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[2016] ZASCA 86
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Britz v S (889/2015) [2016] ZASCA 86 (31 May 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 889/2015
In
the matter between:
KARIN
BRITZ
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
Citation:
Britz
v S
(889/2015)
[2016] ZASCA 86
(31 May 2016)
Coram:
Tshiqi
and Theron JJA and Fourie AJA
Heard:
24 May 2016
Delivered:
31 May 2016
Summary:
Sentence –
non-parole period in terms of
s 276B(1)
of the
Criminal Procedure Act
51 of 1977
– imposed without affording the appellant an
opportunity to address the court – that portion of the sentence
set aside
– sentence of 15 years’ imprisonment shockingly
inappropriate and reduced to 10 years’ imprisonment.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Fourie J and Smith
AJ,
sitting
as the court of appeal
):
1.
The
appeal is upheld to the limited extent set out below.
2.
The
order of the trial court is set aside and in its stead is
substituted:
‘
The
accused is sentenced to a period of 10 years’ imprisonment
antedated from 1 November 2011.’
JUDGMENT
Tshiqi
JA (Theron JA and Fourie AJA concurring)
[1]
This
appeal is against sentence only. The appellant, Ms Karin Britz, was
convicted in the Gauteng Specialised Commercial Crimes
Regional
Court, Johannesburg, on 81 counts of theft of money totalling R3.9
million, after she pleaded guilty to all the counts
in terms
s 112(2)
of Criminal Procedure Act 51 of 1977 (the Act). She was sentenced to
15 years’ imprisonment and a non-parole period of ten
years was
imposed in terms of s 276B of the Act. The trial court and
subsequently the Gauteng Local Division, Johannesburg
(Fourie
J and Smith AJ)
refused
leave to appeal against sentence. The appellant appeals to this court
with its special leave. It was contended on her behalf
that the trial
court misdirected itself in two respects with regard to the sentence
imposed: First, in that a sentence of 15 years’
imprisonment is
shockingly inappropriate; and second, that the court did not provide
the parties with an opportunity to address
it before it imposed a
non-parole period of imprisonment in terms of s 276B of the Act.
[1]
[2]
The
offences for which the appellant was convicted occurred at her
workplace and against her employer, Delmont Caldow Caterers (Pty)
Ltd
(Delmont), where she was employed as a bookkeeper and also tasked
with making payments to the company’s creditors. The
payments
to the creditors were either made by means of electronic transfer,
cheque or in cash. Delmont had two bank accounts in
two separate
banking institutions and the appellant had a unique user-name and two
passwords allocated to her to enable her to
access both bank
accounts. She committed the theft on separate occasions between
January 2006 and February 2010. Her modus operandi
was the same: she
would make double payments simultaneously; one to a genuine creditor
and the other fraudulently to her bank account
or that of her husband
or pay their own debts.
[3]
Before
she was sentenced she secured a pre-sentencing report prepared by a
social worker. The report highlighted the following personal
circumstances: She was a first offender and has since been divorced
from her husband. During the subsistence of her marriage
relationship,
she had difficulty conceiving children naturally, and
had used a small portion of the stolen amount towards fertility
treatments
and pregnancy tests. She had lost twins that she had
conceived through the fertility treatments and attended counselling
as a result
thereof. She admitted that she had lived an unrealistic
lifestyle. She also informed the social worker that she was involved
in
community based projects and one of her friends stated that she
took care of his children when he was hospitalised for a period
of
four months after he had been in a motor vehicle accident. The
complainant, a director of Delmont, was also interviewed. He
stated
that he felt aggrieved by the failure on the part of the appellant to
explain what she had done with the money.
[4]
The
appellant’s counsel, in mitigation, informed the trial court
that she and her husband had repaid an amount of R50 000
and that an additional amount of R210 000, which was held in
trust on her behalf after the sale of her immovable property,
was
attached and paid to the complainant.
[5]
Sentencing
is a matter pre-eminently in the discretion of the trial court.
[2]
The State has correctly conceded that that court erred in failing to
afford the appellant an opportunity to address it before it
imposed a
non-parole period of imprisonment in terms of s 276B(1) of the Act. A
sentencing court should only exercise its discretion
to impose a
non-parole period in exceptional circumstances.
In
Strydom
v The State
[2015] ZASCA 29
(23 March 2015), this court had occasion to consider
s 276B(1). It held that a failure to afford the appellant an
opportunity to
address the court before it imposed a non-parole
period of imprisonment constituted a misdirection.
[3]
It
instructively held inter alia as follows (para 16):
‘
Section
276B entails an order which is a determination in the present for the
future behaviour of the person to be affected thereby.
. . . it
is an order that a person does not deserve parole in future. . . .
Such
an order should only be made in exceptional circumstances which can
only be established by investigation and a consideration
of salient
facts, legal argument and perhaps further evidence upon which such a
decision rests
.’
(My emphasis.)
In
S v Stander
[2011] ZASCA 211
;
2012 (1) SACR 537
(SCA) para 22,
an earlier judgment of this court considered in
Strydom
, the
trial court, as in this case, had given no indication that the
imposition of a non-parole order was being considered. It thus
came
as a surprise to the parties. On appeal this court said (para 12):
‘
Despite
the fact that s 276B grants courts the power to venture onto the
terrain traditionally reserved for the Executive, it remains
generally desirable for the court not to exercise that power’.
Regarding
the process to be followed before such a sentence is imposed the
court said (para 22):
‘
At
least two questions arise when such an order is considered: first,
whether to impose such an order and, second, what period to
attach to
the order. In respect of both considerations
the
parties are entitled to address the sentencing court. Failure to
afford them the opportunity to do so constitutes a misdirection
’.
(My emphasis.)
[6]
Since
the trial court did not afford the parties an opportunity to address
it before it imposed the non-parole period, there was
no proper
evidential basis laid for it and it is not clear whether there were
any exceptional circumstances that informed the court’s
decision. As stated by this court in
Strydom
,
the failure by a trial court to state its reasons for its decision is
not only unfair to the respective litigants but also to
the
public.
[4]
Whilst the statutes
do not demand this, it is a salutary practice developed and generally
adhered to over a long period of time.
[5]
It follows that the failure by the trial court to follow due process
before it imposed a non-parole order constituted a misdirection.
[7]
However,
consistent with the preservation of the trial court’s
discretion,
[6]
such a finding
does not necessarily mean that the whole sentence imposed by the
trial court needs to be set aside. It only affects
that portion of
the sentence which the trial court has declared to be a non-parole
period. The question whether the sentence of
15 years’
imprisonment is shockingly inappropriate is a separate issue and
needs to be considered separately. I now proceed
to deal with it.
[8]
The
trial court prepared a comprehensive judgment in which it carefully
dealt with all the factors relevant when considering an
appropriate
sentence. It considered the personal circumstances of the appellant
as highlighted in the pre-sentencing report, including
her
involvement in community based projects and her difficulty in
conceiving children, and the loss of her twins. It however noted
that
it is not clear to what extent the appellant’s state of mind
had contributed to the commission of the offences, observing:
‘
I c[ould]
understand if I had evidence before me that you were emotionally
distressed and that your levels of thinking were reduced
to a certain
extent . . . that could offer some kind of mitigation.’
I
endorse that reasoning by the trial court. There is no evidence that
shows any connection between the appellant’s difficulties
to
conceive children naturally and the loss of her twins and her
criminal actions.
[9]
The
court also considered the aggravating circumstances. It was disturbed
by the fact that the appellant had not disclosed what
she had done
with the money and held a view that she was not prepared to take it
fully into her confidence. I cannot fault the
trial court’s
impression in that regard. There is paucity of information on what
motivated the appellant’s conduct
and on how she used the
money.
[10]
Counsel
for the appellant urged us to find that her plea of guilty was a sign
of genuine remorse. I am not persuaded. The appellant,
although
having confessed immediately to her employer after the crime was
discovered, probably pleaded guilty because she had no
cogent
defence. She had been a bookkeeper in the company and in order to
access the accounts, she used her unique user-name and
the passwords
allocated to her. It was thus easy to link the theft to her and she
probably could not explain how another person
had accessed the bank
accounts using her user-name and passwords. In
S
v Seegers
1970
(2) SA 506
(A) at 511G-H, this court stated:
‘
Remorse, as
an indication that the offence will not be committed again, is
obviously an important consideration, in suitable cases,
when the
deterrent effect of a sentence on the accused is adjudged. But, in
order to be a valid consideration, the penitence must
be sincere and
the accused must take the court fully into his confidence. Unless
that happens the genuineness of contrition alleged
to exist cannot be
determined.’
[11]
The
trial court also considered as aggravating, the fact that the theft
occurred over a lengthy period of time and regarded as
‘manipulative’, the fact that the appellant made double
payments simultaneously: one to a genuine creditor and the other
fraudulently and in equal amounts to herself (into her personal
account, to her ex-husband, or to her creditors). Thus, making
it
difficult for the employer to detect the crime. This the court found
to be ‘premeditated’ and ‘well planned’.
It
also found as aggravating, the fact that the appellant stole from her
employer, thus violating her position of trust. In all
those respects
the trial court’s reasoning is sound and there is no basis to
conclude otherwise.
[12]
Before
deciding on an appropriate sentence, the trial court considered
several sentencing options such as a suspended sentence,
imposition
of a fine and correctional supervision, but found all those options
unsuitable. In the end it settled on direct imprisonment
as the only
suitable option. Before imposing sentence, it gave a synopsis of the
different sentences imposed by the courts for
similar offences: In
S
v Sinden
[1995] ZASCA 104
;
1995 (2) SACR 704
(A), the accused had also been
employed as a bookkeeper during which time she had stolen an amount
of R138 000 from her employer
over a period of 14 months. She
had a family and children but this court found that she had shown no
sign of remorse and thus upheld
a sentence of an effective term of
four years’ imprisonment. In
S
v Sadler
[2000] ZASCA 13
;
2000 (1) SACR 331
(A), the accused had stolen an
amount of R300 000 from his employer, a bank. He had also been a
first offender and the trial court
had imposed a wholly suspended
sentence which had been coupled with community service, but this
court, on appeal, substituted it
with a sentence of four years’
imprisonment. In
S
v Lister
[1993] ZASCA 82
;
1993 (2) SACR 228
(A), which also concerned theft by
a bookkeeper from an employer in the amount of R95 000 over a
period of 11 months; a sentence
of four years’ imprisonment
which had been imposed by the trial court was confirmed on appeal.
That sentence was heavily
influenced by the appellant’s
previous convictions for which she received a suspended sentence; and
also by the fact that
she committed the offences within the period of
suspension.
[7]
[13]
In
support for its contention that the sentence imposed is
disproportionate counsel for the appellant has also referred to the
following cases: In
S
v Blank
[1994] ZASCA 115
;
1995 (1) SACR 62
(A), a stockbroker was convicted
for fraud involving two schemes spanning over a period of 17 months
during which he made profits
exceeding R9.75 million, of which he had
personally benefited in the amount of R1.5 million. He was sentenced
to eight years’
imprisonment. In
S
v Gardener & another
[2011] ZASCA 24
;
2011 (4) SA 79
(SCA), the accused were implicated in
the collapse of a JSE listed company, Health & Racquet Club Ltd,
which affected many
shareholders throughout the country. The accused,
who had benefited in the amount of R6 million, were both sentenced to
seven years’
imprisonment.
[14]
As
the trial court noted, white-collar crime does not only affect the
particular complainant but has huge implications for the economy
as a
whole, including ordinary citizens whose employment may be
affected, if, for example, a business that has become a target
of
theft of huge sums of money is rendered insolvent. The picture that
emerges from a summary of the above cases shows that the
courts
regard white-collar crime as a serious offence and do not hesitate to
impose direct imprisonment where necessary.
[15]
In
Sadler
,
the court lamented (para 11-13):
‘
So called
“white-collar” crime has, I regret to have to say, often
been visited in South African courts with penalties
which are
calculated to make the game worth the candle. Justifications often
advanced for such inadequate penalties are the classification
of
“white-collar” crime as non-violent crime and its
perpetrators (where they are first offenders) as not truly being
“criminals” or “prison material” by reason of
their often ostensibly respectable histories and backgrounds.
Empty
generalisations of this kind are of no help in assessing appropriate
sentences for “white-collar” crime. Their
premise is that
prison is only a place for those who commit crimes of violence and
that it is not a place for people from “respectable”
backgrounds even if their dishonesty has caused substantial loss, was
resorted to for no other reason than self-enrichment, and
entailed
gross breaches of trust.
.
. . The impression that crime of that kind is not regarded by the
courts as seriously beyond the pale and will probably not be
visited
with rigorous punishment will be fostered and more will be tempted to
indulge in it.
.
. . It is sufficient to say that they are serious crimes the
corrosive impact of which upon society is too obvious to require
elaboration.’
[16]
The
trial court was thus justified in finding that a lengthy term of
imprisonment was appropriate. However, the trial court failed
to
exercise its discretion judiciously in imposing a sentence of 15
years. The appellant was a first offender and a conspectus
of the
similar cases cited above
[8]
shows that there is a striking disparity between the sentence imposed
by the court a quo and that which this court would have imposed.
This
court is thus justified to interfere with the sentence imposed. I am
of the view that a sentence of 10 years’ imprisonment
should
have been imposed.
[17]
I
therefore make the following order:
1.
The
appeal is upheld to the limited extent set out below.
2.
The
order of the trial court is set aside and in its stead is
substituted:
‘
The
accused is sentenced to a period of 10 years’ imprisonment
antedated from 1 November 2011.’
___________________
Z
L L Tshiqi
Judge
of Appeal
APPEARANCES
For
Appellant:
L
C Jansen van Vuuren
Instructed
by:
Van der Merwe Peché
Rossouw and Conradie
Inc., Bloemfontein
For
Respondent:
T Zitha
Instructed
by:
Director of Public Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
Section
276B of the Act provides:
‘
Fixing
of non-parole-period
(1)
(a)
If a court sentences a person convicted of an offence to
imprisonment for a period of two years or longer, the court may as
part
of the sentence, fix a period during which the person shall not
be placed on parole.
(b)
Such
period shall be referred to as the non-parole-period, and may not
exceed two thirds of the term of imprisonment imposed or
25 years,
whichever is the shorter.
(2)
If a person who is convicted of two or more offences is
sentenced to imprisonment and the court directs that the sentences
of imprisonment shall run concurrently, the court shall, subject to
subsection (1)
(b)
,
fix the non-parole-period in respect of the effective period of
imprisonment.’
[2]
See dictum by Innes CJ in
R
v Mapumulo
1920 AD 56
at
57.
[3]
Paragraph 11. See also in relation to
s 276B(2) of the Act,
S v
Mthimkulu
[2013] ZASCA 53
;
2012 (2) SACR 89
(SCA) para 21, where this court held that ‘a
failure to afford the parties the opportunity to address the
sentencing court
might . . . well constitute an infringement of . .
. fair-trial rights.’
[4]
Paragraph 14.
[5]
Ibid;
S
v Immelman
1978 (3) SA 726
(A) at 792C.
[6]
S v Pillay
1977 (4) SA 531
(A) at 534H-535G. See also S S Terblanche
The
guide to sentencing in South Africa
2 ed (2007) at 410-411. See further
S
v Fazzie & others
1964
(4) SA 673
(A) at 684B-C.
[7]
At 229
h
-230
a
.
[8]
See also
S
v Van Niekerk
1993 (1)
SACR 482
(NC).