South Africa: Supreme Court of Appeal

The accused has a preponderance of violence.’

[11] In the circumstances of this case, the magistrate rightly discounted a non-custodial sentence. The appellant assaulted a youth whom he employed and who was virtually in his care. The assault was a serious one. However, the magistrate, probably because of his view that the appellant had a propensity for violence, erred in not considering the kind of custodial sentence provided for in terms of s 276(1)(i) of the Act. The court below in confirming the sentence imposed by the magistrate itself erred by not considering the provisions and advantages of s 276(1)(i) of the Act. In S v Scheepers 2006 (1) SACR 72 (SCA)

at 76e-g (para 10) the following appears:

‘The particular advantage of s 276(1)(i) should always be in the foreground when the sentencer considers that a custodial sentence is essential, but the nature of the offence suggests that an extended period of incarceration is inappropriate. In such cases, s 276(1)(i) achieves the object of a sentence unavoidably entailing imprisonment, but mitigates it substantially by creating the prospect of early release on appropriate conditions under a correctional supervision programme. This sentencing option seems tailor-made for the appellant’s offences. Neither the magistrate nor the High Court considered its precise advantages. Their failure to do so requires us to intervene.’

[12] In the present case a sentence of imprisonment in terms of s 276(1)(i) is appropriate. It will serve as a deterrent and will bring home to the appellant and others that behaviour of the kind in question will not be tolerated. It will promote rehabilitation and will achieve a balance between the appellant’s interests and those of society. The extended period of incarceration imposed by the magistrate, seen in the light of the totality of the circumstances of the present case, is unwarranted and has the potential to break the appellant. The misdirection referred to in para [10] and the magistrate’s failure to consider s 276(1)(i) as a sentencing option requires us to intervene.

[13] The appeal succeeds to the extent reflected in the order that follows. The sentence imposed by the magistrate is set aside. In its stead the following sentence is imposed:

‘18 months’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977.’

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M S NAVSA

JUDGE OF APPEAL

CONCUR:

MALAN AJA

CACHALIA AJA