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[2014] ZASCA 134
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Piater v S (743/13) [2014] ZASCA 134 (25 September 2014)
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THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 743/13
In
the matter between:
ETHRESIA
MARGARETHA
PIATER
...........................................................................
APPELLANT
and
THE
STATE
.....................................................................................
RESPONDENT
Neutral
citation:
Piater v S
(743/13)
[2014] ZASCA 134
(25 September 2014)
Coram:
Shongwe, Theron and Zondi JJA
Heard:
12 September 2014
Delivered:
25 September 2014
Summary:
Criminal Procedure –
appeal against sentence of 4 years’ imprisonment on 22 counts
of fraud – 7 counts of forgery
and uttering and one of theft –
approach on appeal – sufficient information must be placed
before court regarding the
accused person – the circumstances
of the offence – failure to testify by accused in mitigation –
statement from
the bar may be accepted –failure to place
sufficient evidence before court cannot in turn benefit the accused
person –
no material misdirection found – appeal
dismissed.
ORDER
On
appeal from:
The North Gauteng
High Court (Pretoria) (Makgoka J, Bosman AJ, sitting as court of
appeal):
The appeal is
dismissed.
JUDGMENT
Shongwe
JA (Theron and Zondi JJA concurring)
[1]
This appeal is against sentence only. On 28
September 2009, and pursuant to a plea of guilty, the appellant was
convicted of 22
counts of fraud, 7 counts of forgery and uttering and
one count of theft in the regional court, Heidelberg. On 16 April
2010 she
was sentenced to an effective period of 7 years’
imprisonment, some counts having been taken as one for purposes of
sentence.
On 7 December 2012 she successfully appealed to the
Pretoria high court, (Makgoka J, Bosman AJ concurring) which reduced
the sentence
to 4 years’ imprisonment. (See
S
v Piater
2013 (2) SACR 254
(GNP)). This
appeal is with the leave of the high court.
[2]
It is necessary to deal with the factual background leading to the
conviction and sentence. The appellant was employed at the
magistrates court, Heidelberg, as a senior administrative clerk. She
was responsible for the deposit account which held sums of
money for
the benefit of social grant pay-outs. During the period of November
2005 up and until June 2007 she falsely and with
the intention to
defraud represented to officials of the department of justice that
she had paid out certain sums of money to the
beneficiaries –
whereas in truth she knew that such moneys had not been paid out to
the lawful beneficiaries but to herself.
These moneys amounted in
total to R389 253.57. On 26 July 2007 she withdraw a sum of
R60 462.40 from her employer’s
bank account and
misappropriated it – however she returned part of the aforesaid
amount by placing R12 400 in the safe
and handing the balance of
R48 062.40 over to the investigating officer. This amount had
been kept in her safe at home and
she pretended that it was misplaced
somewhere in the house.
[3]
On 21 August 2007 she forged deposit slips and presented them to her
employer in an attempt to cover up her fraud. This happened
on the
day she was arrested.
[4]
The appellant challenges the sentence imposed on the basis that the
high court did not give adequate weight to the submission
that she
was contrite. It was submitted that she was prepared to recompense
the loss and that indeed, she did pay back all the
money. The
appellant contended further that the trial, as well as the high
court, did not accept that she was genuinely remorseful
because she
did not testify in mitigation of sentence.
[5]
It was further argued by the appellant that despite the finding of
the high court that there was little likelihood that she
would
reoffend and also the finding that the prospects of her
rehabilitation were good, the high court concluded that a custodial
sentence was the only suitable sentence. It was contended in this
Court that a non-custodial sentence was the appropriate sentence
and
that the high court had overemphasised the seriousness of the
offences and the interests of society.
[6]
The respondent contended that the high court was lenient, considering
that the appellant was in a position of trust and plotted
these
offences over a period of time (about 24 months). Further that the
appellant did not take the courts into her confidence
by failing to
testify in mitigation, her failure to disclose what she did with the
money indicated she was not genuinely remorseful
and that she did not
make full disclosure.
[7]
In the present case the appellant availed herself to the correctional
centre, for consideration of correctional supervision
as an
alternative sentence – after the trial court referred her. She
was also interviewed by a forensic criminologist (Dr
Sonnekus) who
prepared a pre-sentencing evaluation report. This was to enable the
trial court to have all the necessary information
at its disposal to
assist it in the determination of an appropriate sentence.
Unfortunately the information provided was insufficient
and remains
so.
[8]
In considering an appropriate sentence on appeal the court must
exercise caution not to erode the discretionary powers of the
trial
court. (See
S v Pillay
1977 (4) SA 531
(A) at 535E-F) An
appeal court must find a material misdirection by the high court
before it can interfere with the sentence imposed.
It is trite that
the power of an appeal court to interfere with a sentence is limited.
Marais JA in
S v Malgas
2001 (1) SACR 469
(SCA) para 12D-H
observed that:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so would be to usurp the sentencing discretion of the trial
court. Where material misdirection by the trial court vitiates
its
exercise of that discretion, an appellate Court is of course entitled
to consider the question of sentence afresh. In doing
so, it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance.
As it is said, an
appellate Court is at large. However, even in the absence of material
misdirection, an appellate court may yet
be justified in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence
of the trial court and the sentence
which the appellate Court would have imposed had it been the trial
court is so marked that
it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”.
It must be emphasised that in the latter
situation the appellate court is not at large in the sense in which
it is at large in
the former. In the latter situation it may not
substitute the sentence which it thinks appropriate merely because it
does not accord
with the sentence imposed by the trial court or
because it prefers it to that sentence. It may do so only where
the difference
is so substantial that it attracts epithets of the
kind I have mentioned. No such limitation exists in the former
situation.’
[9]
The court a quo gave a well-reasoned judgment and, in my view, dealt
with all the issues necessary in the circumstances. It
juxtaposed
many earlier decisions with this case. I cannot find any
justifiable criticism. Mr Myburgh, for the appellant,
attempted to
punch holes in the judgment of the court a quo by urging us to find
that it misdirected itself by committing the same
error it pointed
out against the trial court, which is when the court a quo said:
‘
[40]
The fact that the appellant pleaded guilty, is not of itself an
indication of remorse. Due consideration should be accorded
to the
facts of each particular case. In the present case, the State had a
very strong case against the appellant that a plea of
guilty was
unavoidable. It is in that light that her plea should be considered.
The other factor militating against a conclusion
that the appellant
has shown genuine remorse, is obviously her decision not to testify
in mitigating of sentence. Her evidence
would have, once and for all,
demonstrated her candour, by subjecting her statements of being
needy, to the scrutiny of cross examination.’
[10]
Mr Myburgh argued that the above statement demonstrates that the
court a quo still took issue with the appellant’s failure
to
testify which, to him meant that the court was of the view that she
did not display a complete penitence. It will be remembered
that
Makgoka J had said that the trial court was obliged to accept ex
parte statements of the appellant’s counsel. I do not
agree
with Mr Myburgh’s criticism because, the court a quo concluded
that the trial court had insufficient evidence before
it just as the
high court was also faced with insufficient information, and
nevertheless it reduced the sentence. Even before this
court, as
stated earlier, there was insufficient evidence which fact Mr Myburgh
conceded. This court still does not know what she
did with the money.
[11]
The appellant was represented by erudite lawyers from the beginning
of her trial. She pleaded guilty, as indicated earlier,
and was duty
bound to place evidence before the court in her favour or otherwise.
She cannot be heard to want to benefit from her
failure to place such
information before the court. I agree that the appellant should not
be criticised for failing to testify
but may be criticised for
failing to place sufficient information before court – (see
S
v Ferreira & others
2004 (2) SACR
454
(SCA) at 465 para 32). Sufficient evidence must be placed
before the court to enable it to determine an appropriate sentence.
The evidence of Dr Sonnekus on behalf of the appellant did not
advance her case any further because Dr Sonnekus interviewed her
telephonically and did not question her fully on why she stole the
money and what she did with it. The report says the appellant
became
emotional. That left a lacuna – in that insufficient evidence
was placed before court.
[12]
The approach of this court to sentencing in so-called ‘white
collar’ crimes is well established. (See
S
v Sadler
2000 (1) SACR 331
(SCA) paras
11 – 13;
S v Barnard
2004
(1) SACR 191
(SCA) para 15;
S v Michele
2010 (1) SACR 131
(SCA) para 10 and
S v
Olivier
2010 (2) SACR 178
(SCA) para
24.) In
Olivier
,
it was observed that ‘direct imprisonment is not uncommon’,
even for first offenders. Care must be taken that previous
similar
cases are generally to be used as a guide not as presenting a hard
and fast rule which must be followed. It is trite law
that each case
must be adjudicated on its own merits.
[13]
In the present case the appellant was 41 years old, at the time of
her sentence by the regional court – She is married
with two
minor children aged 15 years (boy) and 12 years (girl), respectively.
It is common cause that the appellant was not the
sole primary
caregiver. Her husband was unemployed at some stage, but was employed
at the time of her sentence. She did repay the
full amount that she
stole – which counts in her favour.
[14]
What is aggravating is the fact that she stole from her employer. She
was in a position of trust where she was handling money
to be paid to
the needy. It was submitted on behalf of the appellant that in
committing these crimes she had been motivated by
need and not by
greed. I do not agree with this submission. Her socio-economic
situation did not necessitate her involvement in
criminality. It
would appear that she was stealing an average of R20 000
monthly, while she and her husband were earning a
salary. Logically
she did not need so much money for her family’s basic needs.
She must have used the rest of the money for
personal and/or
luxurious items. A morally unacceptable motive is aggravating,
especially where the fraud or theft is motivated
by greed or no
explanation at all. (
S v Tyers
1997
(1) SACR 261
(NC) at 267g-h.)
[15]
I am in agreement with the court a quo that a non-custodial sentence
would undermine the purposes of punishment, which are
the deterrence,
rehabilitation and retribution. It was conceded by Mr Myburgh that
the offences are serious, and were carefully
planned over a lengthy
period and involved a substantial amount of money. I am unable to
conclude that 4 years’ imprisonment
is disproportionate and
unbalanced to the gravity of the offences taken together with the
appellant’s personal circumstances.
(See
Pienaar
v S
(564/11)
[2012] ZASCA 60
(2 April
2012) para 9) In
Pienaar’s
case the court found a misdirection by the trial court whereas in the
present case no such misdirection exists.
[16]
For the above reasons, the appeal must fail.
[17]
The following order is made:
The
appeal is dismissed.
_____________________________
J
B Z SHONGWE
JUDGE
OF APPEAL
Appearances
For
the Appellant: J P Myburgh
Instructed
by:
Petro
De Witt Attorneys, Heidelberg;
Honey
Attorneys, Bloemfontein.
For
the Respondent: M S Mogoshi
Instructed
by:
The
Director of Public Prosecutions, Pretoria;
The
Director of Public Prosecutions, Bloemfontein.