PRIMARY CARE GIVER OF MINOR CHILD SENTENCING FACTOR

S v DE VILLIERS 2016 (1) SACR 148 (SCA)
Sentence — Imposition of — Factors to be taken into account — Where convicted person primary caregiver of minor children — Failure to take into consideration constituting misdirection — Fraud involving amount of R1,4 million taken from employer’s trust account by mother of two young children justifying custodial sentence but arrangements to be made for care of children — Sentence of direct imprisonment replaced with sentence of imprisonment in terms of s 276(1)(i) of CPA from which she could be placed in correctional supervision.

The appellant, a woman in her mid-30s, was convicted in a regional court of 31 counts of fraud and one count of contravening s 4(b)(i) of the Prevention of Organised Crime Act 121 of 1998 involving an amount of R1,4 million. The money was stolen from her employer’s trust account which she had access to as a paralegal in the conveyancing department. She was charged together with her husband and father-in-law, into whose accounts some of the money had been paid. The charges against the latter two were subsequently dropped before the hearing. She was sentenced to eight years’ imprisonment, three years of which were suspended. Before being sentenced she repaid the full amount of R400 000 which she had personally taken from the trust account and paid into her account. There was abundant evidence before the court of the appellant’s personal circumstances which were marked by a family tragedy, a difficult relationship with her mother and her subsequent marriage to a fellow inmate at a rehabilitation centre where they were both treated for drug addiction. The marriage was a difficult one but two children were born of it, a daughter who was 11 at the time of sentencing and a son who was 8. She was the children’s primary caregiver, her husband seldom exercising his rights to visit the children and their daughter not wanting to see him at all. The matter came on appeal against the sentence before the High Court, which confirmed the sentence. In a further appeal it was contended by the appellant and an amicus curiae, requested by the court, that direct imprisonment was not warranted and would be detrimental to the interests of the two children. The state argued that a non-custodial sentence would not be sufficient punishment, given the gravity of the offences, and that a sentence under s 276(1)(i) of the CPA was appropriate. After the arrest of the appellant she had obtained good and stable employment and was able to work flexible hours in order to organise the children’s schooling. It was clear that, should the appellant be given a custodial sentence, the children would lose their secure environment and be at risk, as there was no one else in the world that was able to care for them and support them.

Held, that the regional magistrate had barely referred to the evidence when sentencing and had no regard to the fact that the appellant was the primary caregiver of her two very young children. The court had 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. This was a grave misdirection, as the state conceded.
Held, further, that the High Court had also disregarded the substance of the reports presented to the regional court before sentencing. Its statement on appeal that the trial court had considered all the evidence meticulously was itself a serious misdirection.
Held, further, that a reading of s 28(1), together with s 28(2), of the Constitution required that when a custodial sentence of a primary caregiver was in issue, the court had four responsibilities: to establish whether there would be an impact on the child; to consider independently the child’s best interests; to attach appropriate weight to those interests; and to ensure that the child would be taken care of if the primary caregiver were sent to prison.
Held, further, that the fraud committed by the appellant against her employer when she was in a position of trust was such that a custodial sentence was required. Society had to be assured that persons who abused positions of trust for their own gain were not allowed to walk free. At the same time, taking into account the best interests of the appellant’s 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 had failed and before she was again released on bail. She should also be given an opportunity to make arrangements for their care and support before she is incarcerated. The appeal was upheld and the sentence was replaced with a sentence of three years’ imprisonment in terms of s 276(1)(i) of the CPA, from which she was eligible to be placed under correctional supervision in the discretion of the Commissioner of Correctional Services or a parole board.

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