About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 60
|
|
Pienaar v S (564/11) [2012] ZASCA 60 (2 April 2012)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case no: 564/11
Not reportable
In
the matter between:
SUSANNA
MAGDALENA PIENAAR
….....................................................
Appellant
and
THE
STATE
…........................................................................................
Respondent
Neutral
citation:
Pienaar v S
(564/11)
[2012] ZASCA 60
(2 April
2012)
Coram:
MTHIYANE DP, CLOETE, MHLANTLA, LEACH JJA
and
NDITA AJA
Heard:
15 February 2012
Delivered:
2 April 2012
Summary:
Sentence – fraud
– lengthy custodial sentence imposed disturbingly inappropriate
– misdirection – sentence
reduced from five years to four
months imprisonment.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
South Gauteng
High Court, Johannesburg (Legodi J, Jooste AJ sitting as court of
appeal):
The appeal against sentence succeeds.
The order of the court below is set
aside and the following order is substituted:
The appeal against sentence succeeds
to the extent set out below.
The sentence imposed by the
magistrate is altered to read
‘
four
months’ imprisonment on all counts taken together for the
purposes of sentence.’
In terms of s 282 of the Criminal
Procedure Act, the sentence is antedated to 6 September 2006, being
the date on which the magistrate
imposed sentence.
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA and NDITA AJA (MTHIYANE,
MHLANTLA and LEACH JJA concurring)
[1] This appeal is against sentence
only. The appellant pleaded guilty and was convicted of 42 counts of
fraud by the Benoni regional
court. She was sentenced as follows:
counts 1 to 20, six months imprisonment on each count, and the
sentences in count 11 to 20
were ordered to run concurrently with the
sentences in counts 1 to 10; counts 21 to 42, one month imprisonment
in respect of each
count wholly suspended for a period of five years
on certain conditions. Effectively the appellant was to serve a total
of five
years imprisonment. On appeal to the high court (Legodi J,
Jooste AJ concurring), the appeal was dismissed. The appeal is before
us with the leave of the court below.
[2] The crisp issue before us is
whether in the circumstances of this case the trial court misdirected
itself in imposing a lengthy
custodial sentence on a first offender
who had pleaded guilty to fraud involving actual loss in the amount
of R2900.
[3] The plea explanation given by the
appellant and accepted by the State was to the following effect: The
appellant was employed
by Atlas Finance, a business that lends money
to the public, as the manager of its Benoni branch. By virtue of this
position, the
appellant became fully conversant with the procedures
for the granting of loans and recovery of money. During the
aforementioned
period of employment, the appellant uplifted names of
the company’s existing clients from the database and issued 42
fictitious
loan accounts amounting to R115 000 against such
clients. Subsequent to the creation of the loans, the appellant made
entries
in the computer system reflecting fictitious repayments by
the clients in whose names the loans were recorded. No amounts of
money
left Atlas Finance and no amounts were repaid to it. The
purpose of this exercise was to misrepresent to Atlas Finance that
the
appellant had reached her collection target for a given month so
that she would be paid an incentive bonus. A sum total of R2900
was,
as a result of the fraudulent conduct alluded to, paid out to the
appellant. The actual prejudice suffered by the company
is therefore
limited to that amount.
[4] The State, in aggravation of
sentence led the evidence of Mr Timothy Ray of Atlas Finance. Mr Ray
gave a detailed account of
the appellant’s modus operandi in
simulating the transactions referred to in the charge sheet.
Significantly, the witness
testified that the company suffered loss
in the estimated amount of R110 000 as he alleged it had
actually paid out the moneys
for the fictitious loans. The magistrate
sought clarity on this point and posed the following question:
“
The
accused, Ms Pienaar has pleaded guilty to 42 counts and let me
basically tell you what she pleaded guilty to. Firstly that she
in
fact engage in a fictional transactions with existing clients, but
her plea states that there were no monies that left nor came
into the
business. In other words once cheque vouchers were issued, this was
then faxed to head office that no monies then left,
that is how it
balanced out, no monies left, payments came in. Payments in the sense
of fictitious or fictitious receipts were
brought into the business.
According to the plea she accepts that the clients had been prejudice
because they were in all probability
handed over sitting with
judgments. And that she prejudiced Atlas Finance in so far as an
amount of R 2900. 00 because that is
what she would have collected in
the period March 2003 to October 2004 as being the incentive bonus
that she would have received.
Now I hear from you that that is
actually not the case as far as you are concerned monies did leave.
--- Yes.”
Mr Ray, in his evidence, mentioned
that further investigations of each of the loans revealed that loss
estimated at R300 000
was attributable to the appellant’s
modus operandi. In order to avoid detection of the fraud, the
appellant, according to
Mr Ray, changed the addresses of the
purported loan applicants in the database. The effect of such
alterations was that when the
emoluments attachment orders were
issued by the court, they were made out to the wrong companies. In
addition, the appellant would
endorse on the warrants of execution
that they should not be sent to the sheriff (‘NTS’) as
the debtors were untraceable.
[5] The aggravating evidence of Mr Ray
referred to in the preceding paragraphs was contrary to the express
terms of the appellant’s
plea and should not have been
admitted: cf
S v Legoa
2003 (1) SACR 13
(SCA) paras 26 and 27.
[6] There are several misdirections
that appear from the judgment of the trial court on sentence. First,
it relied on the evidence
of Mr Ray that the appellant utilised her
knowledge and authority as a manager when she endorsed on execution
warrants the acronym
NTS, signifying that such should not be sent to
the sheriff as the debtors were untraceable. Secondly, the prejudice
suffered by
the persons in whose names the loans were created in the
form of listing in credit bureaus, is pure conjecture as no such
evidence
was tendered during the proceedings. In the same vein, the
State did not tender any evidence to the effect that were it not for
the appellant’s persistent and fraudulent cover, the criminal
act may have been detected and halted much earlier. Again,
this is
speculation. Thirdly, there is not a shred of evidence that the
appellant forged the signatures of the purported applicants’
as
stated in the judgment of the trial court. It is furthermore
disturbing that the trial court further speculated that ‘it
may
happen’ that the appellant experimented with ways and means in
order to avoid detection, and when it appeared that her
scheme was
not uncovered, she continued with it. Similarly, no admissible
evidence was led with regards to the negative impact
of the fraud on
the complainant’s business. In the result the following
statement by the magistrate constitutes a gross misdirection:
‘
Such
conduct would have spread within the community with vulpine affidity
[sic] this invariably creates mistrust from the part of
society
towards Atlas Finance thereby affecting the continuance and
prosperity of his business. Human nature is such that society
will
distrust this business and steer away from it although the
perpetrator have been brought to book.’
In fact the judgment on sentence is
replete with speculative utterances ranging from the manner in which
the offence was committed
to its impact on the complainant and
community.
[7] It is therefore quite
extraordinary that the high court concluded that:
‘
The
trial court in its judgment fully justified regarding jail term as
against any form of sentence. As I said the judgment is well
motivated and I can find no basis for interference based on
misdirection.’
[8] Counsel for the appellant, in a
nutshell, contended that the sentence was disturbingly inappropriate
and shocking when regard
is had to all the circumstances in this
case. Counsel for the State had correctly conceded when the appeal
was heard before the
high court that the sentence proceedings were
vitiated by irregularities and that the sentence was disturbingly
inappropriate and
ought to be set aside. This concession was brushed
aside by the court below, which said (after the passage quoted in
para 7 above):
‘
Whilst
on this point, counsel for the respondent felt that the jail term of
five years was according to her sense of justice shocking.
She
however could not specifically state the grounds which render the
sentence shocking.’
[9] The trial court, in our view,
over-emphasized the seriousness of the offence. Although it was
entitled to take notice of the
prevalence and increase of
white-collar crime and have regard to it when imposing sentence, we
agree that the sentence imposed
by it is disturbingly inappropriate
and unbalanced. Whilst the offences committed by the appellant
involve dishonesty, it should
be borne in mind that the loss to which
she pleaded guilty is R2900 the total of the amounts she received as
performance bonuses.
[10] The magistrate in justifying the
imposition of a lengthy term of imprisonment referred to
S
v Blank
1995 (1) SACR 62
SCA,
wherein this court
confirmed a sentence of eight years’ direct imprisonment in
respect of a conviction for 48 counts of fraud.
Whilst it must be
acknowledged that a succession of punishments imposed for a
particular type of crime is a useful guide to a court
dealing with
such a crime, each case should dealt upon its own facts.
1
The reliance on the
Blank
case is clearly misguided as there are
substantial differences between the present case and the facts of the
former. In the
Blank
matter the amount involved was R9,75
million and the stockbroking fraud scheme was on a very large scale.
[11] We now consider what sentence
would be appropriate in this case. The appellant was at the time of
sentence on 15 August 2006,
45 years old. She is a first offender.
The appellant has three major children, two of whom are
self-supporting. One of the major
children is staying with her and
suffers from a medical condition known as biolapsy, which renders
him/her aggressive and in need
of constant attention. However,
despite the medical challenge, the child is employed by a dentist on
a part-time basis. After leaving
Atlas Finance, the appellant found
employment at Platinum Document Solution as a sales executive. She is
engaged to be married
and lives with her fiancé.
[12] On the other hand, there are
aggravating factors. The frauds were committed by the appellant
against her employer, and she
was a senior employee in a position of
trust. The frauds were also committed over a period of some eighteen
months. The appellant
expressed no remorse and there has been no
offer to repay her employer.
[13] Taking all the relevant factors
into account, we would have imposed a non-custodial sentence on the
appellant. The appellant
had, throughout the proceedings until
conviction, been on bail. Her bail was revoked after conviction on 15
August 2006. She was
sentenced on 6 September 2006. In an appeal to
the high court, bail was granted on 19 January 2007. All in all, she
has been in
custody for five months and approximately two weeks. We
are of the view that the sentence this court should impose on the
appellant
should not be more than the period she has already been in
custody. In terms of s 282 of Criminal Procedure Act, a sentence of
imprisonment substituted on appeal can only be backdated to the date
on which the sentence was originally imposed. That means to
avoid the
appellant having to return to jail, the sentence should be altered to
one of four months’ imprisonment. We again
emphasize that but
for the fact that the appellant has already served that sentence, we
would have substituted it with a non-custodial
sentence.
[14] In the result, the following
order is made:
The appeal against sentence succeeds.
The order of the court below is set
aside and the following order is substituted:
The appeal against sentence succeeds
to the extent set out below.
The sentence imposed by the
magistrate is altered to read
‘
four
months imprisonment on all counts taken together for the purposes of
sentence.’
In terms of s 282 of the Criminal
Procedure Act, the sentence is antedated to 6 September 2006, being
the date that the magistrate
imposed sentence.
___________________
T D C CLOETE
JUDGE OF APPEAL
___________________
T NDITA
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: H L Alberts
Instructed by: Justice Centre,
Pretoria;
Justice Centre, Bloemfontein.
FOR RESPONDENT: E O Mnguni
Instructed by: Director of Public
Prosecutions, Pretoria;
Director of Public Prosecutions,
Bloemfontein.
1
R
v Karg
1961 (1) SA 231
(A) at 236G-H