"In my opinion Mrs Botha experienced a breakdown in emotional and intellectual functioning at the time of her offences. Such
a breakdown is almost inevitable given the circumstances of her life. However, the concerted and responsible effort made by her to
re-structure her life, is not inevitable. It is unusual for a person with her emotional history to make such a strong and responsible
effort to change her life, and shows a rare strength of character. Mrs Botha not only found work in which she proved herself to be
a competent and reliable employee, she also made a very successful effort to support her children financially and emotionally. She,
out of her own accord, entered therapy and worked very hard to process the damaging relationships of the past and the self destructive
behaviour which resulted from that damage. She changed the circumstances of her life through hard and honest work, and should, in
my opinion, be given credit for the strength of personality which went into that effort."
In her report she also set out the following considerations regarding the
sentence which she suggested should be taken into account:
"(1) Mrs Botha's three children have experienced a great amount of distress and emotional disruption to their lives. Over the
last 18 months, Mrs Botha has gone to great trouble to re-structure her children's lives and to provide safety and security. A prison
sentence will separate the children from their mother and will once again cause anguish and disruption to their lives. Their father
has never taken responsibility for the children, and the grandfather is too old and sickly to support them. In my opinion a prison
sentence could cause
10
lasting damage to all three children.
(2)
Mrs Botha's father has suffered three strokes over the last year. He is dependent on Mrs Botha for physical and emotional support.
(3)
Mrs Botha has gone to great lengths to change destructive behavioral patterns and to re-structure her life. A prison sentence would,
in all probability, destroy everything which has so painstakingly been built up."
Her conclusions were stated as follows:
"Based on the concerted effort made by Mrs Botha to create a structured and disciplined life for her and her children, I would
like to advise against a prison sentence. I strongly recommend correctional supervision."
When she testified she was asked if the appellant told her what she did with
the money that she gained through the offences. Her reply was:
"I don't think we discussed that, I can't remember that. We might have discussed it but I can't remember now."
In her judgment on sentence the magistrate stated that she took into account
all the appellant's personal circumstances. She also referred, as aggravating
factors, to the facts that the complainants who testified at the hearing were persons
11 who regarded the appellant as a friend and that the appellant had abused the trust
they put in her. The magistrate also referred to the fact that the complainants did
not only suffer financially but also, so they had testified, emotionally.
The magistrate said that she took into account as another aggravating factor the prevalence of so-called white-collar crimes in the
regional division of the Cape.
She pointed out that the appellant was not convicted of what she called "a
one-off offence" and stated:
"As your attorney rightly pointed out, these offences were committed over a period of two years. You surely had ample opportunity
to mend your ways, to come forward and come clean, however, this only happened after you were indeed confronted with the truth. In
the meantime you, knowingly and deliberately, committed these crimes at the expense, not only of your employer but also at the expense
of your personal friends and over this considerable period of time."
(As appears from what has been said earlier in this judgment, the appellant's
attorney erred in saying that the offences were committed over a period of two
years; the period over which they were committed was six months. The gravamen
12 of the point made by the magistrate is, however, correct. The appellant did have
ample opportunity to desist from the course of dishonest conduct on which she had
embarked.)
Dealing with the contention that the appellant should be sentenced to
correctional supervision, the magistrate said:
"It is so that you are a suitable candidate for correctional supervision. It is, however, this Court's personal experience that
correctional supervision in whichever form - that is in terms of subsection (h) or (i) - mostly just provides a half-hearted antidote
for crimes or criminals like this. It cannot prevent you from defrauding people, it cannot prevent you from stealing again, and deterrence
is certainly a factor that the Court must also take into account."
The magistrate dealt as follows with a submission that the appellant had
shown remorse for what she had done:
"It was stated on your behalf that you are remorseful for what you have done and the Court can understand that any person would
certainly be sorry for what they have done afterwards if it affects them in a negative way which happened to you, emotionally as
well as, I assume, financially. But before the Court can regard remorse as a mitigating factor, the Court
13
must be satisfied that it was genuine, or that it is remorse that is genuine. The Mowing was said in the case of Seegers 1970(2) SA
506(A) at 511 (G)to (H)-
"Remorse, as an indication that the offence will not be committed again, is obviously an important consideration, in suitable
cases, when the deterrent effect of a sentence on the accused is adjudged. But, in order to be a valid consideration, the penitence
must be sincere and the accused must take the Court fully into his confidence. Unless that happens the genuineness of contrition
alleged to exist cannot be determined.'
The Court cannot, to date, say that you have placed all your cards on the table. The fact that you pleaded guilty can certainly be
seen as indicative of remorse, but to date the Court has absolutely no indication from you as to what really motivated you and exactly
what happened and what all the monies were used for. You chose not to take the court into your confidence with regards to that. Obviously
that is then something that places a question mark behind your expression of remorse."
The magistrate then proceeded to consider the evidence of the clinical
psychologist, Mrs Roux, that direct imprisonment was not a viable option in this
case. In this regard she quoted what Nienaber JA had to say about a similar
submission which was advanced in the case of S v Lister, 1993(2) SACR 228 (A).
14 The passage quoted, which appears at 232 g-h, reads as follows:
"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 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 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."
The magistrate expressed the view that direct imprisonment is the most appropriate option in the circumstances of this case and that
a sentence in terms of correctional supervision "would, in view of the seriousness of the offence, the demands of society and
the need for deterrence, be an inadequate response to the crimes that you have committed".
Mr Grobbelaar, who appeared on behalf of the appellant, contended that the magistrate misdirected herself when she rejected correctional
supervision as a
15 sentencing option in this case on the ground that it had been her personal experience
that correctional supervision "mostly just provides a half-hearted antidote for crimes
or criminals like this".
In this regard Mr Grobbelaar referred to the decision of this Court in S v R, 1993(1) SA 476(A) and an unreported decision of Conradie
J in S v Harding, CPD 23 September 1992, in both of which the advantages of correctional supervision orders were stressed. Mr Grobbelaar
submitted that the magistrate's approach, as revealed in the passage from her judgment cited above, was, as he put it, directly in
conflict with the approach of this Court in respect of the advantages of correctional supervision.
In my view the magistrate in the passage relied on by Mr Grobbelaar did not misdirect herself. Her comments were made in the context
of crimes committed by an accused in the workplace, with the result that a correctional supervision order, which is designed to allow
a person sentenced thereto to carry on working, cannot
16 in itself prevent such person from committing further offences in the workplace.
Mr Grobbelaar also argued that the magistrate misdirected herself by not maintaining a proper balance between the personal circumstances
of the appellant, on the one hand, and the seriousness of the crime, on the other, with the result, so he submitted, that the sentence
imposed was a shockingly heavy one.
It is clear, and indeed Mr Grobbelaar did not dispute this, that the offences committed by the appellant were serious. Various aggravating
factors were present, as the magistrate correctly found.
In my view the question to be considered in this case is whether the trial court could reasonably have imposed the sentence which
was imposed: see S v Pieters, 1987(3) SA 717(A) at 734 E and the discussion of that judgment in Hiemstra, Suid-Afrikaanse Strafproses, 5e uitgawe, by J Kriegler, at 803-4.
Applying that test I am unable to say that the sentence which the magistrate imposed was an unreasonable one nor that she misdirected
herself in any way.
17 One has considerable sympathy for the appellant and the situation in which
she finds herself. On the other hand there is considerable force in the factors listed
by the magistrate in her judgment which induced her to impose the sentence she
did.
In the circumstances the appeal is dismissed.
IG FARLAM Acting Judge of Appeal.
Hefer JA)
Smalberger JA) Concur.
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