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[2000] ZASCA 90
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S v Wright (33/99) [2000] ZASCA 90; [2001] 2 All SA 235 (A); 2000 (1) SACR 322 (SCA) (24 March 2000)
CASE NO. 33/99
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
SUSAN NAY WRIGHT
APPELLANT
AND
THE STATE
RESPONDENT
BEFORE: SCHUTZ, STREICHER JJA AND MTHIYANE AJA
HEARD: 22 MARCH 2000
DELIVERED: 24 MARCH 2000
Criminal
law - theft of police docket - sentence increased.
W P SCHUTZ
________________________________________________________________
J U D G M E N T
________________________________________________________________
SCHUTZ
JA:
[1] The appellant pleaded guilty to the theft of a
police docket and was
convicted accordingly in the Magistrate’s Court,
Port Elizabeth. The sentence was 12 months imprisonment, of which 8
months
was conditionally suspended for five years. An appeal
against sentence to the Eastern Cape High Court failed, but that
court
granted leave to appeal to this court. Some days before the
appeal was argued the parties were notified that their
representatives
should be prepared to argue whether the sentence
should be increased.
[2] The
facts were these. The appellant and her co-accused conspired to
steal the police docket in a case in which a charge of
fraud against
one Aroonslam was being investigated. The appellant’s
complicity was secured by the promise of a sum of
R10,000. She
never received this money, as the police had been alerted to the
intended theft and had prepared a duplicate docket,
which the
informer stole and gave to the appellant, who passed it on to her
co-accused, who was a friend of Aroonslam. Before
the docket could
reach him the police arrested the appellant and her co-accused.
[3] The
appellant’s personal circumstances are these. She has no
previous convictions and is a 40 year old married woman
with three
children. She was earning R2 200 per month gross, but lost her job
because of her arrest. Her father suffered from
heart disease and
she paid his medical bills. In consequence she was unable to meet
her household expenses. She was heavily
in debt. Her intention
was to use the R10 000 to pay her father’s medical bills.
After arrest she co-operated with the
police, and, as I have said,
pleaded guilty.
[4] The
prosecutor requested a fine coupled with a suspended sentence of
imprisonment, but the magistrate rightly took a more
serious view of
the matter and imposed the sentence mentioned earlier. He motivated
his sentence as follows:
“
a) Die hof beskou hierdie voorval in ‘n
baie ernstiger lig as die gewone voorvalle van diefstal wat voor die
hof gebring
word. Hierdie kom neer op korrupsie in ‘n
staatsdepartement wat in effek beide die Departement van Polisie en
die Departement
van Justisie raak.
b) Korrupsie veral, in die
staatsdepartemente is deesdae aan die orde van die dag. Ongelukkig
word die wandaders selde aan die
kaak gestel.
Hierdie
korrupsie het as ‘n reël ernstige finansiële
implikasies en gevolge.
c) As gevolg van hierdie tipe voorvalle verloor die
publiek respek en vertroue in die relevante departemente.
d) Die Departemente van
Justisie en Polisie is die hoekstene van al die staatsdepartemente.
Hulle primêre funksie is immers die
handhawing van wet en orde. Huidiglik is hierdie land
misdaadgeteisterd. Die blote
feit dat misdaad nou op ‘n
drafstap in die verskillende staatsdepartemente is, is vir die
gewone man op straat onaanvaarbaar.
e) Die howe sal ‘n drastiese standpunt moet
inneem om persone met soortgelyke planne af te skrik en om die
publiek se vertroue
in die verskeie staatsdepartemente te herstel.
f) In hierdie geval is melding gemaak van ‘n
groot bedrag geld, naamlik R10 000 wat hande sou wissel vir die
diefstal van
die dossier.
g) Die dossier wat gesteel moes word, bevat ‘n
baie ernstige klag, naamlik bedrog, nodeloos om te sê bedrog
is ook
een van die misdrywe wat deesdae vry algemeen voorkom.”
[5] On
the appellant’s behalf it has been contended that the
magistrate erred in holding “Hierdie kom neer op korrupsie
in
‘n staatsdepartement.” This argument is based on there
being no clear evidence that the informer who stole the
docket was a
policeman or state official, so that it has not been established
that anyone was perverted from doing his duty.
It could have been
a theft in the normal course, if I may put it that way. The High
Court accepted that technically this argument
was correct, but
nonetheless declined to interfere with the sentence, because it
considered the theft to be a serious one which
merited the sentence
imposed regardless. I would agree that corruption in the strict
technical sense has not been proved.
[6] Insofar as a reduction in
sentence is sought, no other misdirections have been demonstrated,
nor has it been shown that the
magistrate closed his mind to forms
of sentence other than direct imprisonment; and he has had regard
to the personal circumstances
of the appellant. The circumstances
that I have set out were accepted as correct by the prosecutor.
Nonetheless they are very
meagre. The appellant made no real
attempt to take the court into her confidence. Consequently there
is no evidence, for instance,
as to how she came to be involved in
the conspiracy to steal. In any event, I agree with the statement
of Nienaber JA in
S
v Lister
1993 (2)
SACR 228
(A) at 232 H - I “To focus on the well-being of the
prisoner at the expense of the other aims of sentencing, such as the
interests of the community, is to distort the process and to
produce, in all likelihood, a warped sentence.”
[7] When one has regard to the
nature of the crime and the interests of the community in having it
punished, it must be stressed
that the crime of stealing a police
docket goes to the root of the maintenance of law and order and
demands condign punishment.
Further, I would associate myself with
the magistrate’s remarks (suitably corrected as to corruption
in this particular
case). In
S
v Newyear
1995 (1)
SACR 626
(A) this court sustained a sentence of four years
imprisonment with two suspended in the case of a first offender
policeman with
25 years of flawless service, who had corruptly taken
four motor car tyres. Admittedly he was a policeman, and he did not
plead
guilty but falsely denied his guilt. In these respects his
offence merited a heavier sentence than the appellant deserves. On
the other hand, the value of the benefit she was to receive was
considerably higher than that of four tyres. A sentence of
corrective supervision, which was pressed on us, would send the
wrong message to the public.
[8] Sentence is a matter for the discretion of the
court burdened with the task
of imposing sentence. A court of
appeal may only interfere, whether a reduction or an increase of
sentence is sought, if the
court imposing the sentence failed to
properly and reasonably exercise the discretion bestowed on it.
Various tests have been
formulated to determine whether that was the
case. Ons such test is whether the sentence can be said to be
startlingly inappropriate.
Another one is whether the sentence
induces a sense of shock. (Cf
S
v Pieters
1987 (3)
SA 717
(A) at 727 G - 728 A.) Taking all the relevant factors into
account the sentence imposed in this case does not shock me as being
excessive. On the contrary, the sentence is startlingly
inappropriate and justifies the conclusion that the magistrate
failed
to properly and reasonable exercise his discretion in that it
does not nearly allow for the seriousness of the crime. To my mind
the appropriate sentence would be 12 months imprisonment without any
part suspended. This was the maximum sentence that the
magistrate
could impose at the time. Such a sentence could lead to a disparity
between the appellant and her co-accused, who
received the same
sentence as she did, but did not appeal, a disparity that would
arise if it is to be assumed that the circumstances
of the two
accused were similar. Ordinarily one seeks to avoid such
disparities, but I do not consider that the creation of
a possible
disparity should deter us from imposing a fitting sentence on the
appellant. After all, she chose to appeal, and
if she had been
successful, there would also have been a disparity the other way,
unless the co-accused’s sentence was
altered on review.
[9] This
judgment deserves the attention of prosecutors. As I have stressed,
the theft of a police docket is a serious matter,
which should be
charged in a court with adequate jurisdiction and pursued with more
firmness than was the case here.
[10] The
appeal by the appellant fails and the sentence of the magistrate in
the case of the appellant is set aside and replaced
with the
following:
“12
months imprisonment.”
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
STREICHER
JA
MTHIYANE
AJA