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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

CASE NO: CC35/2006

In the matter between:

THE CHAIRPERSON OF THE EAST LONDON

CORRECTIONAL SERVICES PAROLE BOARD N.O. Applicant

in re: RIANA ODENDAAL

and

THE STATE Respondent

Coram: CHETTY, J

Date Heard: 19 JUNE 2008

Date Delivered: 20 JUNE 2008

Summary: Reconsideration of sentence in terms of section 276A (3) of the Criminal Procedure Act No 51 of 1977 – principles applicable – conversion of sentence to one of correctional supervision

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JUDGMENT

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CHETTY, J

[1] This is an application by the chairperson of the East London Correctional Services Parole Board in terms of section 276A (3) of the Criminal Procedure Act¹ (the Act) for the reconsideration of a sentence of six years imprisonment imposed on Riana Odendaal (the inmate) on 22 February 2007 by this Court following upon her conviction on a charge of fraud. Ss 3 (a) of the Act inter alia provides for the reconsideration of a sentence of a person who has been sentenced by a court to imprisonment for a period exceeding five years but his or her date of release in terms of the provisions of the Correctional Services Act² and the regulations made thereunder is not more than five years in the future³. It is common cause that the inmate falls within the purview of the aforementioned sub-section of the Act. The application is premised on the opinion held by the applicant that the inmate is a “person (who) is fit to be subjected to correctional supervision”. A court’s power to reconsider a sentence is circumscribed by sub-section 3 (d) which in terms merely restate the discretionary power enjoyed by a court burdened with the task of imposing sentence. When the matter was called on the morning of 19 June 2008 there was no appearance for the applicant⁴. Mr Quinn intimated that he had been instructed to appear on behalf of the inmate. Counsel for the state, Mr Henning, informed me that the state opposed the application. Although it would appear from the wording of section 3 (a) of the Act that the Commissioner of Prisons or a Parole Board established in terms of the Correctional Services Act initiates the application for the reconsideration of a sentence, it is done “. . . to have that person appear before the court a quo in order to reconsider the said sentence”. In these proceedings before me therefore the inmate is presently represented and I am satisfied that it is not incumbent for the applicant to be formally represented in as much as the application is in effect one brought nomine officio.

[2] The inmate has to date been incarcerated for approximately sixteen months. Her life as a prisoner in the gaol environment is extensively canvassed in various affidavits and annexures thereto filed in support of the application and extrapolated therefrom the following emerges - on her admission to the correctional facility the inmate was placed, in conformity with the prevailing security classification practice, in a B-group. From inception she was extremely well behaved, and was soon upgraded to the A status (the least security risk) group with the resultant increased privileges. During the period of her incarceration she has served and continues to serve as the shopkeeper in the prison. She has throughout diligently performed her chores and the books of account have always balanced. The inmate has moreover been actively involved in teaching grades 10 to 12 Afrikaans and Geography in the prison school since her admission to date. In the sporting arena, she coaches netball and attended a gymnastics course and a seminar on arts and crafts. On the religious front she attends bible classes on a weekly basis. The aforementioned activities, according to these reports, indicate that the inmate has attempted to make a meaningful contribution by utilising her own skills to improve not only herself but the lot of her fellow inmates.

[3] The request for reconsideration of the sentence is, in addition, to the aforegoing objective factors, to an appreciable extent based on two reports, the first by a social worker attached to the East London Correctional Services department and the second from its psychologist. In the former, Mrs Martin, who appears to have had regular and extensive contact with the inmate, deals extensively with the level of the inmate’s interaction within the facility’s confines. During these discussions the inmate has expressed her extreme remorse for her felony and Mrs Martin opines that the remorse in genuine. The inmate’s expression of remorse not only to Mrs Martin but to the psychologist as well, stands in stark contrast to her previous stance. Although in my judgment on sentence, I commented adversely upon the inmate’s complete lack of remorse, I must perforce accept, in the absence of any controverting evidence, that her present expression of contrition is not actuated by the reality of her incarceration, but genuine. Consequently, it is a factor which I must now consider afresh together with the other mitigating circumstances advanced in order to reconsider the sentence. In the psychologist’s report, the author, one D Kelaiditis, concludes that further imprisonment “may in fact be counterproductive to her rehabilitation and future reintegration”. That conclusion was arrived at after numerous (nine) interviews conducted with the inmate, with due regard being had to her functioning within the prison environment and to which I have already alluded to.

[4] It will be gleaned therefore that the decision by the applicant to request that the sentence imposed on the inmate be reconsidered, is to a marked degree rooted in the reports as aforesaid and the various other documentation annexed to the application. In addition to the documentation as aforesaid, a number of additional affidavits in support of the application have been filed. The inmate has herself deposed to an affidavit wherein she has consented in writing that these proceedings proceed and be concluded in her absence. The proviso to ss 3 (d) permits a court to reconsider a sentence in such circumstances and to consider written submissions from such offender in the process of reconsidering the sentence. In her affidavit the inmate expresses her deep regret for her actions and for the prejudice suffered by her erstwhile employer. She has undertaken to repay to Drake Flemmer and Orsmond whatever is due to them. One of the directors of the aforesaid latter firm of attorneys has filed an affidavit wherein he has indicated that his firm is not only not opposed to the application, but in fact support it. He has however indicated that the outstanding loss totals R200 000. 00.

[6] It is furthermore evident from an affidavit filed by Mr Du Plessis that the inmate will be gainfully employed, should I accede to the request to convert the sentence. It will be recalled that prior to the inmates’ conviction she had been employed by Mr Du Plessis. He has reaffirmed the high regard he has for the inmate and expounded on the reasons why he wishes to re-employ her. Further affidavits filed by officials in the employ of the department of Correctional Services viz. messrs Swart and Ngubanga corroborate the evidence of the applicant and serves to reinforce the opinion held by him. The import of all these reports to which I have adverted, strongly suggest that the inmate’s personal circumstances coupled to the mitigating factors adverted to therein militate against her continued incarceration and imperatively calls for the conversion of her sentence to a non custodial one. Although counsel for the state has strongly opposed the application, and mindful that such opposition must be accorded the weight it undoubtedly deserves, there is, in the final analysis, nothing to gainsay the overwhelming weight of evidential material submitted on behalf of the applicant. It appears from counsel for the state’s submissions that the opposition to the application is narrowly circumscribed. Mr Henning pointed to the apparent incongruity in Mrs Martin’s report where the inmate indicated that the commission of the offence was actuated by her parlous financial circumstances and my finding in paragraph 6 of the judgment on sentence that the theft enabled her to lead a life of affluence. In my judgment I adverted to the reason advanced by the inmate for having committed the offence viz. “her parlous financial predicament” and commented that the extent thereof had not been disclosed. It would seem therefore that the inmate has, at the very least, been consistent in this regard.

[7] A court’s approach to the question of sentence is, as I have remarked, largely discretionary save where minimum sentences are prescribed by statute. Although the offence for which the inmate was convicted of attracted a minimum sentence, counsel for the state fairly conceded at the trial that the imposition of the ordained sentence would amount to an injustice. Various theories of punishment have been propounded in regard to imposing sentence viz. deterrence, reformation, rehabilitation etc. but in the final analysis the exercise involves the weighing up of various competing interests, the mitigating and aggravating factors. In my judgment on sentence I embarked upon that exercise before concluding that a custodial sentence was the only appropriate one. However, in view of the inmate’s insight gained during her incarceration and the positive prognosis made for her future, I am constrained to agree that continued imprisonment may well now no longer be appropriate.

[8] The sentence proposed by the applicant viz correctional supervision under certain specified conditions as contemplated in s 52 of the Correctional Services Act is a sentence sanctioned by the legislature. S 3 (e) of the Act⁵ thus provides in sub-section (ii) thereof that a court may, after reconsideration of a sentence, convert the sentence imposed into correctional supervision on such conditions as it deems meet. During the course of argument I intimated to counsel that on the assumption that I would find that a compelling case had been made for the conversion of the custodial sentence, to one of correctional supervision they should confer and submit written proposals as to the conditions relating to community corrections which they deem would be appropriate to impose in terms of section 52 of the Act. The proposals submitted, I am told with input by the applicant, commend themselves to me and I trust that the inmate will abide thereby.

[9] In the result therefore the following order will issue:-

1. The sentence of six years imprisonment imposed on Riana Odendaal is converted into a sentence of correctional supervision in terms of section 276 (h) of the Criminal Procedure Act⁶ on the following conditions:

1. House arrest at a place and during times determined by the Commissioner of Correctional Services (“the Commissioner”) for a period not exceeding 18 months and subject to the Commissioner’s discretion in relation to the commencement and termination of this condition.

2. Submissions to monitoring as determined by the Commissioner.

3. 16 hours community service per month for a period not exceeding 18 months to be served as directed by the Commissioner and subject to the Commissioner’s discretion as regards the commencement, extent and termination of community service.

4. The submission to psychotherapy directed at the prisoner’s obsessive personality disorder to be administered by a psychologist in the employ of the Department of Correctional Services and subject to the Commissioner’s discretion as regards the commencement, extent and termination of therapy.

5. The prisoner may not leave the magisterial district of Buffalo City without the permission of the head of Community Corrections, East London.

6. The prisoner shall:

1. Refrain from the abuse of alcohol or the use of drugs other than those prescribed by a doctor during the currency of her sentence;

2. Comply with all reasonable instructions given by the Commissioner regarding compliance with the conditions of sentence;

3. Notify the Commissioner in writing of any changes of residual or work address.

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D. CHETTY

JUDGE OF THE HIGH COURT

Obo the applicant (Riana Odendaal): Adv Quinn

Obo the Respondent: Adv Henning

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