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[2012] ZAGPPHC 366
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Piater v S (A411/2011) [2012] ZAGPPHC 366 (7 December 2012)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO:
A411/2011
DATE: 7 DECEMBER
2012
REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ETHRESIA
MARGARETHA
PIATER
...........................................................................................
Appellant
and
THE
STATE
....................................................................................................................................
Respondent
JUDGMENT
MAKGOKA, J:
[1] The appellant, a
41 year-old woman, stood trial in the regional court, Heidelberg
(Gauteng). She pleaded guilty to, and was
convicted of, 22 counts of
fraud, 7 counts of forgery and uttering, and 1 count of theft. The
total amount of the fraud and the
theft is R444 689. She was
sentenced to an effective 7 years’ imprisonment. The appellant
appeals against the sentence, with
leave of the trial court.
[2] The appellant’s
bail was extended, pending the outcome of the appeal. One of the
conditions of bail was that the appellant
was required to be present
during the hearing of the appeal, and that should judgment be
reserved, also be present when judgment
was delivered. When we
reserved judgment, we relaxed this condition and ordered that her
presence was not required when judgment
is handed down.
Overview of the
offences
[3] The appellant
was employed as a senior administrative clerk at the magistrate
court, Heidelberg (Gauteng). Her duties entailed
the keeping of the
deposit account. During the period November 2005 to June 2007 the
appellant had on 22 occasions, made false
representations to her
employer that sums totalling R 389 253,57 had been paid to different
social grant recipients. The last of
such false representations
occurred on 26 July 2007, during which she withdrew a sum of R60 462,
40 from her employer’s bank
account and misappropriated it. On
30 July 2007 she returned R12 400 of that sum to her place of
employment and placed it in a
safe. She became ill and was
hospitalised. In her absence her seniors detected the shortage, and
upon her return to work, she was
confronted with the shortage. An
investigation ensued. The appellant returned the R48 062.40 by
handing it over to the investigating
officer. On the 20 August 2007
the appellant forged deposit slips and caused them to be uttered on
21 August 2007 in an attempt
to cover her fraud.
[4] For sentencing
purposes, a Correctional Officer’s report was received. The
appellant also submitted a pre-sentencing evaluation
report prepared
on her behalf by a forensic criminologist, Dr. EF Sonnekus, who also
testified in' mitigation of sentence. The
appellant did not testify.
Dr. Sonnekus interviewed the appellant, her husband, her daughter,
her brother and her pastor, for the
purpose of compiling his report.
He set out the appellant’s upbringing, which was largely
uneventful (at least for the present
purposes). After matric the
appellant obtained a three-year Diploma in State Administration. She
was thereafter employed by the
then Receiver of Revenue (now South
African Revenue Services (SARS)), and later by the Department of
Justice and Constitutional
Development (the DOJC), where she
committed the offences and was discharged from duty, after her
arrest. She had a total of 23
years as a civil servant.
[5] After her
discharge form the DOJC she found employment on a part-time basis at
her local NG Church of South Africa, on a monthly
salary of R3000.
She had been married for 19 years, from which marriage two minor
children were born, a boy aged 15 and a girl
aged 12. Her husband is
employed at a transport company in Vereeniging. He earns a net income
of R6 800. The couple was under debt
administration at the time of
sentence.
[6] After her fraud
was discovered, she was suspended. She exhibited features of a mood
disorder. She was admitted to a hospital,
suffering major depression,
which resulted in serious impact in social and occupational
functionality. Medication was prescribed
for her. She was again seen
by a psychiatrist on 5 October 2007. She was still suspended and this
time, there was an added stress
factor, namely reports of possible
molestation of her daughter by her father-in-law in September 2007
when her child was 10 yeas
old. She and her husband laid a charge
with the South African Police Services (SAPS). Later the couple
withdrew the charge after
a “settlement” in terms of
which the father-in-law agreed to pay for the child’s
counselling sessions.
[7] On behalf of the
appellant, it was submitted that the sentence fell to be interfered
with on the basis that it induced a sense
of shock; that the trial
court erred by its conclusion that direct imprisonment was the only
suitable sentence, and not considering
other forms of punishment such
as correctional supervision or suspended sentence; that the trial
court overemphasized the seriousness
of the offences and the
interests of society at the expense of the appellant’s personal
circumstances; that the trial court
did not properly take into
account the element of mercy; that the trial court over-emphasized
the elements of retribution and deterrence;
that he did not consider
adequately the fact that the appellant is a first offender at the age
of 41 and that she had shown remorse
and that she was in a position
to pay back an amount of R395 754. 61; and that the appellant had
lost her job as a result of the
offences. The State supports the
sentence.
[8]
It is trite that sentencing is generally a matter that falls within
the discretion of a trial court. The appeal court’s
power to
interfere with a sentence is limited to instances where the sentence
is vitiated by an irregularity; misdirection; or
where the sentence
is shockingly disproportionate or where there is a striking disparity
between the sentence and that which the
appeal court would have
imposed, had it sat as the trial court. See generally: S
v
Snyder
1982
(2) SA 694
(A); S
v
Petkar
1988
(3) SA 571
(A) and S
v
Sadler
2000
(1) SACR 331
(SCA).
[9]
As to the nature of the misdirection referred to above, the following
was stated in S
v
PHlay
1977
(4) SA 531
(A) at 535E-F:
“
Now
the word “misdirection" in the present context simply
means an error committed by the Court in determining or applying
the
facts for assessing the appropriate sentence. As the essential
inquiry in an appeal against sentence, however, is not whether
the
sentence was right or wrong, but whether the Court in imposing it
exercised its discretion properly and judicially, a mere
misdirection
is not by itself sufficient to entitled the Appeal Court to interfere
with the sentence; it must be of such a nature,
degree, or
seriousness that is shows, directly or inferential, that the Court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such misdirection is usually and conveniently termed
one that vitiates the Court’s decision
on sentence”
(emphasis added).
[10]
The position was neatly summarized in S
v
Malgas
1
where
Marais JA held that:
“
A
court exercising appellant 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 substituted the
sentence arrived at by it simply because it prefers it. To do
so
would be up 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
of the trial court and the sentence which the appellate
court would
have imposed had it been the trial court is so marked that is can
properly be described as “shocking”,
“startling
1
’
or “disturbingly inappropriate”.’
[11] Two crisp
issues fall to be decided in this appeal, namely:
(a) whether the
regional court misdirected itself in disregarding the mitigating
factors placed on record by the appellant’s
counsel from the
Bar; and
(b) whether the
regional court had due regard to the best interests of the
appellant’s two minor children during sentencing.
[12] I consider the
issues in turn.
Ex
parte
mitigatory
factors from the Bar
[13] What happened
in this regard is this. The appellant did not testify in mitigation
of sentence. The only witness called on her
behalf was Dr. Sonnekus.
During Dr. Sonnekus’ evidence the court pertinently asked him
whether the appellant had told him
the reason why she committed the
offences and what she did with the stolen money. Dr. Sonnekus’s
response was that the appellant
did not inform him about either of
the two issues. Neither did he enquire from appellant about these
because of the emotional state
of the appellant and her family at
that stage.
[14] During the
address in mitigation of sentence, the appellant’s counsel,
conveyed to the court that the appellant had instructed
him as
follows: she misappropriated the monies out of need and not for
luxuries. The appellant’s husband was retrenched in
2004 where
he was earning R10 000 per month. He then worked as an estate agent
on a commission basis. He was not successful in
that regard as he
only managed to sell only three houses in two years. The combined
family income was therefore not sufficient
to meet the expenditure -
she was effectively the breadwinner. The husband found a job in
January 2007, earning R3000 per month,
which was not of much help to
the dire financial situation. In October 2007 the husband became
employed in his present job, where
he earns R6 800 per month. The
couple did not have a vehicle “in their own name” and
that the family house was dilapidated.
[15]
During the course of his address on sentence, the prosecutor did not
challenge the veracity of the ex
parte
submissions
of the appellant’s counsel. On the contrary, he seemed to
accept them. The prosecutor said:
“
...(Y)our
worship, it is indeed so that as Mr. Van der Merwe (appellant’s
counsel) mentioned, that sometimes in the year 2007
then the husband
started working.”
The prosecutor then
emphasised that the offences were committed over a period of time,
during which among others, the appellant
stole a single amount of R60
000.
[16] In his judgment
on sentence, the regional magistrate lamented the fact that neither
the appellant or her husband testified
as to the reasons for the
theft and how the money was used. The learned regional magistrate
expressed his dissatisfaction as follows:
“
Tydens
mnr Van der Merwe se betoog op vonnis is die Hof vir die eerste keer
meegedeel dat u die misdrywe vanweë geldnood gepleeg
het.
Andermaal moet die Hof beklemtoon dat daar geen getuienis voorgelê
was om dit te bevestig sodat dit aan toetsing onderwerp
kon word nié.
’n Eenvouige berekening beteken dat u gemiddleld R21, 000.00
per maand gesteel het oor die tydperk van
21 maande heen.
Daarbenewens het u self gedurende daardie tydperk 'n bestendige
salaries ontvang as meer die wisselvallige verdienste
van u eggenoot.
Wat
die aard van die beweerde geldnood was en veral die omvang daavan is
nog nie aan die Hof geopenbaar nie. Die vraag bly dus steeds,
“wat
het van die sowat R400,000.00 geword in die bestek van 21 maande
terwyl daar tog inkomste in die huis was?” U
versuim om te
getuig ter strafversagting ten aansien van ’n ernstige misdryf
is ’n faktor was die Hof in ag mag neem
ten aansien van
vonnisoplegging. Sien in hierdie verband S
v
Martin
1996
(1) SACR 172
(W), ’n uitspraak van sy Edele,
adjunk-regterpresident Flemming.
[17]
In both written and oral submissions before us, Mr.
Myburgh,
counsel
for the appellant, argued, quite forcefully, that the learned
regional magistrate ought to have indicated to the appellant
that he
did not accept the submissions made by counsel and that he required
admissible evidence on why the offences were committed
and on what
the ill-gotten gains were spent. His failure to do so, counsel
submitted, had unfairly prejudiced the appellant, constituting
a
misdirection entitling this court to interfere.
[18]
The general approach is this. Statements from the Bar by a
practitioner are normally no more than argument. If they are to
receive greater weight, they must be admitted by the representative
of the State, or accepted as facts by the court. If such ex
parte
statements by a defending attorney or counsel or the court, they
acquire for purposes of sentencing the weight of facts proved
in
evidence; and the court is bound to consider them as though they had
been proved in evidence. They cannot simply be ignored
by the court.
Failure to take such statements or mitigating factors implicit in
such statements, will in an appropriate case, lead
to an interference
by a court of appeal or review. S
v
Mabala
1974
(2) SA 413
(C) at 422E-G; and S
v
Caleni
1990
(1) SACR 178
at 181 f-g. See however, S
v
Olivier
2012
(2) SACR 178
(SCA), where the practice was deprecated.
[19]
Where a presiding officer is not prepared to accept facts stated on
behalf of an accused in mitigation of sentence, he/she
should require
the attorney or counsel to lead evidence to establish his or her
statements. It is desirable that facts in mitigation
should be proved
in the ordinary manner so that the State should be in a position to
cross-examine, if necessary. See
R
v Shuba
1958
(3) SA (C) 844 at 845A.
[20]
From the authorities it is clear that under the circumstances, the
learned regional magistrate was obliged to accept the ex
parte
statements
of the appellant’s counsel. Failure in this regard amounted to
a misdirection. No doubt that such non-acceptance
had a direct
influence as to how he approached the sentence. Had he accepted those
statements, the approach to sentence, or at
least the period of
imprisonment, would necessarily have been different. It is therefore
the type of misdirection which justifies
interference by this court.
We are therefore at large to consider sentence afresh and impose what
we consider to be an appropriate
sentence under the circumstances.
That sentence has to have regard to the interests of the appellant’s
two minor children,
the aspect I now turn to.
The best
interests of the minor children
[21]
In
S
v M
(Centre
for Child Law as Amicus Curiae)
2
,
the
majority of the Constitutional Court set out the duties of a court
sentencing a primary caregiver of minor children. At para
28, the
court defined a primary caregiver as ‘the person with whom the
child lives and who performs everyday tasks like ensuring
that the
child is fed and looked after and that the child attends school
regularly’. The court held that focused and informed
attention
needed to be given to the interests of the children at appropriate
moments in sentencing process. What is expected of
the sentencing
court is to give sufficient independent and informed attention as
required by s 28 (2) and s 28(1 )(b) of the Constitution
3
,
to the impact on the children, of sending their primary caregiver to
prison. The objective is to ensure that the sentencing court
was in a
position adequately, to balance all the varied interests involved,
including those of the children placed at risk. The
form of
punishment imposed should be the one that least damages the interests
of the children, given the legitimate range of choices
available to
the sentencing court.
[22]
The court developed the following guidelines in applying the
principles set out above: Firstly, a sentencing court should
determine whether an accused is a primary caregiver, wherever there
were indications that this might be so. Secondly, the court
should
ascertain the effect on the children of a custodial sentence if such
a sentence was being considered. Thirdly, if on the
‘
Zinn
triad’
approach (which requires the court to consider the crime, the
offender and the interests of society) the appropriate
sentence was
clearly custodial and the accused was a primary caregiver, the court
must apply its mind to the question of whether
it was necessary to
take steps to ensure that the children would be adequately cared for
while the caregiver was incarcerated.
Fourthly, where the appropriate
sentence was clearly non-custodial, it must be determined bearing in
mind the interests of the
children. Fifthly, if there was a range of
appropriate sentences, the court must use the paramountcy principle
as an important
guide in deciding which sentence to impose.
[23] To summaries. S
28(2) read with s 28(1)(b) impose four responsibilities on a
sentencing court when a custodial sentence for
a primary caregiver is
in issue, namely:
(a) to establish
whether there will be an impact on a child;
(b) to consider
independently the child’s best interests. In other words, the
child’s best interest should not be considered
as an appendage
to the primary caregiver’s personal circumstances;
(c) to attach
appropriate weight to the child’s best interests; and
(d) to ensure that
the child will be taken care of if the primary caregiver is sent to
prison.
[24]
In
State v Howells
1999
(1) SACR 664
(C) it was observed that the ‘best interests of
the child’ principle, which forms part of our common law as
developed
by our courts, is given international legal significance by
the ratification by South Africa, on 16 June 1995, of the United
Nations
Convention on the Rights of the Child (UNCRC) (1989), art
3(1), which provides that in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the
best
interests of the child shall be a ‘primary consideration’.
[25]
In the present case, the minor children’s circumstances are
more favourable as to how they stand to be affected by direct
imprisonment than those in
S
v M
t
where
the appellant was a single mother, who was almost totally responsible
for the care and upbringing of her sons. The appellant
is not the
children’s sole caregiver. She is not ‘almost totally
responsible’ for their care. Her husband is
their co-resident
parent. He should be able to take care of them during her
incarceration. Although he works long hours, there
is nothing to
indicate that he will not be able to engage the child-care resources
needed to ensure that the children are well
looked after during his
absence at work. In my view custodial sentence will not
inappropriately compromise the children’s
interests. No doubt
the imprisonment of the appellant would have a negative impact on her
minor children, especially the girl-child,
who at her age, would need
a maternal figure. However, as would appear later, the appropriate
sentence in this matter is clearly
custodial.
[26]
S v M
has
clearly revolutionised sentencing in cases where the person convicted
is the primary caregiver of young children. It has reasserted
the
central role of the interests of young children as an independent
consideration in the sentencing process:
MS
v S
2011
(2) SACR 88
para 62; S
v
Pillay
2011
(2) SA 409
(SCA) para 24. However, in
MS
v S, above,
the
Constitutional Court, in dismissing the appeal, warned against
applying
S v M
to
cases that lie beyond the ambit of the court's decision in that case.
In my view, the present appeal is one such case. I therefore
conclude
that the learned regional magistrate correctly gave focused attention
to the interests of the appellants’ minor
children and balanced
them with other considerations.
[27]
Having established the proper jurisprudential basis on which sentence
in cases like the present is to be considered, I proceed
to consider
what sentence would be appropriate for the appellant. In S
v
Prinsloo
1998
(2) SACR 669
(W) Leveson J expressed strong views on sentencing
accused convicted of theft from employers. The head-note of the case
reads as
follows:
“
....I(n) the
world of commerce employers were compelled to place trust in their
employees. It was not possible for the employers
to conduct the
business of their concerns themselves. No alternative remained to
them but to repose confidence in their employees,
and when an
employee breached that trust his conduct had to be heavily penalised.
The employer was entitled to expect unswerving
honesty from the
employee in return for the wages he paid and the benefits he gave
him. Nothing but implicit acceptance of that
obligation by the
employee would keep the wheels of commerce turning smoothly. It was
the duty of the courts, whenever this sort
of misdemeanour was
detected, to send out the message that such conduct would be severely
punished’.
The
above remarks have often been cited as authority for the proposition
that in all cases of theft from an employer, a prison sentence
is
called for. See however, S
v
Kunene
2001
(1) SACR 199
(W), where the effect of
Prinsloo
is
explored and explained.
[28]
Although the imposition of sentence remains discretionary, it is
bound by judicial precedent and authority: S
v
Juta
1988
(4) SA 926
(TK) 927 D-F. It is in that context that I consider
sentences imposed by our courts, especially the Supreme Court of
Appeal (the
SCA) and its predecessor, in comparable cases.
[29]
In S
v Lister
1993
(2) SACR 228
(A), a 34 year old bookkeeper’s sentence of 4
years’ imprisonment was confirmed by the SCA, after she had
been convicted
of theft of R95 700 from her employer, which she stole
over a period of 11 months
[30]
In
Howells,
above,
the appellant had been convicted in the regional court of having
defrauded her employer of R100 000 over a period of two
years. She
had been sentenced by the regional court to 4 years’
imprisonment in terms of s 276(1 )(i) of the CPA. The appellant
was
divorced and had three dependent children. On appeal, the High Court
considered the interests of her minor children but held
that there
was no misdirection by the regional court in sentencing the appellant
to direct imprisonment. The court however, altered
the period of
suspension from 2 years to 1 year. The altered sentence by the High
Court was confirmed on further appeal by the
SCA. See
Howells
v S
[2000]
JOL 6577
(SCA).
[31]
In S
v Sinden
1995
(2) SACR 704
(A), the Appellate Division (as it then was) confirmed
an effective sentence of 4 years’ imprisonment on the
appellant, a
first offender, for stealing approximately R138 000 from
her employer. The amount had been stolen over a period of 14 months.
The
appellant was married and had three minor children.
[32]
In S
v Kearns
1999
(2) SACR 660
(SCA) a 28-year old unmarried woman had been convicted
in the regional court of theft of R67 000 from her employer over a
period
of three months. She was sentenced to an effective 3 years’
imprisonment. Her appeal to a provincial division having failed,
she
appealed further to the SCA. It was contended that the trial court
had erred in not imposing a sentence of correctional supervision
and
had placed insufficient emphasis on the seriousness of the offence.
The appellant also had a poor socio-economic background.
The SCA
confirmed the sentence on appeal to it.
[33]
In
S v Sadler
(above)
the appellant was a senior manager in a bank. He was convicted in the
High Court of numerous counts, including corruption,
fraud, forgery
and uttering. He was sentenced to terms of imprisonment which were
suspended in their entirety, and to a fine. The
Attorney-General (the
predecessor of the National Director of Public Prosecutions) noted an
appeal against the sentence. The SCA
upheld the appeal and set aside
the sentence and substituted for it a sentence of 4 years’
imprisonment, all counts taken
together for purpose of sentence.
[34]
In
Ramdeo v
Director of Public Prosecutions
[2007]
SCA 65 (RSA) the appellant and another accused had been convicted of
four counts of fraud in that they had issued false roadworthy
certificates. At the time of his conviction, the appellant was 45
years old, married, with three children, and a first offender.
He was
also gainfully employed. The magistrate took the offences together
for purposes of sentence and sentenced him to 5 years’
imprisonment that was conditionally suspended for 5 years. One of the
conditions of suspension in each case was that the sum of
R5 000 be
paid to SARS. The Director of Public Prosecutions appealed to the
High Court against that sentence. The High Court increased
the
sentence to 5 years’ imprisonment. The appellant appealed
against the order of the High Court to the SCA. The SCA remarked
that
the offences that were committed by the appellant were undoubtedly
serious and demanded a custodial sentence. The SCA upheld
the appeal
and substituted the sentence with that of 3 years’
imprisonment.
[35]
In
De Sousa v The
State
[2008]
ZASCA 93
(12 September 2008J the appellant had pleaded guilty to 13
counts of fraud. She had been part of a fraudulent scheme involving a
total amount of R1 000 228.94. She had benefitted only R90 0000 for
her participation in the scheme. She was 32 years old and a
first
offender. She had pleaded guilty and shown genuine remorse and
contrition. She had also signed an acknowledgement of indebtedness
in
favour of the complainant in the sum of R90 000, being the extent of
her benefit from the fraudulent scheme, and thereafter
paid the debt
in full. She had utilized some of the money to assist her mother, who
was in financial difficulty, and her sister
(whose husband was in
rehabilitation) to pay school fees. All counts having been taken as
one for the purposes of sentence, the
appellant was sentenced to
VA
years'
imprisonment, which was confirmed by the High Court. She appealed
further to the SCA, which set aside the sentence and imposed
4 years’
imprisonment.
[36]
In
Pretorius v The
State
[2008]
ZASCA 132
(26 November 2008), the appellants, two brothers, had
pleaded guilty to 91 counts of fraud in the regional court amounting
to R122
309, committed over a period of more than a year. They had
shown remorse. They had admitted to their fraud, and agreed to repay
the amount in question plus the costs of investigation into their
conduct. Both were first offenders, and principal breadwinners
in
their respective families, with young children. Their families would
be disrupted and severely affected by their imprisonment.
The court
sentenced them to 5 years’ imprisonment, and ordered them to
repay the ill-gotten gains, plus the costs of investigation
into
their fraudulent conduct. Both the High Court and the SCA dismissed
their appeal and confirmed the sentences.
[37]
In
MS v S
(above)
a 33 year old married mother of two young children pleaded guilty in
the regional court to, and was convicted, of forgery,
uttering and
fraud with a potential loss of R42 000. The offences were committed
during her course of employment at a firm of insurance
brokers. She
had a previous conviction for fraud, also committed in the course of
her employment with her previous employer. The
counts of forgery and
uttering were taken together for the purposes of sentencing. She was
sentenced to 2 years’ imprisonment,
conditionally suspended for
five years. On the count of fraud she was sentenced to 5 years’
imprisonment with the conditional
correctional supervision in terms
of s 276 (1)(i) of the CPA, which ail of the High Court, the SCA and
the Constitutional Court,
upheld.
[38]
In
Joubert v The
State
[2012]
ZAGPPHC 5 (3 February 2012), the appellant had been convicted of 20
counts of fraud totalling R425 843. 33. This arose from
a scheme
created for the purpose of defrauding SARS. The scheme comprised of
various legal entities which were instrumental in
unlawfully inducing
SARS into making VAT refund payments to the legal entities. In the
regional court he was sentenced to 7 years’
imprisonment,
wholly suspended for 5 years on standard conditions and that he
repays the amount of R425 843.33 to SARS with interest.
On appeal,
this court set aside the sentence and imposed an effective 3 years’
imprisonment, in addition to the appellant
repaying the stolen amount
with interest.
[39]
Back to the present appeal. It was submitted to us that the
appellant's plea of guilty in the trial court demonstrated her
penitence and remorse. Remorse is obviously an important
consideration in sentence. Genuine remorse must be distinguished from
self-pity and an unavoidable acknowledgement of guilt (when the
evidence is so overwhelming that admission of guilt is unavoidable).
Before remorse could be a valid factor in the imposition of sentence,
it has to be sincere, and the accused had to take the court
completely into his or confidence. See S v
Gerber
1998
(2) SACR 441
(NIC) at 449h-i; S
v
Seegers
1970
(2) SA 506
(a) at 511G-H and S v
Matyityi
2011
(1) SACR 40
(SCA) para 13.
[40] The fact that
the appellant pleaded guilty, is not of itself an indication of
remorse. Due consideration should be accorded
to the facts of each
particular case. In the present case, the State had a very strong
case against the appellant that a plea of
guilty was unavoidable. It
is in that light that her plea should be considered. The other factor
militating against a conclusion
that the appellant has shown genuine
remorse, is obviously her decision not to testify in mitigation of
sentence. Her evidence
would have, once and for all, demonstrated her
candour, by subjecting her statements of being needy, to the scrutiny
of cross-examination.
[41] In mitigation,
I take into account that the appellant’s pension contributions
had been lost, and that she has lost her
secure employment of the
past 23 years, in prevailing difficult economic circumstances. She
currently only earns R 3 000 per month.
The appellant has obviously
had to suffer in many ways. The embarrassment occasioned to herself,
her family and her church, is
clear. To her credit, she disclosed her
transgressions to her spiritual minister. Notwithstanding, she has
since been in gainful
employment since March 1993 as a secretary of
her church. Not only was the church aware of the fact that criminal
charges had been
preferred against her, but they had deemed it fit to
employ her. The trust that her church reposed in her under those
circumstances,
must undoubtedly count in her favour. There is little
likelihood that she will repeat the offences or that she in future
will constitute
a risk to society. From her personal circumstances,
she appears to be good human material. Her prospects for
rehabilitation look
good.
[42] On the other
hand, there are obviously aggravating factors. The offences were
committed while she was placed in a position
of trust by her
employer, concerning funds that were destined for the assistance of
the public and the needy. The offences where
committed over a period
of time where she had an opportunity for proper reflection, and to
stop. The fact that after the theft
was discovered, and while a
departmental investigation was underway, she tried to cover it up by
falsifying the bank deposit slips,
constitutes in my view, the single
most aggravating factor. There is nothing to suggest that she would
have stopped stealing, but
for being discovered.
[43] Counsel for the
appellant urged us to impose a sentence of correctional supervision
in terms of s 276(1 )(h) of the CPA. In
this regard, Dr. Sonnekus, in
motivation for correctional supervision, stated that direct
imprisonment would result in nobody taking
care of the minor
children, as her husband is employed and arrives home late. The
appellant mother was going blind. The paternal
grandparents were both
sickly. Dr. Sonnekus concluded therefore that the appellant was the
primary caregiver of the children. The
learned regional magistrate
took into account all these factors in his judgment. I have already
found that no misdirection was
committed in this regard.
[44] While a
non-custodial sentence of correctional supervision in terms of s
276(1 )(h) is appreciable, I conclude that such a
sentence is
inappropriate, in light of all the circumstances of the case. It
would totally ignore several of other objects of sentencing,
and not
drive home the seriousness of the offences. The broader community has
expectations that serious offences ought to be properly
punished.
Although the interests of the accused and her family called out for a
sentence of correctional supervision, the interests
of society
outweighed her own. The offences are serious and the sentence, as
such, does more than deal with her: it also constitutes
a message to
the society in which the offences occurred.
[45]
Because of the gravity of the offences, the contention that the
appellant does not deserve to be imprisoned, is untenable.
The notion
that the perpertrators of the so-called white collar crimes do not
deserve imprisonment, was rejected in S
v
Sadler
;
(above) where the following apposite remarks were made at para 11:
‘
So
called ‘white-collar’ crime had, 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
sentence for ‘white-collar’
crime. Their premise is that
prison is only a place for those who committed 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.’
A
sentence in terms of s 276(1)(i)
of
the CPA?
[46]
This type of sentence was described by Cameron J in
MS
v S
(above)
as 'the most flexibly lenient form of custodial sentence the Criminal
Procedure Act offers’. In S v
Scheepers
2006
(1) SACR 72
(SCA) para 10 it was pointed out that the usefulness of
this provision should always come to the fore when the sentencing
court
considers that imprisonment is essential, but that the
circumstances point away from an extended period. It entails
imprisonment,
but mitigates it substantially by creating the prospect
of early release on a correctional supervision programme. In the
present
case, the gravity of the offences, coupled with the
aggravating factors set out above, calls, in my view, for long term
imprisonment.
These, and the interests of society, far outweigh the
appellant’s interests and those of her family. I have given
anxious
consideration to this sentencing option, but after proper
reflection, I have decided against it.
[47]
To sum up. Upon a conspectus of all relevant factors, including the
nature and seriousness of the offences, the personal circumstances
of
the appellant, the mitigating and aggravating factors, as well as the
legitimate interests of society, I come to the conclusion
that a
custodial sentence is the only suitable one. Correctional supervision
would be an inadequate punishment. So too, I think,
would be a
sentence in terms of s 276(1 )(i) of the CPA. Taking everything into
consideration, I am of the view that nothing less
than direct
imprisonment for a substantial period will properly meet the aims of
punishment (being deterrence, retribution, prevention
and
rehabilitation); and balance the nature and seriousness of the
offences, the personal circumstances of the appellant and the
interests of society. I should also blend this with a measure of
mercy. I consider a period of 4 years’ imprisonment to be
appropriate. To mitigate the possibility of the children enduring
hardship during the appellant’s incarceration, and simply
as a
cautionary measure, I intend to make an order along the lines made in
MS v S
(above)
and S
v Howells
(above).
[48] In the result I
make the following order:
1. The appeal
succeeds to the extent that the sentence of seven (7) years’
imprisonment imposed by the regional court is set
aside and replaced
with the following sentence:
‘
1.
The accused is sentenced to 4 years’ imprisonment’.
2. The National
Commissioner for Correctional Services is directed to ensure that a
social worker in the employ of the Department
of Correctional
Services visits the children of the appellant, Mrs EM Piater, at
least once every month during the first three
months of her
incarceration, and submit a report to the office of the National
Commissioner as to whether the children of the appellant
are in need
of care and protection, as envisaged in s 150 of the Children’s
Act 38 of 2005 and, if so, to take reasonable
steps required by that
provision.
TM MAKGOKA
JUDGE OF THE
HIGH COURT
I agree
A J H BOSMAN
ACTING JUDGE OF
THE HIGH COURT
DATE OF HEARING :
26 MARCH 2012
JUDGMENT
DELIVERED : 7 DECEMBER 2012
FOR THE APPELLANT
: ADV JP MYBURGH
INSTRUCTED BY:
PETRO DE WITT ATTORNEYS, HEIDELBERG
FOR THE
RESPONDENT : ADV MS MOGOSHI
INSTRUCTED
BY: DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA.
1
2001
(1) sacr 469 (SCA)
(2001 (2) SA 1222
;
(2001) 3 All SA 220)
para12.
2
[2007] ZACC 18
;
2007
(2) SACR 539
(CC)
3
Constitution
of the Republic of South Africa Act 108 of 1996