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Maqhunyana v Minister of Safety & Security and Others (2265/2009) [2011] ZAECMHC 9 (27 January 2011)

80 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sentencing — Appeal against sentence — Inappropriate sentence for theft of public funds — Respondent convicted of theft of VAT amounting to R112 925.90, sentenced to R10,000 fine or three years imprisonment, with a further three years suspended — State appealed on grounds of misdirection and disproportionate sentence — Court found that the magistrate overemphasized personal circumstances and failed to adequately consider the seriousness of the offence and its impact on society — Original sentence set aside and replaced with a fine of R10,000 or three years imprisonment, and three years suspended on conditions.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns a sentence appeal brought by the Director of Public Prosecutions (the appellant) against the sentence imposed on Mario Quinton Peters (the respondent) following his conviction in the magistrates’ court.


The appeal was pursued with leave granted by two judges of the Eastern Cape Division in terms of section 310A of the Criminal Procedure Act 51 of 1977. The conviction itself was not in issue; the appeal was directed solely at the appropriateness and legality of the sentence imposed.


The matter arose from the respondent’s conviction on six charges of theft relating to value-added tax (VAT) collected in the course of business and not paid over to the South African Revenue Service (SARS). For purposes of sentence, the magistrate treated all six counts as one.


The general subject-matter of the dispute was the proper application of sentencing discretion in cases involving theft of public revenue (VAT) and the extent to which a sentencing court may place weight on factors such as the offender’s personal circumstances, delay, and a plea of guilty, in circumstances where the offences involve a breach of trust and significant financial prejudice to the fiscus.


2. Material Facts


The material facts accepted and relied upon by the High Court were largely undisputed.


The respondent was 34 years old, a family man, and a breadwinner. At the time of sentencing his wife was pregnant with twins who were due to be born within approximately two weeks. He was the sole member of MP Civils Construction CC, a close corporation registered as a VAT vendor responsible for collecting VAT and paying it over to SARS.


During the period December 2002 to October 2003, the respondent collected VAT in the total amount of R112 925.90. He failed to deposit that amount to SARS despite having a credit balance in his bank account. The High Court treated this conduct as constituting theft, and accepted that the respondent was correctly convicted on his plea of guilty.


In respect of sentence-related facts, the magistrate considered that there had been some delay in finalising the trial, that the respondent was a first offender, and that his plea of guilty indicated remorse. The magistrate also considered that the respondent was capable of repaying the amount.


The High Court emphasised that the respondent did not give evidence in mitigation that would enable the sentencing court to assess matters bearing on remorse, including what motivated the offending conduct and what prompted any alleged change of heart. The court treated this as material to whether remorse had been properly established as a mitigating factor.


3. Legal Issues


The central legal questions concerned the exercise and review of sentencing discretion on appeal.


The High Court was required to determine whether the magistrate committed a material misdirection in sentencing, thereby justifying appellate interference, or whether (even absent a material misdirection) the sentence imposed was so disturbingly inappropriate that it warranted interference under the established appellate test.


A further issue was whether the magistrate’s finding of remorse based primarily on the respondent’s plea of guilty was justified on the facts and law. This was a question involving the application of legal principles to fact, specifically the factual basis required for remorse to be treated as a mitigating factor.


Additionally, the court had to consider whether the magistrate properly applied the traditional sentencing approach requiring a balancing of the triad of factors (the crime, the offender, and the interests of society), and whether the sentence sufficiently reflected the seriousness of theft involving public funds and a breach of trust.


4. Court’s Reasoning


The High Court approached the matter through established principles governing sentencing and appellate interference. It reiterated that sentencing is primarily within the discretion of the trial court, but that an appeal court may interfere where that discretion is vitiated by material misdirection, or where the disparity between the sentence imposed and the sentence the appeal court would impose is so marked that it is properly described as shocking, startling, or disturbingly inappropriate (as restated in S v Malgas).


A significant part of the court’s reasoning addressed the magistrate’s reliance on the respondent’s plea of guilty as demonstrating remorse. The court rejected the proposition that a plea of guilty, without more, constitutes remorse. Relying on S v Matyityi, it treated remorse as a factual enquiry requiring genuine contrition, which must be inferred from surrounding circumstances and conduct. The court emphasised that remorse requires an acknowledgment of wrongdoing and its consequences, and that the court must be placed in a position to evaluate the offender’s sincerity. It reasoned that, in this matter, the respondent had not provided evidence explaining his motive, what prompted a change of heart, or demonstrating efforts indicating genuine penitence. The documentary evidence was described as conclusively proving guilt and leaving no escape route, rendering the plea of guilty, in the circumstances, neutral rather than demonstrative of remorse. The magistrate was accordingly found to have misdirected herself by treating the plea as evidence of remorse.


The High Court further found that the magistrate’s sentence did not reflect a proper balancing exercise in accordance with the sentencing triad articulated in S v Zinn. It held that the record did not indicate that the magistrate gave adequate and equal consideration to the gravity of the offence and the interests of society, and that the magistrate instead appeared to have overemphasised the respondent’s personal circumstances while underemphasising the seriousness and broader impact of the offence on the fiscus. The judgment treated the offences as serious, motivated by greed, and involving a breach of trust by a person entrusted to collect and pay over revenue.


In evaluating the structure of the original sentence, the High Court considered its practical effect. The sentence was fashioned such that, once the respondent paid the fine and refunded the amount (as a condition tied to suspension), he would effectively be a free person, with the suspended term having no real operative impact and the fine lacking sufficient deterrent force. The court reasoned that such a sentence would convey an inappropriate message to the public in cases involving theft of public funds by someone charged with duties toward the revenue authorities.


In light of these considerations—particularly the misdirection on remorse and the failure to balance the triad properly—the court concluded that the magistrate committed a misdirection justifying interference, and it proceeded to substitute a sentence it considered appropriate within the constraints of appellate sentencing.


5. Outcome and Relief


The High Court upheld the appeal against sentence. It set aside the sentence imposed by the magistrate and substituted it with a revised sentence.


The respondent was sentenced to pay a fine of R10 000.00, failing payment of which he would undergo three years’ imprisonment. In addition, the respondent was sentenced to a further three years’ imprisonment, suspended for five years on condition that he is not convicted during the period of suspension of theft or an offence involving an element of dishonesty.


The respondent was also ordered to refund SARS the amount of R112 925.90. The substituted sentence was antedated to 17 February 2009. The judgment, as provided, did not record a separate costs order.


Cases Cited


S v Matyityi (Case No 695/09) [2010] ZASCA (as cited in the judgment at paragraph [13]).


S v Malgas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222; [2001] All SA 220.


S v Salzwedel and Others 1999 (2) SACR 586 (SCA).


S v Zinn 1969 (2) SA 537 (A).


S v Sadler 2000 (1) SACR 331 (A).


S v Swaart 2000 (2) SACR 556 (A).


Legislation Cited


Criminal Procedure Act 51 of 1977, section 310A.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the magistrate misdirected herself in sentencing by treating the respondent’s plea of guilty as establishing remorse without an adequate factual basis, and by failing to demonstrate a proper balancing of the sentencing triad, resulting in an unbalanced sentence that underemphasised the seriousness of theft of public funds and the interests of society.


It further held that these misdirections justified appellate interference, leading to the setting aside of the original sentence and its replacement with a sentence comprising a fine (with an alternative term of imprisonment), an additional suspended term of imprisonment with a condition relating to future dishonesty offences, and an order compelling repayment to SARS, antedated to the original sentencing date.


LEGAL PRINCIPLES


The judgment applied the principle that an appellate court may interfere with a sentence only where the trial court committed a material misdirection vitiating its sentencing discretion, or where the imposed sentence differs so markedly from the sentence the appellate court would impose that it is “shocking”, “startling” or “disturbingly inappropriate”, as articulated in S v Malgas.


It applied the principle that a proper sentencing enquiry requires a balanced consideration of the sentencing triad: the crime, the offender, and the interests of society, as formulated in S v Zinn. Overemphasis of personal circumstances coupled with insufficient regard for the seriousness of the offence and societal interests constitutes a misdirection in the exercise of sentencing discretion.


The judgment further applied the principle that remorse is not established merely by a plea of guilty, especially where the case against an accused is strong. Genuine remorse is a factual matter assessed from the offender’s conduct and the surrounding circumstances, requiring an explanation and demonstration of contrition sufficient to allow a court to evaluate sincerity, in line with S v Matyityi.

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[2011] ZAECMHC 9
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S v Peters (RCUMB 36/05) [2011] ZAECMHC 9 (10 February 2011)

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: MTHATHA
)
CASE NO: RCUMB 36/05
In the matter between
THE STATE
….................................................................................
APPELLANT
And
MARIO QUINTON PETERS
….................................................
RESPONDENT
_____________________________________________________________
APPEAL JUDGMENT
PAKADE J.:
[1] This is an appeal by the Director of Public
Prosecutions against the sentence of R10 000-00 or three years
imprisonment plus
a further three years imprisonment which was
suspended on condition that the respondent paid South African Revenue
Service(SARS)
an amount of R112 925- 90 not later than a specified
date. The appeal is with the leave of two judges of this Division
granted
in terms of
section 310A
of the
Criminal Procedure Act, 51 of
1977
.
[2] The conviction and sentence arose from six charges
of theft of value added tax (vat) amounting to R112 925 -90. The
respondent
was convicted on his plea of guilty to the charges and for
purposes of sentence all the charges were treated as one.
[3] The sentence is challenged on the ground,
inter
alia
, that it is inappropriate and out of proportion to the
magnitude of the offences for which the respondent was convicted
because
as submitted by Adv Van Drunick, counsel for the state, the
magistrate, while over-emphasizing the personal circumstances of the

respondent, also under-emphasized the economic impact of the offences
to the
fiscas
; is irregular, unreasonable, unbalanced and
based on an improper exercise of discretion which brought about a
miscarriage of justice.
[4] The Magistrate has justified the sentence as
appropriate on the grounds that the respondent is capable to pay back
the embezzled
amount, that there was some delay in the finalization
of the trial, that he is a first offender and also that his plea of
guilty
indicates that he is remorseful. In arriving at the sentence,
the magistrate does not appear to have balanced the mitigating
factors
against the aggravating circumstances, save only to mention
that the offence is serious as having been actuated by greed and had

constituted a breach of trust. If she did the balancing exercise that
should have been reflected, but was not, in the type of the
sentence
imposed.
[5] The record shows that the respondent is a 34 year
old young family man who is a bread winner. His wife was pregnant
with twins
who were due to be born in two weeks time from the date of
sentence. He is a sole member of a close corporation, the MP Civils
Construction CC. The close corporation is registered as a vendor for
the collection of value added tax for the purposes of paying
it to
the South African Revenue Service.
[6] During December 2002 and October 2003, the
respondent collected vat amounting to R112 925 -90 but failed to
deposit it to SARS
although he had a credit balance in his bank
account. This is theft and he was correctly convicted.
[7] It cannot be correct, however, that a mere plea of
guilty constitutes an element of remorse. The accused must go further
than
merely tender a plea of guilty. The element of remorse must be
inferred from the surrounding circumstances of the plea itself, like

spilling the beans and confessing his guilt, making good the damage
he has caused to the complainant and handing himself over to
the
police. The plea of guilty must show genuine penitence on his part.
This view is fortified by Ponnan JA in S v Matyityi
1
in which he said:
“Remorse was said to be manifested in him pleading guilty and
apologizing through his counsel (who did so on his behalf from
the
bar) to both Mrs KD and Mr C. It has been held, quite correctly, that
a plea of guilty in the face of open and shut case against
an accused
is a neutral factor. The evidence linking the respondent to the
crimes was overwhelming…
Remorse is a gnawing pain of conscience for the plight of another.
Thus genuine contrition can only come from an apprehension 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 (emphasis mine). 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”.
[8] All these factors are peculiarly within the
knowledge of the respondent in
casu
who
knowingly withheld them from the
court a quo
for it to explore his allegation of remorse. Because he
has not given evidence, the court still remains oblivious of his
motive
to commit the offence and what caused his subsequent change of
heart. The documentary evidence provided conclusive proof of his

guilt beyond a reasonable doubt, thus closing every escape route for
him. In my view, the plea of guilty in the circumstances of
his case
does not constitute an element of remorse and the magistrate, with
respect, misdirected herself in finding that it does.
[9] The principles of sentencing have been laid down and
followed in a number of authoritative cases. The test for
interference
with a sentence on appeal was restated by
Marais
JA
in the classical case of
S
v Malgas
2
as follows:
“A court exercising appellate 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
substitute the sentence arrived at by it simply because it prefers

it. To do so would be to
usurp
the sentencing discretion of
the trial court. Where material misdirection by the trial court
vitiates its exercise of that discretion,
an appellate court is of
course, entitled to consider the question of sentence afresh. …
However, even in the absence of
material misdirection, an appellate
court may yet be justified in interfering with the sentence imposed
by the trial court…
when the disparity between the sentence of
the trial court and the sentence which the appellant court would have
imposed had it
been the trial court is so marked that it can properly
be described as ‘shocking’ ‘startling’ or
‘disturbingly’
inappropriate”.
[10] In
S v Salzwedel and others
3
the lenient sentence imposed on the respondent upon a
conviction of a horrendous premeditated, brutal murder on a disabled
hunch
back was set aside on appeal. The trial court had reasoned that
direct imprisonment would serve no purpose other than retribution
and
sentenced them to wholly suspended sentences.
[11] The difference between the sentence that was
imposed by the trial court and the sentence that the appeal court
would have imposed
had it been sitting as a court of first instance
was so marked that it called for interference with the sentence. The
appeal court
found that the trial court exercised its penal
discretion unreasonable. The appeal court also found that the trial
court had underemphasized
the seriousness and the gravity of the
offence and that it is what resulted in an unreasonable and improper
exercise of its discretion
4
.
[12] As already alluded to above, the sentence imposed
by the magistrate is not the culmination of a balancing exercise of
the basic
triads of sentencing as set out in
S v Zinn
1969 (2 SA
537)(A)).
There is no indication in the record that apart from
the personal circumstances of the respondent which the trial court
appears
to have overemphasized, the gravity of the offence and the
interest of society were ever taken into consideration as factors
also
affecting the imposition of the sentence. These factors have to
be taken into consideration on an equal basis without over or
under-emphasizing
the one against or above the other. The seriousness
of the offence and the protection of society should be considered on
a equal
basis with the mitigating factors. This, the sentencing court
did not do.
[13] The sentence imposed on the respondent was
fashioned in such a way that once he paid the fine and refunded the
embezzled amount,
he would be a free man. The three years suspended
sentence would have no effect on him and the fine was not of
sufficient deterrence.
In my view that type of sentence sends a wrong
message to the public, especially in a serious offence involving
theft of public
funds by a person entrusted with a duty to collect
and pay them over to the Receiver of Revenue.
[14] In the circumstances, the magistrate committed a
misdirection of the nature which justifies interference with the
sentence
imposed on the respondent.
The following order is therefore made;
The appeal succeeds;
The sentence is set aside;
The accused is sentenced to pay a fine of R10 000-00 or
in default to undergo (3) three years imprisonment.
The accused is further sentenced to undergo (3) three
years imprisonment suspended for five (5) years on condition the
accused
is not convicted of theft or an offence involving an element
of dishonesty committed during the period of suspension.
The accused is ordered to refund the South African
Revenue Service an amount of R112 925-90.
The sentence is antedated to 17 February 2009.
_______________
L.P PAKADE
JUDGE OF THE HIGH COURT
02 FEBRUARY 2011
I agree:
_______________
D.Z DUKADA
ACTING JUDGE OF THE HIGH COURT
For the Appellant : Adv A. Van Drunick
Represented by : National Public Prosecution
For the Respondent : Adv A.R. Duminy
Instructed by : Keightley Incorporated
Heard on : 20 November 2009
Delivered on : 10 February 2011
1
Case
no: (695/09)[2010 ZA SCA at p. 7] par [13]
2
2001
(1)SACR 469(SCA); 2001(2) SA 1222; [2001] All SALR 220) par 12 at
478 d-g
3
1999
(2 SACR 586
[SCA]
4
{See
also S v Sadler
200 (1) SACR 331
A at 334 par 8: page 335 par 10: S
v Swaart 2000(2) SACR 556(A)).

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