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[2017] ZASCA 62
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Broodryk v S (959/2016) [2017] ZASCA 62 (29 May 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 959/2016
In
the matter between:
MARTHA
SUSANNA
BROODRYK
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Broodryk
v The State
(959/2016)
[2017] ZASCA 62
(29 May 2017)
Coram:
Tshiqi, Saldulker,
Zondi and Van Der Merwe JJA and Schippers AJA
Heard:
03 May 2017
Delivered:
29 May 2017
Summary:
Sentence -
imposition of - factors to be taken into account: appellant convicted
on a charge of theft: previous conviction one of
the factors taken
into account: sentence of five years’ imprisonment not
shockingly inappropriate: sentence confirmed.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (
Tlhapi J and Vukeya AJ
sitting as court of appeal):
The appeal against
sentence is dismissed.
JUDGMENT
Saldulker JA (Tshiqi,
Zondi and Van Der Merwe JJA and Schippers AJA concurring):
[1]
This appeal is against sentence only. The appellant, Ms Martha
Susanna Broodryk was convicted by the regional court, Lydenburg
on a charge of theft in the amount of R63 300 after she had
pleaded guilty to that charge in terms of s 112(2) of the Criminal
Procedure Act 51 of 1977 (the Act). She was sentenced to five years’
imprisonment
.
The trial court further
ordered that four of the five years were to be served concurrently
with a suspended sentence of six years’
imprisonment for theft
of R 200 000 from her erstwhile employer, imposed on 10 October
2005 by the regional court, Nelspruit
(the suspended sentence), in
the event of the suspended sentence being put into operation. The
appellant was granted leave to appeal
against sentence by the trial
court to the Gauteng Division, Pretoria, which subsequently dismissed
the appeal against sentence.
The appellant appeals to this court with
its special leave.
[2]
The events leading up to commission of the offence appear largely
from the appellant’s written statement in terms of s
112(2) of
the Act. The appellant was employed as a rental agent at Homenet, an
estate agency in Lydenburg. Her responsibilities
included renting out
properties on behalf of the owners for commission, and liaising
between the tenants and landlords on behalf
of Homenet. Payments
received from tenants had to be deposited into Homenet’s
banking account held at Standard Bank. The
appellant, however got the
tenants to pay the rentals into her personal bank account held at
Absa Bank.
[3]
In October 2007, Homenet rented out three houses on behalf of a
client, Mr Winterbach, for R5 300 per month per house.
When the
lease of one of these houses expired, the tenant asked for an
extension of the lease. The appellant agreed and gave the
tenant her
personal banking account details at Absa Bank and instructed the
tenant to deposit the rental into that account. The
tenant deposited
R4 800 into the appellant’s personal account in April
2010, and thereafter made two further deposits
of R6 500 each
for the months of June and July 2010. Thus began the appellant’s
‘taking ways’.
[1]
[4]
The appellant followed the same modus operandi in March 2010 when a
new tenant leased one of Mr Winterbach’s houses. She
provided
the tenant with her bank account details and the amount of R5 000
was deposited into her account at Absa Bank. In
May 2010 the
appellant gave another new tenant a deposit slip with her banking
details, and R11 000 was deposited into her
bank account. That
tenant deposited a further amount of R5 500 into the appellant’s
account in July 2010.
[5]
Mr Winterbach entered into a further agreement with Homenet to lease
out two more houses. Mr Zwane rented one of those houses,
and when he
requested Homenet’s bank details to deposit rental, the
appellant gave her personal banking account details.
Mr Zwane then
deposited R5 500 into the appellant’s account. Between May
2010 and July 2010, he deposited further amounts
totalling R18 500
into the appellant’s personal bank account.
[6]
The appellant withdrew all the amounts deposited into her personal
bank account by the clients of Homenet and misappropriated
the funds
for her own personal benefit. Because of her conduct, Homenet
suffered a loss of R63 300.
[7]
After the conviction, the trial court, in a carefully reasoned
judgment, dealt with all the factors relevant to the purposes
of
sentencing, and imposed a custodial sentence on the appellant. The
trial court referred to
Sinden
,
[2]
in which this court held that a sentence does more than deal with a
particular offender in respect of the crime of which she has
been
convicted; it also sends a message to society. The trial court said
that if it imposed too light a sentence, or correctional
supervision,
this would send out the wrong message to society – that crime
might pay after all. The trial court took into
account, the personal
circumstances of the appellant that she was 47 years old and married
with no dependants. The trial court
found it particularly aggravating
that the appellant committed this offence within the period of
suspension for the theft from
her erstwhile employer in the amount of
R200 000. That sentence was suspended for five years on
condition that the appellant
was not found guilty of theft or fraud
committed during the period of suspension.
The trial court
held, correctly in my view, that the seriousness of the offence,
committed during the period when the suspended
sentence was hanging
over her head, and the interests of society, clearly outweighed the
personal circumstances of the appellant,
and deserved a custodial
sentence.
[8]
It is regrettable
that the previous conviction did not have any deterrent effect on the
appellant. The appellant abused the trust
that her employer had
placed in her by deliberately providing clients with her own personal
bank account details into which rental
was deposited for her own
personal gain. Clearly the appellant was unrepentant for her past
conduct. She committed this theft not
out of need, but greed. The
appellant showed no remorse for her actions. Courts take a serious
view of white-collar crimes and
its corrosive impact upon society.
[3]
[9]
It is trite law that sentencing is a matter pre-eminently in the
discretion of the trial court and a court of appeal will only
interfere with the exercise of such discretion on limited grounds.
[4]
In
S v
De Jager & another
1965
(2) SA 616
(A) at 628H-629, Holmes JA made the following observation:
‘
It
would not appear to be sufficiently recognised that a Court of appeal
does not have a general discretion to ameliorate the sentences
of
trial Courts. The matter is governed by principle. It is the trial
Court which has the discretion, and a Court of appeal cannot
interfere unless the discretion was not judicially exercised, that is
to say unless the sentence is vitiated by irregularity or
misdirection or is so severe that no reasonable court could have
imposed it. In this latter regard an accepted test is whether
the
sentence induces a sense of shock, that is to say if there is a
striking disparity between the sentence passed and that which
the
Court of appeal would have imposed. It should therefore be recognised
that appellate jurisdiction to interfere with punishment
is not
discretionary but, on the contrary, is very limited.’
[10]
In the circumstances, the trial court cannot be faulted for
discounting other sentencing options. Taking into account that
the
appellant was a repeat offender, the sentence imposed was not
shockingly inappropriate. Therefore, the appeal against sentence
falls to be dismissed.
[11]
I therefore make the following order:
The
appeal against sentence is dismissed.
______________________
H K Saldulker
Judge of Appeal
APPEARANCES:
For
the Appellant: De Necker
Instructed
by: Johannesburg Justice Centre
C/O
Symington & De Kock Attorneys, Bloemfontein
For
the Respondent: P Vorster
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
S v Sinden
1995 (2) SACR 704
(SCA) at 709.
[2]
S v Sinden
1995 (2) SACR 704
(SCA).
[3]
S v Sadler
2000 (1) SACR 331
(SCA) para 13.
[4]
S v Sadler
2000
(1) SACR 331
(SCA) at 334-335.