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[2024] ZAECGHC 1
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Pretorius v S (CA&R218/2022) [2024] ZAECGHC 1 (15 March 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – GRAHAMSTOWN
Reportable
Case
no: CA&R218/2022
Date
heard: 28/02/2024
Date
delivered: 15/03/2024
In
the matter between:
MORNE
CHRISTO PRETORIUS
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Notyesi
AJ:
Introduction
[1]
The
appellant, a 38-year-old man, stood trial in the regional court, Port
Elizabeth (Eastern Cape). He pleaded guilty to and was
convicted of 1
count of theft of stock items from his employer, a trading company.
The total value of the stolen stock items is
R1 479 521.95.
On 26 August 2020, the appellant was sentenced to an effective term
of 12 years’ imprisonment. The
appellant, having successfully
petitioned the Judge President of this Division, appeals against the
sentence.
[2]
In
this appeal, it is contended on behalf of the appellant that the
sentence imposed by the regional court is shockingly inappropriate
and severe and that the Magistrate had erred in finding that there
were no substantial and compelling reasons to justify the imposition
of a lesser sentence. On the other hand, the state had contended that
the sentence imposed by the regional magistrate was proportionate
to
the offence committed by the appellant and that the sentence is
appropriate, more so that the appellant had stolen from his
employer.
[3]
On
a proper conspectus, this appeal turns on one issue, whether the
sentence imposed by the regional magistrate was a proportionate
sentence to the offence committed, upon consideration of all relevant
factors.
Background
[4]
The
appellant was employed as a manager by a company known as Supply Five
Distribution (Pty) Ltd. He was stationed at a Port Elizabeth
branch
of the company. The branch was situated at 1[…] to 7[…]
B[...] Road, Deal Party. The headquarters of the company
were in Cape
Town. The company traded as wholesalers of shutter plywood and other
timber products. The company had stored all its
stock in respect of
the Port Elizabeth branch at the premises in B[...] Road, Deal Party,
Port Elizabeth.
[5]
The
duties of the appellant included,
inter
alia
, sales, marketing, invoicing
and stock control. The directors of the main company, Craig and
Marlene Bradnick (“Marlene”)
were the supervisors of the
appellant. The directors were based at the head office of the company
in Cape Town. During the period
between 11 January 2018 and 10
December 2018, on undisclosed occasions, the appellant stole stock
items of the company to the value
of R1 479 521.95. The
appellant did not testify during trial. Marlene testified in
aggravation of sentence.
[6]
According
to Marlene, she had noticed that towards the end of 2018, the sales
were lower than normal in the Port Elizabeth branch.
It soon came to
their attention, as the directors of the company, that there was
another company which was selling their products.
Based on that
information, they commenced with an in-depth investigation. In the
process of such investigation, they found out
that the stock was
missing from the Port Elizabeth warehouse. They later established
that the appellant was responsible for the
theft of the stock.
[7]
The
appellant confessed to the theft of the missing items to Marlene on
10 December 2018. He had sent an email embodying his confession
to
her. He was remorseful of his actions. He was cooperative during the
process of the investigation. He also volunteered
to help the
company in its civil case against Credit Guarantee. Credit Guarantee
is a company responsible for payment of debts
in circumstances where
the debtors are in default or in default of paying or the debtors are
unable to honour their obligations
for payment. According to Marlene,
the assistance of the appellant was significant.
[8]
When
charges were put to the appellant, at the commencement of the trial,
he had pleaded guilty to the charge of theft. The
appellant
submitted a statement in terms of section 112(2) of the CPA
[1]
.
In his plea statement, the appellant stated that he had formed
his own company called Ubuntu Supply. When he started his
own
company, he had no capital to purchase stock. He then decided to
steal stock from his employer, (the complainant company),
between the
period 11 January 2018 and 10 December 2018. He had arranged for the
stolen items to be transported from the company
premises at 1[…]
B[...] Road to the clients of Ubuntu Supply (his own company). The
clients would be invoiced in the name
of Ubuntu Supply. The plea
statement of the appellant was accepted by the state and he was
convicted solely on the basis of the
statement. Although the
appellant did not testify, submissions from the bar were made on his
behalf by his legal representative.
[9]
For
sentencing purposes, a probation officer’s report from the
Department of Social Development was submitted to court. The
report
was admitted into record by consent of the appellant’s legal
representative and the state. A further report was received
from
Correctional Services. The latter report concerns the suitability of
the appellant for correctional supervision as a form
of punishment.
The report was also admitted by consent of the parties.
[10]
The
probation officer’s report was prepared by Mrs Sakhiseni
Matshona. She is in the service of the Department of Social
Development and is a registered social worker. In the preparation of
the report, the probation officer had interviewed the appellant,
Marlene, the appellant’s mother, Mrs Sharon Pretorius
(“Sharon”) and Mrs Charmaine (“Charmaine”)
Pretorius, the appellant’s wife. The probation officer set out
the appellant’s upbringing which is largely uneventful.
The
appellant was raised in a marital relationship between Mr Christo
Erasmus (“Christo”) and Sharon. He was provided
with his
basic needs as both parents were employed. The appellant’s
parents divorced when he was approximately 9 years old.
After the
divorce of the parents, the father stopped supporting the appellant.
[11]
The
appellant first married when he was 27 years old, although he later
divorced with his first wife. At the age of 34 years, he
married
Charmaine. On 13 October 2016, they were blessed with a baby boy. He
lived with his wife and child at a rented property
at Bluewater Bay,
Port Elizabeth. They were able to provide for themselves and the
child’s needs as both him and the wife
were in gainful
employment. He was employed by the complainant company at the time.
During December 2017, his then directors informed
him that they were
about to close their Port Elizabeth branch and that his lay off was
imminent. The appellant feared that once
his employment is
terminated, he would no longer be in a position to afford his life
and to take care of his family and the interests
of the minor child.
He conceived an idea of forming his own company, Ubuntu Supply,
although he did not have the capital. The employer
company was not
closed down, although there were new directors who took over.
[12]
The
appellant confirmed that Marlene and Craig took over the company from
the previous directors and retained him as the manager.
He had a good
relationship with them. He regretted his actions and resigned after
the commission of the offence in question. After
his resignation, he
was then employed as an Uber driver. The appellant had no previous
convictions. At the time of the report,
their son was 4 years old.
[13]
The
probation officer reported that the theft of the items negatively
affected the business to the extent that the Port Elizabeth
branch
was closed down and the other employees lost their jobs. According to
the probation officer, the appellant had breached
the trust of the
employer. The appellant was in a position of trust and he betrayed
that trust. The probation officer recommended
that the court should
consider a sentence of direct imprisonment.
[14]
The
correctional supervision report was also placed before court. The
report had been prepared by Ms Ngcebetsha Mongi of the Department
of
Correctional Services. She concluded that the appellant is a suitable
candidate for correctional supervision for the following
reasons:
(a)
The
appellant has a fixed address and his family is willing to support
him.
(b)
He
has no previous convictions.
(c)
He
is married with a minor child who is his dependent.
(d)
He
is working and the employer is willing to accept him, notwithstanding
the commission of the offence.
(e)
He
is remorseful and he is willing to comply with the conditions of the
court as he takes responsibility for his actions.
[15]
In
mitigation of sentence, it was submitted on behalf of the appellant,
that he was 38 years of age, married and has a minor child
who was 4
years at the time. The child was attending nursery school. The
appellant was in a permanent employment by Francois Nieuwenhuizen,
as
an Uber driver earning an income of between R2 500 and R3 500
a week, depending on the circumstances. The employer
was aware of the
appellant’s conviction for the offence and that he was prepared
to accept him to continue with his employment.
The appellant was a
first offender. The appellant committed the offence out of fear that
the previous employer had given a notice
to lay him off and that the
closure of the business was an imminent threat.
[16]
On
the contrary, the state had led evidence of Marlene in aggravation of
sentence. The state had contended that in view of the seriousness
of
the offence, retribution and deterrence would be the appropriate form
of punishment. The state sought a sentence of direct imprisonment.
[17]
In
sentencing the appellant, the regional court took into account the
fact that the appellant was in a position of trust and that
he was
required, at all times, to act in the interests of the employer. The
regional court also considered that the offence was
committed over a
period of time and that the appellant had an opportunity to reflect
on his actions. The regional court had taken
into account the
psychological effect of the offence on the directors of the
complainant company and after analysis of the aggravating
factors,
the regional court concluded that it should benchmark its sentence
with minimum sentence of 15 years and that after careful
consideration of the mitigating factors, it was satisfied that 12
years would be an appropriate sentence.
[18]
On
behalf of the appellant, it was submitted that the sentence fell to
be interfered with on the basis that it induced a sense of
shock;
that the trial court erred by its conclusion that a 12 year direct
imprisonment was a suitable sentence, and not considering
other forms
of punishment such as a suspended sentence; that the trial court
overemphasized the seriousness of the offence and
the interests of
society at the expense of the appellant’s personal
circumstances; that the trial court did not properly
take into
account the element of mercy; that the trial court over-emphasized
the elements of retribution and deterrence; that he
did not consider
adequately the fact that the appellant is a first offender at the age
of 38; that he was in a gainful employment
and that the present
employer was prepared to keep him; that he had shown remorse and that
he has a minor child. The state supported
the sentence. It
contended that the offence committed by the appellant was serious and
aggravated by the fact that he had
stolen from his employer. As a
result of the appellant’s unlawful actions many other employees
lost their jobs when the branch
was closed. The state further
submitted that the regional court did not misdirect itself in
imposing direct imprisonment and that
on this basis alone the appeal
must fail.
Discussion
[19]
It
is trite that sentencing is generally a matter that falls within the
discretion of a trial court. The appeal court’s power
to
interfere with a sentence is limited to instances where the sentence
is vitiated by an irregularity; misdirection; or where
the sentence
is shockingly disproportionate or where there is a striking disparity
between the sentence and that which the appeal
court would have
imposed, had it sat as the trial court. See generally:
S
v Snyder
[2]
;
S v Petkar
[3]
and S v Sadler
[4]
.
[20]
In
S
v Rabie
[5]
Holmes
JA held:
‘
In
every appeal against the sentence, whether imposed by the Magistrate
or a judge, the Court hearing the appeal -
(a)
should
be guided by the principle that punishment is “pre-eminently a
matter for the discretion of the trial Court”;
and
(b)
should
be careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been “judicially and properly exercised”.
2.
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate.
…
Corbett
JA further remarked that:
[a]
A judicial officer should not approach punishment in a
spirit of anger, because, being human, that will make it
difficult
for him to achieve that delicate balance between the crime, the
criminal and the interest of society which his task and
the objects
of punishment demand of him. Nor should he strive after severity;
nor, on the other hand, surrender (himself) to misplaced
pity. While
not flinching from firmness, where firmness is called for, he should
approach his task with a humane and compassionate
understanding of
human frailties and the pressures of society which contribute to
criminality.'
[21]
In
E
M Piater v The State
[6]
Makgoka
J, as he then was, discussed the nature of the misdirection that is
required for interference with sentence and in this
regard, he
referred to
S
v Pillay
[7]
and
S
v Malgas
[8]
.
In
S
v Pillay
,
it was held:
‘
Now
the word “misdirection” in the present context simply
means an error committed by the Court in determining or applying
the
facts for assessing the appropriate sentence. As the essential
inquiry in an appeal against sentence, however, is not whether
the
sentence was right or wrong, but whether the Court in imposing it
exercised its discretion properly and judicially, a mere
misdirection
is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature,
degree, or
seriousness that it shows, directly or inferentially, that the Court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such a misdirection is usually and conveniently termed
one that vitiates the Court’s decision
on sentence”.’
[22]
In
S v Malgas
Marais JA held that:
‘…
A
court exercising appellant 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 up to usurp the sentencing discretion of the trial court …
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. … 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’.
[23]
As
aforementioned the appellant did not testify in mitigation of
sentence. The only witness that testified is Marlene for the state
who was testifying for the aggravation of sentence.
[24]
The
complainant witness, Marlene, had also confirmed that the appellant
was remorseful. In this regard, I quote from the record:
‘
The
Prosecutor: When the theft unfolded or when you found out about the
theft, what was his attitude towards having stolen the stock
items?
Mrs
Bradnick: Well, he actually cried……., he said he was
sorry.
The
Prosecutor: Did you find him to be genuinely remorseful about what he
did?
Mrs
Bradnick: At the time I think so, I do not know now.’
[25]
The
submissions of the appellant’s legal representative were never
challenged by the prosecutor. On the contrary, he accepted
them. The
prosecutor had said, in his own submission, referring to the
appellant:
‘
He
clearly is a liked person. At a stage there was a person willing to
offer up the money to repay on behalf of the accused. So,
therefore,
he is a liked member of society even though the people know that the
accused has done this. So, it is not a situation
where he will come
with a stigma once he is being released because they clearly have
faith in the character of the accused person
Your Worship.’
[26]
The
contention before this Court by the state that the appellant had
chosen not to testify or lead any evidence under oath, should
be
rejected for lack of merit. In this regard, the general approach is
that,
[9]
statements from the Bar
by a practitioner are normally no more than argument. If they are to
receive greater weight, they must
be admitted by the representative
of the State, or accepted facts by the court. If such
ex
parte
statements by a defending attorney or counsel or the court, they
acquire for purposes of sentencing the weight of facts proved
in
evidence; and the court is bound to consider them as though they had
been proved in evidence. They cannot simply be ignored
by the court.
Failure to take such statements or mitigating facts implicit in such
statements, will in an appropriate case, lead
to an interference by a
court of appeal or review,
S
v Mabala
[10]
and
S
v Caleni
[11]
.
[27]
The
regional court magistrate seems to have accepted the evidence in
mitigation of sentence tendered from the bar, on behalf of
the
appellant and therefore, the regional court magistrate was bound to
consider all the mitigating factors. The regional court
magistrate,
in the judgment, held that he had considered the mitigating factors
presented on behalf of the appellant. That statement
does not bear
close scrutiny on careful consideration of the sentence. It is clear,
in my mind, that in sentencing the appellant,
the regional court
magistrate had in mind only the provisions of the minimum sentence
legislation. In the judgment, the regional
court magistrate said-
‘
Now
the nature of the offence is a very serious offence. Even though the
Minimum Sentence Act is not applicable it has reference
in that we
can use that as a benchmark for an appropriate sentence to be
considered. The minimum sentences decree that the Court
must impost a
minimum sentence of 15 years imprisonment if the amount relevant is
above R500 000,00.’
[28]
In
his conclusion, the regional court magistrate stated again-
“
As
I have said that the benchmark here is 15 years imprisonment. Given
the mitigating factors, I am satisfied that a sentence of
12 years
would be an appropriate sentence and that is the sentence which I
impose.’
[29]
I
find that the regional court magistrate misdirected himself in the
following respects: In cases where minimum sentences are applicable,
an accused person must be warned at the pleading stage. The accused
should understand the implications of invoking the minimum
sentence
legislation. In this case, the minimum sentence legislation was never
invoked and therefore, it was incorrect of the magistrate
to
benchmark the sentence by way of minimum sentence legislation. The
magistrate was bound to take into account all relevant factors,
including the nature and seriousness of the offence, the personal
circumstances of the appellant, the mitigating and aggravating
factors, as well as the legitimate interest of the society. In his
sentence judgment, the magistrate makes no reference to the
correctional supervision report and the social worker’s report.
In my view, he also seemed to pay lip service to the personal
circumstances of the appellant and the mitigating factors. The
magistrate over emphasized the aggravating circumstances. In this
regard, I quote from the record-
‘
However,
on the aggravating side you were in a position of trust where you
were supposed to act in the interest of your employer.
You did the
opposite. You further your own interests to the detriment of the
complainant. The other aggravating factor is that
this happened over
a period of time. You had lots of time to reflect on your conduct and
you failed to heed to the interest of
the community. You kept on
doing, serving your own personal interest.
Further,
what I must consider after listening to the evidence of the
complainant is the psychological, not only financial impact
that this
action had on them, and how you placed them under distress. What is
also aggravating is that your conduct you knew would
have an impact
on other people’s tenure at the place of employment, yet you
persisted in your conduct.’
[30]
In
my view, the failure in this regard amounted to a misdirection. Had
the magistrate accepted the mitigating factors presented
on behalf of
the appellant, the correctional supervision report and the probation
officer’s report, and made a careful consideration
of the
evidence presented by Marlene, the approach to sentence, or at least
the period of imprisonment, would necessarily have
been different. It
is therefore the type of misdirection which justifies interference by
this court. Accordingly, this Court is
at large to consider the
sentence afresh and impose what it considers to be an appropriate
sentence under the circumstances. The
sentence has to have regard to
the interests of the minor child. I also find too, that the sentence
imposed is excessively severe
having regard to the personal
circumstances of the appellant and the previous sentences.
The
best interest of the minor child
[31]
In
S
v M (Centre for Child Law as Amicus Curiae)
[12]
,
the court defined a primary caregiver as the person with whom the
child lives and who performs every day tasks like ensuring that
the
child is fed and looked after and that the child attends school
regularly. What is expected of the sentencing court is to give
sufficient independent and informed attention as required by section
28(2) and section 28(1)(
b
)
of the Constitution to the impact on the children of sending their
primary caregiver to prison. The objective is to ensure that
the
sentencing court was in a position adequately, to balance all the
varied interests involved, including those of the children
placed at
risk. The form of punishment imposed should be the one that least
damages the interests of the children, given the legitimate
range of
choices available to the sentencing court.
[32]
In
E M Piater v The State
,
Makgoka J held –
‘
The
court developed the following guidelines in applying the principles
set out above: Firstly, a sentencing court should determine
whether
an accused is a primary caregiver, wherever there were indications
that this might be so. Secondly, the court should ascertain
the
effect on the children of a custodial sentence if such a sentence was
being considered. Thirdly, if on the “
Zinn triad
”
approach (which requires the court to consider the crime, the
offender and the interests of society) the appropriate sentence
were
clearly custodial and the accused was a primary caregiver, the court
must apply its mind to the question of whether it was
necessary to
take steps to ensure that the children would be adequately cared for
while the caregiver was incarcerated. Fourthly,
where the appropriate
sentence was clearly non-custodial, it must be determined bearing in
mind the interests of the children.
Fifthly, if there were a range of
appropriate sentences, the court must use the paramountcy principle
as an important guide in
deciding which sentence to impose.’
[33]
In
the present case, had the regional court magistrate considered the
interests of the child properly, together with all the other
factors,
he would have found that those interests would be inappropriately
compromised by a lengthy custodial sentence. I have
no doubt that the
imprisonment of the appellant would have a negative impact on the
minor child. However, the appropriate sentence
in this matter is
clearly custodial. The appellant is not the child’s sole
caregiver, he shares the responsibilities of the
child with the wife.
They both stay with the minor child. The child is attending school.
The appellant seems to be responsible
for the child. He was in a
gainful employment as an Uber driver prior to his incarceration. The
employer is ready to accept him.
It is self-evident that a lengthy
custodial sentence would result in him losing his employment. The
nett income for the family
would be substantially reduced during the
custodial term of the appellant. In these circumstances a long
custodial sentence would
not be an appropriate sentence, although,
custodial sentence would still be an appropriate sentence. The
interests of the minor
child must be considered with other factors. I
take into account these factors.
1.
The
appellant was 38 years old at the time of his sentence.
2.
He
pleaded guilty and showed remorse for his actions.
3.
The
appellant is a first offender at his age.
4.
The
appellant had self-confessed the offence and committed to assist the
complainant
in
pursuing civil action against Credit Guarantee.
5.
He
is married and the father of a minor child.
6.
The
appellant was permanently employed and the employer would accept him
back at
work,
despite the commission of the offence.
[34]
I
am mindful of the aggravating factors and that the appellant had
stolen from his employer. In
S
v Prinsloo
[13]
the court stated –
‘…
I(n)
the world of commerce employers were compelled to place trust in
their employees. It is not possible for them to conduct all
the
business of their concerns themselves. If they were able to there
would no employment for the employees. No alternative remains
to them
but to repose confidence in their employees, and when an employee
breaches that trust his conduct had to be heavily penalised.
The
employer is entitled to expect unswerving honesty from the employee
in return for the wages he pays and the benefits he gave
him. Nothing
but implicit acceptance of that obligation (by the employee) will
keep the wheels of commerce turning smoothly. …I
consider it
the duty of the courts, whenever this sort of misdemeanour is
detected, to send out the message that such
conduct would be severely
punished.’
[35]
I
agree with the submission by the state that the appellant was
convicted of a serious offence being aggravated by the fact that
he
stole from his employer, resulting in a substantial financial loss
suffered by the employer. In such circumstances, I accept
that the
court should carefully consider the interests of society and
recognition that commerce demands business owners to trust
their
employees with the responsibility of managing their affairs, as they
cannot always be present in the place of business. The
disruption of
trust could negatively affect business operations.
[36]
The
proper approach to sentencing is to be guided by the trial which
involves a balancing act that takes into account the offence,
the
offender and societal interests. In the present case, the magistrate
was heavily influenced by the consideration that the theft
was
committed by the employee and he failed to appreciate that other
non-custodial sentences still remain an available penalty
for the
offence of theft where the accused steals from the employer. The
imposition of sentence still remains discretional. The
court is bound
by judicial precedent and authority. In
S
v Juta
[14]
Van
Reenen CJ said -
‘
Conflicting
consideration abound, such as the effect upon the accused, his family
and dependants, the requirements of the law, the
interests of the
society and so on. Care should also be taken not to stress too much
the peculiar circumstances of the individual
accused. It would appear
to be safer to regard him as an average representative of a class and
consider the various factors in
that light.
For
instance, the effect of a prison sentence would be far greater on a
highly sensitive person than on an insensitive, callous
one, but such
extreme cases must be discounted.
Ideally,
the sentence, both the primary fine, and the secondary, alternative
prison sentence, must satisfy the requirements of justice,
in all
that that term connotes. Unfortunately, it is not given to mortals to
be perfectly just in all circumstances. We can but
do our best.’
[37]
In
Evans
v S
[15]
,
the
appellant, together with her former husband, was charged with 60
counts of fraud, alternatively theft, read with
section 51(2)(a)
of
the
Criminal Law Amendment Act 105 of 1997
. The total amount involved
was R1 489 694-96, of this, an amount of R297 460-68
was transferred directly into Mr
Botha’s bank account and the
balance was transferred into the appellant’s personal bank
account. The appellant was
sentenced to a period of 15 years
imprisonment. On appeal, the SCA set aside the sentence and replaced
with a sentence of 8 years
imprisonment of which 5 years was
suspended for a period of 5 years on condition that the appellant is
not convicted of fraud,
attempted fraud, theft or attempted theft, or
any offence involving dishonesty, committed during the period of
suspension.
[38]
In
E
M Piater v State
[16]
,
the court set aside a sentence imposed by the regional court for a
period of 7 years and replaced it with a period of 4 years.
That
sentence was confirmed in the Supreme Court of Appeal. In this
case, Makgoka JA gave an analysis of judicial precedent
of sentences
imposed by the courts in similar cases and I find myself constrained
to agree with his eloquent analysis.
[39]
In
S
v Lister
[17]
,
a 34-year-old bookkeeper’s sentence of 4 years’
imprisonment was confirmed by the SCA, after she had been convicted
of theft of R95 700 from her employer, which she stole over a period
of 11 months.
[40]
In
Howells
v S
[18]
,
the appellant was sentenced for 4 years’ imprisonment in terms
of
s 276(1)(i)
of the CPA in the regional court for defrauding her
employer of a sum of R100 000, the offence having been committed
over
a period of two years. On appeal, the High Court considered the
interests of her minor children but held that there was no
misdirection
by the regional court in sentencing the appellant to
direct imprisonment. The court however, altered the period of
suspension from
2 years to 1 year. The altered sentence by the High
Court was confirmed on further appeal by the SCA.
[41]
In
S
v
Sinden
[19]
,
the Appellate Division confirmed an effective sentence of 4 years’
imprisonment on the appellant, a first offender, for
stealing
approximately R138 000 from her employer. The amount had been stolen
over a period of 14 months. The appellant was married
and had three
minor children.
[42]
In
S
v
Kearns
[20]
a 28-year-old unmarried woman had been convicted in the regional
court of theft of R67 000 from her employer over a period of three
months. She was sentenced to an effective 3 years’
imprisonment. Her appeal to a provincial division having failed, she
appealed further to the SCA. It was contended that the trial court
had erred in not imposing a sentence of correctional supervision
and
had placed insufficient emphasis on the seriousness of the offence.
The appellant also had a poor socio-economic background.
The SCA
confirmed the sentence on appeal to it.
[43]
In
S v Sadler
(above) the appellant was a senior manager in a bank. He was
convicted in the High Court of numerous counts, including corruption,
fraud, forgery and uttering. He was sentenced to terms of
imprisonment which were suspended in their entirety, and to a fine.
The Attorney-General (the predecessor of the National Director of
Public Prosecutions) noted an appeal against the sentence. The
SCA
upheld the appeal and set aside the sentence and substituted for it
with a sentence of 4 years’ imprisonment, all counts
taken
together for purposes of sentence.
[44]
In
De
Sousa v The State
[21]
the appellant had pleaded guilty to 13 counts of fraud. She had been
part of a fraudulent scheme involving a total amount of R1
000
228.94. She had benefitted R90 000. She was 32 years old and a
first offender. She had pleaded guilty and shown genuine
remorse and
contrition. She had also signed an acknowledgement of indebtedness in
favour of the complainant in the sum of R90 000,
being the extent of
her benefit from the fraudulent scheme, and thereafter paid the debt
in full. She had utilized some of the
money to assist her mother, who
was in financial difficulty, and her sister (whose husband was in
rehabilitation) to pay school
fees. All counts having been taken as
one for the purposes of sentence, the appellant was sentenced to 7½
years’ imprisonment,
which was confirmed by the High Court. She
appealed further to the SCA, which set aside the sentence and imposed
4 years’
imprisonment.’ Ponnan JA, in this case, remarked
–
‘
The
approach of a sentencing tribunal to the imposition of the minimum
sentences prescribed by the Act is to be found in the detailed
judgment of Marais JA in
S v Malgas
2001 (1) SACR 469
(SCA).
The main principles appearing in that judgment which are of
particular application to the present appeal are: first,
the court
has a duty to consider all the circumstances of the case, including
the many factors traditionally taken into account
by courts when
sentencing offenders; second, for circumstances to qualify as
substantial and compelling, they do not have to be
exceptional in the
sense of seldom encountered or rare; third, although the prescribed
sentences required a severe, standardised
and consistent response
from the courts unless there were, and could be seen to be, truly
convincing reasons for a different response,
the statutory framework
nonetheless left the courts free to continue to exercise a
substantial measure of judicial discretion in
imposing sentence.’
[45]
In
the
De Souza
case the minimum sentence legislation was invoked and nevertheless,
the SCA imposed a lesser sentence of 4 years direct imprisonment.
[46]
In
Pretorius
v The State
[22]
,
the appellants, two brothers, had pleaded guilty to 91 counts of
fraud in the regional court amounting to R122 309, committed
over a
period of more than a year. They had shown remorse. They had admitted
to their fraud and agreed to repay the amount in question
plus the
costs of investigation into their conduct. Both were first offenders,
and principal breadwinners in their respective families,
with young
children. Their families would be disrupted and severely affected by
their imprisonment. The court sentenced them to
5 years’
imprisonment, and ordered them to repay the ill-gotten gains, plus
the costs of investigation into their fraudulent
conduct. Both the
High Court and the SCA dismissed their appeal and confirmed the
sentences.
[47]
In
MS
v S
[23]
a 33-year-old married mother of two young children pleaded guilty in
the regional court to, and was convicted, of forgery,
uttering and
fraud with a potential loss of R42 000. The offences were committed
during her course of employment at a firm of insurance
brokers. She
had a previous conviction for fraud, also committed in the course of
her employment with her previous employer. The
counts of forgery and
uttering were taken together for the purposes of sentencing. She was
sentenced to 2 years’ imprisonment,
conditionally suspended for
five years. On the count of fraud, she was sentenced to 5 years’
imprisonment with the conditional
correctional supervision in terms
of
s 276
(1)(
i
)
of the CPA, of which the High Court, the SCA and the Constitutional
Court, upheld.
[48]
In
Joubert
v The State
[24]
,
the appellant had been convicted of 20 counts of fraud totalling R425
843.33. This arose from a scheme created for the purpose
of
defrauding SARS. The scheme comprised of various legal entities which
were instrumental in unlawfully inducing SARS into making
VAT refund
payments to the legal entities. In the regional court he was
sentenced to 7 years’ imprisonment, wholly suspended
for 5
years on standard conditions and that he repays the amount of R425
843.33 to SARS with interest. On appeal, the sentence
was set aside
and the Court imposed an effective 3 years’ imprisonment, in
addition to the appellant repaying the stolen
amount with interest.
[49]
On
behalf of the appellant, it was submitted that the appellant's plea
of guilty in the trial court demonstrated his contrition
and remorse.
Remorse is obviously an important consideration in sentence. Genuine
remorse must be distinguished from self-pity
and an unavoidable
acknowledgement of guilt (when the evidence is so overwhelming that
admission of guilt is unavoidable). Before
remorse could be a valid
factor in the imposition of sentence, it has to be sincere, and the
accused had to take the court completely
into his confidence. See S v
Gerber
[25]
;
S
v
Seegers
[26]
,
S
v
Matyityi
[27]
and
E
M Piater v The State
[28]
.
[50]
I
agree that the appellant has shown genuine remorse. First, he
cooperated with the complainant and confessed. I reject the
submission
by the state that at the time of confessing on 10 December
2018, that the state had a strong case against him. The evidence of
Marlene does not support the proposition of the state in this regard.
The appellant voluntarily resigned from his employment and
despite
his resignation, remained cooperative with the complainant. The
appellant tendered to repay the stolen money, although
he had no
means. The appellant had also volunteered to assist the complainant
in respect of the civil case and that was confirmed
by the
complainant.
[51]
I
also take into account that the appellant has since been in a gainful
employment as an Uber driver. The current employer, though
aware of
the offence committed by the appellant, trust him. The current
employer had made an undertaking to keep the appellant
in his
employment irrespective of the outcome of the criminal proceedings.
To his credit, he still enjoys the trust of his employer.
It is
self-evident that the appellant, his family and wife had been
embarrassed by the actions of the appellant. That evidence
is clear
from the probation officer’s report. The Correctional Services
had concluded, in their assessment of the appellant,
that he is a
suitable candidate for correctional supervision. I also consider the
remarks of the magistrate when sentencing the
appellant. In this
regard, the magistrate had made this observation-
‘
I
do not deem that, although you are a suitable candidate for
correctional supervision, I do not deem it a suitable sentence
because
of the gravity of this specific offence.’
[52]
On
the other hand, there are obviously aggravating factors. The offence
was committed when the appellant was placed in a position
of trust by
his employer, concerning stock control. The offence was committed
over a period of time where the appellant had an
opportunity for
reflection and to stop his criminal conduct. There is no evidence to
suggest that the appellant would have stopped
stealing, if the crime
was not discovered.
[53]
The
new directors of the company had offered employment to the appellant
and other workers. The company suffered financial loss
and that
resulted in the closure of its Port Elizabeth branch. Accordingly, it
is an aggravating factor that, as a result of the
appellant’s
criminal conduct, other employees lost their employment.
[54]
The
Correctional Services has recommended correctional supervision. While
a non-custodial sentence of correctional supervision in
terms of
section 276(1)(
h
)
is appreciable, it is my view that such sentence would be
inappropriate in light of all the circumstances of the present case.
Although the interests of the appellant and his family called out for
a sentence of correctional supervision, the interests of
society
outweighed his own. The offence is serious and the sentence, as such,
does more than deal with him; it also constitutes
a message to the
society in which the offence occurred. It is so that it was not
vigorously contended that a non-custodial sentence
should be imposed
against the appellant. I also agree with the regional court
magistrate that non-custodial sentence would not
be appropriate.
[55]
In
the main, it was contended, on behalf of the appellant, that the
degree of disparity between the sentence imposed and that which
this
Court would have imposed, is such that interference is competent and
required. I agree with the submission made on behalf
of the appellant
in this regard.
Conclusion
[56]
For
all the above-mentioned reasons, I consider a period of 5 years’
imprisonment to be appropriate in the circumstances of
this case.
[57]
In
the result, I would make the following Order –
1.
The
appeal succeeds to the extent that the sentence of 12 years’
imprisonment imposed by the regional court magistrate is
set aside
and replaced with the following sentence –
“
The
accused is sentenced to undergo 5 years’ imprisonment and the
sentence is antedated to 26 August 2020.”
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
I
agree
T
V NORMAN
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Appellant:
Adv H Charles
Instructed
by:
Legal Aid South Africa
Counsel
for the Respondent:
Adv T de Jager
Instructed
by :
The Director of Public Prosecutions
Makhanda
[1]
The
Criminal Procedure Act, 51 of 1977
as amended
[2]
S v
Snyder
1982
(2) SA 694 (A)
[3]
S v
Petkar
1988
(3) SA 571 (A)
[4]
S v
Sadler
2000
(1) SACR 331 (SCA)
[5]
1975
(4) SA 855
(A) at [857D-E]
[6]
E
M Piater v The State
2013
(2) SACR (GNP) at [9]
[7]
S v
Pillay
1977
(4) SA 531
(A) at 535E-F
[8]
S v
Malgas
2001 (1) SACR 469
(SCA)
2001 (2) SA 1222
at 1232A-D);
(2001) 3 All
SA 220
[12]
[9]
E
M Piater
supra
at [18]
[10]
1974
(2) SA 413
(C) at 422E-G
[11]
1990
(1) SACR 178
at 181 f-g
[12]
[2007] ZACC 18
;
2007 (2) SACR 539
(CC); see also
E
M Piater v State
supra
at [22]
[13]
1998
(2) SACR 669
(WLD) at 672b-e and also
also
E M
Piater v State
supra at [27]
[14]
1988
(4) SA 926
(TK) 928B-E
[15]
2023
(2) SACR 541
(SCA), Also (171/2022
[2023] ZASCA 123
(26 September
2023)
[16]
E
M Piater v State
supra
[17]
S
v
Lister
1993 (2) SACR 228 (A)
[18]
Howells
v S
[19]
1995 (2) SACR 704
(A)
[20]
1999 (2) SACR 660 (SCA)
[21]
De
Sousa v The State
[2008] ZASCA 93
para 4 (12 September 2008J
[22]
[2008] ZASCA 132
(26 November 2008)
[23]
MS
v S
supra
[24]
[2012] ZAGPPHC 5 (3 February 2012)
[25]
1998 (2) SACR 441
(NIC) at 449h-i
[26]
1970 (2) SA 506
(a) at 511G-H
[27]
2011 (1) SACR 40
(SCA) para 13
[28]
E
M Piater v The State
supra
[39]