PRIMARY CARE GIVER AS FACTOR IN SENTENCING

NDV v S [2015] 4 All SA 268 (SCA)
Criminal law – Sentence – Fraud on employer when in position of trust – Principles to be applied where a person convicted of an offence is the primary caregiver of children – Failure to consider the best interests of an offender’s young children, when imposing a sentence, constitutes a grave misdirection – Court held that a custodial sentence is appropriate even though appellant was primary caregiver because of the seriousness of the crime.

The appellant was convicted on 31 counts of fraud and one count of contravening section 4(b)(i) of the Prevention of Organised Crime Act 121 of 1998. She was sentenced to eight years’ imprisonment, three years of which were suspended on the usual conditions. She had, before being sentenced, repaid the full amount which she had personally taken from her former employer’s trust account and various assets that she had acquired were forfeited to the State under the Prevention of Organised Crime Act.
On appeal, the issue before the court was the weight to be attached to the fact that the appellant was the primary caregiver of her two children.
Held – The sentencing court failed to have regard to any of the psychological and medical evidence before it, and did not, as it should have done, consider the interests of the children. That was a grave misdirection. Further misdirections were that the presiding officer did not read the report of the probation officer fully and none of the reports before him were examined for accuracy. The State conceded that the trial court and the Full Bench were guilty of grave misdirections, and that the sentence of eight years’ imprisonment, only three of which were suspended, was unjustified in all the circumstances.
In considering an appropriate sentence, the present Court considered the principles to be applied where a person convicted of an offence is the primary caregiver of children. The rights of children as set out in section 28 of the Constitution is central to such an enquiry. Having regard to case law, the Court noted the question which had been raised, as to whether, in sentencing a primary caregiver, a child’s interests should be one of the factors considered with the established triad of the crime, the offender and the interests of society.
When determining whether a sentence involving imprisonment is required in the circumstances, while sentences imposed in similar cases is always useful, each person to be sentenced must be considered against her own background and in her own circumstances.
Weighing up all the factors in this case, the Court decided that the fraud committed by the appellant warranted a custodial sentence. At the same time, taking into account the best interests of the very young children, the period of imprisonment should not be lengthy and should take into account the period for which she was incarcerated after her appeal to the Full Bench failed and before she was again released on bail. It was also deemed fair that the appellant be given an opportunity to make arrangements for the children’s care and support before she was incarcerated.
Upholding the appeal, the Court sentenced the appellant to three years’ imprisonment from which she might be placed under correctional supervision.

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