Court name
High Court
Case number
CA 52 of 1993
Case name
S v Francina
Media neutral citation
[1994] NAHC 3
















CASE
NO. CA 52 /93











IN
THE HIGH COURT OF NAMIBIA












In
the matter between









EDETROUD
FRANCINA B6CK



versus
THE
STATE












CORAM:
STRYDOM, J.P.
et
MULLER,
A.J.











Heard
on: 1994/03/28
Delivered on:
1994/03/28











JUDGMENT



STRYDOM,
J.P.
:
The
appellant was convicted on 13 counts of theft involving an amount of
N$17 165,08. The theft of the money was committed during the period
24 November 1992 to 12 February 1993. The money was stolen from
Standard Bank Limited that was at the time the employer of the
appellant. The appeal is against the sentence only.









In
mitigation the appellant requested the Court to impose a fine. She
stated that she had made arrangements to repay the bank. In this
regard it was confirmed by the Prosecutor that about half the stolen
money has been repaid by the appellant. The appellant further
informed the Court that she was presently e'mployed by the Ministry
of Education as a teacher with a monthly salary of N$1 300. She is
the mother of a two year old child who is in her care. She further
stated that she stole the money because she was heavily in debt and
had to pay attorneys N$650 per month out of her salary of N$1 400.
The total debt amounted to approximately N$8 000. The appellant was
also a first offender and was at the time 22 years old.












The
grounds of appeal read as follows:









"The
sentence of the Honourable Magistrate was in the circumstances
inappropriate and outrageous in that the Honourable Magistrate:




  1. Did
    not duly take into consideration the fact that the appellant pleaded
    guilty and was a first offender.



  2. Did
    not duly take into consideration the fact that the appellant had
    already repay a considerable amount to the complainant.



  3. Did
    not duly take into consideration that fact that the appellant also
    arranged to repay the rest of the money to the complainant while she
    is employed and in a position to do so.










(4) Did
not take the charges together for the purposes of sentence."






Mr
Swanepoel, who appeared on behalf of the appellant, submitted that
the Court a quo misdirected itself on the facts in regard to the time
span during which the crimes were committed, the motive for stealing
the money and the amount already repaid to the bank. Furthermore he
submitted that the Court misdirected itself by overemphasizing the
deterrent aspect of the sentence at the cost of the personal
circumstances of the appellant.



Miss
Lategan on behalf of the State submitted that the sentence imposed by
the Magistrate was in all the circumstances proper and appropriate.









In
his reasons for judgment the Magistrate dealt with all these
circumstances put before him. I agree with the Magistrate that there
are circumstances present which call for a deterrent sentence. First
and foremost is the fact that the appellant was in a position of
trust
vis-a-vis
her employer and that she abused her position by stealing from her
employer. This Court has on more than one occasion expressed itself
in this regard. The prevalence of offences of this nature is common
knowledge. In circumstances such as these the deterrent aspect of
sentencing must come strongly to the fore. More so also to deter
others in similar positions from stealing from their employers. The
whole economic structure may be endangered if employers can't trust
their employees not to help themselves to money which does not belong
to them. To give more weight to the deterrent aspect would not be
wrong. See
S
v van Wyk

1992(1) SACR 147 NSc. It was also regarded by the Magistrate as an
aggravating circumstance that once the appellant sets herself on the
road to dishonesty, greed soon took over and her excuse that she
stole from need, which is not justifiable but is at least perhaps
understandable, became only a myth. In this regard it is also
relevant that the appellant committed these crimes over a period of
time. She therefore had ample opportunity to reconsider what she was
doing but nevertheless persisted in her wrongful conduct.









In
this regard Mr Swanepoel has submitted that it is clear from the
charge sheet that the appellant was arrested on 7 June 1993. As the
last theft was committed on the 12th February 1993, this would
indicate that the appellant stopped by herself from committing
further crimes. This does not necessarily follow. It may be that she
was suspended from work pending an investigation. If this is however
accepted the fact remains that these crimes were committed over a
period of some two and a half months and that she took considerably
more money than what was necessary to get out of her financial
difficulties. In this respect Mr Swanepoel submitted that the Court
must accept that the amount of N$8 000 stated by the appellant as
being her total debt only included the capital amount and did not
take care of attorney's costs which can easily be double the capital
amount. I do not accept this submission. The appellant when asked
specifically stated that her total debt was N$8 000 which she had to
repay at the rate of N$650 per month. There is no evidence whatsoever
indicating that the amount was higher and in my opinion the
Magistrate was fully justified to come to the conclusion that the
appellant, by stealing some N$17 000, intended also to enrich herself
at the expense of the bank. Although the Magistrate misdirected
himself in regard to the length of the period over which the crimes
were committed I do not think that the misdirection is of such a
nature that this Court will, on the strength thereof, interfere with
the sentence. This goes also for the finding that she has repaid
about half the money stolen by her.









Mr
Swanepoel has referred the Court to the case of
S
v van Vuuren

1992(1) SACR p. 127 where a woman stole some R73 000 from the bank
where she was employed. On appeal her sentence of five years
imprisonment was suspended in
toto
on condition
inter
alia

that she performs community services of 300 hours. There are some
aspects which correspond with that of the appellant's case presently
under consideration but there are also significant differences. Apart
from the personal circumstances which differ markedly, the Court also
found that van Vuuren's financial difficulties did continue and that
all or any of the money stolen by her was not used to feather her own
nest. It also seems that the element of whether the offence was
prevalent did not play any part in the judgment of the Court.



For
the reasons set out previously I am not persuaded that the Court a
quo
was wrong in imposing a prison sentence, however, I am of the opinion
that the cumulative effect of 26 months effective imprisonment is in
all the circumstances not an appropriate sentence. The appellant, a
22 year old woman, with a child of two years, is a first offender.
Although she initially pleaded not guilty, she, on the resumption of
the trial, pleaded guilty to all the charges. This at least showed
contrition and remorse on her part. Cases of theft and fraud are
sometimes difficult to prove. Where the accused pleaded guilty, this
is a factor which reflects favourably on the chances of
rehabilitation of such an accused and is therefore an important
factor when the Court must determine an appropriate sentence. At the
time when the matter came up for hearing, the accused had already
repaid at least half the amount of the money she had stolen, and she
further informed the Court that she had made arrangements to pay the
still outstanding balance. The partial or full compensation of the
loss suffered by the Complainant is always a relevant factor in
regard to sentencing. See
S
v Charlie

1976(2) SA 596 (A) and
S
v van Vuuren

1992(1) SACR 127 (A). Although the Magistrate referred to these
factors in his reasons for sentence, it seems to me, taking into
consideration the sentences imposed, that the Magistrate
overemphasized the seriousness of the offence and gave very little
weight to the mitigating factors as set out above. Cumulatively the
term of effective imprisonment imposed is 26 months. Taking into
consideration the personal circumstances of the appellant together
with the other mitigating factors and when these are properly
balanced with the aggravating circumstances and other factors
relevant to sentence, then the period of imprisonment is in my
opinion not appropriate.









In
the circumstances this Court is at large and is entitled to interfere
with the sentence imposed by the Magistrate. As previously stated
this Court is satisfied that in all the circumstances it will be
appropriate to impose a period of imprisonment. I am however of







the
opinion that a period of one month effective imprisonment in respect
of each count will in the circumstances be a sufficient deterrent
for the appellant and others but will also take due regard of the
personal circumstances of the appellant as well as the other
mitigating factors.















In
the result the following orders are made:











The
appeal against the sentences imposed by the Magistrate is upheld to
the extent that the sentences of four months imprisonment of which
two months imprisonment was suspended on certain conditions, is
hereby set aside and the following is substituted therefore:



STRYDOM,
JUDGE PRESIDENT





I
concur









The
appellant is on each of the 13 counts sentenced to three (3) months
imprisonment of which two (2) months imprisonment is suspended for
four (4) years on condition that the accused is not convicted of
theft committed during the period of suspension."














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