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[2017] ZAKZDHC 13
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S v I.S (Sentence) (AR233/05) [2017] ZAKZDHC 13 (22 March 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, DURBAN
CASE
NO. AR233/05
22
March 2017
In
the matter between:
THE
STATE
and
I
S
JUDGMENT ON SENTENCE
STEYN
J
[1]
The accused a former attorney was convicted on a count of theft by
general deficiency of R5 728 310.75 on 4 August
2016.
During the time when the offence was committed he practiced as an
attorney for his own account under the name of S.
and Company, La
Lucia Ridge.
[2]
The sentencing phase of a trial is the most difficult phase for any
presiding officer. This case is no different, mainly because
the
focus now shifts from the merits of the case to factors which are
irrelevant to the merits, such as the motive for the crime,
the
personal circumstances of the accused, the impact of the crime on the
victims and society’s interest. One of the
reasons for
this difficulty is that there is no universal formula to apply to
each and every case that results in an appropriate
sentence.
[3]
In deciding upon an appropriate sentence, it is expected of me to
have regard to the purpose of sentencing, which would be deterrent,
reformative and retributive. To achieve it, I should have
regard to the accused’s personal circumstances and needs,
the
nature of the crime and the interests of society. None of these
factors must be over or under emphasised. An appropriate
sentence is one which gives a balanced consideration to the offender,
the crime and society. A value judgment has to be made
taking
into account the aims of punishment and to keep in mind the triad
factors as stated in
S
v Zinn.
[1]
Recently it is expected of a presiding officer to be mindful of
the obligations posed by the Constitution
[2]
whence sentencing. In this case the constitutional obligation
is to consider the interests of the accused’s child and
that of
his wife, since he is the primary caregiver of both.
[4]
In consideration of the constitutional imperatives when sentencing a
primary caregiver, I am obligated to consider s 28(2) of
the
Constitution and the jurisprudence that developed over the years (see
S v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC);
S v Chetty
2013 (2) SACR
143
(SCA);
MS v S
2011 (2) SACR 88
(CC); and
S v De
Villiers
2016 (1) SACR 148
(SCA)). The importance of
M
supra
is that a court in sentencing a primary caregiver,
should consider the child’s interest as one of the factors in
addition
to the
Zinn
triad. At 562a-c Sachs J
concluded:
‘
Sentencing
officers cannot always protect the children from these consequences.
They can, however, pay appropriate attention
to them and take
reasonable steps to minimise damage. The paramountcy principle,
read with the right to family care, requires
that the interests of
children who stand to be affected receive due consideration. It
does not necessitate overriding all
other considerations.
Rather, it calls for appropriate weight to be given in each case to a
consideration to which the law
attaches the highest value, namely,
the interests of children who may be concerned.’
[5]
It is common cause that the
Criminal Law Amendment Act 105 of 1997
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 prescribed 15 years’ imprisonment for a first
offender found guilty of an offence of this kind, unless
substantial
and compelling circumstances exist which would justify the imposition
of a lesser sentence.
[6]
I will take due cognisance of the Supreme Court of Appeal’s
approach and the Constitutional Court when deciding upon the
circumstances of the accused and whether it constitutes substantial
and compelling circumstances (See
S v Malgas
2001 (1) SACR 469
(SCA) and
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at 602-603 and
S
v Blignaut
2008 (1) SACR 78
(SCA) para 3 and
S v Nkunkuma &
others
2014 (2) SACR 168
(SCA) paras 9 and 10.)
[7]
In a number of sentencing judgments little more than lip service has
been paid to
Malgas
. It is therefore necessary to deal
with the judgments of the Supreme Court of Appeal and High Courts
where
Malgas
was discussed and followed before I come to an
ultimate conclusion. I align myself with the words of Ponnan JA
(para 23)
in
S v Matyityi
2011(1) SACR 40 (SCA):
‘
As
Malgas
makes plain courts have a duty, despite any personal doubts about the
efficacy of the policy or personal aversion to it, to implement
those
sentences. Our courts derive their power from the Constitution
and like other arms of state owe their fealty to it.
Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power by showing due
deference to
the legitimate domains of power of the other arms of State.
Here Parliament has spoken. It has ordained
minimum sentences
for certain specified offences. Courts are obliged to impose
those sentences unless there are truly convincing
reasons for
departing from them. Courts are not free to subvert the will of
the legislature by resort to vague, ill-defined
concepts such as
“relative youthfulness” or other equally vague and
ill-founded hypotheses that appear to fit the particular
sentencing
officer’s personal notion of fairness. Predictable
outcomes, not outcomes based on the whim of an individual
judicial
officer, is foundational to the rule of law which lies at the heart
of our constitutional order.’
[8]
The following personal circumstances of Mr S. will be taken into
account:
He
is 51 years of age, married with two children. He earns an
income of between R80 000 – R100 000 per month.
His income is derived from conducting a legal consulting business
called Advanced Legal Services (Pty) Ltd and Advanced Consumer
Protection Services. He is the primary caregiver of his
daughter T. and his wife C. who is presently being treated at the
Waynol Anti-Narcotics Christian Manor at ±R6 500.00 per
month. His daughter is 16 years old, diagnosed with
dyscalculia, a condition whereby she finds it challenging to process
numerical data. Mr S. suffers from epilepsy, and is a
first
offender. Most of the accused’s and his family’s
circumstances were dealt with in detail in exhibits “WWW”,
“YYY” and “ZZZ”.
[9]
The following witnesses testified in mitigation of sentence:
(i) The accused;
(ii) Mr Mack, an
educational psychologist;
(iii) Mrs Purchase, a
family friend;
(iv) Ms Phillipa Styles,
a clinical psychologist; and
(v) Ms Amanda Randle, a
liquidator, employed by Manci Knoop.
[10]
In aggravation of sentence the State called the following witnesses:
(i) Mr Ernest Tshedzumba,
a forensic investigator employed by the Fidelity Fund; and
(ii) Mr Clive Willows, a
clinical psychologist.
[11]
Ms Styles’ evidence and her report focussed mainly on the
accused’s personal circumstances. As much as she
collected information from various sources, it cannot be overlooked
that she ignored the findings of this court regarding the credibility
of the accused. According to her she did not understand the
nuances of the judgment. An objective analysis of her report
shows that she placed more reliance on the accused’s views than
the court findings. Throughout her report and her evidence,
the
denial of the accused that he had stolen any money was repeated.
She stated categorically that the accused is remorseful
despite the
fact that he denied any wrongdoing. According to him he caused
his friends financial losses and harm but he never
intended stealing
any money. Ms Styles recommended a non-custodial sentence for
the accused. Mr Mack’s evidence
confirmed the fact that
Mr S. is a primary caregiver and that T. is a special needs child.
Ms Randle’s evidence served
little purpose since the
liquidation is not finalised and the likelihood exists that creditors
may challenge the final account.
[12]
Mr Willows, the psychologist that was called by the State, explained
in his report that he used the judgment on merits and
the findings of
this court that the accused had acted purposefully and with the
necessary intent, as one version. The accused
was not prepared
to admit guilt. The accused’s conduct was described as
follows by Mr Willows:
‘
He accepts
responsibility for losing money that was entrusted to him. He
maintains that he never intended to steal or to act
illegally, but
accepts that it was his poor management that resulted in this loss.’
On
page 6 of the Willows report the accused, however, views himself as
being unfairly victimised and having suffered considerable
consequences, as a result of a perceived relentless pursuit of this
case by his former friends and colleagues. His intention,
according to him, was to enrich others based on his knowledge,
expertise and generosity.
[13]
All of the evidence presented would be considered in determining
remorse. The accused’s conduct post-conviction
would be
analysed so as to not merely accept the
ipsi dixit
of the
accused that he is remorseful.
Mr
Howse in his address on remorse placed
inter alia
reliance on
Hewitt v The State
(637/2015)
[2016] ZASCA 100
(9 June 2016)
and
S v Pistorius
(CC113/2013) [2016] ZAGPPHC 724 (6 July
2016) as well as the comments by the authors Du Toit
et al
‘Commentary on the Criminal Procedure Act’ at 28-6J-3-4.
He asked that the accused’s circumstances be regarded
as
substantial and compelling and that the accused as the primary
caregiver be given a non-custodial sentence.
[14]
The case of
Pistorius
was cited by Mr Howse because Mr
Pistorius, like Mr S., attempted to ask for the forgiveness of the
Steenkamp family. I have
great difficulty in comparing the
conduct of Mr S. with that of Pistorius who failed in his attempt to
apologise to the Steenkamp
family. Masipa J in Pistorius’s
case referred to the fact that the accused had publicly apologised to
the parents of
the deceased. At no time when witnesses like Mr
O’Connor testified were they offered a public apology in
court.
At best it can be accepted that the accused at the time
of being a fugitive, tendered an apology, to Messrs Sevel and
O’Connor.
It has to be borne in mind that his call to Mr
O’Connor lasted 20 seconds when he attempted to apologise.
I have been
informed that the accused during an adjournment to the
trial sought permission from the State to apologise to Mr O’Connor.
In my view the appropriate time to tender such would have been after
conviction, and it would require a genuine apology, i.e. accepting
the responsibility of his wrongdoing. I agree, as I should,
with the Supreme Court of Appeal’s decision in
Hewitt
para 16, that it is indeed correct that a lack of remorse is not an
aggravating factor. On the other end of the scale it
is true
that remorse cannot be taken into account as a mitigating factor if
it is not genuine and not displayed in the conduct
of the accused.
[15]
Remorse has been aptly described by Ponnan JA in
S v Matyityi
supra
para 13:
‘
Remorse was said
to be manifested in him pleading guilty and apologising, through his
counsel (who did so on his behalf from the
bar) to both Ms KD and Mr
Cannon. It has been held, quite correctly, that a plea of
guilty in the face of an open and shut
case against an accused person
is a neutral factor. The evidence linking the respondent to the
crimes was overwhelming.
In addition to the stolen items found
at the home of his girlfriend, there was DNA evidence linking him to
the crime scene, pointings-out
made by him, and his positive
identification at an identification parade. There is, moreover,
a chasm between regret and
remorse. Many accused persons might
well regret their conduct, but that does not without more translate
to genuine remorse.
Remorse is a gnawing pain of conscience for
the plight of another. Thus genuine contrition can only come
from an appreciation
and acknowledgement of the extent of one’s
error. Whether the offender is sincerely remorseful, and not
simply feeling
sorry for himself or herself at having been caught, is
a factual question. It is to the surrounding actions of the
accused,
rather than what he says in court, that one should rather
look. In order for the remorse to be a valid consideration, the
penitence must be sincere and the accused must take the court fully
into his or her confidence. Until and unless that happens,
the
genuineness of the contrition alleged to exist cannot be determined.
After all, before a court can find that an accused
person is
genuinely remorseful, it needs to have a proper appreciation of,
inter alia: what motivated the accused to commit the
deed; what has
since provoked his or her change of heart; and whether he or she does
indeed have a true appreciation of the consequences
of those
actions. There is no indication that any of this, all of which
was peculiarly within the respondent’s knowledge,
was explored
in this case.’
(Footnotes
omitted.)
[16]
Whether an accused professes remorse is not the test. The
penitence must be sincere and an offender should take the court
into
his confidence. As can be seen from the accused’s own
evidence and the experts, he considers himself not guilty.
Whilst it is acknowledged that he as of right may challenge any
conviction, it cannot be found, given the circumstances and facts
of
this case, that the accused is remorseful.
[17]
Mr Truter, on behalf of the State, has argued that the circumstances
presented by the accused do not on any level constitute
substantial
and compelling circumstances and accordingly asked that the accused
receive the prescribed sentence of 15 years’
imprisonment.
Mr Truter also argued that the accused’s lack of remorse and
the fact that he abused his position of
trust should serve as
aggravating factors. The State argued that the accused had
failed to take the court into his confidence.
Throughout the trial he
tried to rationalise his conduct and in the end engineered a defence.
[18]
In my view the crime of which the accused has been convicted is
undoubtedly a serious one. He betrayed the trust that
the
public in general should have in officers of the court. The
attorneys’ profession is a noble profession and
it plays a
vital role in the administration of justice. Over time it has
been shown that attorneys are held in high esteem
by members of
society and that society places trust in them. It is this trust
that the accused betrayed. He brought
the profession into
disrepute. Evidence was placed before me by the Attorneys
Fidelity Fund that shows that the Fund in the
past fifteen years has
been exposed to various claims arising out of theft of trust money.
In the 2015 financial year it
reached R120 million. The accused
also betrayed the trust of his best friend, Mr Garth O’Connor.
[19]
The trial was delayed for a number of reasons, shortly after the
theft was discovered he left the country and became a fugitive.
At this time he abandoned his heavily pregnant wife and his practice
in order to evade justice. The accused was only extradited
in
2004, whereafter he appeared before the magistrates’ court on
charges of theft and fraud. Subsequent to the extradition
he
challenged the authority of the State to charge him with offences in
respect of which he was not extradited and the Supreme
Court of
Appeal delivered judgment on 30 May 2008. He also applied for a
permanent stay of prosecution, which was unsuccessful
and judgment
was delivered on 21 January 2007. The first witness in his
trial was only called on 7 August 2014. The
sentencing
proceedings commenced on 26 October 2016 and were finalised on 14
March 2017. In addition, the amount that he
stole by far
exceeds the amount of R500 000 in respect of which the
legislature prescribed a sentence of 15 years’ imprisonment.
[20]
Despite these factors it cannot be overlooked that the accused
suffers from epilepsy and is the primary caregiver of a special
needs
daughter and a wife who has serious psychological problems. At
present his wife is institutionalised at the Waylon
Centre. I
am persuaded that his health, his primary caregiver status and being
a first offender, viewed cumulatively constitute
substantial and
compelling circumstances to deviate from the prescribed minimum
sentence.
[21]
What follows is a synopsis of sentences imposed by our courts for
similar offences. What would be considered in referencing
to
these cases is not factual similarities but the principles followed
in these cases.
In
S v Sinden
1995 (2) SACR 704
(A) the Appellate court confirmed
a custodial sentence in circumstances wherein the accused showed no
sign of true remorse and
persistently and deliberately betrayed the
trust of her employer.
In
S v Sadler
2000 (1) SACR 331
(SCA) paras 11 to 12:
‘
[11] I am
satisfied that the circumstances of this case call for the imposition
of a period of direct imprisonment and that
the interests of justice
will not be adequately served by leaving the sentence imposed by
Squires J undisturbed. So called
‘white-collar’
crime has, I regret to have to say, often been visited in South
African courts with penalties which
are calculated to make the game
seem worth the candle. Justifications often advanced for such
inadequate penalties are the
classification of ‘white-collar’
crime as non-violent crime and its perpetrators (where they are first
offenders) as
not truly being ‘criminals’ or ‘prison
material’ by reason of their often ostensibly respectable
histories
and backgrounds. Empty generalisations of that kind
are of no help in assessing appropriate sentences for ‘white-collar’
crime. Their premise is that prison is only a place for those
who commit crimes of violence and that it is not a place for
people
from ‘respectable’ backgrounds even if their dishonesty
has caused substantial loss, was resorted to for no
other reason than
self-enrichment, and entailed gross breaches of trust.
[12] These are
heresies. Nothing will be gained by lending credence to them.
Quite the contrary. The impression
that crime of that kind is
not regarded by the courts as seriously beyond the pale and will
probably not be visited with rigorous
punishment will be fostered and
more will be tempted to indulge in it.‘
In
S v Brown
2015 (1) SACR 211
(SCA) the court at para 121 stated
as follows:
‘
[121] In my
view the sentence imposed by the court below tends toward bringing
the administration of justice into disrepute.
Less privileged
people who were convicted of theft of items of minimal value have had
custodial sentences imposed. We must
guard against creating the
impression that there are two streams of justice, one for the rich
and one for the poor.’
(Footnote
omitted.)
[22]
In my view a non-custodial sentence would over-emphasise the personal
circumstances of the accused and under-emphasise the
nature of the
crime and the interests of society. I align myself with the
views of Alexander J in
S v Nathan
1992 (1) SACR 467
(N) at
471j-472b:
‘
While every case
must be decided according to its own facts it is nevertheless quite
evident that this is a serious matter exacerbated
by the fact that it
is committed by a person who is supposed to maintain the highest
professional standards of integrity.
In convincing yourself by
your actions you debase your own profession. That is something
which the Court cannot lightly disregard.
This is a case where
it could well be said that the public is entitled to expect a
punishment which would reflect its indignation
that such a state of
affairs could have been allowed to continue for as long as it did.
This is the element of retribution
which is often mentioned as one of
the factors in punishment. It also goes hand in hand with the
element of deterrence in
the sense that the severity of a retributive
sentence may well deter others who would be minded to follow the
dishonest path.
Those are the factors I must bear in mind and
balance them against the personal factors which stand to your
credit.’
[3]
[23]
If I was solely guided by the accused’s individual
circumstances then correctional supervision in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
would have suited his
needs. The aforesaid section however provides for a sentence
not exceeding 3 years’ imprisonment.
It is expected of me
not to find a sentence that fits the needs of the accused. The
sentence should also be in the interests
of society and serve as a
deterrent to prevent other professionals from doing the same when
entrusted with clients’ money.
Of course there is also
s
276(1)(i)
of the
Criminal Procedure Act which
would result in the
sentence being custodial in part. A sentence in terms of the
aforesaid provision should however be imposed
if the offence does not
warrant a term of imprisonment exceeding 5 years. An objective
determination of the circumstances
and facts of this case warrant a
period of imprisonment that exceeds 5 years in my view. The
accused is not remorseful, he
was in a position of trust.
Further to this, he never divorced himself from his income to
compensate any of the complainants.
It has been a theme
throughout the sentencing phase that the accused is not a criminal in
the true sense of the word. In
my view this notion is
misplaced. Every person convicted of a crime is a criminal.
[24]
The theft, albeit theft by deficiency, was committed whilst he was an
attorney. As has been said in cases like
De Villiers,
society must be assured that persons who abuse positions of trust
would be punished appropriately.
[25]
I am also mindful of what has been said by our Supreme Court of
Appeal in
S v Abrahams
2002 (1) SACR 116
(SCA), where Cameron
JA at 126 stated:
‘
Even when
substantial and compelling circumstances are found to exist, the fact
that the Legislature has set a high prescribed sentence
as
“ordinarily appropriate” is a consideration that the
courts are “to respect and not merely pay lip service
to”.
When sentence is ultimately imposed due regard must therefore be paid
to what the Legislature has set as the bench
mark.’
(Footnotes
omitted.)
[26]
I do not consider, having balanced all the circumstances placed
before me, that it would be objectively offensive to justice
to
impose a custodial sentence for the crime committed. A
custodial sentence is neither disproportionate to the serious nature
of the crime nor is it startlingly inappropriate. I have
reached this conclusion after having weighed all the facts and
circumstances placed before me that in mitigation of sentence and in
aggravation of sentence I impose the following sentence having
due
regard to all the facts.
[27]
It is expected of me not to ignore the fate of those you care for.
I will not. T., however, has a grandmother,
an older brother
and uncles who can step in and care for her should her extended
family find it in their hearts to do so.
Neither she nor her
mother are left without any family to care for them. Whilst
they may not maintain the same lifestyle
as they had up until now,
that is not the test. In passing sentence I will not ignore
their rights.
[28]
Sentence
[28.1] The accused
is sentenced to 12 years’ imprisonment of which 6 years’
imprisonment is suspended for 5 years
on the condition that the
accused is not convicted of an offence of theft or any offence that
is a competent verdict on a charge
of theft committed during the
period of suspension.
[28.2] The
Registrar of this court is ordered to immediately direct the
Department of Social Development to do the following:
(a) The Department must
appoint a designated social worker as contemplated by the Children’s
Act 38 of 2005 to investigate
in terms of
ss 47(1)
and
155
(2) of the
Act, whether T. S. is a minor child in need of care. The
Department must do this without delay and take all steps
necessary to
ensure that:
(i) she is properly cared
for in all respects;
(ii) she remains in
contact with the accused during this period of imprisonment, and has
contact with him insofar as it is permitted
by the Department of
Correctional Services; and
(iii) she receives the
necessary educational support given her required special needs.
(b) The Department of
Social Development and Health must investigate the medical
circumstances of the accused’s wife, C. S.,
without delay and
take all steps necessary to assist in her psychiatric evaluation,
and, if required, to facilitate her voluntary
admission to the
Ekuhlengeni Care Centre or any other appropriate institution
qualified to deal with her mental condition.
[1]
1969 (2) SA 537
(A) at 540G.
[2]
The Constitution of the Republic of South Africa, 1996.
[3]
See
S v
Vorster
2007 (2) SACR 283
(E) at 290h-j.