DUTIES OF PRESIDING OFFICER

S v MOKGARA 2015 (1) SACR 634 (GP)
Trial — Presiding officer — Duties of — Accused facing sentence of life imprisonment if convicted — Even if accused legally represented but failed to prove substantial and compelling circumstances, whether through lack of experience or proper instructions, legal duty remained on presiding officer to ensure that all available facts properly enquired into before the decision made on sentence.
The appellant was convicted in a regional court of the rape of a 7-year-old girl and was sentenced to life imprisonment, the magistrate concluding that there were no substantial and compelling circumstances that justified a lesser sentence. The appellant was legally represented in the proceedings in the regional court and when the magistrate asked his legal representative whether there were any substantial and compelling circumstances, he merely replied that he ‘had no compelling or substantial’. The appellant was 27 years old at the time of the offence and a first offender. On appeal,
Held, that, when an accused’s legal representative failed to prove substantial and compelling circumstances, whether it was due to the accused’s refusal to give proper instructions as it might jeopardise his chance on appeal on the merits, and/or a lack of taking of proper instructions, and/or a lack of experience, or for various other reasons, the law was clear that in such instances the legal duty remained on the presiding officer to ensure that all available facts were properly enquired into before a decision was made that the ultimate sentence of life imprisonment could be imposed.
Held, further, that in the present case there was simply not enough evidence placed before the magistrate to make an informed decision. In such instances there was a duty on the presiding officer to put pertinent questions to the appellant’s legal representative in order to determine facts that might be relevant to the issue. The presiding officer should also consider obtaining a probation officer’s report and/or a victim impact report if necessary. In the present case there was a specific lack of evidence regarding the injuries caused, the level of violence perpetrated, and the emotional trauma caused. Nothing was known about the appellant’s background, his marital status, whether he was employed and whether he could be rehabilitated. In the circumstances the sentence had to be set aside.

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