About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 40
|
|
S v Smith (646/07) [2007] ZASCA 40; [2007] SCA 40 (RSA) (28 March 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 46/06
REPORTABLE
In
the matter between:
HEATHER
JUNE SMITH
......................
APPELLANT
and
THE
STATE
......................
RESPONDENT
Before: Cameron,
Mlambo JJA et Theron AJA
Heard: 19 March 2007
Delivered: 28 March
2007
Summary: Sentence – motor
vehicle theft – first offender – sentence of four years’
imprisonment – on
appeal sentence found to be inappropriately
severe justifying interference – sentence reduced by suspending
two years conditionally.
Neutral
citation: This judgment may be referred to as
Smith
v The State
[2007] SCA 40
(RSA).
JUDGMENT
MLAMBO
JA
[1] This is an
appeal, with the leave of the Cape High Court (Goso AJ, Waglay J
concurring), against that court’s dismissal
of an appeal
against a sentence of four years’ imprisonment imposed by the
Wynberg Regional Court on one count of motor vehicle
theft. The
appellant had pleaded guilty to that count as well as four others of
theft of money totalling some R6 500. She was sentenced
to four
years’ imprisonment on those latter counts taken together,
which was suspended for five years on condition that she
was not
convicted of theft or fraud or attempt to commit theft or fraud
committed during the period of suspension. The four-year
term of
direct imprisonment on the motor vehicle theft conviction was imposed
despite a recommendation in a correctional supervision
report that
the appellant be sentenced in terms of s 276(1)(h) of the Criminal
Procedure Act, Act 51 of 1977. The appeal is against
only that
sentence.
[2] The facts in
relation to the relevant offence are that the appellant, a
salesperson employed by Pierre Masado, trading as Steward
Car Centre,
in Diep River in the Western Cape, stole a Mazda 626 motor
vehicle the property of her employer and sold it to her
daughter who
used her own Honda Ballade motor vehicle as a trade in. She pocketed
the proceeds. (It seems from the evidence that
her daughter was also
a victim of the appellant’s misdeed, being innocent of
complicity in it.)
[3] The appellant
resigned when her employer, noting that the business was struggling
to make a profit even though it was selling
cars, initiated an
investigation. The investigation uncovered the appellant’s
deceit regarding the Mazda and other thefts of
money.
[4] All in all the
investigation uncovered a loss of R89 000 as a result of the
appellant’s chicanery for which she signed an
acknowledgement
of debt coupled with an undertaking of repayment at R2 000 per month.
The Mazda had been valued at R25 000 of which
her employer received
an insurance payout of R15 000.
[5] When imposing
sentence the regional court correctly criticized the correctional
supervision report as unhelpful and lacking in
substance. The
regional court confirmed that the appellant was a suitable candidate
for correctional supervision because she was
gainfully employed and
had a fixed residential address. The court further noted that it was
significant that the appellant was a
first offender and that courts
do not lightly sentence a first offender to direct imprisonment. The
regional court also noted that,
by pleading guilty, the appellant had
shown remorse though observing that (given the strength of the state
case) she did not have
much of a choice.
[6] The regional
court also took account of evidence led in aggravation of sentence
from Mr Masado. He informed the court that despite
the appellant’s
undertaking to pay off her debt in monthly instalments of R2 000,
she had failed to make any payments
even though she had obtained a
job after her dismissal. This evidence exposed the appellant as
having lied to the correctional officer
when she stated that she was
in fact paying off the amount.
[7] Masado told the
court that when the appellant was approached for information about
the whereabouts of the stolen Mazda she lied,
claiming that she had
sold it to a Mr van Eck – but offered no cooperation in tracing
him or in providing any details about
him, until her daughter
surfaced, seeking assistance to register the motor vehicle in her
name.
[8] The regional
court also considered the appellant’s personal circumstances as
recorded in the correctional supervision report.
At the time of her
trial she was 45 years old and married with four children aged 28,
26, 23 and 16 years. Her husband, though sickly,
was in the employ of
Telkom earning a modest income.
[9] Against this
background the regional court found that motor vehicle theft was a
serious offence: the more so because the appellant
had stolen from
her employer, thus abusing her position of trust. The regional court
in those circumstances concluded – though
mindful that it would
severely affect her – that direct imprisonment was the only
appropriate sentence.
[10] In this court,
counsel for the appellant criticised the regional court for imposing
direct imprisonment and submitted that the
regional court had
misdirected itself in not giving appropriate cognizance to the fact
that the appellant was a first offender and
that she had shown
remorse by pleading guilty. Counsel also submitted that the regional
court had misdirected itself by considering
the circumstances around
the commission of the theft of money (counts 2 to 5) as aggravation
for the motor vehicle theft count. It
must be said in this regard
that Masado’s evidence painted a poor picture of the
appellant’s scrupulousness, truthfulness
and integrity.
[11] It is correct
that a plea of guilty is an indication of remorse and the regional
magistrate though acknowledging this appeared
to downplay its
significance. This cannot however be viewed as a misdirection in
itself. In fact I can find no misdirection in the
regional court’s
reasons in arriving at its sentence. Certainly the theft of a motor
vehicle by an employee who breaches a
position of trust merits in my
view a custodial sentence, and not merely correctional supervision.
In my view, however, the sentence
is excessive if one takes account
of two cardinal facts: first, that the appellant was a first
offender, and second that the car
she stole was of relatively low
value. I refer in this regard to the judgment of this court in
S v
Gerber
[2006] ZASCA 27
;
2006
(1) SACR 618
(SCA). There this court gave global consideration to
sentences imposed in a number of cases on first offenders for motor
vehicle
theft. This court concluded – in a case that involved,
like the present, a ‘white collar’ offender – and
the theft of vehicles of considerably higher value than in the
present case – that a sentence of ten years’
imprisonment,
of which three years were conditionally suspended, was
excessive. A sentence of seven years’ imprisonment with two
years conditionally
suspended was substituted. The reasoning (at
623G) was:
‘
Die
appellant verdien beslis ‘n straf wat aan die boonste grens van
gangbare strawwe lê. Nietemin dink ek dat die opgelegde
straf
met inagneming van huidige vlakke van strafoplegging en die
persoonlike omstandighede van die appellant, treffend onvanpas
is.’
[12] Indeed
consistency in the sentencing of offenders in desirable and should be
strived for. This however does not mean that courts
should
tailor-make their sentences in keeping with sentences imposed in
other cases, in total disregard of the particular circumstances
of
each particular case. In this case the factors in favour of the
appellant which can be regarded as mitigatory are that she is
a first
offender and demonstrated remorse by pleading guilty. Although some
damaging evidence in aggravation was led, my view is
that the
sentence is inappropriately severe, the more so because the loss she
occasioned to her employer was mitigated. The magistrate
took no
discernible account of the fact that the appellant’s employer
received an insurance pay-out for more than half of the
on-sale value
of the vehicle. The loss eventually suffered thus totalled only
R9 000. That is toward the lowest end of losses
inflicted by the
crime of vehicle theft.
[13] In these
circumstances in my view an appropriate sentence is one of four
years’ imprisonment, two of which are suspended
for five years
on condition that the appellant is not convicted of theft or
attempted theft of a motor vehicle within the period
of suspension.
[14] The appeal
therefore succeeds. The sentence imposed by the regional court is set
aside and replaced with a sentence of four years’
imprisonment,
two of which are suspended for five years on condition that the
appellant is not convicted of theft or attempted theft
of a motor
vehicle within the period of suspension.
____________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
CAMERON JA
THERON AJA