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[2013] ZASCA 6
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S v Chetty (742/12) [2013] ZASCA 6; 2013 (2) SACR 142 (SCA) (14 March 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case No: 742/12
In the matter between:
SADHASIVAN NOLAN
CHETTY
....................................................................
Appellant
and
THE STATE
.................................................................................................
Respondent
Neutral citation:
Chetty v The State
(742/12)
[2013] ZASCA 6
(14 March 2013)
Coram:
MPATI P,
MTHIYANE DP AND PLASKET AJA
Heard:
27
February 2013
Delivered: 14 March
2013
Summary: Sentence –
absence of probation officer’s report – necessary
information placed before magistrate from
bar – no need for
probation officer’s report – whether appellant primary
caregiver of daughter.
ORDER
On appeal from:
KwaZulu-Natal High Court, Pietermaritzburg (Van Zyl J and Ploos
van Amstel AJ sitting as court of appeal):
The appeal is dismissed.
___________________________________________________________________
JUDGMENT
PLASKET AJA (MPATI P
and MTHIYANE DP concurring)
[1] The appellant pleaded
guilty, in the Regional Court, Durban, sitting as a Commercial Crime
Court, to 49 counts of theft and
94 counts of fraud. He was convicted
in accordance with his plea and sentenced to six years’
imprisonment, three years of
which were suspended for three years on
condition that he was not convicted of ‘fraud, theft or any of
its competent verdicts
committed during the said period of
suspension’. His appeal against sentence to the KwaZulu-Natal
High Court, Pietermaritzburg
(Van Zyl J and Ploos van Amstel AJ) was
dismissed as was his application for leave to appeal. His appeal is
before us with the
leave of this court granted on petition.
[2] The sole issue that
arises in this appeal is whether the magistrate misdirected himself
by sentencing the appellant in the absence
of a probation officer’s
report on whether the appellant was the primary caregiver of his
young daughter and on her best
interests generally, having initially
called for such a report but later deciding that it was not
necessary.
[3] The appellant was
employed as a clerk by Avis Rent A Car. He took advantage of this
position to steal various amounts of cash
belonging to his employer
and which he was supposed to bank on its behalf.
[4] The amounts stolen
ranged from R144.80 to R10 290.14. The 49 instances of theft were
committed during the period 3 March 2008
to 31 May 2008 – a
period of about three months. The total amount stolen by the
appellant was R71 315.70.
[5] The 94 fraud
convictions arose from the appellant either using for his own
purposes motor vehicles that had been returned early
by clients to
Avis, or allowing family and friends to use the vehicles, while
misrepresenting to his employer, to its potential
prejudice, that the
vehicles were in fact still being used by its customers. These acts
of fraud occurred between June 2007 and
June 2008 and caused Avis
potential prejudice amounting to R477 177.90.
[6] After the magistrate
had been addressed on sentence by the appellant’s attorney and
the prosecutor, he postponed the matter.
He instructed that a
correctional officer’s report and a probation officer’s
report be furnished and that the latter
deal with certain issues
relating to the appellant’s family circumstances. When the
matter resumed, the correctional officer’s
report was available
but the probation officer’s report was not. The magistrate
proceeded to sentence the appellant nonetheless.
[7] During the course of
his judgment, he explained why he had called for a probation
officer’s report and why he no longer
considered it necessary
to have it. He said:
‘
Your
attorney has put up a very strong argument and I commend him for it,
it was one of the strongest arguments I have heard when
he pleaded on
your behalf in mitigation of sentence, and set down every little
factor that he could in respect of your circumstances.
That was the
reason why I considered that maybe I need to get a probation
officer’s report to verify what Mr Maistry told
me is the
truth. I am also aware that he is an officer of this court and I have
known him for many years. We have worked together
before as well and
I know that he would not stand before me and spew out garbage.’
[8] While the magistrate
may not have expressed himself as clearly as one would have liked, it
seems to me that he initially thought
that it was necessary to obtain
a probation officer’s report to verify certain of the factual
assertions made from the bar
concerning the appellant’s family
circumstances, particularly those concerned with the care of his
daughter who was two years
old at the time. He had then thought
better of it. Because of his personal knowledge of the integrity of
the appellant’s
attorney, he was prepared to accept the facts
placed before him from the bar by the attorney. It is clear from his
judgment that
this is precisely what he did.
[9] This was also
accepted as being the case on appeal to the court below. Van Zyl J
said that the magistrate, in proceeding to
sentence the appellant
without the probation officer’s report, ‘indicated that
he accepted at face value the submissions
made by the defence
attorney and consequently one gathers he deemed it unnecessary to
delay proceedings further to await the formal
verifying report which
had been outstanding for many months at that time’.
[10] The purpose of a
probation officer’s report in a case such as this, in which the
magistrate’s concern was whether
the appellant was the primary
caregiver for his daughter and the impact of the sentencing of the
appellant on her best interests,
was dealt with in
S
v M (Centre for Child Law as amicus curiae)
.
1
Sachs J stated that while
a trial court should ‘find out whether a convicted person is a
primary caregiver whenever there
are indications that this might be
so’, it was not necessary to obtain a probation officer’s
report in every case:
the accused could be asked for the necessary
information or be required to lead evidence if needs be.
2
[11] In other words, the
probation officer’s report is not an end in itself. It is but
one means of placing reliable information
before a court in order to
enable it to impose a properly informed sentence, taking into account
along with all of the other relevant
factors, the best interests of
an accused person’s minor children who will inevitably be
prejudiced by the sentencing of
their parent. If that information can
be placed before the court in another satisfactory way, there is no
need for a probation
officer’s report.
[12] In this case, that
is precisely what happened. The relevant information was furnished by
the appellant’s attorney and
the magistrate decided that that
information could be accepted at face value. He considered it and
took it into account, so the
appellant can hardly complain. He was
not prejudiced in the least by the magistrate deciding that it was
not necessary for a probation
officer to confirm the information when
he imposed sentence; indeed, he obtained the advantage of his
information being placed
before the court without it being
scrutinised by a probation officer or tested by the State.
[13] In
MS
v S (Centre for Child Law as amicus curiae)
3
Cameron J warned against
the application of
S
v M
‘
in
cases that lie beyond its ambit’.
4
It only applies when the
accused is a primary caregiver of a child, not when he or she is a
breadwinner. A primary caregiver is
‘the person with whom the
child lives and performs everyday tasks like ensuring that the child
is fed and looked after and
that the child attends school
regularly’.
5
[14] In this case, it is
clear from the information placed before the magistrate that the
appellant was not his daughter’s
primary caregiver. He and his
wife lived together,
along
with their daughter, and in the same premises as his parents. Both
the appellant and his wife were employed and so, it can
safely be
assumed, contributed to the maintenance and well-being of their
daughter. This was not a case like
S
v M
where
the appellant was a single mother who had to care for her children
without the assistance of anyone else. Despite that, the
magistrate
considered the effect of the incarceration of the appellant on the
best interests of his daughter.
[15] The argument was
advanced that because the appellant’s wife had been injured in
a motor accident some 11 years before,
and is disabled to an extent
as a result, the imposition of a custodial sentence on the appellant
would work hardship on the appellant’s
daughter because the
appellant was responsible for most of the physical caring for his
daughter. The appellant’s attorney
conceded that the
appellant’s extended family was able to help with the care of
the child but argued that it would not be
as beneficial for the child
as the continued presence of her father. That is no doubt so but, as
Cloete JA pointed out in
S
v EB
,
6
while one has sympathy
for children in situations such as this, ‘their emotional needs
cannot trump the duty on the State
properly to punish criminal
misconduct where the appropriate sentence is one of imprisonment’.
[16]
S
v M
is
not authority for the proposition that when incarceration is
otherwise appropriate, the fact that it will cause collateral harm
for the criminal’s children is sufficient to render that
sentence inappropriate.
7
Given the appellant’s
attorney’s concession that the gap left as a result of the
appellant’s incarceration could
and would be filled by a member
or members of the appellant’s extended family, it cannot be
suggested that, to borrow the
words of Cameron J in
MS
v S
,
8
the ‘fundamental
needs or the basic interests’ of the child will be neglected if
the appellant is incarcerated. More
importantly, for present
purposes, the magistrate considered this issue on the basis of the
information placed before him by the
appellant’s attorney, even
though the appellant was not the child’s primary caregiver. He
cannot be faulted in that
regard.
[17] There is,
consequently, no merit in the argument that the magistrate erred in
sentencing the appellant without a probation
officer’s report.
I have also shown that the magistrate considered properly the effect
of sentencing the appellant to imprisonment
on the best interests of
the appellant’s daughter, even though the appellant is not a
primary caregiver. I conclude that
there is no basis for interference
with the magistrate’s sentence on either account. I can discern
no other misdirection
on the part of the magistrate and, in my view,
it most certainly cannot be said that the sentence imposed by the
magistrate induces
a sense of shock. That being so, there is no basis
upon which the sentence may be interfered with and the appeal must
fail.
[18] The appeal is
dismissed.
_____________________
C Plasket
Acting Judge of Appeal
APPEARANCES:
For the Appellant: S D
Slabbert
Instructed by:
J H Slabbert Attorneys,
Durban
Van Wyk and Preller,
Bloemfontein
For the Respondent: S
Naidu
Instructed by:
Director of Public
Prosecutions, Durban
Director of Public
Prosecutions, Bloemfontein
1
S
v M (Centre for Child Law as amicus curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC).
2
Para
36.
3
MS
v S (Centre for Child Law as amicus curiae)
2011
(2) SACR 88
(CC).
4
Para
62.
5
S
v M
(note 1) para 28.
6
S
v EB
2010 (2) SACR 524
(SCA) para 14.
7
Note
1 para 42.
8
Note
3 para 64.