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[2015] ZASCA 119
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De Villiers v S (20367/2014) [2015] ZASCA 119; 2016 (1) SACR 148 (SCA); [2015] 4 All SA 268 (SCA) (11 September 2015)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 20367/2014
DATE: 11 SEPTEMBER 2015
Reportable
In the matter between:
NICOLE ROMEY DE
VILLIERS
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral Citation: De Villiers v S
(20367/2014)
[2015] ZASCA 119
(11 September 2015)
Coram: Lewis, Mhlantla, Leach,
Majiedt and Petse JJA
Heard: 26 August 2015
Delivered: 11 September 2015
Summary:
Failure to consider the
best interests of an offender’s young children, when imposing a
sentence, constitutes a grave misdirection:
evidence admitted on
appeal to allow for determination of children’s best interests:
custodial sentence appropriate even
though appellant was primary
caregiver because of the seriousness of the crime – fraud on
employer when in position of trust.
ORDER
On appeal from: Gauteng Local Division
of the High Court, Johannesburg (Monama and Tshabalala JJ sitting as
court of appeal).
1 The appeal is upheld.
2 The order of the court a quo is set
aside and replaced with the following:
‘The appeal is upheld:
The sentence imposed by the trial court
is set aside and the following sentence is imposed:
The accused is sentenced, in terms of
s
276(1)(i)
of the
Criminal Procedure Act 51 of 1977
, to three years’
imprisonment from which she may be placed under correctional
supervision in the discretion of the Commissioner
or a parole board.’
3 The sentence shall take effect four
weeks from the date of this order.’
JUDGMENT
Lewis JA (Mhlantla, Leach, Majiedt
and Petse JJA concurring)
[1] The court is asked in this appeal
to consider the appropriate sentence to be imposed where the
appellant has been convicted
on 31 counts of fraud and one count of
contravening s 4(b)(i) of the Prevention of Organised Crime Act 121
of 1998 (POCA). The
principal issue before us is the weight to be
attached to the fact that the appellant, Ms Nicole Romey de Villiers
(nee Munitz),
is the primary caregiver of her two children, [J……],
a girl, now aged ten and [J……], an eight-year old
boy.
[2] The offences charged were committed
over a period of some five months from July to November 2007. De
Villiers fraudulently took
from the trust account of the attorney for
whom she worked as a paralegal assistant some R1 409 000 which she
paid into her own
bank accounts, or those of her husband and
father-in-law, and entities controlled by them.
[3] De Villiers was arrested on 4 March
2009. She was then 28. She was charged, together with her husband,
Jean Paul de Villiers
(Jean), and her father-in-law, Pierre Joubert
de Villiers (Pierre). She pleaded guilty to all the charges before
the trial court
in the Regional Court, Johannesburg. The charges
against Jean and Pierre were, for some unexplained reason, dropped.
De Villiers
was convicted on all the charges against her on 18
September 2009.
[4] On 7 March 2011 she was sentenced
to eight years’ imprisonment, three years of which were
suspended on the usual conditions.
She had, before being sentenced,
repaid the full amount (some R400 000) which she had personally taken
from her former employer’s
trust account and various assets
that she had acquired were forfeited to the State under the POCA. The
charges of fraud and contravention
of the provisions of the POCA were
taken as one for the purpose of sentence. The regional court had
before it, before sentencing,
the evidence and pre-sentence report of
Ms Annette Vergeer, a social worker and probation officer; the
evidence and pre-sentence
report of Ms Maureen Lang, also a social
worker; the evidence and pre-sentence report of Ms Yvette Esprey, a
clinical psychologist,
and the evidence and pre-sentence report of Dr
W J Levin, a general physician who specialized in the treatment of
Attention Deficit
Hyperactivity Disorder (ADHD). An attorney who
worked for the former employer also testified as to the character of
De Villiers,
and as to her circumstances at the time when the
offences were committed.
[5] All the evidence before the court
in relation to sentencing concerned the personal circumstances of De
Villiers; her background;
her history of drug abuse; her marriage to
Jean and her family circumstances prior to sentencing. I shall turn
to these in due
course. Regrettably, the regional magistrate barely
referred to the evidence when sentencing, and had no regard at all to
the
fact that De Villiers was the primary caregiver of her two very
young children. He said that it would be wrong to overemphasise
her
personal circumstances, and that the seriousness of the offences
should be addressed.
[6] That is, of course, correct. But
the court failed to have regard to any of the psychological and
medical evidence before it,
and did not, as it should have done,
consider the interests of the children (S v M (Centre for Child Law
as amicus curiae)
[2007] ZACC 18
;
2007 (2) SACR 539
(CC)). This was a grave
misdirection, as the State on appeal conceded. There were several
other misdirections committed by the
trial court: the presiding
officer did not read the report of the probation officer (Vergeer)
fully; he did not recall Lang’s
report and none of the reports
before him were examined for accuracy.
[7] De Villiers was released on bail
pending an appeal to the Gauteng Local Division (Johannesburg). The
full bench of that court
(Monama and Tshabalala JJ) also failed to
consider the interests of the childen, and it too disregarded the
substance of the reports
presented to the regional court before
sentencing. The high court’s statement on appeal, that the
trial court had considered
all the evidence ‘meticulously’,
was itself a serious misdirection. It confirmed the sentence imposed
by the regional
court. The full bench also refused leave to appeal
and ordered that De Villier’s bail be withdrawn, as it was. The
appeal
against the judgment of the Gauteng Regional Division lies
with the leave of this court.
[8] Before the hearing of the appeal,
this court asked the Centre for Child Law to apply to be admitted as
an amicus curiae, given
the importance of the rights of the children,
which were completely ignored by the trial court and the full bench.
An application
followed and was granted. Neither De Villiers nor the
State objected to the application. The court is indebted to Professor
Ann
Skelton of the Centre for making very helpful submissions.
[9] As I have said, the State conceded
that the courts below were guilty of grave misdirections, and that
the sentence of eight
years’ imprisonment, only three of which
were suspended, was unjustified in all the circumstances. The
sentencing options
canvassed before us at the hearing were
correctional supervision under either
s 276(1)(h)
or
276
(1)(i) of the
Criminal Procedure Act 51 of 1977
. The former ((h)) permits a court
to impose a sentence of house arrest and community service after a
report of a probation officer
or correctional official has been
placed before the court and for a fixed period of three years
(s
276A(1)).
The latter ((i)) entails imprisonment from which a person
may be placed under correctional supervision in the discretion of the
Commissioner of Correctional Services or a parole board, and may be
for a period not exceeding five years
(s 276A(2)).
[10] De Villiers and the amicus argued
that direct imprisonment was not warranted, and would be detrimental
to the interests of
the two children. The State, however, argued that
a non-custodial sentence would not be sufficient punishment given the
gravity
of the offences and the amount by which De Villier’s
former employer had been defrauded. It argued that a sentence under
s
276(1)(i)
was appropriate. Before turning to the question of the
sentence to be imposed, however, it is important to consider the
personal
circumstances of De Villiers and the interests of the
children. These emerge from the evidence that was before the regional
court,
including her testimony, and from a report prepared in July
2015 by a Dr Ronel Duchen, a senior counselling psychologist, which
was admitted into evidence by this court on application by De
Villiers at the hearing of the appeal. That report deals with the
current position of De Villiers, her children and her family.
[11] The State asked that a report of
the Family Advocate, served on the appellant a week before the
hearing, also be admitted,
despite the fact that it had not been
filed in this court. We agreed to the admission of both reports even
though the Family Advocate’s
report was handed up only at the
hearing. (That report was prepared pursuant to an order of the South
Gauteng High Court in June
2012, when the custody of the children and
access to them by Jean was at issue. It has taken some three years
for the Family Advocate
to prepare it.) When considering the best
interests of children a court must consider evidence as to their
current position to
determine what their best interests require.
[12] Dr Duchen’s report is a
comprehensive one, prepared after consulting De Villiers, Jean,
Pierre, his wife, De Villiers’
mother, Ms Sharon Munitz, and
the children Jordan and Jesse, both of whom were psychologically
evaluated. Duchen also consulted
the teachers of the children, De
Villiers’ current employer, and her psychiatrist.
[13] Duchen was requested to prepare
the report by De Villiers in order to determine whether she is the
children’s primary
caregiver; to ascertain the children’s
circumstances prior to the hearing of the appeal; to recommend steps
to be taken should
De Villiers be incarcerated; and to ascertain the
effect of a custodial sentence on De Villiers.
De Villiers’ history
[14] I shall discuss only briefly the
personal circumstances that are relevant for the purpose of
sentencing. These emerge from
the evidence before the trial court and
from Duchen’s report. De Villiers is the youngest of four
children. Her older brothers
were at the time of the trial estranged
from her. Her father died in a motor accident when she was nine, and
she believed that
he had actually committed suicide. She currently
lives with her mother and her children. Her relationship with her
mother has at
times been fraught, especially after the death of her
father. She had been very close to her father and was badly affected
by his
death. The family is Jewish, and De Villiers went to a Jewish
high school. She did well academically until she started drinking
and
using marijuana. When she was 14 she attempted to commit suicide.
[15] After finishing school De Villiers
experimented with cocaine, and in first year university started using
heroin. Her mother
evicted her from the family home, and although she
spent time with a brother who had moved to Australia, she continued
to abuse
drugs. She was admitted to a drug rehabilitation centre in
1999, but relapsed on her discharge six months’ later. In 2001
she was admitted to another rehabilitation centre, Noupoort, where
she spent 11 months. It was there that she met Jean, whom she
married
when they were both discharged.
[16] The marriage was a difficult one.
Jean continued to use drugs. He was abusive both physically and
emotionally, on her evidence,
which was not disputed. They lived for
much of the time with his parents in Pretoria. Pierre was an
unrehabilitated insolvent with
a penchant for luxury cars and high
living. Jean worked for him but was frequently not paid any salary.
When, in 2004, De Villiers
began to work as a receptionist for an
attorney, they lived entirely on her salary. She was soon appointed
to a permanent position,
and promoted to doing paralegal work –
conveyancing. She thus had access to her former employer’s
trust account.
[17] In 2007 the De Villiers family was
living an extravagant lifestyle that they simply could not afford.
She felt under pressure
from Jean and Pierre to support their
extravagance and started helping herself to moneys from the trust
account. She said she had
always intended to pay it back as soon as
the family had other income. But she kept taking substantial funds –
small amounts
at first but later very large sums, up to R112 140, at
one time – and used the money to buy expensive luxury items for
Jean
and Pierre. She also acquired for herself a diamond engagement
ring, a Rolex watch, and a Jaguar motor car. Although she claimed
that she acquired these items at the instance of Jean and Pierre, she
nonetheless used them and had the benefit of them.
[18] She reported to the social workers
and psychologists that she was estranged at this time from her own
family, and was emotionally
dependent on Jean. She wanted to buy his
affection and Pierre’s approval. Both knew the source of the
funds and enjoyed their
benefit.
[19] At the time when the offences were
committed Jordan was three years old and she was pregnant with Jesse.
He was born in July
2007, shortly after she had first taken money
from the trust account.
[20] Towards the end of 2007 the
attorney for whom she worked discovered the frauds and dismissed her.
He told her he would not
lay charges. She sold paintings bought with
the trust moneys, and gave the ring and watch to her former employer.
The latter in
fact laid charges in March 2008 against De Villiers,
Jean and Pierre. They were arrested a year later and charged with
fraud and
contravention of the provisions of the POCA. But before
then De Villiers had left Jean and attempted suicide in June 2008. In
July
2008 she returned to Jean and she reverted to drug use.
[21] Despite moving with the children
to live with her mother in November 2008, and being admitted to
Houghton House (a rehabilitation
centre in Johannesburg) for
rehabilitation, De Villiers returned to Jean again in December 2008.
She then overdosed on heroin and
was admitted to hospital. After
discharge in 2009, she moved in with her mother, taking the children
with her. She testified that
she has not since taken any drugs.
[22] De Villiers and her children have
lived with her mother in Norwood, Johannesburg since April 2009. The
children attend Jewish
schools in the area, and De Villiers has
become a devout Jew, involved with the Jewish community in the area.
She has obtained
work at Houghton House as a Group Manager, doing
administrative work, including paying staff salaries, as well as
doing counseling.
[23] She has instituted divorce
proceedings against Jean, but these have dragged on and are not yet
finalized. The reason for this,
she said, was that Jean had been in
and out of rehabilitation centres, and had frequently changed his
legal representative, such
that he has not appeared in court and
finality cannot be reached. He did, however, in June 2012 obtain a
court order allowing him
supervised access to the children on Sunday
afternoons. He had exercised this right seldom, claiming that he
could not afford to
pay for the supervision of a social worker.
[24] As a result, he has been allowed
to see the children in the presence of his parents. After their first
visit, Jordan refused
to return because she said her grandparents did
not want her to be Jewish. Jesse has continued with the visits, save
when Jean
has been in rehabilitation. Jean has made a minute
contribution to the maintenance of his children. They are entirely
supported
by De Villiers. Munitz, however, pays for some household
expenses. She continues to work as a beautician, from home, and has a
small pension and income. Munitz is 66 years old, and in ill-health.
She has an addiction to sleeping pills and suffers from emphysema.
[25] De Villiers has flexible working
hours and takes the children to school and does their homework with
them. She is assisted
by a domestic worker. Munitz is unable to take
care of the children without assistance and cannot afford to maintain
them. Duchen
has advised that should De Villiers be given a custodial
sentence, the children will lose their secure environment and be at
risk.
There is no one else in their current world that is able to
care for them and to support them, she advised.
[26] The Family Advocate recommends, on
the other hand, that should De Villiers be given a custodial
sentence, the children be placed
in the Jewish home for children,
Arcadia, be reintegrated into their paternal family while at the
home, and then live with the
De Villiers grandparents. Before
considering these possibilities it is necessary to deal briefly with
the principles to be applied
where a person convicted of an offence
is the primary caregiver of children.
[27] These principles were set out
comprehensively in the majority judgment of the Constitutional Court
in S v M above. Central
to that decision is s 28 of the Constitution,
headed ‘Children’, the relevant provisions of which are:
‘Every child has the right—
(a) to a name and a nationality from
birth;
(b) to family care or parental care, or
to appropriate alternative care when removed from the family
environment;
(c) to basic nutrition, shelter, basic
health care services and social services;
(d)to be protected from maltreatment,
neglect, abuse or degradation;
. . .
(1) A child’s best interests are
of paramount importance in every matter concerning the child.
. . . .’
[28] Sachs J considered that s 28(2) is
a self-standing right and an indication of how a court should balance
other rights. The
question to be asked when considering competing
rights is what reasonable limitation can be placed on their
application (para 14).
Children’s rights are paramount. But as
the Constitutional Court has held subsequently, the child’s
rights are ‘more
important than anything else’, but that
not everything else is unimportant: Centre for Child Law v Minister
of Justice and
Constitutional Development & others
2009 (6) SA
632
(CC) para 29.
[29] In S v M the court asked whether,
in sentencing a primary caregiver, a child’s interests should
be one of the factors
considered under what has come to be known as
the Zinn triad – in sentencing a court must consider the crime,
the offender
and the interests of society (S v Zinn
1969 (2) SA 537
(A) at 540G-H), a formula followed time without number in this court
and others. The triad is well-explained by Friedman J in S
v Banda &
others
1991 (2) SA 352
(B) at 355A-C:
‘The elements of the triad
contain an equilibrium and a tension. A court should, when
determining sentence, strive to accomplish
and arrive at a judicious
counterbalance between these elements in order to ensure that one
element is not unduly accentuated at
the expense of and to the
exclusion of the others. This is not merely a formula, nor a judicial
incantation, the mere stating whereof
satisfies the requirements.
What is necessary is that the Court shall consider, and try to
balance evenly, the nature and circumstances
of the offence, the
characteristics of the offender and his circumstances and the impact
of the crime on the community, its welfare
and concern.’
The passage is cited in para 10 of S v
M.
[30] When sentencing, a court must
also, it is trite, consider the purposes of punishment –
deterrence, prevention, and rehabilitation:
see Director of Public
Prosecutions KwaZulu-Natal v P
2006 (1) SA 243
(SCA) para 13, cited
in para 10 of S v M. DPP v P said further that to these aims must be
added the quality of mercy, though not
mere sympathy for the
offender.
[31] The amicus in S v M argued that it
was not sufficient, when sentencing, to regard a child’s
interests as one of the circumstances
of the offender. They must be
considered independently, not subsumed into a consideration of the
culpability and circumstances
of the offending primary caregiver. The
Constitutional Court accepted the submission, as well as that of the
curator of the minor
children in the matter, that a reading of s
28(1) together with s 28(2) of the Constitution, require that when a
custodial sentence
of a primary caregiver is in issue the court has
four responsibilities: to establish whether there will be an impact
on the child;
to consider independently the child’s best
interests; to attach appropriate weight to those interests; and to
ensure that
the child will be taken care of if the primary caregiver
is sent to prison.
[32] Sachs J said (para 33):
‘Focused and informed attention
needs to be given to the interests of children at appropriate moments
in the sentencing process.
The objective is to ensure that the
sentencing court is in a position adequately to balance all the
varied interests involved,
including those of the children placed at
risk. This should become a standard preoccupation of all sentencing
courts. . . .Specific
and well-informed attention will always have to
be given to ensuring that the form of punishment imposed is the one
that is least
damaging to the interests of the children, given the
legitimate range of choices in the circumstances available to the
sentencing
court.’
The court recognized that a custodial
sentence of a primary caregiver may be appropriate. In that case, it
said, the court ‘must
apply its mind to whether it is necessary
to take steps to ensure that the children will be adequately cared
for while the caregiver
is incarcerated’ (para 36).
[33] M was the sole caregiver of her
three children, and was financially responsible for them as well. But
she had been convicted
previously of fraud and was a compulsive
gambler – the reason for her fraudulent conduct. She was
convicted on 38 counts
of fraud (the total sum involved was R29 000)
and sentenced to four years’ imprisonment. On appeal the high
court (Western
Cape) set aside one of the counts of fraud and reduced
her sentence to five years’ imprisonment and correctional
supervision
under s 276(1)(i) of the Act. She had already served
several months in prison when her appeal to the Constitutional Court
was considered.
That court sentenced her to four years’
imprisonment, wholly suspended on the usual conditions, and placed
her under correctional
supervision in terms of s 276(1)(h) of the
Act.
[34] The principles formulated in S v M
have been applied regularly since the decision. (And the judgment has
earned international
recognition in legal instruments in other
states, by the United Nations, Human Rights Council and by the
African Committee of Experts
on the Rights and Welfare of the Child
in their General Comment Number 1.) In a number of decisions where a
woman (as primary caregiver)
has been convicted of theft or of fraud,
sentences have been set aside on appeal and reduced, or remitted to
the trial court to
consider sentence afresh, taking into account
properly the interests of minor children (see, in this court, Pillay
v S
2011 (2) SACR 409
(SCA)). In these matters the appeal court did
not have before it sufficient information to impose sentence itself.
In others (for
example Piater v S
[2014] ZASCA 134
(25 September
2014)) the court has considered the offences committed to be too
serious to warrant a non-custodial sentence. (In
Piater the appellant
was in any event not the sole caregiver of her children.)
[35] In a significant decision of the
Constitutional Court, MS v S (Centre for Child Law as amicus curiae)
2011 (2) SACR 88
(CC), because the appellant was a repeat offender
(as was the appellant in S v M), and because she was not the sole
caregiver of
her children and had lived with her husband and
children, the court held that a custodial sentence would not
compromise the children’s
best interests. In the judgment of
the majority, Cameron J, dismissing a further appeal from this court,
said (para 62):
‘S v M has revolutionized
sentencing in cases where the person convicted is the primary
caregiver of young children. It has
reasserted the central role of
the interests of young children as an independent consideration in
the sentencing process. Yet it
would be wrong to apply S v M in cases
that lie beyond its ambit. The mother in S v M was a single parent,
and was almost exclusively
burdened with the care of her children.
There was no other parent who could, without disruption, step in
during her absence to
nurture the children, and provide the care they
need, and to which they are constitutionally entitled.’
[36] He continued (para 63):
‘That is not the case here. Mrs S
is not the children’s sole caregiver. She is not “almost
wholly responsible”
for their care. Despite heartache and
turbulence . . . Mrs S is united with the father of her children. He
is their co-resident
parent. And he is willing to care for them
during her incarceration. . . . A non-custodial sentence is therefore
not necessary
to ensure their nurturing. And a custodial sentence
will not inappropriately compromise the children’s best
interests.’
(Footnote omitted.)
The circumstances of De Villiers and
the children’s best interests
[37] The interests of the children
Jordan and Jesse must be examined independently. This, as I have
said, both the trial court and
the full bench failed dismally to do,
ignoring the evidence that was before both courts, and not calling
for a proper investigation
into De Villiers’ current position
or into the interests of Jordan and Jesse.
[38] De Villiers argued before us that
she has been rehabilitated: she now works as an administrator at a
rehabilitation centre,
Houghton House, and counsels residents there
as well. She has become a devout member of the Jewish community,
regularly attending
synagogue with her children, and having a close
connection to her Rabbi. Her employer has indicated to Dr Duchen that
she is a
dedicated and diligent employee.
[39] She supports the children
financially and is their primary caregiver. Munitz, while able to
help with the children’s
daily lives, is unable to care for
them on her own. She is ill, has psychological problems and abuses
prescription medication.
There is no other family member who is able
to care for them in the same way that De Villiers does. Moreover,
Munitz’s financial
position is not such that she can support
the children. She earns very little as a beautician and has only a
small pension.
[40] In the period in which De Villiers
was incarcerated (after losing her appeal in the high court and
before this court gave leave
to appeal, some seven weeks), the
children were deeply disturbed and unhappy. Since then they have
adjusted and their teachers
are happy with their progress and
behaviour. They are settled into routines and have a good
relationship with their mother. They
are emotionally secure. If
deprived of their mother’s care, advised Duchen, they would be
placed at risk.
[41] According to Duchen, psychological
testing of both children revealed that their father does not feature
in their world. While
Jesse has no difficulty with contact with his
father, who buys him sweets, Jordan has an aversion to being with him
in his parents’
home. She is intent on not eating non-kosher
food and is anxious about being in a Christian environment.
[42] Jean has had very little contact
with his children recently. While given supervised access to them in
terms of a court order
in 2012, he found that the costs of paying a
social worker to supervise their visits to him were beyond his means.
It had been
agreed subsequently that he could see them under the
supervision of his parents but Jordan was unhappy about visits.
Neither he
nor Pierre has contributed financially to the children’s
support in any significant way.
[43] Duchen consulted Jean in November
2014. At the time he was again in a drug rehabilitation centre. His
addiction has continued
for over 20 years. He views the children’s
upbringing as Jews negatively, and thinks that they have been
indoctrinated. He
is certainly unable to care for the children should
De Villiers be incarcerated.
[44] The State, on the other hand,
relying on the report of the family advocate, produced at the hearing
of the appeal, argues that
the children should be moved to the
Arcadia Children’s Home if De Villiers is incarcerated. While
there they should be reintegrated
into the De Villiers family and
eventually live with their grandparents until her release.
[45] The reports on which the Family
Advocate relies are dated and do not take into account Jean’s
constant addiction and
the amount of time he spends in drug
rehabilitation centres. An inspection of the children’s home by
them recently reassured
the social workers that the home is well-run,
that the children would be well-cared for and that their schooling
would not be interrupted.
[46] I do not consider that the Family
Advocate’s recommendations, particularly that De Villliers
should be deprived of guardianship
of the children, are helpful. It
is also unlikely, given their history with the paternal family, and
the limited contact that they
have had with them, that they would
adjust eventually to living with that family. In my view, should we
decide to sentence her
to a period of imprisonment, De Villiers
should be given the opportunity to decide herself who should take
care of her children
while she is incarcerated.
Evaluation of the proper sentence to be
imposed on De Villiers
[47] Neither De Villiers nor the State
asked that the matter be remitted to the trial court for the purpose
of sentencing. In view
of the lengthy delay between the trial and
this appeal, it would be most undesirable to do so. Finality must be
reached (see Fraser
v Naude & others
1999 (1) SA 1
(CC) para 9).
And in view of the new evidence that has been admitted by this court,
we are in as good a position to consider an
appropriate sentence as
the trial court would have been.
[48] It remains to consider whether a
sentence involving imprisonment is required in the circumstances.
While considering the sentences
imposed in similar cases is always
useful, each person to be sentenced must be considered against her
own background and in her
own circumstances.
[49] In S v M, the appellant was a
repeat offender, but had defrauded her employer of only some R29 000.
De Villiers committed the
offences over a short period, but the
amount she took from her former employer’s trust account is
substantial. She has, however,
paid back whatever she had personally
gained, and has shown remorse. While testifying that she had been
under the influence of
her husband and his father, and had wanted to
please them, and that she had not been medically treated for ADHD, as
she now is,
she nonetheless recognized that her conduct was not only
morally wrong but also criminal. She accepts that she must be
punished
for her wrongdoing. Her counsel argued strenuously for a
non-custodial sentence, especially taking into account the interests
of
the children.
[50] The State, on the other hand,
argues for a sentence in terms of s 276(1)(i) of the Act – a
period of imprisonment from
which De Villiers may be released under
correctional supervision at the instance of the Commissioner. The
purpose of correctional
supervision without imprisonment is to ensure
rehabilitation: De Villiers has already been rehabilitated so that
purpose would
not be met, it argued. I fail to see the logic in the
argument, but accept the further argument advanced that the offences
were
serious, that a significant sum of money was in issue, and that
De Villiers needs to be punished. The objects of deterrence and
prevention must be met.
[51] I therefore consider that the
fraud committed by De Villiers against her employer, when she was in
a position of trust, is
such that a custodial sentence is required.
Society must be assured that persons who abuse positions of trust for
their own gain
are not allowed to walk free. At the same time, taking
into account the best interests of De Villiers’ very young
children,
the period of imprisonment should not be lengthy and should
take into account the period for which she was incarcerated after her
appeal to the full bench failed and before she was again released on
bail. And she should be given an opportunity to make arrangements
for
their care and support before she is incarcerated.
[52] Accordingly:
1 The appeal is upheld.
2 The order of the court a quo is set
aside and replaced with the following:
‘The appeal is upheld:
The sentence imposed by the trial court
is set aside and the following sentence is imposed:
The accused is sentenced, in terms of
s
276(1)(i)
of the
Criminal Procedure Act 51 of 1977
, to three years’
imprisonment from which she may be placed under correctional
supervision in the discretion of the Commissioner
or a parole board.’
3 The sentence shall take effect four
weeks from the date of this order.’
C H Lewis
Judge of Appeal
APPEARANCES
For Appellant: M Witz
Instructed by: Witz, Calicchio,
Isakow & Shapiro Inc Attorneys, Sandton
Hugo & Bruwer Attorneys,
Bloemfontein
For Respondents: A Carstens
Instructed by: National Director of
Public Prosecutions, Johannesburg
Director of Public Prosecutions,
Bloemfontein
Amicus Curiae: A Skelton
Instructed by: Centre for Child Law,
Pretoria
Honey Attorneys, Bloemfontein