IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

JUDGMENT

In this matter the appellant was convicted on his plea of guilty of the attempted theft of an outboard motor. The offence was committed at a mooring jetty at Port Owen on the West Coast. No evidence on the subject was led, but according to a statement from the Bar by the prosecutor, which was apparently received without objection from the appellant's attorney, the value of the outboard motor was R15 000,00 and R3 600,00 worth of damage was occasioned to the complainant's property when certain cables to the engine were severed in the course of the commission of the offence.

The appellant's personal circumstances, as they were placed before the trial court in address in mitigation by his attorney, are set out in the following terms, and I translate from the Afrikaans:    Appellant was 34 years old, unmarried with no children.   He lost his father when he was eight years old.   His mother was present in court.   His stepfather had been a victim of murder.   His mother had again remarried and his second stepfather was in the police.    He had attended Paul Roos Gimnasium  in Stellenbosch,  where  he  passed  matric with additional subjects.   He then went to London after school.   He worked at Buckingham Palace for two years and then for British Telecom for one year.   He came back to South Africa and had worked Pearly's Restaurant in Langebaan, where he was the head chef.

It is exceptionally, save in respect of the most serious category of offence, that a sentence of direct imprisonment is appropriate for a first offender. It is clear, however, that the trial magistrate considered the offence in question to be serious enough to warrant severe punishment. In this regard the magistrate, relying on his local knowledge, described the theft of boats and boat engines as the scourge of the West Coast. In that connection, the magistrate said the following in the course of his judgment refusing leave to appeal and again I translate from the Afrikaans.

He then dealt with the appellant's personal circumstances, taking into account all the matters that I have already mentioned, and proceeded: The court has to ask itself the question what sort of sentence can be imposed which would have sufficient deterrent measure to protect the community to fight the commission of this sort of offence and which will ensure the accused does not again commit the same offence."
The magistrate then made the observation that the theft of boats and outboard motors is treated on the same level as the theft of motor vehicles which, he said, were usually referred to the Regional Court for sentence. He pointed out it is generally known that heavy sentences are imposed for this type of offence.

"Ordinarily, facts having a bearing on the question of sentence, either in mitigation or in aggravation thereof, ought to be placed before the court by way of a recorded admissions or evidence on oath. In the case where a court intends to rely on its personal knowledge of facts having a bearing on sentence, those facts should, in fairness to the defence, be communicated to an accused so as to enable him, if so advised, either to controvert them or to address the court thereon."

I mentioned earlier that it is only exceptionally that a sentence of direct imprisonment is appropriate for a first offender. It is well documented that conditions in prison are frequently insalubrious, to say the least, and not conducive to rehabilitation or reform of the offender.   It is also well known that our prisons are overcrowded and that the public good is not served well in a number of respects by exacerbating the situation by too readily incarcerating offenders who might be amenable to socially restorative punishment.

It is no doubt considerations of that nature that led to the introduction    of    alternative    penal    provisions    such    as correctional supervision.   It does not appear to me that the trial    magistrate    sufficiently    appreciated    the    potential appropriateness of such alternative penal measures. On the contrary, the indications are that he regarded them as soft alternatives where hard punishment was required.    He was misguided in that approach.    It is wrong to misconceive of correctional supervision as a soft alternative.    Correctional supervision is an extremely flexible sentencing option, which enables a court to craft a sanction for criminal behaviour that will   be   sufficiently   punitive,   while   a   the   same   time appropriately directed to affording the accused the opportunity to undergo a process of structured rehabilitation.    It is a sentence option that called out for serious consideration in a case like the present.

availed of without material that is not available to us.   It was
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the duty of the court below, before imposing sentence, to equip itself with the necessary material to properly consider those options.

SABA, AJ
					SABA, AJ
BINNS-WARD, J: It is so ordered