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[2015] ZAGPPHC 53
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Rautenbach v S (A731/2014) [2015] ZAGPPHC 53 (5 February 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE
NO: A731/2014
In
the matter between
RAUTENBACH,
PEARL
….........................................................................................
APPELLANT
and
THE
STATE
................................................................................................................
RESPONDENT
J
U D G M E N T
MUDAU
AJ:
[1]
The appellant, Mrs.Pearl Rautenbach, pleaded guilty on 194 counts of
fraud that involved a total amount of R1 339 560-00
before
the regional court, Benoni. She was duly convicted on the basis of
her plea statement accepted by the State. Consequently,
she was
sentenced to an effective term of 15 years imprisonment
after all the counts
were taken together for the purposes of sentence
.
Aggrieved with the sentence, she now appeals to this court with leave
of the court below. The issue in this appeal is whether
the trial
court took into consideration all the relevant factors in imposing
sentence. Secondly, whether the sentence imposed was
not influenced
by the trial court taking into consideration that the appellant had
at the time of sentencing a pending charge of
fraud.
[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 procedure act 51 of 1977 as amended. For convenience,
the said statement reads as follows:
”
I,
the undersigned Pearl Rautenbach, am the accused in this matter and I
wish to confirm that I plead guilty to the charges against
me of
fraud. Furthermore, that I do so freely, voluntarily and without any
undue influence and in my sound and sober senses.
I
admit that I was employed at the company Enclosure Solutions as a
bookkeeper and the company is based in Brentwood Park which
is in
this court area of jurisdiction.
I
also admit that the charges against me stems from incidents that
occurred at this company totalled 194 in total. I admit that
during
the period of July 2009 and October 2011 and whilst in the employ of
the company as explained above, I transferred numerous
amounts from
the company’s account into my personal bank accounts as well as
the bank account of my son Mr André Blignaut.
I
admit that I also transferred money from the business into a
municipal account which was payment for my late husband’s
property at Rust De Venter 33 in Lakefield.
I
admit that personal bank account details were FNB platinum cheque
account [….] referred to as account as
account
A
per the
charge sheet and the annexure thereto.
Furthermore,
I admit that the other accounts that money was paid into are as per
the charge sheet and referred to as account B,
my son’s account
with account number being an FNB Smart account 6[…]; account C
my other personal bank account being
an ABSA account with number
9[…]; account D my other personal bank account also FNB 62[…].
Lastly,
the account details of the municipal account as explained, the
account number and the reference 3[…]. I admit that
32 Alston
as appearing was not the correct recipient details.
I
admit that I was mandated to pay account of the company’s
clients by way of transferring money from the company’s
business accounts over to the clients’ respective accounts.
I
admit that I unlawfully and with intent whilst in the performance of
my official duties, transferred monies into the above account
by
pretending to the company or its directors Paul Jenade or Kathleen
Jenade that all transactions done were the legitimate payments
of the
company and for the company’s clients whereas in truth and in
fact I knew that this was not the case and that I was
not authorised
to make the payments as is shown on the annexure to the charge sheet.
I
admit that I defrauded the company by false pretences and induced the
company and the Jenade family to the prejudice as explained
above in
the amount totalling R1, 339 560.97. I have no defence in law and I
know that my conduct is punishable by law, I will
submit to the court
the reason for taking the money prior to sentencing”.
[3]
The appellant admitted to a record of a previous conviction of theft
committed on 3 September 2011 in respect of which three
months
imprisonment wholly suspended for a period of four years on customary
conditions, had been imposed.
[4]
The appellant was at the time of sentencing 49 years of age, a widow
and mother to 3 adult children aged 30, 28 and 22 years
respectively.
She passed matric and in addition had bookkeeping and secretarial
diploma. She was unemployed.
[5]
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
.”
[6]
Although the state had relied on the provisions of section 51 of the
Criminal Law Amendment Act 105 of 1997 (as amended), the
court in
imposing the sentence, did not rely on the minimum sentencing
provisions, but rather on its penal jurisdiction of up to
15 years
imprisonment (in terms of
section
92(1) (a) of the Magistrates’ Court Act 32 of 1944).
[7]
The trial magistrate had in his sentencing judgment remarked that he
could not ignore the fact that appellant had a pending
case of fraud
involving an amount of R51, 000-00. This aspect had emanated from a
presentencing report that was handed and admitted
into evidence. For
this, he was and justifiably so in my view, criticised by the
appellant. Before us the appellant contended that
the trial
magistrate misdirected himself which resulted in an unfair trial in
respect of sentence. It is trite that every accused
person is in
terms of the bill of rights presumed innocent until his or her guilt
is established by a court of law. To this end
therefore, the trial
court misdirected itself by making reference in its judgment and
sentence to the pending charge against the
appellant.
Despite the
misdirection set out above, this matter can and ought to be disposed
of by this court.
It
is not the end of the matter as every case has to be judged on its
own peculiar facts regard being had to all the circumstances.
[8]
White collar crime of late, has reached alarming proportions in this
country. They are serious crimes, whose corrosive impact
upon society
is undoubtedly, all too obvious. In this matter, the appellant abused
her position of trust. Very few companies can
enjoy financial
successes if their bookkeepers embezzle funds. Not all of the losses
of the complainants have yet been made good.
The losses are
substantial. In addition, the conduct complained of was premeditated
and persistent over a period of two years.
At least three of the
fraudulent transactions in respect of counts 116,117 and 118 were
committed after she had been sentenced
to a suspended jail term
referred to above. She participated in the criminal venture not just
to benefit herself but also her family.
It was not needed to satisfy
any of the necessities of life. In this case her children are already
adults. That she has not shown
genuine remorse for what she has done
is abundantly clear as the trial court also found. The fact that she
had been awarded temporary
custody of her grandchild cannot be viewed
in isolation. It is a matter that can be properly addressed by their
welfare authorities
in view of the interest of the child that reigns
supreme as section 28 (2) of our Constitution provides.
[9]
The trial court was correct
in
considering that that a custodial sentence is the only appropriate
sentence considering the circumstances of this particular
matter.
Deep sympathy for the appellant cannot and should not deter a court
from imposing the kind of sentence dictated by justice
and the
interests of society as a whole.
In
S
v Sadler
,
Marais JA held in this regard at para (11) that:
“
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”.
The
learned JA continued at para 12 as follows:
“
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.”
[10]
In this matter not only did the appellant, commits some of the
transgressions after she had been convicted and sentenced for
a
related crime, but she also misled the probation officer with regard
to her place of residence. This is a clear manifestation
that she had
not learned from the incidents of crime.
[11]
In the light of these factors it cannot be said that the sentence
imposed is startling or induces a sense of shock. On the
contrary, it
is consistent with sentences recently confirmed or imposed by the SCA
for fraud.
In
S v Price and Another
2003
(2) SACR 551
(SCA)
,
a 49 year old attorney and first offender was convicted of fraud
involving R1.945 million. Not only was he married but had three
dependent children. On appeal, a sentence of 15 years imprisonment
was confirmed.
In
S
v Blank
1995 (1) SACR 62
(A) at 73B-D
the court, in dealing with fraudulent conduct of a stockbroker, said
the following:
‘
In
view of all these facts, I feel fully justified in imposing a
sentence which will deter not only the accused and other stockbrokers
from committing crimes similar to those of which the accused has been
convicted, but also others involved in business who may be
tempted to
indulge in larger-scale crimes of dishonesty. The time has already
arrived when the severity of punishments imposed
for this sort of
crime while of course taking the personal circumstances of a
particular accused into account, should proclaim
that society has had
enough and that the courts, who are the mouthpiece of society, will
not tolerate such crimes and will severely
punish offenders: cf S v
Zinn
1969 (2) SA 837
(A) at 542D-E.’
(
Also
quoted recently in S v Brown
(681/2013)
[2014] ZASCA 217
(1 December 2014)
SCA at para 122)
.
[12]
In Brown the court also said at para 123 that:
“
What
this court said about stockbrokers applies equally to asset managers
who are in a fiduciary position in relation to investor
assets.”
The
appellant in this matter also abused her position of trust.
Under
the circumstances therefore the following order is proposed:
1.
The appeal against sentence is dismissed.
2.
The order by this court must immediately be brought to the attention
of the welfare authorities in this province regarding the
appellant’s
grandchild.
_________________________
MUDAU TP
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
___________________________________
DEVOS J
JUDGE OF THE HIGH
COURT
Date
of hearing: 5 February 2015
APPEARANCES
On
behalf of the appellant: Ms M B Moloi
On
behalf of the respondent: Adv A Coetzee
NPA