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[2015] ZAGPPHC 558
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Stassen v S (A650/2014) [2015] ZAGPPHC 558 (11 August 2015)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: A650/2014
DATE:
11 AUGUST 2015
In
the matter between:
LIZETTE
STASSEN
.................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1
The appellant, a female first offender
aged 43, was convicted on a plea of guilty in a regional court of 138
counts of fraud and
72 counts of theft. The thefts were committed
over the period 5 November 2007 to 31 October 2010, ie just short of
three years.
The amount involved was R1 829 778.
2
The appellant was sentenced to
imprisonment for 7 years, three of which were suspended. With the
leave of the court below, she appeals
against the sentence imposed.
3
At
the time the offences were committed, the appellant was employed by a
concern described in the record as OUT Organisation, a
nonprofit
making organisation which depends on donor funds and assists the gay
and lesbian community of South Africa. The
appellant was in a
position of trust with OUT and had easy access to the funds of the
organisation because of her position there.
4
The personal situation of the appellant
at the time she was sentenced was that she was divorced from her
husband, with whom she
had a daughter, then aged 18 and living with
the appellant’s former husband, the child’s father.
Indeed, the daughter
lived with the appellant until she reached the
age of 16. This was in 2011, a year or so after the appellant had
begun a same sex
relationship. The daughter’s relationship with
her father was described by the appellant as “fantastic”.
According
to the appellant, the daughter did not always agree with
her mother’s lifestyle but understood her mother’s sexual
orientation.
5
The appellant led the evidence of a
community correction officer, an independent criminologist and the
appellant herself in mitigation
of sentence. The state adduced the
evidence of a director of OUT, Mr Cameron-Ellis, in aggravation. The
community correction officer
recommended correctional supervision as
an appropriate sentence. Central to the recommendation of this
officer was the submission
that the appellant
...
does not pose any danger to the society and therefore cannot be taken
away from the community.
6
The criminologist described the
appellant as a kind-hearted person who used the money to enhance her
status in the eyes of other
people, to help other people and to
enable her to enjoy a lifestyle she could not afford on her salary
from OUT of R22 000 per
month. The criminologist drew attention to
the inadequate financial controls at OUT which made it easy for the
appellant to commit
the crimes. She submitted that this form of
punishment should only be considered if the need for removing the
offender from society
justifies the cost to society of maintaining
the offender in prison. She submitted that the appellant should not
be considered
a hardened criminal and had excellent potential for
reform. She pointed to the shortcomings of prisons in our country at
present.
I take judicial notice of the fact that our prisons are
overcrowded and often badly run and that criminals who enter the
prison
environment often leave more hardened criminals than when they
entered.
7
In
her evidence, the appellant said that she used the money to help
others and to maintain a standard of living. The submission
was made
on behalf of the appellant that she herself reported the crime to
OUT. This is true but the appellant made it plain in
her evidence
that she did so just before an annual audit in was due to be
performed in 2010 and
...
I realised, that possibility of that it should be discovered was
quite good and I resigned basically.
8
She then approached a director of OUT,
Mr Cameron-Ellis and confessed to him. The inference is irresistible
that she went on stealing
from and defrauding OUT until she realised
that she would probably be caught. After that the appellant
cooperated with the financial
investigation to determine the scope of
her criminal conduct. She said she realised she had made a mistake
which she wanted to
rectify. She apologised in an email to Mr
Cameron-Ellis.
9
The appellant obtained employment with
an insurance company in 2012 where she does not handle finances. She
offered R10 000 per
month to OUT in restitution. She had made one
payment of R10 000 to OUT by the time she gave evidence at her trial
in 2013. At
the hearing before us, it was stated by counsel to be
common cause that by this stage, the appellant had paid back a total
of R100
000. She described herself as remorseful for what she had
done. If she were to sentenced to imprisonment for longer than 10
months,
she said, her employment with the insurance company would be
terminated.
10
Mr Cameron-Ellis described the financial
position of OUT as a result of the appellant’s conduct. It had
been rendered insolvent
and had lost the support of two of its major
donors. OUT had nevertheless managed to continue its operations and
secure the support
of new donors. From the outward manifestations of
the appellant’s conduct towards OUT, Mr Cameron-Ellis concluded
that the
apology tendered by the appellant was too little too late.
The board of OUT was not convinced that there was true remorse. He
pointed
out that a repayment of R10 000 per month would not even
cover the interest on the amount misappropriated by the appellant. He
said that given the small amount offered in repayment and the large
amount misappropriated, the board of OUT would rather the appellant
go to prison.
11
In sentencing the appellant, the
regional magistrate pointed to the seriousness of the offence and the
inadequacy of the offer of
repayment in relation to the amount
misappropriated. Of central importance for present purposes, the
regional magistrate did not
believe that the appellant was
remorseful; he found that the appellant merely regretted that she had
been caught. The regional
magistrate accepted that the facilities in
prison left much to be desired from the perspective of rehabilitation
but laid emphasis
on the incentive not to return to prison that
incarceration would promote. The court below discounted the lack of
financial controls
in OUT in a mitigating factor and pointed out that
a position of trust required those in that position to respect the
property
of the employer.
12
On appeal before us, counsel for the
appellant laid emphasis on three factors which it was submitted
constituted misdirections by
the court below. The first was the
rejection as lacking in value the appellant’s offer of
repayment at R10 000 per month.
13
The appellant’s offer would never
repay any of the capital amount stolen if the loss were, as it surely
must in law, attract
interest even at the current reduced
mora
interest rate of 9% per annum. The court below pointed to the fact
that any threat of a suspended sentence’s being brought
into
operation if the appellant defaulted would lapse after five years,
the maximum period for which any sentence could be suspended.
It
found the offer wholly inadequate in the present context. I do not
think that this conclusion was incorrect as such, subject
to what
follows.
14
I
think that the court below was correct in concluding that the
appellant was not moved by remorse to
report
her crimes to Mr Cameron-Ellis but I differ from the regional
magistrate in relation to what followed.
15
Remorse was authoritatively described in
S
v Matyityi
2011 1 SACR 40
SCA para 11:
There
is ... 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.
16
Like other manifestations of mind
relevant in a legal context, the only person who can testify at first
hand to an accused person’s
remorse is the accused herself. The
rest of us, and in particular, judicial officers, have to judge on,
apart from the say so of
the accused, the outward manifestations of
the accused’s mind. In the present case, the appellant herself
testified that
what prompted her to confess - and to stop stealing -
was the fear that the imminent audit would reveal her criminal
conduct. In
effect, she decided to get in first.
17
But thereafter she assisted the
investigators where she could and made an offer to repay when she
could. She conveyed a formal apology,
perhaps at a relatively late
stage. She offered to make restitution to the extent that she was
able. I cannot think what more she
could have done. The appellant did
not persuade Mr Cameron- Ellis that she was genuinely remorseful. But
I shall bear in mind that
this was a difficult time for the appellant
and that everybody is not able readily to convey their innermost
feelings to others.
The absence of remorse when the issue of remorse
is raised, like all other issues in a criminal trial except (as the
law presently
stands) the sanity of the accused when raised as a
defence, must be established by the state beyond a reasonable doubt.
I do not
think that the state has discharged that onus. I therefore
find that there is a reasonable possibility that by the time of her
trial, the appellant felt remorse for the wrong she had done.
18
The third submitted misdirection is the
characterisation by the regional magistrate of correctional
supervision as being like a
slap on the wrist. What the regional
magistrate said was this:
[Dit
is] vir die hof duidelik dat die [aanbevole] straf wat die
proefbeampte [aanbeveel], dit is totaal onvanpas, totaal.
Want
dit sal soos ‘n klap op die hand wees. Die hof het
verwysingssake, waar sekere vonnisse vir hierdie tipe misdrywe opgele
is en die hof kan 10 keer meer aanhaal... in gevangenisstraf gaan
[wees], vir minder....
19
Counsel for the appellant correctly
submitted, with reference to authority, that correctional supervision
is a punishment in its
own right which should be utilised in
appropriate cases and which can in an appropriate case create a
greater chance for rehabilitation
than our overcrowded prisons.
Counsel also submitted that the judgment of the court below asserted
that appellant’s personal
circumstances should carry little
weight. I think what the regional magistrate was saying in effect was
that it was his view these
factors carried little weight in the final
outcome when viewed against the seriousness of the offence and its
prevalence and the
harm done to OUT. I do not think that in this
regard there was a misdirection.
20
Be that all as it may, I agree with
counsel for the appellant that this court should consider an
appropriate sentence untrammelled
by the exercise of the discretion
of the court below.
21
In undertaking this task, I take into
account as requested by counsel for the appellant that the appellant
is a first offender,
was 43 at the time of her trial, is divorced
with one child and is employed by an insurance company at a salary of
about R22 000
a month. I take into account too that the appellant
ultimately felt remorse
[I]
and that a lengthy term of imprisonment will cause the appellant to
lose her job.
22
Against that I weigh the gravity of the
offence. The appellant must have known that OUT was a non-profit
organisation dependent
on donations for the performance of the good
works which it undertook.
I
weigh too in this context that the
appellant continued to misappropriate funds over a lengthy period and
was moved to confess her
crimes in the first instance by the fear of
apprehension rather than a change of heart in relation to the
wickedness of her conduct.
23
After careful consideration, I have
decided that a sentence of correctional supervision, coupled with a
suspended sentence of imprisonment,
is best suited to the present
case. I do not do so with any sense of enthusiasm. I think that the
appellant
deserves
to go to prison for
what she did. I do so because the present state of our prisons does
not make them adequate environments for
the rehabilitation of the
appellant, a first offender who has not been found guilty of acts of
violence and who does not present
a danger to society. Correctional
supervision with house arrest will in the present case carry the
advantage that the appellant
will not lose her job and become an
unproductive member of society and, perhaps, act as an incentive to
the appellant to repay
what she has misappropriated from OUT. I shall
make clear that the order of this court is not to be read as
prejudicing OUT in
any civil proceedings which it is advised to take
against the appellant.
24
We are indebted to counsel who submitted
a draft order reflecting our decision to impose a sentence of
correctional supervision.
25
I
make the following order:
1
The convictions are confirmed but the
appeal against sentence succeeds. The sentence imposed by the court
below is substituted by
what follows.
2
The accused is sentenced to seven years
imprisonment, all of which is suspended for a period of five [5]
years on condition that:
2.1
the accused is not convicted of theft or
fraud committed during period of suspension and for which the accused
is sentenced to direct
imprisonment; and
2.2
the accused submits herself to
correctional supervision for a period of 3 years and, in that regard,
subjects herself to reasonable
monitoring by the Commissioner and
complies with all reasonable directives issued by the Commissioner in
relation to the execution
and administration of this sentence;
2.3
the accused pays compensation to the
amount of R600 000 to the complainant, OUT Organisation, in monthly
instalments of R10 000.00;
2.4
the first payment of the compensation
ordered above is made on or before 30 August 2015 and payments as
ordered are made thereafter
on or before the seventh of each
succeeding month;
2.5
the accused provides the Commissioner of
Correctional Services (“the Commissioner) on request with proof
of payment of the
compensation to the complainant;.
2.6
the accused resides at a fixed address,
presently 386 Riverside Country Estate, Rif Avenue Kameeldrift and
does not change that
address without prior notice in writing to the
Commissioner;
2.7
the accused refrains from using alcohol
or drugs other than as prescribed by a medical practitioner;
2.8
the accused does not leave the
magisterial districts in which she is residing and in employment
except with the prior permission
of the Supervision Committee
appointed to supervise her case.
3
The accused must report with a certified
copy of this order:
3.1
in the first instance within one week of
the date of this order at Pretoria to the correctional court official
who gave a report
in her case, Ms Matshediso Suzan August, or failing
Ms August, the head of Pretoria Community Correction; and
3.2
thereafter to the Supervision Committee
notified to the accused by the head of Pretoria Community Correction
at the places and times
and on the dates communicated to her by that
body.
4
The accused is, in addition to the
above, in terms of s 276(1 )(h) of Act 51 of 1977, sentenced to three
years correctional supervision.
The correctional supervision shall
comprise the following measures:
4.1
HOUSEARREST at her home at 386 Riverside
Country Estate, Rif Avenue Kameeldrift (or such other address
notified as set out above)
from 18h00 to 05h00 on working days and on
non-working days from 18h00 the previous day to 05h00 on the first
working day following
the non-working day or days; provided that the
house arrest shall not operate during the periods reasonably required
for the following
activities:
4.1.1
Community service;
4.1.2
Church or other religious services;
4.1.3
Attendance of programs;
4.1.4
Recreation during the period determined
by the Supervision Committee;
4.1.5
Acquisitions of household goods during
the periods determined by the Supervision Committee.
4.2
COMMUNITY SERVICE for a period of
sixteen hours
per
month for a total period of 36 months, which shall comprise services
as determined by the correctional officer appointed to
the case of
the accused and which community service shall be performed on
weekends between the hours 08h00 and 16h00 at the place
determined by
the Supervision Committee.
4.3
PARTICIPATION in the programs determined
by the
Supervision
Committee as determined by the Supervision Committee from time to
time, under the supervision of the Supervision Committee.
5
This order shall operate in addition and
without prejudice to any order made in any civil proceedings against
the accused and in
favour of OUT Organisation or its successor in
title.
NB
Tuchten Judge of the High Court
6
August 2015
MA
MAKUME
Judge
of the High Court
6
August 2015
[I]
More correctly, that the absence of remorse had not been proved
beyond a
reasonable doubt