Brief Summary

Criminal Procedure — Sentencing — Absence of reasons for sentence — Appellants convicted of fraud and sentenced to 18 months' imprisonment, half suspended — No evidence presented in mitigation and no proper reasons provided by the magistrate for the sentence imposed — Court held that insufficient facts were before the magistrate to exercise discretion in sentencing — Matter referred back to the trial court for proper consideration of sentence and provision of reasons.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an appeal against sentence in criminal proceedings. The appellants, Christo Jacobus Calitz (first appellant) and Elsa Burger (second appellant), appealed against sentences imposed by a magistrates’ court after each was convicted on multiple counts of fraud. The respondent was the State.

In the magistrates’ court, the appellants each pleaded guilty and were convicted on 32 counts of fraud. They were each sentenced to 18 months’ imprisonment, with half suspended for three years on condition that they were not again convicted of fraud committed during the period of suspension. The sentencing court treated all counts as taken together for purposes of sentence.

An appeal to the High Court (Cape Town) was dismissed, but that court granted leave to appeal to the Supreme Court of Appeal. The general subject matter of the dispute before the Supreme Court of Appeal was whether the sentencing process and outcome were sustainable in circumstances where no sentencing reasons appeared on the record and where, on the record, the factual basis for a responsible sentencing discretion was inadequately developed.

2. Material Facts

The following facts were treated as materially relevant by the Supreme Court of Appeal in assessing whether the sentencing discretion was properly exercised and whether the matter could properly be dealt with on appeal.

The appellants were convicted of fraud arising from conduct over a period of approximately six weeks involving bank accounts connected to the appellants. The first appellant was a seller of used motor vehicles trading under the names Christo’s Auto and Select a Car, each with an account at the Somerset West branch of ABSA Bank. The second appellant was an employee of ABSA Bank and held an account at a Strand branch.

The charge sheet alleged that the appellants caused potential prejudice to the bank in the amount of R328 000. Their alleged modus operandi (as recorded in the judgment) was to create fictitious credit on the various accounts by depositing cheques drawn on one account into another when there were insufficient funds to cover those cheques, and then reversing the pattern, thereby creating the appearance of higher credit balances across the accounts.

In the sentencing proceedings, the appellants were legally represented. No viva voce evidence in mitigation was led. The parties confined themselves to submissions. Although pre-sentence reports in respect of each appellant had been obtained (apparently dealing with suitability for corrective supervision), those reports were simply handed in. Neither the report writer nor any other witness was called to confirm the factual content of the reports or to explain and motivate the conclusion that both appellants were suitable candidates for corrective supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977. The defence did not rely on those reports and instead asked for a fine or wholly suspended imprisonment.

The record did not contain any transcribed ex tempore reasons for sentence. The magistrate later submitted a brief statement indicating that his ex tempore judgment should be regarded as reasons for appeal purposes and that he did not wish to add anything further. However, the appellate record reflected only the sentence itself, not the sentencing reasoning.

The Supreme Court of Appeal identified material gaps in the record bearing on sentence. It could not be determined from the record how the fictitious credit benefited the appellants, whether it was used to obtain a loan, whether any portion was withdrawn, what the bank’s potential loss was at any given stage, or whether the offences were driven by financial pressure or greed. The record was also inadequate to evaluate whether a fine was feasible in terms of ability to pay (as distinct from willingness). The plea explanation submitted by the appellants merely repeated the charge sheet allegations and did not add information relevant to sentence.

The pre-sentence reports recorded certain personal circumstances (including that the appellants were both divorced, that they were in a relationship, that the second appellant had been dismissed by the bank and was supported by the first appellant). However, the reports said nothing about how or why the offences were committed, and there was no confirmation of their factual accuracy by evidence.

3. Legal Issues

The central questions before the Supreme Court of Appeal concerned the proper approach on appeal where the sentencing record is incomplete and, more fundamentally, whether the sentencing court could responsibly exercise its discretion given the insufficiency of facts placed before it.

The dispute engaged issues of law and procedure (including the appellate consequences of missing reasons for sentence and the mechanisms for obtaining reasons), and issues of application of law to fact (whether the sentencing discretion was properly exercised on the factual material available). It also implicated the evaluative nature of sentencing, which is a discretionary judgment requiring a properly established factual foundation.

More specifically, the Supreme Court of Appeal had to determine whether, in circumstances where the magistrate’s sentencing reasons were not on record and the sentencing enquiry was inadequately developed, the High Court was correct to apply the conventional restraint applicable to sentence appeals (interference only for material misdirection or startling disparity), or whether the matter should instead have been approached differently, including by calling for reasons or treating the appeal court as at large.

4. Court’s Reasoning

The Supreme Court of Appeal situated the appeal within the principles stated in Makhudu v Director of Public Prosecutions 2001 (1) SACR 495 (SCA). In Makhudu, the absence of the magistrate’s reasons for sentence and the inability to reconstruct them prevented meaningful appellate scrutiny of whether the sentencing discretion was properly exercised. The Supreme Court of Appeal in that case held that the appeal court should not artificially inhibit itself by applying the usual restrictive test where the lack of reasons disables the appellant from demonstrating misdirection; in such circumstances, the appeal court may be required to consider sentence afresh.

The present matter differed from Makhudu in an important respect. Here, the position was not that the magistrate was incapable of providing reasons; rather, the record simply lacked transcribed ex tempore reasons. The Supreme Court of Appeal observed that the magistrate could have been requested to provide reasons despite his initial indication that he wished to add nothing. The High Court (in granting leave) had noted that it should have required the magistrate properly to comply with the obligation to provide reasons and to deal with the appeal grounds, and it referenced authorities emphasising the provision of reasons. The Supreme Court of Appeal added that the appropriate legal basis for requesting reasons in this context was section 304(2)(a) of the Criminal Procedure Act 51 of 1977, rather than Rule 67(5) of the Magistrates’ Courts Rules.

The Supreme Court of Appeal also remarked that the appellants’ legal advisers could themselves have drawn the lack of recorded sentencing reasons to the magistrate’s attention prior to the High Court hearing, thereby attempting to cure the omission. However, the court emphasised more broadly that the proper protection of an appellant’s constitutional right of appeal, together with the community’s interest in proper punishment, requires judicial officers to give careful attention to the formulation and provision of sentencing reasons, without which sound sentencing administration is impeded.

Having considered whether the matter should now be remitted for the magistrate to provide reasons (as contemplated in the High Court’s remarks), the Supreme Court of Appeal declined to adopt that course. The court’s decisive reasoning was that, even if reasons were later furnished, the record revealed that the sentencing proceedings were incompletely investigated. The court concluded that insufficient facts were placed before the sentencing magistrate to enable a responsible and informed exercise of the sentencing discretion. For this proposition it referred to S v Siebert 1998 (1) SACR 554 (A), which underscores the necessity of an adequate factual foundation for sentencing.

The Supreme Court of Appeal identified concrete respects in which the record was deficient for sentencing purposes. It was not possible to evaluate the true nature and extent of the benefit derived, the degree and timing of the bank’s exposure, and the underlying motivations for the offending. Those matters bore directly on sentence, including the appropriateness of imprisonment versus alternative sentencing options. In addition, if imprisonment might not be appropriate after proper enquiry, the sentencing court would need reliable information on the appellants’ ability to pay a fine. The mere existence of corrective supervision reports was not enough, particularly where they were not supported by evidence and were not meaningfully engaged with during sentencing.

From these deficiencies, the Supreme Court of Appeal inferred that the magistrate was not placed in a position properly to consider and evaluate the range of sentencing possibilities. That failure meant that the appeal had to succeed. The court further reasoned that the High Court would likewise have been unable to reconsider sentence afresh even if the magistrate had been prompted to provide reasons after the fact, because the underlying factual enquiry needed for sentencing had not been conducted at trial level. Consequently, remitting the matter to the High Court would serve no purpose.

The appropriate remedy, in the Supreme Court of Appeal’s view, was to remit the matter to the magistrates’ court to enable the relevant factual questions to be properly investigated, to allow the calling of such evidence as the accused, the State, or the magistrate might require, and thereafter to impose sentence anew on a properly developed basis.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal. It set aside the sentences imposed on both appellants.

The matter was remitted to the magistrates’ court for reconsideration of the relevant facts, for the hearing of such evidence as may be called by the accused, the State, or the magistrate, and for the imposition of such sentence as the magistrate considers appropriate thereafter.

The judgment, as provided, does not reflect a separate or additional costs order, and the operative relief is confined to setting aside the sentences and remitting the matter for re-sentencing.

Cases Cited

Makhudu v Director of Public Prosecutions 2001 (1) SACR 495 (SCA)

S v Masuku and Others 1985 (3) SA 908 (A)

S v M 1978 (1) SA 571 (N)

S v Vogel 1979 (3) SA 822 (N)

S v Siebert 1998 (1) SACR 554 (A)

Legislation Cited

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

Criminal Procedure Act 51 of 1977, section 304(2)(a)

Rules of Court Cited

Rule 67(5) of the Magistrates’ Courts Rules

Held

The Supreme Court of Appeal held that the sentencing record was defective in two interrelated respects: the absence of recorded reasons for sentence and, more importantly, the inadequate factual investigation at the sentencing stage. On the material before the sentencing court, there were insufficient facts to permit a responsible exercise of the sentencing discretion, particularly given the need to evaluate alternatives to direct imprisonment and to assess the appellants’ personal and offence-related circumstances relevant to sentence.

As a consequence, the sentences imposed could not stand and were set aside. The matter was remitted to the magistrates’ court for a properly conducted sentencing enquiry, including the reception of evidence if necessary, and for the imposition of sentence afresh.

LEGAL PRINCIPLES

Sentencing is a discretionary judicial function that must be exercised on the basis of an adequately established factual foundation. Where the record reveals that the sentencing enquiry was incompletely investigated and material facts relevant to sentence were not placed before the court, the sentencing discretion cannot be regarded as having been responsibly exercised.

The provision of reasons for sentence is integral to meaningful appellate oversight and to the protection of an accused person’s appeal rights, while also serving the public interest in proper sentencing. Where reasons are missing from the record but can be supplied, mechanisms exist to require the presiding officer to furnish them (in this judgment, section 304(2)(a) of the Criminal Procedure Act 51 of 1977 is identified as the proper basis).

However, the later provision of reasons cannot cure a sentencing process where the underlying factual enquiry was insufficient. In such circumstances, the appropriate remedy may be to set aside the sentence and remit the matter to the trial court to permit proper investigation of relevant facts, the hearing of evidence as necessary, and re-sentencing on a properly developed record.

S v Calitz en 'n ander (428/2001) [2002] ZASCA 115; [2002] 4 All SA 705 (SCA) (23 September 2002)