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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)           REPORTABLE: NO

(2)           OF INTEREST TO OTHER JUDGES: NO

 

CASE NUMBER: A767/2016/

01/11/2017

In the matter between:

 

ELANA SUSANA GOUWS                                                                               APPELLANT

 

And

 

THE STATE                                                                                                        RESPONDENT

 

JUDGMENT

KUBUSHI, J

INTRODUCTION

[1]           Elena Susana Gouws, the appellant herein, was during the period 3 August 2003 and May 2013 employed by the complainant herein, Rainbow Auto. She was initially employed as a receptionist and over time worked her way up the corporate ladder. During this period of ten years she worked as a vehicle finance and insurance consultant, a bookkeeper, a sales lady and a Human Resources officer. She came without any experience and the complainant gave her in-house training and paid for her to attend training to get her qualified for accounting and other financial aspects of the business. During the period in question, the complainant gave her access to all the business banking accounts and made her responsible for the electronic payment of accounts. Based on this, the appellant was acquainted with the financial side of the business and got to know which accounts the complainant seldom used and which accounts were not checked on a regular basis.

[2]           This knowledge by the appellant was used to misappropriate money from some of the complainants’ accounts. From 6 July 2007 until 11 May 2013, she stole an amount of R573 836, 93 from the complainant. The money was transferred from the business account into her private account without the consent and/or knowledge of the complainant. The money was stolen over a period of six years in small insignificant amounts every second week. 123 such transfers were made by the appellant. When the crime was exposed, the appellant was charged with the said 123 counts of theft.

[3]           The appellant pleaded guilty as charged and in her plea explanation admitted that she unlawfully and intentionally stole the cash amounts set out in the charge sheet and that the said amounts belonged or were in the lawful possession of the complainant. The trial court found her guilty as charged and sentenced her to an effective ten (10) years imprisonment. She is before us on sentence, leave to appeal having been granted on petition to this court. She applied and was granted bail pending appeal after she had served six months of the sentence.

[4]           Before sentence, the trial court was provided with a suitability report of correctional supervision as a sentence wherein the correctional officer found the appellant a suitable candidate to be sentenced under correctional supervision in terms of s 276 (1) (h) of the· Criminal Procedure Act 51 of 1977, as amended ("the Criminal Procedure Act"). The trial court was also provided with a pre-sentence report in which the probation officer recommended that the appellant receive correctional supervision combined with a victim compensation fee as a sentence according to s 276 (1) (h) and 300 (1) of the Criminal Procedure Act. The trial court considered the recommendation of the probation officer and found the sentence of correctional supervision to be not suitable on the basis that the probation officer relied more on the personal circumstances of the appellant in concluding that the sentence was suitable.

 

THE GROUNDS OF APPEAL

[5]           The submission by the appellant is that the sentence of ten years imprisonment imposed by the trial court is, in the circumstances of this instance, too harsh and induces a sense of shock. The contention is that, taking into account the interest of the appellant and the complainant's desire to be compensated, the trial court ought to have attached more weight to the recommendation of the probation officer and imposed a sentence of correctional supervision. It should be noted that in her notice of appeal (and heads of argument) the appellant called for correctional supervision in terms of s 276 (1) (h) of the Criminal Procedure Act, however, before us, her counsel argued for correctional supervision in terms of s 276 (1) (i) of the Criminal Procedure Act.

 

THE ISSUE

[6]           The question is whether the trial court erred in not imposing a sentence of correctional supervision, but direct imprisonment, in the circumstances of this matter; and whether the sentence of ten (10) years imprisonment imposed by the trial court is shockingly harsh and inappropriate in the circumstances of this case.

 

CORRECTIONAL SUPERVISION

 

The Law Applicable

[7]           The salient section of the Criminal Procedure Act, s 276 thereof, which deals with the sentence of correctional supervision, reads as follows:

 

"276     Nature of punishments

(1)      Subject to the provisions of this Act and any other law and of the common law, the following sentences may be passed upon a person convicted of an offence, namely­

(a)     

(h)     correctional supervision;

(i)       imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board.

276A. Imposition of correctional supervision, and conversion of imprisonment into correctional supervision and vice versa.

(1)        Punishment shall only be imposed under section 276(1) (h) -

(a)         after a report of a probation officer or a correctional official has been placed before the court; and

(b)        for a fixed period not exceeding three years.

(2)        Punishment shall only be imposed under section 276(1) (1)-

(a)         if the court is of the opinion that the offence justifies the imposing of imprisonment, with or without the option of a fine, for a period not exceeding five years; and

(b)        for a fixed period not exceeding five years.

 

[8]           Section 276 (1) (h) read with section 276A of the Criminal Procedure Act provides for a non-custodial sentence of correctional supervision not exceeding 3 years. This sentence is served entirely at home, with no period of imprisonment. Whilst on the other hand, correctional supervision in accordance with s 276(1) (1) of the Criminal Procedure Act provides for the imposition of a sentence of imprisonment from which such a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board.

[9]           By introducing this type of sentence the legislature is said to have sought to distinguish between two types of offenders: those who ought to be removed from society and imprisoned and those who, although deserving of punishment should not be so removed. A sentence of correctional supervision when coupled with appropriate conditions can be a suitably severe sentence even for serious offenders. It, therefore, allows for the imposition of an adequate sentence without resorting to imprisonment with all its attendant negative consequences for both the prisoner and society. Correctional supervision under section 276 (1) (h) of the Criminal Procedure Act can only be imposed for three years, it is, thus, not a sentence that readily lends itself to the very serious category of crimes (which would normally call for higher sentences) and should thus not be too lightly imposed in such cases.[1]

[10]      The Supreme Court of Appeal in Ntaka v The State[2] had this to say about correctional supervision:

 

"[23]     Despite the apparent advantages, it has often been cautioned by the courts that the imposition of correctional supervision should be exercised with care, to maintain its credibility, and certainly not where the crime is too serious. In S v Blank[3] E M Grosskopf JA stated:

 

'The Legislature set limits of three and five years respectively in the case of sentences [of correctional supervision] under paras (h) and (1) . These cut-off points are significant. They give an idea of the seriousness of the crimes for which these sentencing options would be appropriate. But in the same way as the Appellate Division emphasised in Van Vuuran's case [1992 (1) SACR 127 (A)] that the options constituted by those paragraphs should be used in appropriate cases, so a court should not be seduced by the availability of these new options to impose a sentence which would be unbalanced and inappropriate when proper regard is had to the (often competing) purposes of judicial punishment. In serious crimes, including crimes of the nature considered in Van Vuuran's case [theft of money,] imprisonment also falls to be considered as an option and the more serious the crimes, the greater the possibility that imprisonment will be the only suitable sentence.'[4]

 

[24]      Expressing the same views in a case involving the offences of murder, attempted murder and public violence, S v Ningi[5] Scott JA held:

 

'The question is, therefore, whether in all the circumstances a sentence of correctional supervision would be appropriate. It is unnecessary to repeat what has been said before of the advantages of correctional supervision. They are well known. What I think must be acknowledged, however, is that insofar as a first offender in particular is concerned and leaving aside for the moment the practicalities of administering a non-custodial sentence, whether correctional supervision as opposed to direct imprisonment is to be imposed must depend ultimately on the seriousness of the offence and the particular circumstances in which it was committed. This is so because, whatever its advantages, correctional supervision remains a lighter sentence than direct imprisonment. Any contention to the contrary I think would be unrealistic.'

 

Application of the Law to Facts

[11]             It is my view that bearing the circumstances of this case, in particular the nature and gravity of the offence and the manner in which it was orchestrated, the trial court was correct not to have imposed a sentence of correctional supervision. The appellant's counsel having conceded that the sentence of correctional supervision along the lines of s 276 (1) (h) of the Criminal Procedure Act would be impractical, was still adamant that correctional supervision ought to be imposed. His argument in this regard was based on the following factors: that the appellant has already served a period of six months in custody; the element of retribution came strongly in the trial court's judgment and was overemphasised; the appellant has already paid an amount of R400 000, irrespective of where the money came from, thus has reduced her moral blameworthiness; there is no evidence that she is not feeling the pinch and does not mean that she does not have to pay back the money to her father; and that the complainant's desire is to be compensated for the stolen money.

[12]             Counsel, implored us to rather mete out the sentence in terms of s 276 (1) (i) of the Criminal Procedure Act. As already said, in terms of this sentence the appellant will be incarcerated for a certain period but would at the discretion of the commissioner of correctional services or the parole board be placed under correctional supervision. I am not in agreement with this argument by the appellant's counsel. In my opinion, the circumstances of this case do not warrant the imposition of a sentence of correctional supervision at all. For all intents and purposes the specific offence the appellant has been convicted of is very serious. The appellant's counsel in trying to persuade us not to consider the crime as very serious because of the amount involved, referred us to a comparative judgment wherein the accused in that judgment was convicted of having stolen an amount larger than that stolen by the appellant and was sentenced to correctional supervision.[6] What counsel failed to take into account is the fact that comparative judgments are only there as a guideline and are not binding on another court. Of importance is that each case ought to be considered on its own merits. I am inclined to conclude in this instance that even though the amount involved may be said to be minimal in comparison to other cases, however, for purposes of this case, the nature of the offence and the circumstances under which it was committed, renders it very serious.

[13]             It is not in dispute that the offence was perpetrated over a long period of time, six years to be exact. The money was syphoned every second week and for 123 times. Small amounts of monies were taken in order not to alert the complainant. In his heads of argument counsel wants us to believe that the appellant is not a true criminal in the sense of the word. This cannot be so. The manner in which the money was stolen smacks of nothing but the work of a seasoned criminal. If she was not a criminal when she started stealing the money but by the end of the six year period she cannot be regarded as anything but a common criminal and must as such be treated as one. The gravity of this offence is aggravated by the fact that it was well planned and perpetrated with stealth. For instance, the appellant was instructed to pay an amount of R2000 into the credit card of the owner of the business to reduce his credit but the appellant paid the amount into her own account instead well aware that it will not be detected. What about the fact that the appellant stole some of the money a day before the burial of her boss' child and still attended the funeral as if she was supporting him?

[14]             The gravity of the offence is further aggravated by the fact that the appellant stole the money out of greed and nothing else. She did not actually require that money. She was employed and was relatively well paid. She did not have to pay most of what can be referred to as household necessities since she was staying with her parents. She used the money, according to her, to buy clothing, jewellery and perfume in order for her to feel good about herself and for her to look good. [This is as per the pre-sentencing report p8 thereof]. She was well trusted by her employer and she abused this position of trust. She came in inexperienced, as already stated, and through training was able to handle the complainant's books of account and because of trust was allowed access even to the bank accounts. Her conduct put the complainant's business under severe strain. Even though there is no evidence that the business branch was closed due to the appellant's misappropriation of funds there, the evidence, however, does show that the main business was struggling.

[15]             The submission by the appellant's counsel that the payment of R400 000 by the appellant's father reducing the amount stolen by the appellant reduces here moral blameworthiness is without foundation. The moral blameworthiness of an offender, in my view, refers to the extent of her/his participation in the commission of the offence. The seriousness of the offence, as such, is affected by the extent to which the offender can be blamed or held accountable for the harm caused. I have already in paragraphs [13] and [14] of this judgment set out the degree and manner of participation by the appellant in the crime and the nature thereof which brings out the gravity thereof. That her father has paid off a certain amount of the amount stolen does not in any way lessen the appellant's moral blameworthiness. She remains to blame for all the inconveniences and the financial strain of the complainant. That she is to pay back the amount paid by her father does not militate in her favour because she now has to pay that amount at a slow and leisurely pace and, perhaps, she might not even pay it back.

[16]             The appellant does not show any remorse for her actions. She pleaded guilty and in her plea explanation merely repeated what was in the charge sheet and never took the court in her confidence. She did not state in her plea explanation that she was remorseful nor did she testify to this. The plea of guilty was tendered two years after she was arrested. For two years she wasted the court's time, requesting further particulars and other documents well knowing that she committed the crime.

 

SENTENCE OF TEN YEARS IMPRISONMENT

[17]             The appellant's counsel contended that whatever the appellant has done, the sentence of ten years (10) imprisonment is still shocking and inappropriate in the circumstances of this matter. I agree with him.

[18]             Punishment is said to be pre-eminently a matter for the discretion of the trial court. The discretion can be interfered with only if the discretion has not been judicially and properly exercised. But, it is trite that, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate.' The test, in this regard, is whether the sentence imposed induces a sense of shock, that is to say, whether there is a striking disparity between the sentence passed and that which the court of appeal would have imposed.[7]

[19]             It is my view that there is a striking disparity between the sentence passed by the trial court and that which this court would have imposed. In that sense, I would hold that the trial court misdirected itself in imposing a sentence of ten (10) years imprisonment. We have to look at sentence afresh.

[20]      When passing sentence, the trial court ought to have considered the personal circumstances of the appellant as favouring a lesser sentence of imprisonment. The appellant at 32 years of age is relatively young. She is a young woman at the prime of her life. She is even a first offender at that age. She pleaded guilty even though it was after a passage of some two years after her arrest and she offered to pay back the money she had stolen. She is a relatively stable person having been employed all her adult life and worked for one employer over a period of ten years. It is said in the pre-sentence report that she does not imbibe liquor nor takes narcotics and regularly goes to church. Her personal circumstances make her a potential candidate for rehabilitation. Her lack of remorse is a factor which persuades me that such rehabilitation will best be done in the confines of prison. The lack of remorse shows that she has not accepted her wrongfulness in her conduct. In spending time in prison, she will come back to society a reformed person.

[21]        An appropriate sentence, in the circumstance of this case that is fit for the crime and the offender and is in the interest of society ought to be a sentence of seven years (7) imprisonment.

 

ORDER

[22]        In the premises I make the following order:

 

1.       The conviction is confirmed.

2.       The appeal on sentence is upheld.

3.       The sentence imposed by the trial court is set aside and substituted by the following sentence:

'The accused is sentenced to seven (7) years imprisonment.'

4.       The sentence is ante-dated to 4 December 2015.

 

 

 

 

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

 

 

I concur

 

 

E. PHIYEGA

ACTING JUDGE OF THE HIGH COURT

 

 

 

Appearances:

 

On behalf of the appellant:                                    Adv.L.JO Lowies

Instructed by:

PRETORIA JUSTICE CENTRE

2^nd Floor FNB Building

206 Church Street

PRETORIA 0001

 

On behalf of the respondent:                                 Adv F.W. Van Der Merwe

Instructed by:

DIRECTOR OF PUBLIC PROSECUTIONS

Presidential Building

28 Church Square

PRETORIA 0001

 

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