S v Barnard (469/2002) [2003] ZASCA 63; 2004 (1) SACR 191 (SCA) (30 May 2003)

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[2003] ZASCA 63
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S v Barnard (469/2002) [2003] ZASCA 63; 2004 (1) SACR 191 (SCA) (30 May 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
469/2002
In the matter between
WIMPIE
BARNARD APPELLANT
and
THE
STATE RESPONDENT
CORAM : MARAIS,
CAMERON JJA
et
MLAMBO AJA
HEARD : 21
MAY 2003
DELIVERED : 30
MAY 2003
Summary:
Sentence in terms of s 276(1)(i) for theft of money from employer.
J U D G M E N T
MLAMBO
AJA/…
MLAMBO
AJA:
[1] This is an appeal against sentence. The appellant, a thirty four
year old man, pleaded guilty to 30 counts of theft from the
complainants, involving an amount of R30 069. Consequent upon his
plea he was convicted and sentenced to five years’ imprisonment.

His appeal against sentence to the Transvaal Provincial Division
(Kirk-Cohen and Webster JJ) was unsuccessful, but leave to appeal
to
this Court was granted.
[2] The
appellant was employed as a clerk in the complainants’ business.
He also performed bookkeeping functions and was placed
in charge of a
safe where cash was kept. He had custody of the key to that safe.
His responsibilities are indicative of the trust
placed in him by the
complainants. He however succumbed to dishonesty and started stealing
money. This went undetected for some
fifteen months. As was bound
to happen, the thefts were discovered. Upon being confronted with
the thefts, he simply undertook
to repay the money he had stolen.
The complainants, however, in addition to laying charges against him,
dismissed him from employment
and withheld his final month’s salary
of R3 000.
[3]
The appellant, for his part, reported certain alleged VAT
irregularities by the complainants to the South African Revenue
Services
(SARS). He also joined the Mineworkers Union as a member
and laid a complaint about the withholding of his final salary of R3
000.
Acting on his report SARS officials instituted an investigation
in the complainants’ business. This investigation was not yet
finalised when the trial took place but the complainants stated that
minimal irregularities were discovered. The Mineworkers Union
also
referred the appellant’s complaint to the Commission for
Conciliation Mediation and Arbitration (‘CCMA’) which culminated
in the complainants paying the appellant the amount of R3000.
[4] In mitigation of sentence, the appellant gave evidence primarily
about his current employment situation and offered to pay back
the
amount he had stolen in an amount of R700 per month. A report in
terms of s 276(1)(h) of the Criminal Procedure Act, Act no
51 of 1977
(‘the Act’) was also handed in. This report recommended
correctional supervision as a sentencing option.
[5] The
State tendered the evidence of the complainants in aggravation of
sentence. The gist of this evidence was that the appellant’s
reports to the South African Revenue Services and the CCMA had
engendered a sense of indignation in the complainants. It was also
claimed that it was impossible to determine the full extent of the
thefts because of the measures the appellant took to conceal
them.
[6] The
trial Court based its decision on sentence on the following essential
findings:
6.1 theft by an employee in circumstances where the employee is in a
position of trust was to be viewed in a very serious light and
direct
imprisonment was the rule;
6.2 the
appellant had shown scant remorse for his dishonesty, by blowing the
whistle on complainants to SARS, as well as invoking
his labour law
remedies to claim the R3000,00 withheld by the complainants;
6.3 the
appellant’s offer to repay the stolen money was made for the
first time during the trial which gave the impression
that he was
not as serious about repayment as he was about being sentenced
lightly; and
6.4
correctional supervision in terms of s 276(1)(h) of the act was
limited to a period of three years and as such it would not
have the
necessary deterrent effect.
[7] The
Court
a quo
in turn agreed with the trial Court that the
appellant had failed to show remorse for his dishonesty. The Court
a
quo
reasoned that the fact that up to the time of the appeal the
appellant had made no repayment of any of the stolen money suggested,
in effect, that the appellant’s offer of repayment was a ploy to
avoid direct imprisonment. The Court
a quo
also found that the
appellant’s offer of repayment was essentially an offer to repay
only the capital without any interest; that
there was uncertainty
whether the appellant would retain the employment he secured after
his arrest; and that the appellant’s evidence
that he used part of
the stolen money to help his father was not persuasive.
[8] The
Court
a quo
further agreed with the trial Court’s reasoning
that correctional supervision as a sentencing option was not
appropriate. The
Court
a quo
went on to conclude that there
was no material disparity between the sentence imposed by the trial
Court and the sentence that it
would have imposed, and, in the
absence of any misdirection by the trial Court, it could find no
reason to interfere with the sentence
of five years imposed by the
trial Court.
[9] The
issue is therefore whether the trial Court exercised its discretion
properly and judicially in imposing a sentence of 5 years’
direct
imprisonment. It is trite that sentence is a matter best left to the
discretion of the sentencing Court. A court sitting
on appeal on
sentence should always guard against eroding the trial Court’s
discretion in this regard, and should interfere only
where the
discretion was not exercised judicially and properly. A misdirection
that would justify interference by an appeal Court
should not be
trivial but should be of such a nature, degree or seriousness that it
shows that the Court did not exercise its discretion
at all or
exercised it improperly or unreasonably.
[10] In my view this test is satisfied in the present case for the
following reasons. The trial Court misdirected itself in finding
that
the appellant’s conduct after his arrest in blowing the whistle on
his employer for alleged VAT irregularities and the institution
of
proceedings in the CCMA were not reconcilable with remorse. This
finding clearly played a large part in the trial Court’s imposition
of the sentence of five years. This finding was in my view actuated
by the trial Court paying insufficient regard to the appellant’s

motive for acting in that manner.
[11] The
appellant testified in this regard that after the thefts were
discovered, he was confronted by the complainants. He offered
to
repay the money he had stolen. The appellant testified that after
his undertaking of repayment an arrangement was struck to the
effect
that the complainants would instruct their attorney to draw up an
agreement which the appellant would sign binding himself
to the offer
to pay. He testified that the complainants reneged on that
arrangement by instead opting to have him arrested. On
realising
that the repayment arrangement was off the table, he then went to
the SARS and to the CCMA. This version was not contradicted.
These
facts were misconstrued, to the prejudice of the appellant, in the
trial Court’s judgment on sentence.
[12] The
trial Court found that a sentence of correctional imprisonment in
terms of s 276(1)(h) was not appropriate in this case and
that it
would not have the necessary deterrent effect. This finding appears
to have been influenced by the trial Court’s view
that direct
imprisonment in this type of offence was the rule. In this regard
the trial Court appears to have limited its sentencing
options by
positing a choice between direct imprisonment and correctional
supervision. Hence the trial Court’s statement that
this type of
sentence was limited to a period of three years which it did not
consider would have the necessary deterrent effect.
. This was
clearly a misdirection in that the trial Court failed to consider
other options provided in s 276 such as the sentence
provided in s
276(1)(i) which caters for a period of direct imprisonment of up to
five years, albeit imprisonment capable of subsequent
conversion to a
sentence of correctional supervision.
[13] In
my view the Court
a quo
also misdirected itself in a number of
other respects. It doubted the appellant’s evidence that he used
part of the stolen money
to assist his father. It is however clear
that the State did not contest the appellant’s version that he
assisted his father.
The complainant as it happened had also
assisted the appellant’s father with motor vehicle parts but this
did not stave off his
subsequent sequestration. The Court
a quo
further found that the appellant’s erstwhile employer was
‘negative’ towards a continuation of the appellant’s
employment.
This is another misdirection. The appellant’s evidence
that the pending charges against him were known to his employer and
that
they did not affect the continuation of his employment was clear
and was not contradicted.
[14] The
Court
a quo
’s finding that the applicant’s offer to repay
the money he had stolen did not encompass an offer to pay interest is
clearly misdirected.
Analysis of the appellant’s offer to repay
the stolen money in monthly instalments of R700,00 reveals that both
capital and interest
would have been fully paid off in a markedly
shorter period than the twenty or so years suggested to the appellant
by the State
prosecutor during his cross-examination (which timeframe
the trial Court and the Court
a quo
mistakenly seemed to
endorse).
[15] The misdirections discussed in the preceding paragraphs are in
my view material. They are material in that, taken individually
and
cumulatively, they provided the basis for the trial Court rejecting
correctional supervision as a sentencing option. Under the
circumstances this Court is at large to reconsider the question of
sentence afresh. It remains for me to consider what sentence
to
impose. This Court has consistently held that theft of this nature is
serious. What also makes it serious is that the appellant
was in a
position of trust and betrayed that trust. This Court in
S v
Sadler
2000 (1) SACR 331
(SCA) dispelled the notion that persons
convicted of this type of offence were not criminals and were
therefore entitled to be kept
out of prison. In that case Marais JA,
acknowledging the seriousness of this type of offence, stated that in
appropriate cases direct
imprisonment was not to be shied away from.
[16] A
balance needs to be struck between the interests of society in having
deterrent sentences imposed and the interests of the
appellant in
having his personal circumstances taken into account in amelioration
of his sentence, as well as the purposes of judicial
punishment
per
se
. The recurrence of this type of offence needs to be curbed
by the imposition of sentences which address this upsurge.
Deterrence
is therefore crucial. Appropriately severe punishment
should, therefore, be imposed to achieve this objective. The quest
for severity
in a sentence should however not override considerations
of mercy and an understanding of human weaknes.
[17] In
this case the amount of R30 069 stolen by the appellant may appear
relatively small if one considers the amounts involved
in other cases
considered by this Court. However, if one considers that the
business of the complainants was not a large one, then
the amount
stolen assumes graver proportions. It is also correct that when
the appellant’s conduct was discovered he offered
to repay the
money he had stolen. He was in fact prepared to sign a document
signifying his willingness to pay. He also pleaded
guilty and made
an offer to repay the money in monthly instalments of R700,00 having
secured alternative and sustainable employment.
This tends to
signify remorse.
[18] It is
not in dispute, too, that the appellant used some of the money he
stole to assist his father who was beset by financial
woes. The
appellant is also a first offender. It is also true that the
commission of this type of offence is rampant, and a clear
message
needs to be sent out that this will not be countenanced.
[19] It is
opportune at this stage to deal with the appellant’s application
for this Court to consider the fact, now sought to
be placed before
us, that after the dismissal of his appeal by the Court
a quo
,
he effected full payment of the capital and interest to the
complainants. Only in exceptional cases will a court, sitting on an
appeal on sentence, consider a fact that came to light after
proceedings in a court
a quo
. In
S v Marx
1989 (1) SA
222
(A) at 226 B – C Smalberger JA said:
‘Vonnis
word bepaal na aanleiding van feite en omstandighede wat ten tyde van
vonnisoplegging bekend is. Slegs in uitsonderlike
gevalle kan feite
wat eers na vonnisoplegging bekend word op appèl in aanmerking
geneem word.’
The payment
this Court is requested to consider was effected by the appellant.
The timing of the payment was therefore determined
by him. We have
no explanation why the payment occurred only after the unsuccessful
appeal to the Court
a quo
and why it was not made at any other
time. The repayment was no doubt of advantage to the complainant. Had
there been no misdirections
by the Court
a quo
and had this
Court not been at large to consider the question of sentence afresh,
taking into account the repayment would not have
been justified. It
would encourage others to manipulate their dealings in an effort to
influence the outcome of appeals.
[20] That
must in my view be the general rule. However, in view of the fact
that a number of material misdirections have been found,
this Court
is at large to impose an appropriate sentence. In this sense the
appellant’s position before this Court is similar
to a convicted
accused awaiting sentence. In
S v Mpendokana
1987 (3) SA 20
(C) the Court considered an appeal from a magistrate in which the
appellant had been sentenced to two years’ imprisonment. In
that
appeal the Court was of the opinion that the sentence imposed was not
appropriate and reserved judgment. Before the Court could
pronounce
its sentence the legislation applicable to those offences was amended
to make provision for a fine. The Court imposed
a sentence based on
the new legislation. Marais J (as he then was) stated at 23 E –
G:
‘Na my
mening is ‘n Hof van appèl nie genoop om ‘n minder paslike
vonnis op te lê slegs omdat dit nie bestaan het ten tye
van die
aanvanklike vonnisoplegging nie. As hierdie Hof die saak na die
landdros sou terugverwys het vir vonnisoplegging opnuut,
sou die
landdros geregtig gewees het om van die nuwe vonnis gebruik te maak.
Myns insiens sou dit absurd wees om te bevind dat ‘n
Hof van appèl
nie self van die nuwe strafmaatreël gebruik kan maak nie en dat die
enigste wyse waarvolgens so ‘n resultaat bereik
sou kon word, sou
wees om die saak na die hof
a quo
terug te verwys vir
vonnisoplegging opnuut.’
[21] This
approach was approved by this Court in
Prokureur-Generaal,
Noord-Kaap v Hart
1990 (1) SA 49
(AD) at 57 A – B.
1
Even though that case and
S v Mpendokana
(
supra
) and
the cases
2
discussed therein dealt with supervening legislation, the approach is
in principle applicable also to other situations. Given that
we are
ourselves imposing sentence as if none had been previously imposed I
can see no impediment to considering the fact that the
appellant has
now fully repaid the complainants the money he stole from them. It
seems obvious that since his trial and the hearing
of his appeal in
the Court
a quo
the appellant has been able to raise the money
needed to reimburse the complainant whereas he was not able to do so
at any earlier
date.
[22] All
the circumstances of this case persuade me that this is a suitable
case for the imposition of a sentence of imprisonment
which is
capable of conversion to correctional supervision in terms of s
276(1)(i) of Act 51 of 1977. Such a sentence is appropriate
in this
case as it strikes a balance between the public interest in the
retributive and deterrent elements of sentence and the personal
interests of the appellant.
[23] In the circumstances the appeal succeeds and the sentence
imposed by the Court
a quo
is set aside. The following order
is substituted:
‘The appeal succeeds. The sentence of the trial Court is set
aside. In its place there is substituted the following sentence:
The
accused is sentenced to five years’ imprisonment in terms of s
276(1)(i) of the Criminal Procedure Act read together with s
276A(2)(b).’
____________
D MLAMBO
ACTING JUDGE OF APPEAL
CONCUR
:
MARAIS JA
CAMERON JA
MARAIS JA:
[1] With
some reluctance I concur in the judgment of Mlambo AJA. I am less
inclined to accept that the appellant was and is genuinely
remorseful. He is not of course being sentenced for seeking to cause
his employer embarrassment and discomfiture by reporting alleged
tax
irregularities to SARS. Nor is he being sentenced for his
insistence upon being paid his salary of R3 000,00 despite
the
fact that he had stolen from and therefore owed his employer over R30
000,00. But I find it very difficult to reconcile that
behaviour,
even if it was retaliatory, with a sense of genuine remorse for his
misdeeds and to accept that he is entitled to be given
the benefit of
such a finding. The plea of guilty in the face of an open and shut
case against him is, in my opinion, a neutral fact.
That said, I
agree with respect that there were other material misdirections by
the trial court and that we are therefore at large
in relation to
sentence. I agree too that we may properly take the repayment of the
money stolen into account. I myself would have
been inclined to
impose a sentence more severe than that which Mlambo AJA has imposed
and which would have approximated more closely
to the sentence which
the trial court imposed, but I do not feel sufficiently strongly
about the matter to warrant a positive dissent.
____________________
R M MARAIS
JUDGE OF APPEAL
1
‘
Ek
volstaan deur te sê dat bostaande redenasie na my beskeie mening
suiwer is, en ten volle versoenbaar met die grondbeginsels
van ons
reëls van wetsuitleg betreffende straftemperende wysigingswette.’
Per Hoexter JA
2
S v Crawford and Another
1979(2) SA 48 (AD);
S
v Loate
1983(3) SA 400 (T);
S
v Mpetha
1985(3) SA 702 AD and
S
v Innes
1979(1) SA 783 (C)