S v GOVENDER 2016 (1) SACR 236 (KZP)

Sentence — Correctional supervision — House arrest — House arrest constituting form of detention without option of fine as intended by s 112(1)(a) of CPA and impermissible as component of sentence of correctional supervision following conviction under section — Criminal Procedure Act 51 of 1977, ss 112(1)(a) and 276(1)(h).

The accused was convicted in a magistrates’ court on two counts involving a contravention of s 58(1)(b) of the Marine Living Resources Act 18 of 1998 in that she had unlawfully possessed 67 shad and then sold said fish without being the holder of a prescribed permit. She pleaded guilty to both counts and the prosecutor accepted the plea in terms of s 112(1)(a) of the CPA. She was accordingly convicted and sentenced to six months’ correctional supervision in terms of s 276(1)(h) of the CPA, which included house arrest as one of its elements.

Held, that house arrest in the context of judicial punishment was clearly and logically a ‘form of detention without the option of a fine’ as envisaged in s 112(1)(a) of the CPA, and therefore a sentence that included house arrest could not competently be imposed following a conviction under that section.
Held, further, that the sentence imposed on the accused was not an appropriate one in the circumstances of the case and therefore could not stand. It was further appropriate that the matter be remitted to the magistrate to consider the question of sentence afresh and, if deemed necessary, presentation of further evidence and/or submissions. As it appeared to have been the magistrate’s intention to impose a non-custodial sentence, there was a range of suitable options in that regard, including correctional supervision without house arrest. The sentence was set aside and the matter remitted to the magistrate.