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[1996] ZASCA 135
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S v Siebert (214/1996) [1996] ZASCA 135 (27 November 1996)
Case No 214/1996
In the Supreme Court of
South Africa
(Appellate Division)
In the matter between:
CRAIG LESLIE SIEBERT
Appellant
and
THE STATE
Respondent
Before: Nestadt, Olivier, Scott JJA
Heard:
18 November 1996
Judgment delivered: 27 November 1996
JUDGMENT
Olivier JA
:
The appellant was charged in the Southern Transvaal Regional Court with contravening section 36 of Act 62
of 1955. It was alleged that the appellant had been
found in possession of a BMW 325i motor vehicle in
respect of which there was a reasonable suspicion that
it had been stolen and that he had been unable to give
a satisfactory account of such possession. The
appellant pleaded guilty. In a statement handed in to
2
the court in terms of section 112 (2) of the Criminal
Procedure Act 51 of 1911 (the Act), he said that he
knew that it was a stolen vehicle, but that he was
unaware of the precise circumstances of the theft. The
vehicle was returned undamaged to its lawful owner.
The appellant was convicted of the offence as
charged.
The appellant did not testify in mitigation of
sentence, but his personal circumstances were
explained by his legal representative, an attorney,
who also enquired, whether, if imprisonment was
going to be a real possibility, the position as
regards 'correctional periodical service' as an
alternative sentence could not be determined and a
probation officer's report be obtained. The
presiding magistrate refused these requests.
The magistrate sentenced the appellant to two and a
half years' imprisonment of which twelve months were
suspended for five years on condition that the
appellant was not convicted of theft committed or of
contravening sections 36 or 37 of Act 62 of 1955
during the period of suspension.
The magistrate took into account the circumstances
that the appellant was a young man, 23 years of age,
with only one previous conviction, viz. the driving
3
of a motor vehicle under the influence of liquor; that
he earned a salary of R2000,00 per month, and lived
with his parents; that he had co-operated with the police in the investigation; and that he must have
been severely tempted by the opportunity of purchasing
a luxury car worth R105 000 for a mere R9 000.
On the other hand the magistrate also took into
account the high level of serious crime in our
country, and the fact that the purchase of stolen vehicles actively assists thieves creating a ready market, while it also frustrates
the efforts of the
police in combating crime. The sentence alluded to
above was then imposed.
The appellant noted and prosecuted an appeal to the
Witwatersrand Local Division of the Supreme Court
against the sentence imposed by the magistrate.
Goldstein J (with whom MacArthur J agreed), in
dismissing the appeal, held that the magistrate erred
in failing to consider the possible option of
correctional supervision. Referring to
S v Pillay
1977 (4) SA 531
(A) at 534 H - 535 G, Goldstein J
held that the question was not merely whether such
error amounted to a misdirection, but whether the
misdirection was of such a nature, degree, or
seriousness that it showed, directly or
4
inferentially, that the court did not exercise its
discretion at all or exercised it improperly or
unreasonably. In such a case the dictates of justice
would clearly entitle the court of appeal to consider
the sentence afresh.
Applying the approach laid down in S
v Pillay
,
supra, Goldstein J held that the failure of the
magistrate to consider correctional supervision as a
sentencing option did not result in a misdirection
which vitiated the sentence and permitted the court of
appeal to consider sentence afresh. He based this
conclusion on the following facts: the appellant
committed a most serious crime; he did not give
evidence; nor did it appear from the record why he
pleaded guilty; he did not express remorse; he had
no apparent compelling need to commit the crime; and
he displayed a reprehensible disregard for the rights
of others.
The appeal is before us with leave of the court a
quo.
In
S v Petkar
1988 (3) 571 (A) at 574 (C) Smalberger
JA formulated the relevant powers of this Court as
follows:
'This Court's powers to interfere with a sentence
5
on appeal are circumscribed. It may only do so
if the sentence is vitiated by (1) irregularity,
(2) misdirection, or (3) is one to which no
reasonable court could have come, in other
words, one where there is a striking disparity
between the sentence imposed and that which this
Court considers appropriate.'
In this Court the main thrust of the argument
presented on behalf of the appellant was that the
magistrate had misdirected himself in not considering
correctional supervision in terms of section 276 (1) (h) of the Act as an appropriate sentence and in not
calling for a report of a probation officer in terms
of section 276 A (1) of the Act before imposing
sentence.
Such a misdirection would, generally, justify the
inference that the trial court had failed to exercise
a judicial discretion in imposing sentence. The
ensuing result would then render the imposed sentence
liable to be set aside by a court of appeal, as was the case in
S v Volkwyn
1995 (1) SACR 286
(A) at 291
f - h. The rule stated above is manifestly subject to
the qualification that the particular sentencing
option was one which, on the facts before the court,
prima facie would have been appropriate and worthy of
consideration. The facts of a specific case may be
6
such that judicial experience and common sense
indicate that a particular option need not be
considered at all. The present case is not such an
instance. The effective term of imprisonment imposed
(eighteen months) is half the maximum period of three
years for which correctional supervision may be
ordered - see section 276 A (1) (b). There could be
no justification for rejecting this sentencing option
out of hand and without careful consideration.
Correctional supervision has been considered as an
appropriate sentence for more serious crimes than the
one now under consideration, including murder (inter
alia
S v Potgieter
1994 (1) SACR 61
(A);
S v Larsen
1994 (2) SACR 149
(A);
S v Ingram
1995 (1) SACR 1
(A)); corruption (
S v Mtsi
1995 (2) SACR 206
(W),
incidentally a judgment of Goldstein J)); theft (S v
Kruger
1995 (1) SACR 27
(A);
S v Kasselman en 'n
Ander
1995 (1) SACR 429
(T)); and rape (see
S v A en
'n Ander
1994
(1) SACR 602
(A)).
Correctional supervision being a sentencing option
which could be appropriate to the crime and the
criminal before the court, the first question then is
whether the magistrate failed to consider this option.
This question is rendered unnecessarily difficult by
the ambiguous response of the magistrate to the
respondent's pre-sentencing requests at the close of
the trial. After his conviction, the appellant
7
admitted to a previous conviction. The prosecutor and
the defence attorney then addressed the court. The
appellant himself was not called upon to testify. The
following discussion between the magistrate and the
appellant's attorney, Mr Mazaham, then took place:
'
COURT
: In order to consider the question of
sentence, I will sentence the accused at a later
stage, a week or more than a week.
MR MAZAHAM
: Your worship, may I respectfully
ask whether at this point confirmation of what
has been settled, particularly with regard to
his personal circumstances, if it be at all possible if imprisonment is going to be a real
possibility, that perhaps we could determine
what the position is with correctional periodical
service or alternatively obtain a full probation officer's report so that this court can be truly
satisfied as to the circumstances relating to
this accused.
COURT
: I do not see any reason why I should call
for a probation officer's report. You have
placed all the facts before me.
MR MAZAHAM
: Thank you your worship. Until when
will your worship wish to postpone the matter?'
Goldstein J in the court a quo came to the
conclusion that the magistrate had failed to consider
8
the possible option of correctional supervision and
that he had misdirected himself.
The request by Mr Mazaham was, at best, confusing
and halfhearted. But at least the reference to 'a
full probation officer's report' would have been
understood by the regional court magistrate to refer
principally to a request to consider correctional
supervision.
On the approach of Goldstein J in the court a quo
(i.e. that the magistrate had failed to consider
correctional supervision as a sentencing option), the
magistrate must be held to have misdirected himself (S
v Volkwyn
, supra, at 291 f - h).
It is, however, possible to interpret what passed
between the magistrate and the attorney as indicating
that the magistrate did consider correctional
supervision as an option but rejected it. Even so,
this does not mean that he did not misdirect himself
in another sense. I have no doubt that the exercise
of a choice regarding a possibly appropriate
sentencing option, where there is insufficient
factual material to substantiate and justify an
exclusion of such option, amounts to a misdirection.
In the appeal now under consideration, there are,
9
in my view, insufficient facts to have enabled the
magistrate to exercise a proper sentencing discretion.
As regards both the crime and the criminal there are
significant gaps in the knowledge one needs for
responsible sentencing. We know virtually nothing of
the circumstances relating to the crime, e.g. how did
the accused come to know that the vehicle he was
purchasing was stolen? How was the price of R9000,00
arrived at? How long did the appellant have possession and use of the vehicle? And of the
appellant himself we know as little - e.g. what
scholastic or other qualifications does he possess?
Where and by whom is he employed, and what type of work does he perform? What is his work record? What
are his familial circumstances: i,a. is he married,
and does he have children? Is he the type of youngster that should be sent to gaol?
In my view, to have rejected the correctional
supervision option without full information as to at
least these matters amounted to a misdirection.
A further complicating factor was, however, raised
in argument before us. It was argued on behalf of the state that where an accused is represented by counsel
(as happened in this case) and sufficient facts to
substantiate a clear choice are not placed before the
court, then, in the absence of such facts favourable
10
to the accused, the court is entitled to accept that such facts do not exist (Kriegler & Hiemstra:
Suid-
Afrikaanse Strafproseswet
, 5th ed, 657).
In
S v Gough
1980 (3) SA 785
(NC) it was stated at
786 G - H:
'Vonnisoplegging is minstens net so belangrik as
die verhoor en bale meer moeite moet deur
praktisyns gedoen word om die hof ten volle
in te
lig oor feite en omstandighede wat ter sake kan
wees by vonnis. Hulle ken hul kli
nt se
omstandighede en, as hulle dit nie ken nie, is
dit hulle plig om hulself op hoogte te stel. Dit
kan
nie van 'n
hof
verwag word om, waar 'n
beskuldigde verteenwoordig is, self ondersoek te
doen oor moontlike versagtende faktore nie.'
Speaking for myself, I regard such an approach to be questionable, to say the least. Sentencing is a
judicial function sui generis. It should not be
governed by considerations based on notions akin to
onus of proof. In this field of law, public interest
requires the court to play a more active,
inquisitorial role. The accused should not be
sentenced unless and until all the facts and
circumstances necessary for the responsible exercise
of such discretion have been placed before the court.
11
An accused should not be sentenced en the basis of his
or her legal representative's diligence or ignorance. If there is insufficient evidence before the court to
enable it to exercise a proper judicial sentencing
discretion, it is the duty of that court to call for
such evidence. Especially as regards correctional
supervision this duty can be discharged easily and without any cost to the accused, by calling for the
probation officer's report required by section 276 A
(1) of the Act.
An enlightened and just penal policy requires a
broad scope of sentencing options from which the most
appropriate option, or combination of options, can
be selected to fit the unique circumstances of the
case before the court. It requires a willingness on
the part of the trial court actively to explore all
the available options and to choose the sentence best
suited to the crime, the criminal, the public
interest, and also the aims of punishment.
This approach accords generally with the approach of
this Court in
S v Dlamini
1991 (2) SACR 655
(A) at 666
g - 668 f. In particular as regards the option of
correctional supervision this approach was emphasized
in
S v R
1993 (1) SACR 209
(A) at 221 g - j.
Where imprisonment is an appropriate option there
12
has in the past been a tendency amongst sentencing officers to regard imprisonment in serious cases as
the first, last and only option. As Nicholas AJA
aptly described the situation in
S v D
1995 (1) SACR
259
(A) at 265 d - e:
'...many of those concerned in the administration
of criminal justice had acquired a particular
mind-set as a result of years of habituation to
the idea that imprisonment is the punishment of
choice for serious crime, and it required a basic
mental shift to regard imprisonment "as the
sentencer's last resort".'
As regards correctional supervision in terms of
section 276 (1) (h) of the Act, a useful guideline
is afforded by the decision of this Court in
S v R
supra at 221 g - i, viz. that a clear distinction
should be drawn between those offenders who ought to be removed from society by means of imprisonment and
those who, although deserving of punishment, and even
severe punishment, should not be so removed. This
principle imposes on the trial court a duty
meticulously and comprehensively to ensure that all the available facts be placed before it in order to
enable it to impose a fair and just sentence.
In my view, the trial court erred in this respect
13
and committed a misdirection.
This conclusion, however, is not the end of the
enquiry before us.
Before a sentencing misdirection is regarded as
legally relevant,
' ... it must be of such a nature, degree, or
seriousness that it shows, directly or
inferentially, that the Court did not exercise
its discretion at all or exercised it improperly
or unreasonably. Such a misdirecion is usually
and conveniently termed one that vitiates the
Court's decision on sentence. That is obviously
the kind of misdirection predicated in the last
quoted dictum above: one that "the dictates of justice" clearly entitle the appeal court "to consider the sentence
afresh" (
S v Pillay
1977
(4) SA 531
(A) at 535 F - G).'
The reference in the quotation above to the "dictates
of justice" is a reference to the following dictum of
Van Winsen AJA in
S v Fazzie and Others
1964 (4) SA
673
(A) at 684 B - C:
'Where, however, the dictates of justice are
such as clearly to make it appear to this Court
14
that the trial Court ought to have had regard to
certain factors and that it failed to do so, or
that it ought to have assessed the value of these
factors differently from what it did, then such action by the trial Court will be regarded as a
misdirection on its part entitling this Court to
consider the sentence afresh.'
Goldstein J in the court a quo came to the
conclusion that the failure by the magistrate to consider corrective supervision did not result in a
misdirection which vitiated his sentence.
Consequently, he held, the dictates of justice did
not clearly entitle him to consider sentence afresh.
His reasons for this finding were as follows: the
appellant had committed a most serious crime; he had
not given evidence; there was nothing upon which to base a finding of remorse; there was no apparent
compelling, understandable need for him to commit
this crime; and he had displayed a total disregard
for the rights of others. Consequently, the present
case justified the more severe sentence of
imprisonment rather than that of correctional
supervision.
15
I take a different view of the matter. All the
factors mentioned by Goldstein J for upholding the
magistrate's decision are important and should be
taken into account. But so are the facts and
circumstances which were not placed before the
magistrate, some of which have been mentioned above,
and without which, in my view, a responsible and sustainable judicial discretion could not have been exercised. Having reached the
above conclusion it
follows, in my view, that the sentence imposed by
the magistrate should be set aside. It may well be
that after sufficient pre-sentencing Information has
been obtained, the trial court will impose the same
sentence yet again. But it is also possible that the
trial court will impose a different sentence. And
that is precisely why the sentence imposed cannot be
sustained.
In the result I would make the following order:
1.
The appeal is allowed and the sentence is set
aside.
2.
The matter is remitted to the court which imposed
the sentence to impose sentence afresh after
compliance with section 276 A (1) (a) of the
Criminal Procedure Act 51 of 1977
and a report of
1.
16
a probation officer or correctional official had
been placed before the court and after the
reception of all other relevant evidence.
P J OLIVER JA
I concur
D G SCOTT JA
Case No 214/96
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
CRAIG LESLIE SIEBERT
Appellant
and
THE STATE
Respondent
Coram: NESTADT, OLIVIER et SCOTT JJA
Date heard: 18 November 1996
Date delivered: 27 November 1996
J U D G M E N T
NESTADT. JA:
It seems improbable that the magistrate failed to consider
the option of correctional supervision. I shall, however, assume that
this is what happened and that the omission constituted a mis
direction. But in my view this cannot avail the appellant. I do not
2
think that a sentence of correctional supervision would have been an
appropriate one. As
S v Sinden
. 1995(2) SACR 704(A) shows,
whether in a given case it is, has to be carefully weighed. The interests of society may be such that a more severe sentence is
required. In the present matter I consider that the interests of society
called for a sentence of imprisonment. And the one imposed was
proper. It was considerably less than what would have been imposed
for the theft of the vehicle. At the same time, however, the
magistrate rightly regarded the offence in a serious light. It was, of
course, closely related to the original theft of the vehicle. The
prevalence of the latter type of offence need hardly be stressed. The
fact that the appellant, when he purchased the vehicle, knew it was
stolen is an aggravating feature. This shows, positively, dishonesty
3
on his part. I cannot agree that the appellant's plea of guilty and his
co-operation with the police justified an inference that he was
remorseful. He is not an immature youth. The magistrate took into
account in the appellant's favour that he was subject to temptation,
namely that he was able to purchase a car worth R105 000 for
R9 000. But no other mitigating factors were placed before the
court by or on behalf of the appellant (who was represented). There
is no reason to think that they exist. I would dismiss the appeal.
H H Nestadt
Judge of Appeal