IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT. CAPE TOWN)

DATE: 15 OCTOBER 2010

In the matter between:

and

The appellant appeared in the Regional Court sitting at Bellville on charges of murder and assault with intent to do grievous bodily harm. He was  legally  represented  and pleaded not guilty to the charge of murder, but guilty to assault GBH. He was eventually convicted as charged on both counts and was thereupon sentenced to ten years imprisonment on the murder charge and eighteen months on the assault charge, both sentences to run concurrently.

With leave of this Court granted on petition, the appellant has noted an appeal against his sentence.

The appellant's attorney suggested, as part of her address in mitigation of sentence, that a correctional report be obtained, alternatively, a sentence of imprisonment in terms of section
276(1 )(i) of the Criminal Procedure Act be considered.

In my view, the learned magistrate misdirected himself in sentencing the appellant to a lengthy period of imprisonment without the benefit of any pre-sentence report. The mere fact that the magistrate might have thought that the matter was too serious to allow for a sentence of correctional supervision, does not mean that the court should not call for a pre-sentence report.

"...sodat vonnis in die lig en nie in die duisternis opgele sal word nie."

In the present instance the Court had the barest minimum before it for purposes of sentence. In my view, the circumstances called out for further information before sentence was imposed. In the circumstances, I am of the view that the matter should be remitted to the trial court for reconsideration of sentence after having considered a presentence report and such other evidence relating to sentence as the parties may wish to place before the court or as the court may wish to obtain.

It should be clearly understood that I am not suggesting that imprisonment is an inappropriate sentence or that a period of ten years is excessive in the circumstances of this case. What I do wish to emphasise, however, is that there was insufficient evidence before the court so as to determine an appropriate sentence; hence there is insufficient evidence before this court to enable it properly to consider this appeal.

In the circumstances, I would issue the following order:

2. The matter is remitted to the trial court for reconsideration of the question of sentence after consideration of a presentence report and such other evidence relating to sentence as the parties may wish to place before court or as the court may wish to obtain.
3.	Pending finalisation of this matter, the appellant is to remain in custody.

ROGERS, AJ. I agree

GRIESEL. J:   It is so ordered.