo did not commit a misdirection in declining to impose correctional supervision and in imposing direct imprisonment. Given the appellant’s substantial record of relevant previous convictions and the fact that suspended sentences were operative at the time of the offence, an 18-month custodial sentence was not inappropriately severe. The appeal against sentence was accordingly dismissed.

LEGAL PRINCIPLES

A remittal for the hearing of further evidence on appeal is an exceptional step and requires compliance with established prerequisites. A primary requirement is that the appellant must provide a reasonably acceptable explanation for why the evidence was not led at the original trial; only in extraordinary circumstances may a court dispense with this requirement.

Sentencing is primarily a matter for the discretion of the trial court (and, where applicable, the intermediate appellate court substituting sentence). An appellate court may interfere only where there is a material misdirection or irregularity, or where the sentence is so severe as to be inappropriately harsh on the facts.

Although correctional supervision may be an especially suitable sentencing option for driving under the influence in cases where a fine would be inadequate, it is not obligatory. The mere fact that an appellate court might have preferred correctional supervision does not justify interference in the absence of a reviewable misdirection, particularly where the offender has a substantial record of similar offences and has reoffended despite previously imposed leniency.