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[2008] ZAWCHC 239
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Erwee v S (A650/2007) [2008] ZAWCHC 239 (8 August 2008)
iN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A650/2007
DATE
:
8
AUGUST 2008
In the matter between:
LYNETTE
JANE ERWEE
APPLICANT
Versus
THE
STATE
RESPONDENT
JUDGMENT
CLEAVER,
J
On
3 August 2007 the appellant was convicted in the regional court of
Cape Town on a plea of guilty of 54 charges of fraud. She
had forged
the signatures of her employers on cheques and created false entries
in the books to hide her conduct. In the result
she
misappropriated R535 000,00.
On
5 September 2007 she was sentenced to eight years imprisonment, of
which two years were suspended for five years.
She
now comes on appeal to this Court with the leave of the Court a
quo.
On
behalf of the appellant it was submitted that the sentence imposed by
the regional magistrate was shockingly inappropriate and
that a
sentence of correctional supervision ought to have been imposed.
When
coming to her conclusion in regard to the sentence, the regional
magistrate had before her a report from a probation officer
who had
recommended a sentence in terms of section 276.1 (i) of the Criminal
Code. She was of the view that a sentence in terms
of terms of
section 276
.1
(h)
would not have been appropriate because of the large amount of money
involved.
The
regional magistrate also had before her a report from a correctional
officer whose recommendation was that a sentence in terms
of section
276
.1
(h)
ought to be imposed.
In
a carefully reasoned judgment, the regional magistrate came to the
conclusion that correctional supervision ought not to be imposed.
She
was particularly concerned about the fact that the theft had been
brought about through greed and not need and that it had
been
repeated on 54 occasions where the appellant had misused her position
of trust. The regional magistrate also considered that
it would not
be feasible to repay the large amount.
She
did indeed take into account the fact that the appellant was a single
parent, the mother of two adult children and a young daughter.
She
had feeling for the position and the situation of the appellant, for
although the minimum sentence legislation applied, she
imposed a much
lesser sentence.
At
the time of the judgment by the regional magistrate, the judgment in
the case of
S
v M (Centre for Child Law as
Amicus
Curiae)
2007(2)
SACR 539 (CC)
had not yet been reported. That judgment was handed down on 26
September 2007 by the Constitutional Court. It is a groundbreaking
judgment in that the situation of a primary caregiver is pertinently
dealt with. That situation had not previously been addressed
authoritatively in our law. The judgment has as its base the need to
give recognition to the importance of a family and also the
rights of
children. Five guidelines were set out in order to enhance the
uniformity of principle, security, and to secure consistency
of
treatment and outwardly foster individualisation of outcome, and
these were:-
1. That
the sentencing Court must establish whether a convicted person is a
primary caregiver. Simply put, the Court said a primary
caregiver is
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.
2. It
is not necessary In each case to rely on a probation officer's report
to determine whether a convicted person is the primary
caregiver; the
Court could find that out for itself.
3. Where
the appropriate sentence is clearfy custodial and the convicted
person is a primary caregiver, the Court is required to
apply its
mind to the question whether it is essential that steps be taken to
ensure that the child or children concerned would
be adequately cared
for while the primary caregiver is in prison. The question whether
the appropriate sentence is clearly a custodial
one must be
determined with reference to the "Zinn" triad f
S
v Zinn, 1969(2) SA 537A at 540G to H)
consisting of the crime, the offender and the interests of society.
4. Where
the appropriate sentence clearly does not warrant imprisonment, the
Court must determine the appropriate sentence bearing
in mind the
interests of the child or children.
And
5, the final guideline:-
If
there is a range of appropriate sentences on the Zinn approach, then
the Court must use the paramountcy principle concerning
the interests
of the child as an important guide in deciding which sentence it is
to impose.
In
M, the Court applying this principle declined to allow the appellant
to remain in custody any longer than she was at the time,
and ordered
that the balance of the sentence which had been imposed be suspended
on the condition that the accused was not found
guilty of any crime
of dishonesty during the period of suspension and that the appellant
underwent correctional supervision.
When
this matter came before us on 6 June, it was apparent that we did not
have adequate information in regard to the position of
the minor
child and it was accordingly postponed until today in order to obtain
a social welfare report. We are now in possession
of such a report
compiled by Ms Hood. This reveals the following: that the appellant
is the mother of two adult children, aged
22 and 25, who live away
from her independently. They are the children from an earlier
marriage and therefore as I understand the
report have little to do
with the appellant and certainly with the child. The child is today
aged 11 and lives with the appellant.
She is a young girl. She is
born of a relationship which came to an end when the father learnt of
the appellant's pregnancy with
the young daughter. The daughter has
been living with the mother ever since and was two years old when the
family as it then was
moved to Cape Town. The report has attached to
it a report from the school which the young girl attends and also
previous reports
from paediatricians.
In
brief, the report sketches a most unfortunate picture in regard to
the young child. She appears to be totally dependent on her
mother,
appears to be a very difficult child. According to the various
documentation before us it would appear that both she and
her two
brothers suffer from the condition known as attention deficit
syndrome, for which she receives drugs.
The
report from the school is to the effect that the school was concerned
that the child had not been receiving the drugs which
she requires
and that until these drugs were made available recently, the child
presented clear behavioural problems.
According
to information given to the social worker, the daughter is a great
responsibility for the appellant, who has to help her
tend to her
hair, to attend to her medication and to give her emotional support.
The social worker is of the view that the disorder
to which I have
referred has made a great impact on her life with the child. She
reports that the child is dependent on the medication
and that the
procurement of such medication brings about financial difficulties
for the appellant. She concludes that the child
is very much attached
to the mother, who is the only person whom the child can rety on. She
concludes with the following worrying
statement:-
"Die
betrokke kind het die reg op 'n stabiele huishouding, opvoeding,
liefde en geluk. Dis ook in die beste belang van die
betrokke kind
dat sy nre deel van die statistieke raak wat deel uitmaak van artikel
14.4 van die Wet op Kindersorg."
The
import of the judgment in
S
v M
was not available to the regional magistrate when she came to the
conclusion to which she did. As I have said, it introduces an
entirely new dimension in the sentencing procedure when one has to do
with a primary caregiver.
In
these circumstances, I am satisfied that there would be reason to
interfere with the sentence, in the sense that this Appeal
Court
could reconsider what an appropriate sentence would be.
Having
concluded that the Appeal Court can reconsider the sentence, the
issue which requires attention is whether it be appropriate
to refer
the matter back to the regional court for the judgment in
S
v M
to be taken into account in reconsidering the sentence? In my view,
that would not be appropriate. The matter is a particularly
sensitive
one, particularly having regard to the child. One does not know how
much time would efapse before the matter would be
dealt with by the
regional court, and once it goes back to the regional court, that
might not be the end of the matter. In my view
it would be
appropriate to deal with the matter now.
Counsel
for the State correctly pointed out that the offence is a
particularly serious one, and he also indicated the serious
consequences
which flowed from the actions of the appellant insofar
as her previous employers were concerned.
We
must, however, be more concerned about the offence itself and of
course all the factors which are to be taken into account as
far as
sentence is concerned. It is true, as counsel for the State pointed
out, that the regional magistrate did have regard to
the fact that
the appellant was a single mother, but as I think I have explained,
the considerable weight which the primary caregiver
is now to be
accorded was not taken into account.
Her
reaction to the suggestion that correctional supervision ought to be
imposed is of course simply that one would be inclined
to say that
correctional supervision is an easy sentence and if imposed, the
appellant would be getting away with a crime which
justifies the
stricture of society. However, it has been pointed out in
S
v R
1993(1} SA 476(A), that if properly structured, correctional
supervision need not be an easy sentence.
After
careful consideration I am of the view, having regard to:-
the
fact that the Courts have made it clear that as a general principle
correctional supervision can be imposed for any offence;
and
the
paramountcy principle regarding a primary caregiver,
That
a sentence of correctional supervision would be appropriate, and in
this regard I am particularly persuaded by the final sentence
of the
social welfare's report which I read in to the record.
However,
I consider that it will be necessary for the appellant to pay a debt
to society and that a carefully structured sentence
will be
necessary.
The
sentence which will be imposed is the following:-
1. The
appellant is sentenced to
CORRECTIONAL
SUPERVISION FOR THREE (3) YEARS
which must include the following: she is to perform service for the
benefit of the community for a certain number of hours per
week, and
I will come back to this, for the three years, the form of such
service and the mode of supervision to be determined
by the
Commissioner for Correctional Services.
2. She
is to undergo counselling on a regular basis with such person or
persons and at such times as to be determined by the Commissioner
of
Correctional Services.
In
addition, the appellant is
SENTENCED
TO FOUR (4) YEARS IMPRISONMENT, WHICH IS SUSPENDED FOR FIVE
(51
YEARS
on the condition that she is not
r
during the term of suspension, found guilty of any crime of which
dishonesty is an element.
As
far as the form of the correctional service is concerned, I am not
sure whether more detail or not is required. I leave that
to the
counsel for the parties to see me in chambers in order that I can
approve a form which gives effect to everything that I
consider
necessary. The basis is to be what I have already indicated in court.
CLEAVER, J
I
agree.
ZONDI,
J