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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION : GRAHAMSTOWN

CASE NO. CA & R 55/2012

In the matter between:

SIMONE M. WIGGIL ..........................................................................Appellant

and

THE STATE .......................................................................................Respondent

APPEAL JUDGMENT

GRIFFITHS, J.:

[1] On 19 May 2011 the appellant was convicted by the Regional Court, Port Elizabeth, of one count of theft involving the sum of R1,742,681.80 upon a plea of guilty. On 17 October 2011 the Regional Magistrate sentenced her to 15 years imprisonment with the rider that one Ms. Memani from the Department of Social Development was to take all the appropriate steps to ensure that the appellant's minor child be properly cared for during the appellant's period of incarceration. At the request of defence counsel, the Regional Magistrate added a further rider in terms of section 73(6)(b)(v) of the Correctional Services Act¹, to the effect that the appellant be considered for placement on parole after having served two thirds of her term of imprisonment.

[2] The appellant has come before us on appeal as against sentence only, having been granted the appropriate leave.

[3] Although the appellant was convicted of one count, the theft was a continuing one which occurred over a period of almost two years, from 28 March 2008 to 28 February, 2010. She stole differing amounts during this period from her employer, Sandman Quarry CC (" Sandman"), which cumulatively totaled the sum of R1,742,681.80.

[4] According to the managing member of Sandman, one Potgieter, the appellant was employed through an employment agency which had provided him with her résumé. In this document the appellant represented that she had obtained a B.Com.Accounting degree from Wits University. Based thereon, he employed her as bookkeeper and office manager. According to Potgieter, she was both capable and confident to the extent that he felt that he was able to trust her to carry out her duties largely without supervision.

[5] In her capacity as bookkeeper the appellant was responsible for Sandman's bookkeeping system and in particular for the capture of creditor data, including bank account details, onto its electronic accounting system. Towards the end of the above mentioned period, Potgieter was made aware that Sandman’s fuel account had not been paid. On further investigation he tumbled to the fact that the appellant had, on the electronic accounting system, replaced the fuel supplier’s bank account number with her own. One thing led to another and he ultimately discovered that she had employed a number of ingenious methods to siphon Sandman's money into her own pockets. She had in fact embarked upon these dishonest activities shortly after commencing employment with him.

[6] Apart from this method of diverting Sandman's funds to herself, which method she had employed on diverse occasions, she, inter alia, created fictitious creditors on the system whom she either linked to her, or her husband's, bank accounts and into which false payments were made; she caused amounts over and above her agreed salary to be transferred into her, or her husband's, bank accounts without authorization and she falsely caused two trade debtors of Sandman to pay amounts due to Sandman directly into her bank account. None of these payments to her were sanctioned by her employer and all the money thereby stolen from Sandman was used for her own ends.

[7] As I have indicated, she employed the above-mentioned modus operandi to divert a total of R1,742,681.80 of Sandman's funds into her, or her husband’s, bank accounts over a period of almost 2 years.

[8] In dealing with sentence the magistrate took due account of the appellant's personal circumstances, namely that, at the time, the appellant was 47 years of age, she lived with her 32-year-old son and her 10-year-old daughter. He took into account further that she was married and that she was the primary caregiver of the 10-year-old. In addition, she took into account the evidence of a clinical psychologist, one Van Staden, whose evidence was led on her behalf. In particular in this regard, she took into account that the appellant suffered from clinical depression which had been largely untreated, and from a pathological gambling addiction.

[9] In balancing these factors personal to the appellant with the nature of the crime and the interests of society she furthermore took into account the seriousness of the crime as described above, the fact that the appellant had more than one previous conviction for similar offences and the evidence of a number of witnesses led by the state.

[10] It is relevant at this point to mention that the appellant, prior to the conviction which is the subject of this matter, had two previous encounters with the courts by way of previous convictions. Firstly, in 1990 she was convicted of theft and 153 counts of fraud. All counts were apparently taken as one for the purpose of sentence and she was fined R10,000 with an alternative of 2 1/2 years imprisonment. She was also sentenced to five years imprisonment which was suspended for five years on condition that she was not convicted of fraud or theft and for which a term of more than one year’s imprisonment was imposed, committed during the period of suspension. It appears that she was also ordered to pay the sum of R89,697.08 in compensation.

[11] This matter was taken on appeal and was successful only with regard to seven of the 153 counts. The appeal against sentence was dismissed but the amount of compensation payable was reduced to R84,921.68.

[12] On 25 June 2007, she was again convicted of fraud and received three years correctional supervision together with 16 hours community service to be performed during the term of the sentence. She was also sentenced to three years imprisonment which was wholly suspended for five years on condition that she was not convicted of fraud or theft (or attempted fraud or theft) committed during the period of suspension and for which unsuspended imprisonment without the option of a fine was imposed.

[13] The alert reader of this judgment will have noticed that the period during which the appellant committed the theft for which she was sentenced in the present matter, fell wholly within the aforementioned five year period of suspension. Indeed, it appears that having been sentenced for fraud in the previous matter on 25 June 2007, the appellant, approximately 2 months later, obtained employment with Sandman by misrepresenting her qualifications as she did not have a degree in commerce. Some seven months thereafter, and whilst still facing a suspended prison sentence, she again launched into a new series of thefts, similar to the previous.

[14] Not only did the appellant fall foul of the conditions of her suspended sentence, according to evidence led by certain Correctional Service officials she did not appear to pay much heed to the requirements of her sentence of correctional supervision. Inter alia, she was required to attend on certain programs aimed at her rehabilitation which, it appears, she did not make any, or much, effort to attend. Furthermore, she apparently lied to the Correctional Service officer, one Viviers, who was responsible for enforcing her correctional supervision conditions. In terms of such conditions, she was not entitled to leave the city of Port Elizabeth. Whilst still under correctional supervision, she informed Viviers that she was required to attend a team building exercise during a certain weekend at the Wild Coast Sun resort with her husband when, in truth and in fact, she had received an invitation to gamble there. Based on such misrepresentation, Viviers granted the necessary permission thus unconsciously allowing her to further feed her pathological condition whilst at the same time violating her correctional supervision conditions.

[15] A social worker employed by the Department of Social Development, one Memani, also testified for the State and concluded that any form of sentence other than direct imprisonment would not be appropriate for the appellant, given all the circumstances. Her report was elaborated on in evidence and painted a full picture of the appellant's personal history. It seems that she came from an unstable home, her father having been an alcoholic and both her father and mother having been addicted to gambling. She failed to finish grade 10 as she fell pregnant during the course of that year. She was married in 1978 and it was during the course of this relationship that she committed her first series of crimes referred to above, during 1990. This relationship also had its problems and during 1993 her husband was hijacked and murdered. She subsequently met another man with whom she formed a close relationship but he also committed suicide by gassing himself in his car. During 1999 she formed a further relationship with the father of her 10-year-old daughter. Apparently this relationship was rife with domestic violence with her being verbally and physically abused by him. He also abused alcohol.

[16] The social worker also referred to the appellant's penchant for blaming "external factors or persons" for her misfortunes without taking the blame herself and the fact that the appellant verbalized no form of real remorse. She referred to the fact that the appellant appeared to have a strong desire to prove herself to others, especially her current partner. The appellant furthermore could not explain why she continued to commit theft after she had been convicted twice before for similar offences. Memani stated further:

"It appears as though the accused is only concerned about not being incarcerated so that she can continue leading a lavish lifestyle which is difficult to maintain on her normal salary"

[17] Ms. McCallum, who appeared for the appellant, has argued that the factors personal to the appellant as read together with her gambling addiction should have founded a basis for the magistrate to find that substantial and compelling circumstances existed for the purposes of section 51(3) of Act 105 of 1977. She has further argued that because the appellant did not endure the hardship of serving time in prison for her previous convictions, she has never been given the opportunity to properly rehabilitate herself. She also referred us to the unreported judgment in the matter of S v Andre Strydom² where the accused was convicted of 96 counts of fraud totaling in excess of R12 million. In that matter, two of the counts fell within the ambit of section 51 of Act 105 of 1997. The Court found that substantial and compelling circumstances did not exist and, with regard to these counts, the appellant in that matter was sentenced to the prescribed minimum of 15 years imprisonment with regard to each count. Taken together with the various sentences imposed on the other counts, the effective sentence was 20 years.

[18] Ms. McCallum has argued that as the amount involved in the Strydom matter far exceeded the amount involved in this matter, using that matter as a guideline the appellant's sentence should have been proportionately less. I do not find much assistance from the Strydom case as, inter alia, it is not clear from the judgment as to what the amounts involved in the counts which fell foul of the aforementioned Act were, and the appellant in that matter was a first offender in contradistinction to the appellant in this matter.

[19] As regards the question of the appellant's gambling addiction, this cannot, of itself, be regarded as a substantial and compelling circumstance³.

[20] In my view, in coming to the conclusion that no substantial and compelling circumstances exist in this matter, the magistrate considered all the relevant factors and gave due weight thereto. Furthermore, she followed all the necessary prescripts in this regard as have been enumerated in the matter of S v Malgas⁴ and the numerous decisions following thereon. It is clear that this is a matter in which the nature of the crime and the interests of society must carry a substantial amount of weight for, not to do so, would fall foul of the warning given by the appeal court 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."⁵

[21] The appellant has, despite the misgivings of Ms. McCallum, been given every opportunity to avoid imprisonment. She commenced her criminal activities in 1990 when she was given a substantial fine and a suspended sentence. In 2007 she was placed under correctional supervision and again given a suspended sentence. Not only did she violate the provisions of her correctional supervision, within seven months of such sentence she embarked upon a further series of thefts from her employer who was in the dark, not only as to her lack of qualification, but also, and importantly, as to the fact that she had recently been convicted of fraud, was under correctional supervision and was serving a suspended sentence therefor. Whilst it is so that she suffered from depression and did not have the benefit of a normal upbringing, and it may be so that, as testified to by the psychologist, she would benefit from a long-term program of psychotherapy, at 47 years of age she had had ample opportunity and indeed the financial wherewithal to have undergone the necessary therapy to assist with her psychological problems. The courts would fail in their duty were they not to recognize this and to over emphasize such personal circumstances at the expense of the interests of the community.

[22] Sight should also not be lost of the fact that she abused her position of absolute trust in that she stole from her employer who had placed his trust and confidence in her. Unfortunately, this appears to have been the pattern of her dishonest behavior and the only suggestion that she might halt her criminal activity came from her psychologist, Van Staden, who suggested that she might, if given a non custodial sentence, benefit from extended psychotherapy in this regard. Whilst this may be possible, it leaves far too many questions unanswered. In any event, as alluded to earlier, the appellant has been given a number of opportunities to rehabilitate herself of which she has failed to take advantage.

[23] Taking into account all the circumstances of this matter I am not persuaded that the magistrate has either committed a misdirection, or that the sentence imposed by her induces a sense of shock. Indeed, absent the provisions of Act 105 of 1977, the appellant would in my view have been sentenced to a period of imprisonment of a similar order.

[24] As mentioned at the outset of this judgment the magistrate attempted to ameliorate the harshness of the then existing parole conditions by ordering, as she was entitled to do, that the appellant be considered for placement on parole after she has served two thirds of her imprisonment. This was done pursuant to the provisions of section 73(6)(b)(v) of the Correctional Services Act. At the time of the appellant's conviction, the relevant portions of section 73(6) of that Act read as follows:

“(6)(a) Subject to the provisions of paragraph (b), a sentenced offender serving a determinate sentence may not be placed on parole until such sentenced offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, half of the sentence, but parole must be considered whenever a sentenced offender has served 25 years of a sentence or cumulative sentences.

b) A person who has been sentenced to-

i) – iv)………

v) incarceration contemplated in section 51 or 52 of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), may not be placed on parole unless he or she has served at least four fifths of the term of incarceration imposed or 25 years, whichever is the shorter, but the court, when imposing incarceration, may order that the sentenced offender be considered for placement on parole after he or she has served two thirds of such term.”

[25] As the appellant's offence fell foul of the provisions of section 51 of Act 105 of 1997, the magistrate clearly attempted to ameliorate the harshness of the sentence by ordering that she be considered for placement on parole after she has served two thirds of the term of imprisonment. Subsequent thereto, section 73 of the Correctional Services Act has been amended. The amended version, as far as it is applicable to the appellant, reads as follows:

“(6) (a) Subject to the provisions of paragraph (b), a sentenced offender serving a determinate sentence or cumulative sentences of more than 24 months may not be placed on day parole or parole until such sentenced offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, half of the sentence, but day parole or parole must be considered whenever a sentenced offender has served 25 years of a sentence or cumulative sentences.”

[26] It will be seen from this that reference to Act 105 of 1997 has been removed. The effect of this, together with certain other amendments to the section, is thus that, in accordance with section 73(6)(a) and because the appellant is serving a sentence of more than 24 months, she will be obliged to serve two thirds of the sentence before being considered for parole whereas, had the non-parole period not been imposed by the magistrate, she would be entitled to be considered for parole after having served half of her sentence.

[27] Ms. McCallum has argued that the magistrate erred in imposing the non-parole period and it should accordingly be set aside. In my view, and particularly because the magistrate had in mind an amelioration of the seriousness of the sentence, the net effect of her having imposed a two thirds non-parole period has had the opposite effect and will result in a failure of justice should such order not be set aside.

[28] In all these circumstances, I propose the following order:

1. The appeal against sentence is dismissed, save and except for what is stated in paragraph 2 of this order;

2. The order made by the Magistrate to the effect that the appellant be considered for placement on parole after she has served two thirds of the term of imprisonment is hereby set aside.

HARTLE, J. : I agree

JUDGE OF THE HIGH COURT

GRIFFITHS, J. : It is so ordered.

JUDGE OF THE HIGH COURT

HEARD ON : 29 AUGUST 2012

DELIVERED ON : 21 NOVEMBER 2012

COUNSEL FOR APPELLANT : Mrs McCullum

INSTRUCTED BY : Legal aid Board

COUNSEL FOR RESPONDENT : Mrs Pillay

INSTRUCTED BY : Director of Public Prosecutions

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