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1985
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[1985] ZASCA 99
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S v Vercueil (125/85) [1985] ZASCA 99 (25 September 1985)
125/85
IN THE SUPREME COUNT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the appeal of:
LORRAINE ANN VERCUEIL
appellant
versus
THE STATE
respondent
Coram
: JANSEN, JA, GALGUT e_t CILLIE, AJJA.
Date of Hearing
: 12
September 1985
Date of Judgment
: 25 September 1985
J U D G M E N T GALGUT
AJA:
The appellant pleaded guilty to and was
convicted, by a Magistrate in the Springs Magistrate's Court, on 525
/ counts
2
counts of fraud said to have been committed during the period from 1 May
1981 to December 1982. She was sentenced to four days imprisonment
on each
count. This amounts to a period of 5 years and nine months. Her appeal to the
Transvaal Provincial Division against the sentence
only was dismissed. With the
leave of that Court she appeals to this Court against the sentence.
The complainant in the case is a Mr S W Vercueil who carries on business in
Springs as an insurance broker. It is necessary to set
out the accused's
relationship to the complainant and also some factual background. The accused is
43. She married Pierre Vercueil,
the son of the complainant, in 1959. Three
children were born of the marriage. The eldest, a daughter, is married. A son,
aged 21,
was at all relevant times at university in Durban. The third child, a
daughter aged 16, is a student at high school. Accused's marriage
was far from
happy.
/For
3
For fourteen years prior to December 1982 her husband was drinking heavily
and her evidence indicates that he was an alcoholic. There
were times when his
behaviour, which included assaults, forced the accused and the children to leave
home for as long as a week.
The husband had had many jobs and in 1981 and 1982
he was a professional tennis coach. His monthly contribution to the household
maintenance and expenditure varied from R200 to R250. The accused had been
working for her father-in-law for 22 years. It was only
in later years that he
increased her salary to R400 per month. It is clear from her evidence, which was
not challenged, that the
task of maintaining the household, paying all the
liabilities and expenses and keeping the family together fell upon her
shoulders.
The relationship between her husband and his father was far from good
and it seems that she did not wish that situation to worsen.
The relationship
between the accused and her parents-in-law was very good.
/ The
4
The complainant paid little attention to his business. He would take two
holidays of three months every year and for the remaining
six months was seldom
in office. The complainant, like his son, was a heavy drinker. The accused in
later years managed the office.
In addition to the work in the office she used
to drive her parents-in-law in her car in the afternoons to do their shopping
and
other visits.
Details of the 525 charges are set out in annexure B to the charge sheet. The
pages in this annexure are numbered from 5 to 45. I
attach hereto a copy of page
5 which yets out the details appertaining to counts 1 to 18. This page is
typical of the other 39 pages.
The charge sheet alleges that the accused during
the period 1-5-81. to 31-12-82 falsely and with intent to defraud gave out and
pretended
to S W Vercueil (the complainant) that she received the amounts set
out in column 2
/of
5
of annexure 8, from the persons named in column 1, on the dates set out in
column 4, in terms of the receipt numbers in column 3;
that hy these false
pretences she caused S W Vercueil to his loss and prejudice to believe that she
had received the said amounts
from the named persons on the dates stated in the
numbered receipts; that in truth and in fact when she so gave out she well knew
that she had received the amounts set out in column 7, from the persons named in
column 6, on the dates given in column 5 in terms
of the receipts numbered in
column 3; that she, the accused, had appropriated the amounts in column 8; that
she did by the above
conduct commit the 525 acts of fraud. There was an
alternative charge of theft which alleged that during the period 1-5-81 to
31-12-82
she stole From S W Vercueil the amounts set out in column 8 of annexure
B.
/ When
6
When the charge was put to the accused she, as already stated, pleaded guilty
to the 525 fraud charges. In terms of sec. 1.12(2) of
Act 51 of 1977 she handed
in a written admission in terms of which she admitted the allegations in the
fraud charges. The prosecutor
accepted the plea of guilty to the fraud charges.
No evidence was led (see sec. 1.12(3) ) and the Magistrate, acting in terms of
sec. 112(2), found the accused guilty on the 525 fraud charges.
The accused then gave evidence in mitigation of sentence. It is from her
evidence that the above background facts emerged. In addition
she gave details
of the manner in which she had committed the frauds, of the financial position
in which she had found herself, of
her reasons for leaving the employ of her
father-in-law and when she left her husband.
/In
7
In her evidence-in-chief she said she was (at the
time of the trial) working for an insurance company and
earning R850 per
month; that her school-going daughter
was living with the married daughter;
that she, the
accused, was living with her married sister as "I have
not
had the finance to find other accommodation"; that
she did not know how Long
this state of affairs would
continue "because I said once I could afford to,
I will
find a little flat for us". The following extracts
from her
evidence-in-chief are significant:
"Mrs Vercueil, you pleaded guilty to committing the crime of fraud in the
amount of R48 000,00 and you have been found guilty by His
Worship. Could you
tell the Court why this ever happened?-- Because Pierre was not bringing in
enough money and, I do not know, I
just started and then it got worse and he was
getting worse and worse, and just to keep the family going and the more I wanted
to,
didn't want to do it, the
/ more
8 more I seemed to get: involved in doing it.
During that period how did you spend the money?-- Only on the necessities.
Food and to, pay the accounts and the debts and that because
Pierre bought a new
motor-car and every month he never seemed to have money to pay for it.
Did you during that period ever purchase any Luxuries with that money?--
No.
Was that money sufficient to maintain your family?-- Yes.
Mrs Vcrcucil. I, at the moment you are earning R850 per month?-- Yes.
Is that income sufficient for you to maintain yourself and your two children
who are still dependent upon you?— No, it is not."
The following extracts from her evidence in cross-examination
are self-explanatory:
"Mrs Vercueil, can you give the Court an idea of how it came about that you
started taking money from this business? How did
/ this
9
this first happen?-- I made out two receipts one day in a book that was not
the current book that we were using and the next day when
I found this out 1 was
going to take... keep that money and pay it in at the end of the month when I
got my salary because we were
short, but I did not, and from then it went
on.
PROSECUTOR
Was it by mistake that you used the wrong book?— It
was, yes.
How did this come about?— It was one of the books that we had
given to the branch office originally and all the books were the
same and it was
on the desk and I used it by mistake.
And you discovered this the following
day?— Yes.
If you used the book by mistake, what happened to the
money?— That is when I used that money.
Did you experience financial difficulties?--Yes, we were at the time. My
husband was not working very much. You can say in a month
/ he
10
he would... for at Least one week he would not work at all.
Mrs Vercueil, what eventually made you leave the business?-- I left because
of the situation I was in and 1 realised that 1 could
not go on like this and so
1 resigned and I left.
Why didn't you realise this earlier?— As I said,
it went on and on until eventually I could not take it any more.
It never bothered you that you misused this position?-- It did.
Yes. You
did not do anything about it. Why not?— 1 do not know. He (the
complainant) was not the type of person you could approach
or speak to. He would
say to me you must never go short; if you want anything you must know the money
is there; just help yourself.
But I did not want him to know what our financial
position was.
/ When
11
When you started taking money from the business, why didn't you tell Mr
Vercueil about it?-- Because he is not the type of person...although
ho says
that, he does not really mean it.
But why would he say it if he does not mean it?-- It is very difficult for
you to understand but he is a person who will say one thing
today and he will do
something today and tomorrow he will throw it up at you in your face,
everything, and he is a very difficult
person."
The accused went on to say that when she left the business she also left her
husband; that he then went to live with his parents.
It is apparent that even at
the stage of the trial he was not contributing towards the support of the
children.
In reply to questions put to her by the Magistrate the accused gave details
of her monthly expenditure during the period. The Magistrate
then put it to her
that, having
/ regard
12
regard to her income and that of her husband and taking into account that she
had taken R48 000, it would appear that she had Rl 500
per month over and above
her monthly requirements. This the accused denied and stated: "I would only take
what I needed. 1 did not
take more". There is no need to set out the details of
the accused's monthly expenditure. It is sufficient to say that having regard
to
the fact that her income and that of her husband did not exceed R650 per month,
the amount which she took from the business could
not have been as much as R20
000. She clearly did not keep a record of how much she had misappropriated. More
as to this aspect later.
After the accused had given her evidence in mitigation, a Dr Van der Merwe, a
clinical psychologist, was called. The only aspect of
his evidence which need be
mentioned is that he testified that the accused was under
/ great
13
great tension during the latter period of her employment with complainant and
that in his view she regretted what she had done.
After the complainant and the psychologist had given evidence the State
called an accountant, Mr Erasmus. Why he was called is not
clear to me. The
accused had already been found guilty on the 525 charges. He testified that he
had been called in by the complainant
to investigate, the extent of the
shortages in the business. The variations in his evidence are strange. The first
examination, so
he said, showed that R7 000 had been misappropriated. This
figure he put to the accused and she admitted that this amount was correct.
The
complainant, however, asked that a further investigation be carried out. This
was done by Mr Erasmus's staff and they found a
shortage of R35 000. Thereafter
a further investigation was done. This, he said, revealed a shortfall of R48
322-22. These
/ figures
14
figures he checked and he thereafter put them to the accused. She denied that
she had taken these amounts. Mr Erasmus then testified:
"That is as far as our audit is concerned, but I have been asked by Mr S W
Vercueil, who is the father in law, to mention a couple
of matters as well."
Despite strenuous objection by accused's counsel the
Magistrate allowed
him to give evidence on what he was
told by complainant. This evidence was clearly hearsay.
The Magistrate
should not, as indeed was pointed out by
the Court a
quo
, have allowed
this evidence. It was clearly
inadmissible.
I have to stress that the accused did not plead to the alternative (theft)
charge. The accountant did not give evidence on the merits
of the conviction.
The evidence which he gave did not purport to prove, nor did it deal with, the
allegations in respect of any of
the fraud charges.
/ Furthermore,
15
Furthermore, as I read his evidence, even if it had been given before
conviction, it would not have established that the accused stole
the amounts
which he alleged were not accounted for.
An examination of the individual charges in annexure B (page 5 thereof is
annexed hereto) to the charge sheet, reveals some strange
features. I need only
refer to counts 2, 3 4 and 6. In count 6 it is alleged that the accused gave out
that she had received R31,14
(column 2) from one Annandale (column l) on 21-1-82
(column 4), whereas she had in fact received R10,00 (column 7) from one Collins
(column 6) on 3-3-82 (column 5) and that pursuant to her misrepresentation she
had appropriated the amount of R21-14. How she could
have taken R21-14 when she
only received R10 is not explained. The anomaly is even less explicable when one
has regard to the fact
that on the wording of the indictment the pretence was
made in January in respect of moneys received in March. A study of counts
4, 3
and 2 reveals
similar anomalies. In fact a study of the counts set out
/ in
16
in pages 6 to 45 of the annexure B shows that similar anomalies appear in
approximately half the counts. At the out-set of the appeal
in this Court the
attention of both counsel was drawn to what is set out above. Counsel for the
State asked for an adjournment to
consider the position. After the adjournment
he advised this Court that the anomalies could not be explained. One of the
difficulties
which he and, I may say, this Court had, was that it was obvious
that the amounts set out in column 8 were incorrect. It followed
that the
accused had not misappropriated all the amounts set out in that column 8.
Furthermore, it was not possible to establish
exactly what amount had been
misappropriated. It also seemed clear that the extent of the misappropriation
would not, having regard
to the allegations in the charge sheet, be able to be
ascertained with any degree of exactitude.
The appeal in this Court as in the Court a
quo
, was in respect of
sentence only. In view of what has been
/ said
17
said above counsel were agreed, and in our view correctly so, that no good
purpose could be served by postponing the appeal or remitting
it to the Court a
quo
or to the trial Court. After some debate counsel were agreed that, as
far as could be ascertained, the amount which had been misappropriated
was
approximately R20 000. This Court was of the view that that figure was correct.
The appeal proceeded on that basis.
At the end of the trial the Magistrate delivered
an
ex
tempore
judgment. On receipt of the grounds of appeal
he furnished
written reasons for his judgment. In these
he said:
"Because of the aggravating facts, namely the amount, the manner in which the
fraud was committed, the long period of over eighteen
months, the indiscriminate
manner in which accused took the money; that she was in a position of trust;
that she was in no financial
trouble; because of all these facts the Court
considered a suspended sentence as inappropriate, unjust and that it would be a
grave
miscarriage of justice having regard to all the
facts."
/ Counsel
18
Counsel for the appellant submitted that the Magistrate had erred in that he
had not had sufficient regard to the accused's personal
circumstances; in that
the evidence did not show that the accused had taken the money indiscriminately
and also in finding that she
was in "no financial trouble". He urged that a
suspended sentence should have been imposed by the Magistrate. He further
submitted
that having regard to the fact that the amount involved was R20 000
and not R48 177,90, this Court was at large to impose a proper
sentence; that
the total period of imprisonment should be reduced and totally suspended.
Counsel for the State stated that as the amount involved was R20 000 and not
R48 000, this Court was at large in regard to the sentence
to be imposed and he
accepted that the total period of imprisonment would be reduced. He, however,
submitted that the accused had
been in a position of trust; that even though the
first
/ frauds
19
frauds had not been planned, the other frauds were planned and carried
out over a period of twenty months; that in these circumstances
the interests of
society demanded that whatever the period of imprisonment this Court decided
would be appropriate, it should not
be totally suspended.
As appears from the Magistrate's reasons, two of the factors which weighed
with him when considering whether or not to impose a suspended
sentence were
firstly that the total of the amounts taken was large and secondly that this
total exceeded the accused's financial
needs. These two factors no longer
apply.
As far as mitigating circumstances are concerned there is no need to look for
them; they present themselves. The evidence given by
the accused in mitigation
leaves one in no doubt that she was the person who looked after the household
and kept the family together;
that she paid
/ her
20
her husband's bottle store account and also the amounts owing to Barclays
Bank in respect of purchases which he made on the strength
of his credit card
from that bank; that the money she took was for household expenses and for the
maintenance of her children, her
husband and herself; that her husband, far from
being a help was an added respon_ sibility and a liability; that the money she
took
was not spent on luxuries; that when she left the complainant's firm she
was in such straitened circumstances that she was not able
to take even a small
flat for herself and her younger daughter. There is also no doubt that the
accused regretted what she had done
and has shown true remorse. This appears not
only from the evidence of the psychologist but also from the fact that she gave
up her
job and from her reasons for so doing.
There is no need to repeat what has so frequently
/ been
21
been said by our courts about the facts which have to be borne in mind when
assessing the punishment appropriate in any particular
case. I bear in mind that
the frauds were perpetrated over a period of twenty months but bearing in mind
that she has no previous
conviction and because of the mitigating factors
present in this case, I am of the view that the interests of society do not
demand
that the accused should be denied the benefit of a suspended sentence. I
am further of the view that this is a case in which all
the counts should be
taken as one for purposes of sentence and that a proper sentence is one of 4
years imprisonment suspended on
appropriate conditions. In the result the appeal
succeeds. The order made is:
1. The appeal succeeds.
2.
The order of the Transvaal Provincial Division is set aside and there
is substituted therefor an order which reads:
/ "(a)
The
22
"(a) The appeal succeeds.
(b) The order of the Magistrate, in regard Co sentence, is set aside and
there is substituted an order which reads:
All counts are taken as one for purposes of sentence and the accused is
sentenced to four years imprisonment suspended for 3 years
on condition that she
does not during that period commit any offence of which dishonesty is an
element."
0 GALGUT.