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1993
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[1993] ZASCA 82
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S v Lister (447/91) [1993] ZASCA 82; [1993] 4 All SA 669 (A) (28 May 1993)
CASE NO 447/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE
DIVISION
In the matter between:
DOROTHY ELAINE
LISTER Appellant
and
THE STATE Respondent
CORAM
: SMALBERGER, VIVIER, NIENABER JJA
DATE HEARD
: MAY 24, 1993
DATE DELIVERED
: MAY 28, 1993
J U D G M E N T
NIENABER
JA:
2
NIENABER JA
:
The appellant, a 34 year old bookkeeper,
then married, soon to become a widow, pleaded guilty in the regional court at
Randburg to
a charge of theft of R95 700,00 from her employer. She was sentenced
to an effective period of imprisonment of 4 years. This is the
ultimate stage of
her endeavours to escape imprisonment.
Part of her duties as an
employee was to prepare cheques for signature or approval by her superior. She
did so with ink which she
could afterwards erase. Once the cheque was signed,
she altered the particulars, increasing the amount of, say, a cheque for petty
cash. She would then cash the cheque and pocket the difference. In this manner
she managed, over a period of some eleven months,
to skim off the not
inconsiderable sum mentioned earlier.
In sentencing her to a term of imprisonment
the
3
regional court was heavily influenced by her list of previous
convictions. This was not her first transgression involving dishonesty
with
cheques. On 15 September 1983 she was convicted of the theft of a cheque to the
value of R0,50c - for which she was cautioned
and discharged - and of fraud
involving R27 600,00, no doubt perpetrated with the stolen cheque - for which
she received a sentence
of 3 years imprisonment, suspended for 5 years on
condition that she was not convicted of theft or fraud, committed during the
period
of suspension, in respect of which she received a sentence of
imprisonment without the option of a fine. Nine months later, within
the period
of suspension, she was again convicted on 3 counts of fraud involving cheques.
The amounts involved, according to the
SAP 69, were R1 091,95, R981,08 and R3102
(sic). The passing of sentence was postponed for 5 years on condition that she
refunded
the amount of R981,08 in instalments of R150 per
4
month. Less than a year later she was again convicted, this time on 63
counts of theft involving a total cash amount of R58 168,97.
In terms of
s 285
of the
Criminal Procedure Act, 1977
a sentence of 1 500 hours of periodical
imprisonment was imposed.
The current offences were also committed during the period of
suspension.
The regional court had the benefit of the views of a probation officer in
the service of the Department of Health Services and Welfare,
one van Staden,
who was called by the State, mainly, so it would seem, because the appellant was
the mother of a 14 year old daughter
who was at boarding school in Nelspruit.
The appellant, though represented by an attorney, did not testify or call any
evidence.
From the report and the evidence of van Staden it appeared that the
appellant had admitted to him that the present series of offences
was carefully
planned and executed over a period stretching from June
5
1987 to May 1988. At the time she was earning a gross salary of R2 075,00
per month. She was married to a man whom she had met in
1981. She commenced her
criminal career in 1983, so she explained to van Staden, "om haar man te
beindruk", although she also told
van Staden that she used the money "om ander
te vermaak, en haarself, man en kind uit te rus met alles wat nodig is." On
being questioned
by the magistrate she admitted that she had spent the money on
herself. Her husband was suffering from terminal cancer of the liver
and died in
August 1988, shortly after she had pleaded guilty but before she was sentenced.
Van Staden recommended a long term of
imprisonment during which she could
receive specialised and intensive counselling. The regional magistrate had
regard to this suggestion
in sentencing her to 6 years imprisonment of which 2
years was suspended for 5 years "on condition that the accused is not again
convicted of fraud, theft, or of an attempt to commit these offences,
6
committed during the period of suspension."
The appellant
appealed against her sentence to the Transvaal Provincial Division. The sole
ground advanced was that it was an unreasonably
heavy sentence which induced a
sense of shock. But she did combine her appeal with an application to lead
further evidence from a
psychiatrist, Dr Sidley, as to her psyche and
motivation. The court a quo, somewhat charitably I would think, acceded to the
request.
The sentence of the regional court was set aside and the matter
remitted for the hearing of the evidence of Dr Sidley, as well as
"further
evidence by the appellant and such further evidence as the state may deem fit to
call in regard to the aspect of sentence".
Whether such an open-ended order was
appropriate in the circumstances of this case is another matter but not one on
which it is necessary
to comment. The appellant at any rate capitalized on it
and, at the resumed hearing, duly represented, led the evidence of Mr
7
Wood, a minister of the Baptist Church and of Dr Sidley, after which she
herself testified. The evidence of Mr Wood related largely
to her involvement
with the activities of the congregation after her conviction. Not much turns on
his testimony, and I accordingly
leave aside the question whether the
circumstances were such that newly constituted evidence, as opposed to newly
discovered evidence,
ought to have been admitted.
Dr sidley's evidence does merit consideration. What the appellant
manifested, according to him, was anti-social behaviour (which can
likely be
cured by psychotherapy) rather than an anti-social personality disorder (which
cannot). And since the emphasis was on psychotherapy,
and since prison
conditions would not be conducive to such treatment, Dr sidley recommended that
the appellant be given a suspended
sentence or a sentence of periodical
imprisonment rather than a sentence of imprisonment, which he believed would be
counter-
8
productive.
The appellant also testified. She sought, in
evidence, to explain her conduct: some of the money, some R3 000,00 to R4
000,00, she
spent on herself; the remainder was used for her husband's medical
expenses. Her family, she said, was unresponsive when she approached
them to
take care of her daughter should she be imprisoned. Finally it was also
accepted, without evidence being led, that some R34
000,00 had been repaid to
her erstwhile, employer and that she had been reemployed by a building society
which regarded her as a
competent and valued employee.
The regional magistrate considered all the evidence afresh. The
appellant, according to the court, was not a truthful or, at best
for her, not a
reliable witness and Dr Sidley had not been fully briefed with all the relevant
information about her criminal career.
On material issues his evidence, so it
was held, was rather
9
vague. So for example he was not emphatic about either the need or the
nature of the psychotherapy which he had in mind for the appellant.
In all the
circumstances the court remained unpersuaded by the new evidence and re-imposed
its original sentence.
Once again the appellant appealed to the
Transvaal Provincial Division. In a comprehensive, meticulous and balanced
judgment Swart
J (with whom Coetzee J agreed) came to the conclusion that there
were insufficient grounds for interfering with the regional magistrate's
assessment of sentence. Only in one respect did the court a quo adjust it: it
directed that any imprisonment which the appellant,
pursuant to her prior
convictions, may be ordered to serve in future - should either the sentence
suspended in 1983 or postponed
in 1984 be resuscitated - be served concurrently
with her present sentence of 4 years imprisonment.
The appellant thereupon applied for leave to
10
appeal to this court. Her application, rather surprisingly, was granted
by Coetzee J, Labuschagne J agreeing.
Heads of argument were
prepared by counsel on both sides but at the hearing of the appeal the appellant
appeared in person. She assured
the court that she had mended her ways and
appealed to it not to confirm the sentence of imprisonment because of the
harmful effect
it would have on her relationship with her daughter, now 19 years
old. She told the court that she was now employed by a construction
company and
enjoyed the support of her employer. She nevertheless accepted, she said, that
this court was bound by the record and
that considerations of this kind,
recounted in this fashion, did not per se warrant interference with the judgment
of the court below.
In his heads of argument her counsel, in the main, repeated the
submissions made to the court a quo. These
11
are dealt with convincingly and in extenso by Swart J, I do not propose
to cover exactly the same ground. For present purposes I mention
only the
following:
The appellant was clearly not a truthful witness. She
consistently contradicted herself on a number of issues such as her motive for
the theft, and on why she lied to the trial court on how she spent its proceeds.
One must therefore approach her statements to the
court and to Dr Sidley - and
on which he based some of his views - with a measure of caution.
As
for Dr Sidley I can do no better than to quote a passage from the judgment of
the court a quo:
"I think, with great respect to Dr Sidley, that his views as to the
treatment of appellant are advanced on the basis of an expert's
faith and
expectation of benefit in the case of somebody who has been guilty of
anti-social behaviour. He does know, in all probability,
that her behaviour was
not caused by an in-born personality disorder. Thus the suggestion of
environmental factors which may have
played a large role. In this connection he
seems to have felt that the circumstances of the husband were such an
environmental circumstance,
but then she also used money for other purposes and
he conceded that
12
greed could supposedly come into the picture. Apart from the husband
there is the possibility of other environmental factors like
broken homes
etcetera, including the fact that she felt rejected by her family. Ultimately it
really appears that Dr Sidley, although
possessed of vast general experience and
expertise, was at a disadvantage as far as appellant is concerned. He ostensibly
has consulted
her only once. He didn't have the full picture as far as her
previous convictions are concerned, although he had the general picture.
He
hadn't treated her up to that stage. He doesn't really know what is wrong with
her apart from the fact that she had been guilty
of what he calls antisocial
behaviour and the indication that there were certain environmental factors which
to a larger or lesser
extent could have motivated her behaviour. This appears
inter alia
from what he envisaged as 'going to as deep a level to find
out the motivation behind any idea of her being anti-social' . This also
appears
from his prognosis that she might be using her anti-social behaviour as a form
of compensation or aggression towards for
instance society or her family. This
ultimately appears from his views that prolonged intensive psycho-therapy would
very possibly
reinforce a feeling he has that she has 'a conflict which
translates itself into some kind of vengeful behaviour'. The latter, if
it
should be the result of environmental circumstances, which Dr Sidley seemed to
regard a distinct possibility, is in any event
in sharp conflict with other
environmental circumstances such as the condition of the husband which would
have dictated her actions
due to pure economic reasons. I think Dr Sidley was
not put in a position where, from his expert point of view, he could tell the
court what caused appellant's behaviour. Moreover, apart from
13
benefits which may in principle result from psychotherapy, I do not think
that he was put in a ' position to make out a case that
psycho-therapy for
appellant outside a prison environment should be regarded as an over-riding
factor or necessity by a court imposing
a sentence. It must be remembered that
Dr Sidley was not testifying as an expert on sentence but was giving the expert
views he had
at that stage relating only to appellant's conditions. The function
of a court imposing sentence is different. The court has to consider
other
interests, including that of society and has to consider the objects of
punishment in arriving at a proper sentence. In doing
so, a court would see
appellant's behaviour as criminal and not as merely anti-social. As far as
treatment goes, if imprisonment
is the appropriate sentence, the report and
evidence of Mr Van Staden indicate the availability of a wide range of
specialised services
under the prison conditions."
I agree with this analysis. I remain unpersuaded
by
the submission in counsel's heads of argument that
the
court should have adopted the opinion of Dr Sidley that
a
gaol sentence would undermine the treatment to which
she
would have to submit herself. Prison, one knows, is not
a congenial place and the conditions may well be less
than ideal for psychotherapy. But then, a prison is
primarily
an institution of punishment, not cure. As the
14
court a quo was at pains to point out, the approach of a sentencing
officer is not the same as that of a psychiatrist. The sentencing
officer takes
account of all the recognised aims of sentencing including retribution; the
psychiatrist is concerned with diagnosis
and rehabilitation. To focus on the
wellbeing of the accused 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.
It was suggested, both in the heads
of argument and by the appellant, that community service would have been a more
appropriate sentence,
allowing for a full range of psycho-therapeutical
treatment in circumstances more conducive to it than imprisonment. This matter
was duly considered by the regional magistrate and the court a quo and I find
myself in agreement with the views expressed that such
a sentence would be
inadequate having regard to
15
the nature and the magnitude of the offence and the appellant's list of
previous convictions for similar offences. The offences committed
on this
occasion were not isolated ones; they followed hard upon similar offences for
which she was most leniently treated by the
courts in a patent attempt to keep
her out of gaol. Those sentences did not have the desired effect and the courts
below were justifiably
sceptical about the prognosis of another suspended
sentence or a sentence of community service. Nor can it be said that the
sentence,
all things considered, was shockingly inappropriate. Swart J summed up
the position in terms I would like to endorse:
"The question remains whether the sentence imposed was excessive in the
sense of there being a striking disparity between such sentence
and what this
court considers to be an appropriate sentence (see for instance
S v
Petkar
1988 3 SA 571
(A) at 575I.) I am not of such an opinion. The sentence
is undoubtedly severe. The appellant's personal circumstances and the probable
effect of imprisonment as far as she is concerned, are mitigating factors
warranting serious
consideration.
16
The real tragedy is the involvement of the minor daughter. But this is
not a burden solely to be cast on the courts. An intelligent,
capable woman in
the position of appellant surely had in her hands the primary and ultimate means
of not involving her daughter and
must have knowingly taken the risk of doing
so, despite repeated warnings and let offs. I also take into account that there
were
unhappy features in appellant's childhood and that she must have had a
difficult time during her marriage, particularly towards the
end of her
husband's life. These are certainly mitigating factors, although not advanced on
behalf of appellant as substantive reasons
for her actions. I accept that
persistent adverse conditions of life have a debilitating effect on judgment and
values. I fail to
see, in appellant's case, that it explains her persistent
transgressions and if it does, I fail to see that it can be condoned by
a court
of law. I accept that appellant and her husband were faced with high medical
expenses and that at least portion, even a substantial
portion, of the stolen
moneys may have been used to defray such expenses. However, personal economic
necessity can, in my opinion,
not be condoned when met by theft and fraud of
such magnitude, committed not on the spur of the moment, but by design over an
extended
period more or less hot on the heels of previous convictions and
chances following similar events. In any event, economic necessity
is hardly a
matter that can be addressed by a court of law. It will be a negation of the
rights of the victim and would lead to chaos.
As a mitigating factor it can, in
my opinion, not be taken further than possibly the absence of aggravation in
that the misappropriation
had not been motivated by greed. There are, however,
severe aggravating factors, particularly in the amount
17
stolen, the period over which the theft was committed, the fact that
numerous misappropriations must have taken place which were carefully
effected,
the fact that appellant was in the employment of the complainant and appellant's
previous convictions. Considering these
factors, with due weight accorded to the
mitigating factors and considering the objects sought to be attained by the
imposition of
punishment, I think the learned magistrate was fully justified in
rejecting the approach suggested on behalf of appellant and in
imposing direct
imprisonment. I also do not regard the extent of the sentence as
excessive."
In the absence of misdirections or
irregularities,
or the imposition of an excessive
sentence, this court is
not at liberty to interfere with the
sentence simply
because it feels some sympathy towards the appellant
for
her present predicament. Sadly, she brought it
upon
herself. The appeal is dismissed.
P M Nienaber JA
SMALBERGER JA)
) CONCUR VIVIER JA )