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[2008] ZASCA 93
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S v De Sousa (626/2007) [2008] ZASCA 93; [2009] 1 All SA 26 (SCA) (12 September 2008)
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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case Number : 626 / 2007
No precedential significance
MARIA DE LOURDES ABRANTIS DE SOUSA Appellant
and
THE STATE Respondent
Neutral citation:
De
Sousa v The State
(626
/ 2007)
[2008] ZASCA 93
(12 September 2008)
Coram : BRAND, PONNAN and JJA
and LEACH AJA
Heard: 2 September 2008
Delivered: 12 September 2008
Summary:
Fraud
– sentence – approach to on appeal - striking disparity
between sentence imposed and that which the appellate
court would
have imposed – sentence reduced from seven-and-a-half to four
years’ imprisonment.
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
: The Johannesburg High Court,
(Horn J and Mlonzi AJ sitting as a court of appeal)
1
The
appeal succeeds.
2
The
sentence is set aside and there is substituted for it a sentence of
four years’ imprisonment.
___________________________________________________________________
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (BRAND JA and LEACH AJA concurring):
[1] The appellant was convicted, pursuant to her plea of guilty, by
the Regional Court (Johannesburg) of 13 counts of fraud involving
a
total amount of R1 000 228,94. All counts having been taken as one
for the purposes of sentence, the appellant was sentenced
to a term
of imprisonment for a period of 7½ years. An appeal to the
Johannesburg High Court (per Horn J, Mlonzi AJ concurring)
having
proved unsuccessful the further appeal is with the leave of this
court.
[2] The facts and circumstances relating to the conviction can be
gleaned from the appellant’s written plea explanation in
terms
of s 112 of the Criminal Code:
‘
2 In pleading guilty to
the said charges I admit:
2.1 that I misrepresented to
Maslex and or their employers that
2.1.1 goods were bought by
Maslex from MDS Marketing and or M de Sousa and or MDS Marketing
trading as M de Sousa on the dates as
per column 1 of the schedule
attached to the charge sheet for the amounts as per schedule 2 of the
said schedule.
2.2 that by means of the said
misrepresentations Maslex and or their employers were induced to
their prejudice or potential prejudice
to:
2.2.1 accept the said
misrepresentations as being the truth and or
2.2.2 pay the amounts as per
column 2 of the schedule to MDS Marketing and or M de Sousa or MDS
Marketing trading as M de Sousa.
2.3 that when I made the said
misrepresentations as aforesaid I knew that the goods were not bought
by Maslex from MDS Marketing
and or M de Sousa and or MDS Marketing
trading as M de Sousa for the amounts as per column 2 of the schedule
and that the amounts
were not payable as aforesaid.
3 The circumstances under which
I committed these crimes were as follows:
3.1 During 1999 I met my
co-accused Mr Dos Santos, who at the time was an executive director
of Maslex.
3.2 We engaged in a lover’s
relationship.
3.3 I was confronted by Mr Dos
Santos and asked whether or not my bank account could be utilised in
order to get cheques from Maslex
cleared and thereafter the monies
would be transferred to his personal account.
3.4 At the time I was sceptical
of this arrangement but I was informed by Mr Dos Santos, that I had
to explain that I in fact sell
water should I ever be asked about the
money that had been deposited into my account.
3.5 I was at all times aware of
the fact that Mr Dos Santos neither myself nor MDS Marketing bought
any goods from Maslex and that
no monies were payable to myself, Mr
Dos Santos or MDS Marketing.
3.6 I then agreed to utilise my
bank account for the clearance and transfers of the monies as set out
above.
3.7 I then actually paid the
cheques on the dates as set out in column 2 of the schedule into my
bank account after the said cheques
were handed to me by Mr Dos
Santos.
3.8 The cheques were cleared on
the same day whereafter I transferred the monies into the bank
account of Mr Dos Santos.
3.9 From the monies that I
transferred to the account of Mr Dos Santos I received an amount of
R90 000,00 for my participation in
this scheme.
3.10 I utilised the said monies
in order to pay my debt and debt incurred by Mr Dos Santos. These
facts will be more clearly set
out to the court during sentence
procedures.
4 I further admit that when I
acted as aforesaid I knew that no monies were due to myself or MDS
Marketing that my actions were
wrong and that I was not entitled to
deposit the cheques or to transfer the money as aforesaid.’
[3] It is common cause that Act 105 of 1997 – the so-called
minimum sentencing legislation, finds application and that the
matter
falls within the purview of Part 2 of Schedule 2 of the Act. In terms
of s 51(2)(
a
)(
i
), the legislature has ordained 15
years’ imprisonment for a first offender found guilty of an
offence of this kind, unless
substantial and compelling circumstances
in terms of s 51(3)(
a
) which would justify the imposition of a
lesser sentence are found to exist . The trial court did indeed find
such circumstances
to be present. It thus departed from the
statutorily prescribed minimum sentence.
[4] 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.
(See also
S v Fatyi
2001 (1) SACR 485
(SCA) para 5;
S v
Abrahams
2002 (1) SACR 116
(SCA) para 13.)
[5] The circumstances entitling a court of appeal to interfere in a
sentence imposed by a trial court were recapitulated in
Malgas
(para 12), where Marais JA held:
‘
A court exercising
appellate 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 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. It may do so when the disparity
between the sentence of the
trial court and 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”.’
[6]
It has not been suggested that the sentence
was vitiated by any misdirection. The argument advanced on behalf of
the appellant is
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. As Marais JA put it in
S
v Sadler
2000 (1) SACR 331
(SCA) para
8,
‘
The
traditional formulation of the approach to appeals against sentence
on the ground of excessive severity or excessive lenience
where there
has been no misdirection on the part of the court which imposed the
sentence is easy enough to state. It is less easy
to apply. Account
must be taken of the admonition that the imposition of sentence is
the prerogative of the trial court and that
the exercise of its
discretion in that regard is not to be interfered with merely because
an appellate Court would have imposed
a heavier or lighter sentence.
At the same time it has to be recognised that the admonition cannot
be taken too literally and requires
substantial qualification. If it
were taken too literally, it would deprive an appeal against sentence
of much of the social utility
it is intended to have. So it is said
that where
there
exists a “striking” or “startling” or
“disturbing” disparity between the trial court’s
sentence and that which the appellate Court would have imposed,
interference is justified. In such situations the trial court’s
discretion is regarded (fictionally, some might cynically say) as
having been unreasonably exercised.’
[7] It is so that the appellant has shown genuine remorse and
contrition in: first, co-operating with the investigating officer
from the time of her arrest; second, admitting her role in the
commission of the offences; third, deposing to a witness statement
and agreeing to testify against Mr Dos Santos; fourth, signing an
acknowledgement of indebtedness in favour of Maslex in the sum
R90
000 being the extent of her benefit from the fraudulent scheme and
thereafter paying that debt in full; and, fifth, pleading
guilty to
the charges.
[8] It must also count in her favour that her first foray into crime
occurred at the relatively advanced age of 32 years. And,
when she
did eventually venture into crime it was at the instance of her
boyfriend with whom she evidently was besotted. As she
explains in
her evidence:
‘
Can
you maybe explain to
the court why you committed this crime? What was the reason
therefore? --- I have never been proposed, and Rui proposed to me,
and it was a husband that I was going to get, and the life that I was
going to have with him, that knowing that he was a director
of
Maslex, I did not even see any problem with what he was asking me to
do, and what I was doing at the time.
Did you actually trust him? ---
He was, he is a well travelled man. He, in my experience, he used to
speak, he used to have the
ANC on a speed dial on his cell phone, and
everything just came, everything happened that he promised everything
happened, so there
was no reason for me to doubt him at that time.’
[9] Mr Dos Santos obviously preyed on the appellant’s
vulnerabilities. He proposed to her, which she accepted and led her
to believe that they would be getting married in the near future.
Shortly after she had become complicit in his fraudulent scheme,
however, he moved out of their shared apartment and became involved
with another woman. But, while she initially succumbed to
his charms
and acted under his influence in becoming a party to the criminal
venture, she persisted long after the relationship
had ended. On the
appellant’s own version, their relationship lasted some four to
five months. For the first two of those,
Mr Dos Santos was
unemployed. The fraudulent scheme commenced almost immediately after
he had secured employment. All told the
offences were perpetrated
over a period in excess of nine months – sufficient time it
seems for reflection and re-consideration,
particularly when it was
only for a third of that time that she was intimately involved with
Mr Dos Santos and would have been
susceptible to his influence.
[10] It is indeed so that the appellant utilised some of the money
to assist her mother, who was, according to the appellant,
in
financial difficulty and her sister (whose husband was in
rehabilitation) to pay school fees. She had as well to pay Mr Dos
Santos’ cell phone debt to the tune of R10 000. Much of the
money however was spent in a wasteful way on lavish items and
not for
needy purposes. It was not needed to satisfy any of the necessities
of life. On the other hand, to the appellant’s
credit, she has
been in gainful employment since March 1993 as a production
manageress at Ster Kinekor. Not only were her employers
aware of the
fact that criminal charges had been preferred against her, but they
had loaned and advanced to her the sum of R50
000 which she utilised
to pay bail, legal costs and the like. Her excellent work record and
the trust that her employers continued
to repose in her, particularly
after they had learnt of her criminal transgression, must undoubtedly
count in her favour.
[11] White collar crime has reached alarming proportions in this
country. They are serious crimes, whose corrosive impact upon
society
is all too obvious. The appellant assisted her boyfriend, who
occupied a position of the utmost trust in the complainant
company,
to implement a plan that he had devised to defraud it. It does not
emerge whether all of the losses of the complainant
have yet been
made good. They are substantial. Furthermore, the misconduct was
premeditated and persistent. She participated in
the criminal venture
not just to benefit herself but also to ingratiate herself with Mr
Dos Santos.
[12] There are however facts that distinguish this case from many
other similar cases. Although the complainant lost a very large
sum
of money, the appellant only benefited to the tune of R90 000. In
respect of that sum, once discovered, she immediately undertook
to
repay the money, signed an acknowledgement of indebtedness and in
fact has since repaid the amount in full. From the outset,
she
co-operated fully with the police. Thus, even before she came to be
sentenced, she had furnished the investigating officer
with a
statement detailing her involvement as well as the involvement of Mr
Dos Santos in the fraudulent scheme. The investigating
officer who
testified on her behalf during the trial was very well disposed
towards her. As was the complainant. That she has shown
genuine
remorse for what she has done is abundantly clear.
[13] The appellant has obviously had to suffer in many ways. Her
embarrassment is patent and she has had to live with a constant
sense
of guilt for subjecting those near and dear to her to the trauma that
her fall from grace has caused. In compensating the
complainant, the
appellant divested herself of all of her ill-gotten gains. There is
little likelihood that the appellant will
repeat the offence or that
she in future will constitute a risk to society. Moreover, she is
obviously good human material and
her prognosis for rehabilitation
appears excellent. Because of the gravity of the offences, the
request that she be kept out of
jail cannot be acceded to. Plainly, a
custodial sentence will be the only appropriate sentence. Although
one cannot but feel deeply
for her, sympathy cannot deter a court
from imposing the kind of sentence dictated by justice and the
interests of society.
[14] It remains for me to substitute what I consider to be an
appropriate penalty for that imposed by the trial court. Taking all
of the factors into consideration, in my view, an appropriate
sentence is imprisonment for a term of four years. In arriving at
that sentence I take account of the fact that she spent some two
months in custody prior to being released on bail pending her
appeal.
Plainly the difference between that sentence and the 7½ years
imposed by the trial court is sufficiently striking
as to oblige
interference.
[15] In the result:
The appeal succeeds.
The sentence is set aside and there is substituted for it a sentence
of four years’ imprisonment.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
COUNSEL
FOR APPELLANT:
M VAN
WYNGAARD
INSTRUCTED
BY:
A S STEIJN
BENONI
CORRESPONDENT:
ROSENDORFF
REITZ BARRY
BLOEMFONTEIN
COUNSEL
FOR RESPONDENT:
S M
MAAT (Ms)
INSTRUCTED
BY:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
JOHANNESBURG
CORRESPONDENT:
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS, BLOEMFONTEIN