About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1995
>>
[1995] ZASCA 104
|
|
S v Sinden (630/94) [1995] ZASCA 104 (19 September 1995)
CG CASE NUMBER: 630/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
TONI ANN
SINDEN Appellant
and
THE STATE Respondent
CORAM:
VIVIER, VAN DEN HEEVER JJA et
VAN COLLER AJA
HEARD ON:
15 SEPTEMBER 1995
DELIVERED ON:
19 SEPTEMBER 1995
JUDGMENT VAN DEN HEEVER JA
2
This is an appeal against sentence. The appellant, a 26-year-old married
woman with two young children, pleaded guilty to and was
convicted of 43 counts
of fraud. A first offender, she was sentenced by the regional magistrate to six
years' imprisonment of which
two years were conditionally suspended. She
appealed against this to the Witwatersrand Local Division. The gravamen of her
complaint
was and remains that the trial court should have made use of
correctional supervision instead of incarceration, in determining her
punishment. The court a quo dismissed her appeal but granted leave for a further
appeal on the - with respect, insufficient - grounds
that in regard to
correctional supervision as a sentencing option, quot homines, tot sententiae:
hence there was a reasonable prospect
that another court might come to a
different view with regard to the sentence imposed by the
magistrate.
The relevant facts may be summarized as follows.
Appellant was employed as a bookkeeper by Auto Entertainment CC for some five
years.
She was good at her work and in time her employer came to trust
3
her totally. Her duties included doing the invoices for the corporation
as well as being responsible for wages payable to other staff
members. In
October of 1991 she started on the fraudulent course by which she in effect over
a period of fourteen months stole almost
R138 000 from her employer, in October
of 1991. She did so by drawing on the corporation's bank account by means of
cheques made
out either to herself or to cash, falsifying the books to reflect
the money as having been drawn for wages or other legitimate purposes.
The books
were never audited. She started on a reasonably modest scale (R 1650,06 in that
first month of dishonesty), but increased
her misappropriations in volume,
frequency and boldness until of the three fraudulent cheques drawn in Septemer
1992 and totalling
R10154,81, two bore the same date. Of the five October 1992
counts totalling R20 078,38, two were committed by means of successively
numbered cheques bearing the same date. In November of 1992 she sinned on six
separate occasions, misappropriating a total of R34
104,50 during this month.
The end came
4
after a last and modest R3225 on 4 December of that year.
She
has been represented throughout by the same counsel, Mr Geldenhuys. He asked for
a postponement after his client had been formally
convicted, intimated that he
intended asking for either correctional supervision or an entirely suspended
sentence, and asked the
bench to call for the requisite report.
At
the resumed hearing Mr J Viljoen of Correctional Services handed in and
confirmed the contents of the report he had prepared (exhibit
A). The report is
somewhat vague, somewhat impersonal, and contains many generalizations. Mr
Viljoen recommended that appellant be
sentenced to correctional supervision for
the full period permitted by statute because her personal circumstances both
made such
a sentence desirable and were such that Correctional Services could
monitor its implementation. I would hardly have regarded the
recommendation as
an enthusiastic one. It was preceded by this comment: "EVALUASIE
5
Die beskuldigde is wel geskik vir korrektiewe toesig, maar
die ems van die oortreding moet nie uit die oog verloor
word nie."
After Mr Viljoen had testified, Mr Geldenhuys made one comment and asked
three questions:
1.
Mr Viljoen had
deleted paragraph (f) relating to victim compensation in the pro forma order
proposed in exhibit A because counsel
had told him that a civil action was
pending to recover the amount in
question.
2.
Had appellant
been co-operative? — Yes. She and her husband both came to see him and the
interview went well.
3.
Did
she understand the content of Mr Viljoen's recommendation? —
Yes.
4.
Was she prepared to
submit fully to the terms suggested? — Yes, she had said she
was.
The prosecutor was more inquisitive.
His questioning elicited that appellant herself at no stage volunteered to repay
her employer.
When
6
Mr Viljoen raised the topic "het sy gesê sover as sy kan maar toe
het ek
verneem dat die terugbetaling ... in 'n siviele saak wel gehanteer word
en
ek het nie verder gegaan daarop nie". She had used the money "om
hulle ... huislike omstandighede te verbeter. Hulle het dit gebruik
vir,
meubels gekoop ensovoorts". In exhibit A Mr Viljoen had proposed,
as
one of the conditions appellant should be subjected to, the
following:
"(d) ten einde die oortreder beter toe te rus vir haar
verantwoordelikheid as lid van die gemeenskap, word aanbeveel dat sy verplig
word om programme by te woon ter verbetering van die volgende probleem areas wat
reeds geïdentifiseer is, asook ander programme,
soos blyk nodig te wees
tydens vonnisdiening:
(i) Dat die beskuldigde 'n persoonlikheidsontwikkelings-program
deurloop."
Potential second and third
recommendations as to programmes, provided for by the form, were left blank. Mr
Viljoen had majored in
psychology but did not suggest that appellant in fact
required any therapy. Indeed, he reported that "Die beskuldigde se fisiese
en
psigiese toestande blyk goed te wees".
7
Mr Geldenhuys neither re-examined Mr Viljoen, nor called appellant
herself to testify.
The prosecution called two witnesses.
Mr Crause, a
probation officer, handed in and confirmed his report (exhibit B). This contains
a good deal of nuts-and-bolts information.
Appellant grew up in a home where the
children were adequately provided for despite their parents' abuse of alcohol.
This led to
marital conflict in the course of which the parents had the grace
not to involve their children. There appeared to be no connection
between that
past and appellant's present offences. She and her husband had commanded a
combined nett income of R5 670 per month,
which fell short of their monthly
expenditure of R6 000, so that they were always short of money. Appellant's
parents came to their
assistance financially over the years, but the details of
their budget made it clear that the young couple were not prepared to forfeit
certain luxury items listed there. Appellant had admitted to Mr Crause
9
had to be taken into account. He was reluctant to advise the magistrate
on his exercise of the discretion, which was his alone, as
to the form
appellant's sentence should take. Pressed by Mr Geldenhuys to do so, he
expressed the view that imprisonment was indicated
because of the seriousness of
her offence. Fairly aggressive cross-examination did not cause him to change
this view. He conceded
the obvious: that the fact that she was trusted with
blank signed cheques and that her work was unsupervised and unchecked, created
temptation.
Mr Chester, the complainant's attorney, told the court
that summons had been issued against appellant, who was defending the action
every step of the way. Inquiry whether, in view of her plea of guilty and her
conviction, she intended persisting in her defence,
or filing a notice of
withdrawal and consent to judgment, had elicited no response. Complainant had
run up costs in the region of
R3 000 already in attempting - unsuccessfully so
far - to recover its money.
The magistrate's comments in passing sentence make it clear
that
10
he was fully aware of appellant's personal circumstances and the harmful
effect being separated from their mother would have on her
children. He
listed both mitigating and aggravating factors, and the
advantages
correctional supervision may have over direct imprisonment. He
eventually concluded that correctional supervision would cater for
the
criminal but not the crime nor the interests of society: "it would
most
certainly not have sufficient general deterrence".
We were referred to a fair number of decisions following on
S v R
1993 (1) SA 476
(A), in which sentences of correctional
supervision were passed, or ordered to be at least considered, despite
the
label attached to each of the particular offences classifying it as
prima
facie serious: robbery with aggravating circumstances; rape;
culpable
homicide; fraud; and so on. In the first instance, it is not a
proper
approach to seek factual similarities between other cases and this as
the
ground for attacking the sentence imposed.
"In R v Wells
1949 (3) SA 83
(A) Centlivres JA said at 87-88
that:
11
'Decided cases are ... of value not for the facts but for the principles
of law which they lay down. In this connection I cannot do
better than quote the
remarks of Lord Finlay in Thomson v Inland Revenue (1919 SC (HL) 10):
'No enquiry is more idle than one which
is
devoted to seeing how nearly the facts of two
cases
come together: the use of cases is for the
propositions of law they
contain, and it is no
use to compare the special facts of one
case
with the special facts of another for the
purpose
of endeavouring to ascertain what conclusion
you
ought to arrive at in the second case."
Decided cases dealing with
sentence may be of value also
as providing guidelines for the trial
court's exercise of
discretion (see S v S
1977 (3) SA 830
(A)) and
they
sometimes provide useful guidance where they show
a
succession of punishments imposed for a particular type
of
crime. (See R v Karg
1961 (1) SA 231
(A) at 236G.)
But
it is an idle exercise to match the colours of the case
at
hand and the colours of other cases with the object
of
arriving at an appropriate sentence. '(E)ach case should
be
dealt with on its own facts, connected with the crime
and
the criminal ..." (See Karg's case ubi cit.)"
per Nicholas AJA in S v Eraser 1987 (2) 859 at 863 A-D.
Secondly,
12
none of the cases to which we were referred supports the proposition
that
where particularly a non-violent offender will derive no
benefit from
being imprisoned, he may claim a non-custodial sentence
as of right, any
more than Kriegler J purported to do in S v R,
supra. Mr Geldenhuys
accused the trial court of ignoring the
decision of S v Rees
1984 (1) SA
468
(T) despite his having drawn
the passages on pages 469 and 470 to
the magistrate's attention. In
that matter a churchman of many years'
standing, worthy by reason of
good works over decades, who stole a
large sum of money over a
lengthy period from the church but benefitted
comparatively little
himself, was sentenced to a total of ten years'
imprisonment, all
suspended for 5 years, and a R30 000 fine repayable
in instalments.
This case gives no support to appellant's case, since
the
circumstances and characters concerned differ toto caelo.
Moreover
Goldstone J warned (at p 472 G):
"I would not like this judgment ever to be used as a
precedent in support of the proposition that persons who
commit
serious frauds should not be imprisoned, even if
13
first offenders. I have gone to some length to demonstrate the unusual
nature of the case and in particular the absence of a complainant."
In S v Lister
1993 (2) SACR 228
(A) this Court pointed out (at p 232 n-i)
that
"To focus on the well-being 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."
So too the warning sounded in S v Schutte
1995 (1) SACR
344
(C) at 350 c-e is both wise and timely:
"... (C)ourts should be cautious not to debase the coinage of correctional
supervision as a form of punishment. It is an innovative
form of sentence, which
if used in appropriate cases and if applied to those who are likely to respond
positively to its regimen,
can serve to protect society without the destructive
impact incarceration can have on a convicted criminal's innocent family
members....
However, if it is used indiscriminately it will soon forfeit its
credibility. The courts could well become increasingly reluctant
to invoke its
provisions - even in circumstances where the sentence may well have best served
the interests
14
of both society and the offender."
In the present matter the interests of the appellant and even more so of
her family certainly call out for a sentence of correctional
supervision. The
magistrate considered that the interests of society, because of the seriousness
of her offence, outweighed her own.
In my view he cannot be faulted in that
view. The appellant showed no sign of true remorse which of necessity involves a
true appreciation
of one's moral guilt. She has little, if any, of that but
sought instead to justify her taking ways. She persistently and deliberately
betrayed the trust placed in her and did so from greed, not need. A sentence
does more than deal with a particular offender in respect
of the offence of
which he has been convicted: it constitutes a message to the society in which
the offence occurred. In my view
there are no grounds upon which the court a quo
could fault the magistrate for his view that a sentence of correctional
supervision
would, in the circumstances of this case, send out the highly
undesirable message that crime may well pay, after all. It follows
that
15
similarly there is no call for this court to interfere with the
magistrate's exercise of his discretion.
The appeal is dismissed.
L VAN DEN HEEVER JA
CONCUR:
VIVIER JA) VAN COLLER AJA)