About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 13
|
|
Whittaker v S (249/2009) [2010] ZAFSHC 13 (4 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 249/2009
In
the
matter
between:-
RICHARDO
WHITTAKER
Appellant
versus
THE
STATE
Respondent
CORAM:
CILLIé
et
MOCUMIE, JJ
HEARD
ON:
1
FEBRUARY 2010
_______________________________________________________
DELIVERED
ON:
4
FEBRUARY 2010
APPEAL
_______________________________________________________
MOCUMIE, J
[1] The
appellant appeared in the Regional Court of Kroonstad on three counts
of theft of diesel
valued at R535 454.17. He pleaded guilty and was convicted as
charged on all three counts on 11 May 2009. He was sentenced to
8
(eight) years imprisonment of which 2 (two) years were suspended for
4 years on certain conditions. All three counts were taken
as one
for purposes of sentence. He is now, with leave of the court
a
quo,
appealing
against sentence only. The appeal is opposed by the State.
[2] The
circumstances surrounding the commission of these offences can be
gleaned from the accused’s statement in terms of
section 112(2)
of the Criminal Procedure Act 51 of 1977
(“the
CPA”).
[3] In
short, the appellant was a manager at Engen (Pty) Ltd depot in
Kroonstad. He was in charge of and responsible for the sale
and
despatch of processed petroleum products including diesel. On three
specified occasions he, together with one Riaan van den
Heever, stole
fifty three thousand and twenty three (53023) litres of diesel from
Engen depot and sold it to a farmer in the area
of Senekal and kept
the rest for themselves. He was paid R100 000.00 and Riaan R67
000.00 in return.
[4] The
grounds of appeal as set out in the appellant’s amended notice
of appeal
are that the trial court erred
(a) by
finding that section 51 of the
Criminal
Law Amendment Act 105 of 1997
(“the
Minimum Sentences Act”)
is
applicable in this case;
(b) the sentence is
shockingly inappropriate;
(c) by
overemphasising the seriousness of the offence as well as the
interests of the society and underemphasising the personal
circumstances of the appellant;
[5] The
approach to be adopted in an appeal against sentence is reflected in
the following passage in the judgment of
Nicholas
AJA
in
S
v Shapiro
1994 (1) SACR 112
(A) at 119j – 120c:
“
'1. In every
appeal against sentence, whether imposed by a magistrate or a Judge,
the Court hearing the appeal -
(a) should be
guided by the principle that punishment is ‘pre-eminently a
matter for the discretion of the trial Court’;
and
(b) should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the
discretion has not
been ‘judicially and properly exercised’.
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.'”
[6]
The
purpose of sentencing is generally known. It has been repeatedly
stated that a sentencing court must consider the three basic
principles of sentencing, the triad, when considering an appropriate
sentence, viz The seriousness of the offence, the offender
and the
interests of the society as propounded in
S
v Zinn
1969 (2) SA 537
AD. As
Friedman
J
formulated it in
S
v Banda and Others
1991 (2) SA 352
(BG) at 355A - B:
“
The elements of the triad
contain equilibrium and a tension. A court should, when determining
sentence, strive to accomplish and
arrive at a judicious
counterbalance between these elements in order to ensure that one
element is not unduly accentuated at the
expense of and to the
exclusion of the others. This is not merely a formula, nor a judicial
incantation; the mere stating whereof
satisfies the requirements.
What is necessary is that the Court shall consider, and try to
balance evenly, the nature and circumstances
of the offence, the
characteristics of the offender and his circumstances and the impact
of the crime on the community, its welfare
and concern. This
conception as expounded by the Courts is sound and is incompatible
with anything less”.
[7] In
as much as it is important not to overemphasise the seriousness of
the offence or the interests of society so is it important
not to
overemphasise the personal circumstances of an accused. All three are
equally important. See
S
v Sadler
2000 (1) SACR 331
(SCA). It is indeed correct to consider previous
cases of similar circumstances but it must be kept in mind that
previous similar
cases are but just guidance in coming to a balanced
and fair decision. Ultimately each case must be determined on its own
unique
set of facts so that the punishment meted out in a particular
case must not only suit the offender but must suit the seriousness
of
the offence and the interests of society as well.
[8] Theft
like any other offence is undoubtedly serious. The commission of
serious crimes such as fraud and theft,
“so-
called white collar crimes”
,
by persons in position of authority and trust is becoming prevalent
and pandemic in this country and in the province in particular
as
correctly noted by the presiding officer. Employers are consequently
forced to employ security personnel and install sophisticated
and
expensive devices to curb the commission of offences committed under
circumstances such as
in
casu
.
Engen Company suffered a huge financial loss estimated at R535
454.00.
[
9] What
counted in the appellant’s favour were his personal
circumstances which the presiding officer clearly took into account,
as reflected on pages 51 to 53 of the transcribed record, where he
stated that at the time the appellant committed these offences
he was
45 years of age; he was married with two children aged 22 and 15
years respectively; he had never been convicted of any
offence
previously; he pleaded guilty which is a sign of remorse and
acceptance of responsibility for the wrong he had committed;
he
reimbursed Engen Company for its loss and he has since lost the job
that he has had for over 23 years.
[10] The
most aggravating factors in this case are the following. The
appellant did not of his own accord disclose to his company
his
unlawful behaviour. It was only discovered through the diligent work
of the company’s auditors. It was only when the
appellant was
confronted therewith that he came clean by admitting what he had
done. The appellant committed these offences out
of greed to gamble
and lead a life style which he could not afford and was well aware,
as a 45 year old in management position,
of the repercussions of his
actions.
[11] Once
he started the first time and was not caught, he consciously set out
his second and the third treacherous deeds which
suggests to me that
he did not act on the spur of the moment or spontaneously. He
consciously planned and plotted with other staff
members and members
of the community to the detriment of Engen Company. The ripple effect
of his deeds is immeasurable even against
the society at large
because inevitably if Engen were to become bankrupt numerous people
would lose their jobs. The interests of
society and the deterrent
objective of sentencing require that effective imprisonment should be
imposed to stamp out white collar
crimes.
[
12] Mr
Van Rensburg submitted that our courts have in a number of cases
considered a term of imprisonment in terms of section 276(1)(i)
of
the CPA to be appropriate that is a short term of imprisonment
coupled with correctional supervision which would see appellant
spend
only ten months in prison or even less subject to the discretion of
the Commissioner of Correctional Services. He referred
this Court to,
amongst others,
S
v Wasserman
2004 (1) SACR 251
(T).
[13] The
Wasserman
-case
is distinguishable from this case in that Wasserman was diagnosed
with pathological gambling disorder some years before the
commission
of the offences she had committed. The court
a
quo
found the disorder to be a compelling and substantial circumstance
justifying a lesser sentence than the prescribed.
In
casu
the appellant was not a diagnosed gambler and the presiding officer
did not invoke the provisions of the Minimum Sentences Act.
He
clearly started on a clean slate and considered the three basic
principles of sentencing to wit the seriousness of the offence,
the
offender and the interests of the society and came to the conclusion
that a term of imprisonment partly suspended was the most
appropriate
in the circumstances. As
Patel
J
stated in
Wasserman
,
supra
,
at 256a:
“
In the Supreme Court of
Victoria, Court of Appeal, in R v Petrovic
[1998] VSCA 95
, 10 Charles
J, with whom Orminsten JA and Tagdell JA concurred, said:
'20. The fact that an offender was
motivated to the commission of the crimes in question by an addiction
to gambling will no doubt
usually be a relevant, and may be an
important, consideration for a judge sentencing the offender for
those crimes. But as Tagdell
JA said in R v Cavillin (unreported,
Court of Appeal, 24 July 1996) at 10:
''It is . . . important that the
public does not assume that a crime which is to some extent generated
by a gambling addiction,
even if it is pathological, will, on that
account, necessarily be immune from punishment by imprisonment.''
21. It is
considerations such as these which have led this Court to say more
than once that it will be a rare case indeed where
an offender can
properly call for mitigation of penalty on the ground that the crime
was committed to feed a gambling addiction;
see R v Scott Aiden
Dawson (unreported, Court of Appeal, 27 May 1997) at 6; R v Gregory
Frank Pascoe (unreported, Court of Appeal,
29 April 1998) at 4 - 5.'
T
his
case, in my view, is not one of those rare cases
‘
where
appellant can properly call for mitigation of penalty on the ground
that the crime was committed to feed a gambling addiction.’
Mr
.
Van Rensburg could not argue convincingly that the presiding officer
misdirected himself or committed any irregularity in this
regard.
[1
4] In
the case of
S
v Prinsloo
1998 (2) SACR 669
(WLD)
Leveson
J
at 672b emphasises this point succinctly when he states the
following:
“
I adhere to
the view that theft from an employer must be heavily penalised. The
employer is entitled to expect unswerving honesty
from the employee
in return for the wages he pays and the benefits he gives him.
Nothing but implicit acceptance of that obligation
will keep the
wheels of commerce turning smoothly..”
[15] Further on at 672f-g
he states:
“
I
continue to hold the view that it must be brought home to the public
and to employees in particular that light-fingeredness with
respect
to employer’s property will not be tolerated by the courts.”
I
am in agreement with the above dicta.
[16]
The
fact that the appellant was a manager and not just an ordinary
employee is a strongly aggravating factor. There is no justification
for this Court or any other reasonable court to come to the
conclusion that the presiding officer misdirected himself in any
manner.
In the result I conclude that not only is imprisonment the
most appropriate sentence in the present case but I also consider
that
a period of effective six years imprisonment is fitting to the
crime, both because of the circumstances of the case and the
substantial
amount involved in this offences. In my view the appeal
must be dismissed.
[1
7] Lastly
I find it unnecessary to traverse Mr Van Rensburg’s submissions
on the applicability of the Minimum Sentences Act
in this set of
facts as the presiding officer did not invoke the applicable
legislation.
[1
8]
In
the premises I make the following order.
Order
The conviction is
confirmed.
The
sentence imposed on 11 May 2009 is confirmed.
___
_______________
B
.C.
MOCUMIE, J
I
concur
.
__
__________
C.B.
CILLIé
,
J
On
behalf of the appellant
: Adv.
Van Rensburg
Instructed
by: Justice Centre
Bloemfontein
On
behalf of the respondent:
Adv.
M. Strauss
Instructed
by:
Director
of Public Prosecution
Bloemfontein
BCM/sp