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[2011] ZASCA 110
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Truyens v S (454/10) [2011] ZASCA 110; 2012 (1) SACR 79 (SCA) (1 June 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 454/10
In
the matter between:
JOHANNES HENDRICUS TRUYENS
.............................................................
Appellant
v
THE STATE
.................................................................................................
Respondent
Neutral citation:
Truyens v
The State
(454/2010)
[2011] ZASCA 110
(1 June 2011).
Coram:
Cloete and Cachalia JJA
and Meer AJA
Heard:
26 May 2011
Delivered: 1 June 2011
Summary: Foreman on a farm
convicted of theft of 48 cattle in terms of s 11 of the Stock
Theft Act, 57 of 1959. The motive
for the theft was to sell the
cattle for money to pay for medical expenses related to the terminal
illness of the appellant’s
children. A magistrate imposed a
sentence of four years’ imprisonment under
s 276(1)(i)
of
the
Criminal Procedure Act 51 of 1977
, which was increased on appeal
to an effective sentence of eight years’ imprisonment by a
provisional division. The Supreme
Court of Appeal set aside the
sentence imposed by the high court and reinstated the sentence
originally imposed by the magistrate.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North West High
Court, Mafikeng (Hendricks and Gura JJ sitting as court of appeal):
The following order is made:
(1) The appeal is upheld;
(2) the order of the court below is
set aside;
(3) the sentence imposed by the
regional magistrate is reinstated.
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA
(Cloete JA and Meer
AJA concurring):
[1] The appellant,
Mr Johannes Hendrikus Truyens, was convicted for the theft of 48 head
of cattle in contravention of
section 11
of Act 57 of 1959 by a
Regional Court, sitting at Koster in the North West Province. He
initially tendered a plea of not guilty,
but changed his plea to
guilty after three state witnesses had testified. After considering
the testimony and a pre-sentencing
report prepared by a forensic
criminologist, Dr Irma Labuschagne, the trial court (Mr C P Nel),
sentenced the appellant to four
years’ imprisonment in terms of
s 276(1)(i) of the Criminal Procedure Act 51 of 1977 (the Act).
This meant that he would
have to serve a minimum period of eight
months’ imprisonment before being considered for placement
under correctional supervision.
1
He appealed to the
North West High Court, Mafikeng.
[2] The judges to
whom the matter had been allocated (Hendricks and Gura JJ) notified
counsel for both the state and the appellant
that they were
considering increasing the sentence. After hearing argument, they
increased his sentence to 12 years’ imprisonment
and suspended
four years. The appellant was therefore sentenced effectively to
eight years’ imprisonment.
2
The high court
refused him bail and leave to appeal further, but this court granted
the necessary leave. The appellant has been
in custody for just over
two years since he began serving his sentence on 30 April 2009.
[3] There were three grounds upon
which the appellant sought leave to appeal against the sentence.
First, that the high court committed
an irregularity by failing to
ask the magistrate for additional reasons for the sentence that he
imposed, before it decided to
increase the sentence. Second, that it
was irregular for the court not to have informed the appellant
personally in writing that
the court was considering increasing the
sentence. In this regard the appellant sought to lead further
evidence before this court
to show that had he been so informed, he
would have sought advice with a view to bringing a formal application
to withdraw his
appeal. Third, that the effective sentence imposed on
the appellant was excessively harsh.
[4] Ms Zwiegelaar,
who appeared for the appellant, did not press either of the first two
grounds with any confidence. Regarding
the first ground, it has long
been the law that though it is desirable for an appeal court, before
increasing a sentence, to request
reasons from the magistrate for
having imposed the sentence, this is not a hard and fast rule and a
failure to do so does not in
any case amount to a misdirection.
3
In this case the
learned magistrate had given a detailed and carefully reasoned
judgment on sentence. So it would not have served
any purpose for the
high court to have asked for further reasons to be furnished. In any
event, the learned magistrate at the request
of this court did
respond by stating briefly that in retrospect he would have imposed
the same sentence, but without reference
to s 276(1)(i) of the Act.
[5] The second ground, that the
appellant should have been informed personally that the high court
was considering increasing the
sentence, also has no merit. The
appellant’s counsel and attorney of record were informed,
albeit not in writing, of the
high court’s view. They were
given sufficient time to, and did, prepare submissions on this
question. Once the appellant
appointed legal representatives to
conduct his defence and his appeal, it would have been irregular for
the court or state counsel
to communicate directly with him without
reference to his lawyers. If the appellant has any complaint, it is
with his lawyers –
not the court – who he says did not
properly advise him that the sentence could be increased.
[6] I turn to consider the merits of
the appeal. The facts are these. The appellant was employed as the
foreman on a cattle farm
and thus occupied a position of trust. He
stole his employer’s cattle – 48 in total – valued
at the time at between
R105 000 and R120 000. The theft occurred on
three occasions between April and May 2005. He thereafter sold the
cattle for a total
amount of R83 000.
[7] The appellant’s personal
circumstances were set out comprehensively in the pre-sentencing
report. In summary, the appellant’s
age was 46 when he
committed the offences and 48 when he was sentenced. He is now 51. He
is married with four children born of
the marriage, respectively in
1986 and 1989 (both sons) and twin girls in 1990. At the time of his
trial he was employed as a contractor
in Iraq at a salary, in rand
terms, of R43 000 per month. His wife earned R12 000 per month as a
credit manager at a commercial
bank.
[8] The older son and the twin girls
suffer from a rare condition called cystic fibrosis, which is a
genetic disease that attacks
the lungs. The family has been advised
that the life expectancy of the ‘children’ affected is
only between 25 and 30
years, although some patients have been known
to live longer with proper medical care. The older son was, at the
time of the trial,
on a waiting list for a heart and lung transplant.
When the matter was argued before us we were informed that he was 25
years old
and had been admitted to hospital to undergo the operation.
[9] The children are unable to live
normal lives and are largely dependent upon their parents. The family
is thus under great stress,
which is exacerbated by the considerable
medical costs that treatment of this condition demands. The family
has medical aid, but
it does not cover all their costs. The family is
therefore also under severe financial pressure.
[10] The learned magistrate found that
the motive for the theft was to meet these medical costs and to
ameliorate the difficult
circumstances of the children. The money was
not spent on luxuries. In this regard he accepted the criminologist’s
assessment
that this crime was one of need and not of greed.
[11] It must be
emphasized that the motive for the crime – what the accused
believed and intended – is the central enquiry
when deciding,
for the purposes of sentence, whether the moral blameworthiness of an
accused has been reduced.
4
The learned
magistrate found, correctly in my view, that the circumstances here
provided a compelling case for such a reduction.
[12] I should
mention that the trial court was aware, and took account of
dicta
in this court to
the effect that personal economic necessity, including having to meet
the costs of high medical expenses, cannot
condone theft or fraud of
some magnitude when committed by design over a period.
5
It is however, a
mitigating factor in reducing the extent of censure that may be
appropriate for the commission of a crime.
6
[13] Also counting in the appellant’s
favour, the trial court considered, was that the appellant was
contrite. In this regard
the learned magistrate said that even though
the appellant initially pleaded not guilty and conducted his own
defence, when he
was able to obtain legal assistance after three
witnesses had testified for the state, he changed his plea to guilty.
More importantly,
he did not put up a false version in an attempt to
evade responsibility, which indicates contrition. On the contrary, in
a letter
to his employer before first appearing in court, he
confessed fully to the charges and expressed the hope that he now had
a chance
to change his life. He also promised to compensate his
employer for his loss. Between December 2005 and January 2006 he paid
R20
000 in two instalments of R10 000 each. The first was paid
before his arrest on 22 December 2006. Dr Labuschagne observed
that this conduct is consistent with remorse because it demonstrated
the appellant’s insight into the damage he had caused.
[14] The trial court correctly
considered that the appellant was employed in a position of trust,
which he abused by committing
the crime, as an aggravating factor.
Furthermore, it observed, the crime was planned and took place on
three occasions over two
months. He could have stopped after the
first, or even the second time, but he persisted. In effect, said the
trial court, he committed
three separate crimes but was charged with
only one.
[15] The appellant had three previous
convictions for theft, housebreaking and fraud. These had occurred
almost 30 years ago. The
trial court took them into account, but
properly accorded little weight to them.
[16] The pre-sentencing report ruled
out direct imprisonment for the appellant because of the strong
mitigating factors in this
case. However, the difficulty with a
sentence of correctional supervision, Dr Labuschagne said, was that
it could not be properly
monitored because the appellant worked
overseas. She thus recommended a fine together with a suspended
sentence. This sanction
would allow him to work so that he can
provide for his family and would also have a deterrent effect.
[17] From his
judgment it is apparent that the learned magistrate grappled with the
difficult question of what an appropriate sentence
would be in the
unusual circumstances of this case. The appellant’s financial
circumstances, the magistrate said, was not
a matter about which the
court could do anything. And even though the magistrate expressed
sympathy for the appellant’s personal
circumstances, especially
the severe health needs of his children, he came to the view that a
wholly suspended sentence did not
commend itself. In this regard the
abuse of the employer’s trust weighed heavily with him. He thus
decided that a sentence
of four years’ direct imprisonment
would be appropriate, but considered that he should impose it in
terms of s 276(1)(i)
of the Act.
7
[18] In deciding to
employ this provision the learned magistrate relied on two recent
decisions of this court. The first was
S
v Scheepers
,
8
which held that:
‘
When
the sentencer considers that a custodial sentence is essential, but
the nature of the offence suggests that an extended period
of
incarceration is inappropriate’ the s 276(1)(i) option
‘should always be in the foreground.’
The second was
S
v Oosthuizen
,
9
which reiterated
this approach.
[19] Against this
background the question that arises is whether the court below was
correct to have interfered with the sentencing
magistrate’s
exercise of his discretion. In
S
v Wimpie Barnard
10
this court
cautioned that:
‘
A
Court sitting on appeal on sentence should always guard against
eroding the trial court’s discretion in this regard, and
should
interfere only where the discretion was not exercised judicially or
properly. A misdirection that would justify interference
by an appeal
Court should not be trivial but should be of such a nature, degree or
seriousness that it shows that the court did
not exercise its
discretion at all or exercised it improperly or unreasonably.’
11
[20] Where there is
no clear misdirection by the trial court to justify interference by
an appeal court, the remaining question,
as this court said in
S
v Whitehead
,
12
is:
‘
.
. . (W)hether there exists such a striking disparity between the
sentences passed by the learned trial Judge and the sentences
which
this Court would have passed – or, to pose the enquiry in the
phraseology employed in other cases, whether the sentences
appealed
against appear to this Court to be so startlingly or disturbingly
inappropriate – as to warrant interference with
the exercise of
the learned Judge’s discretion regarding sentence.’
(Internal
references omitted.)
13
[21] The court
below felt itself at liberty to interfere on two grounds. First, the
appellant’s previous convictions, ‘though
it happened
long before, indicates that he has a propensity to steal’.
Second, it compared the sentence the court imposed
in
S
v Hendrik Tiro Lephoro
14
–
also
involving stock theft – with this case and concluded that the
sentence of four years under s 276(1)(i) was ‘shockingly
light
and totally disproportionate to the gravity of the seriousness of the
offence . . .’.
15
In
Lephoro
several
accused were sentenced to 10 years’ imprisonment, three of
which were suspended, making the effective term of imprisonment
seven
years.
[22] With regard to the first ground,
the previous convictions, it is difficult to understand how the high
court came to this conclusion
in the face of the careful reasoning by
the learned magistrate. Some of those offences were committed during
the appellant’s
adolescence, and others when he was 21 years
old. The appellant committed the present offence as a middle aged
adult, under unique
circumstances. This is hardly evidence of a
predatory predilection.
[23] Concerning the
second ground – the reliance on the
Lephoro
case
– there were fundamentally different circumstances present
there. Several accused, working in concert, stole eight head
of
cattle valued at R21 000. They committed the crime in the Taung area
where the population relies on their livestock as their
main source
of income. Most importantly, that case involved a crime of greed, not
one of need, as was the case here. And there
was no suggestion that
the accused had shown any sign of remorse. Again, this is an
important difference.
[24] There is another reason why the
reliance on a case or cases involving stock theft is not appropriate
here. Stock theft is a
sensitive issue in many farming communities.
This is because it is difficult for farmers to prevent the crime and
equally difficult
for perpetrators to be apprehended and prosecuted.
Cattle farmers are therefore particularly vulnerable to this type of
crime.
The courts have reflected these concerns by progressively
imposing tougher sentences – usually direct imprisonment –
on offenders.
[25] But I do not think that the
circumstances of this case warrant comparison with typical stock
theft cases. The appellant is
not a cattle rustler. He stole his
employer’s cattle so that he could raise money to meet the
desperate medical needs of
his children. Furthermore, his employer is
not reliant on his cattle as his main source of income and that is
why he did not seek
a compensatory order. In this regard, his
employer testified that the main reason that he pressed charges in
this case was because
he wanted to see justice done.
[26] So, it is not surprising that Mr
Jacobs, who appeared for the state, had difficulty defending the
reasoning of the court below.
This brings me to whether there was any
proper basis to interfere with the sentence imposed by the trial
court. In my view once
the learned magistrate came to the view that
custodial sentence was the only appropriate sentence, but that a
sentence in excess
of five years was not called for, he was not only
entitled to apply the s 276(1)(i) sentencing option but, on clear
authority from
this court, obliged to consider whether its
application was suitable. Whether direct imprisonment – not in
terms of s 276(1)(i)
– was too lenient a sentence in these
circumstances is a matter on which there may well be divergent views.
But it would
not be justified for an appeal court to interfere with
the sentence imposed by the trial magistrate after his sensitive and
careful
reasoning. In my view, the sentence of four years’
imprisonment in terms of s 276(1)(i) was in any event ‘not
shockingly
inappropriate’. The fact that the learned magistrate
in retrospect is of the view that a sentence of four years’
direct
imprisonment may have been more appropriate does not detract
from my conclusion, or his, that the original sentence was not unduly
light.
[27] I should add that there is a
misconception that a sentence under s 276(1)(i) of the Act is a
softer option than an ordinary
sentence of direct imprisonment. It is
not. It merely grants the Commissioner the latitude to consider an
early release under correctional
supervision – after a sixth of
the sentence is served – and only if the personal circumstances
of the offender warrant
it. The Commissioner in any event has the
authority under s 276A(3)(a) of the Act to apply to the sentencing
court to reconsider
a sentence not exceeding five years’
imprisonment, or exceeding five years’ imprisonment where the
date of release
is no more than five years hence.
[28] For these reasons I would set
aside the sentence imposed by the court below and reinstate the
sentence of the trial court.
The following order is made:
(1) The appeal is upheld;
(2) the order of the court below is
set aside;
(3) the sentence imposed by the
regional magistrate is reinstated.
_________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: C J Zwiegelaar
Instructed by Grobler Levine Soonius,
Mafikeng
Naudes Inc, Bloemfontein
RESPONDENT: D G Jacobs
Instructed by Director of Public
Prosecutions, Mafikeng
Director of Public Prosecutions,
Bloemfontein
1
Section
73(7)(a)
of the
Correctional Services Act 111 of 1998
.
2
Unreported
case no. CA 95/07.
3
R
v Swanepoel
1945 (AD) 444 at 451.
4
S
v Ferreira
2004 (1) SACR 454
(SCA)
para 44.
5
S
v Lister
1993 (2) SACR 228
(A) at
233e-f.
6
Cf
S v Kearns
1999 (2) SACR 660
(SCA) at 663g-h.
7
Cf
S v Wimpie Barnard
2004 (1) SACR 191
(SCA) where this court imposed a sentence of five years’
imprisonment under
s 276(1)(i)
for the appellant’s theft of
R30 069 from his employer over a period of 15 months. The appellant
had abused his position
of trust.
8
S
v Scheepers
2006 (1) SACR 72
(SCA) para 10.
9
S
v Oosthuizen
2007 (1) SACR 321
(SCA)
para 11.
10
469/2002.
11
2004
(1) SACR 191
(SCA) para 9.
12
1970
(4) SA 424
(A).
13
Ibid
at 436C-E.
14
Unreported
case no CA 28/2006 (Bophuthatswana Provincial Division).
15
See
n1 above para 22.