THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no:  46/06
REPORTABLE

In the matter between:

HEATHER JUNE SMITH                                                APPELLANT

and

THE STATE                                                                    RESPONDENT

Before:  Cameron, Mlambo JJA et Theron AJA

Heard:  19 March 2007

Delivered:  28 March 2007

Summary:
Sentence – motor vehicle theft – first offender – sentence of four years’
imprisonment – on appeal sentence found to be inappropriately severe justifying
interference – sentence reduced by suspending two years conditionally.

Neutral citation:  This judgment may be referred to as Smith v The State [2007]
SCA 40 (RSA).

MLAMBO JA

[1] This is an appeal, with the leave of the Cape High Court (Goso AJ,
Waglay J concurring), against that court’s dismissal of an appeal against a
sentence of four years’ imprisonment imposed by the Wynberg Regional
Court on one count of motor vehicle theft. The appellant had pleaded
guilty to that count as well as four others of theft of money totalling some
R6 500. She was sentenced to four years’ imprisonment on those latter
counts taken together, which was suspended for five years on condition
that she was not convicted of theft or fraud or attempt to commit theft or
fraud committed during the period of suspension. The four-year term of
direct imprisonment on the motor vehicle theft conviction was imposed
despite a recommendation in a correctional supervision report that the
appellant be sentenced in terms of s 276(1)(h) of the Criminal Procedure
Act, Act 51 of 1977. The appeal is against only that sentence.

[2] The facts in relation to the relevant offence are that the appellant, a
salesperson employed by Pierre Masado, trading as Steward Car Centre,
in Diep River in the Western Cape, stole a Mazda 626 motor vehicle the
property of her employer and sold it to her daughter who used her own
Honda Ballade motor vehicle as a trade in. She pocketed the proceeds. (It
seems from the evidence that her daughter was also a victim of the
appellant’s misdeed, being innocent of complicity in it.)

[3] The appellant resigned when her employer, noting that the business
was struggling to make a profit even though it was selling cars, initiated
an investigation. The investigation uncovered the appellant’s deceit
regarding the Mazda and other thefts of money.

[4] All in all the investigation uncovered a loss of R89 000 as a result
of the appellant’s chicanery for which she signed an acknowledgement of
debt coupled with an undertaking of repayment at R2 000 per month. The
Mazda had been valued at R25 000 of which her employer received an
insurance payout of R15 000.

[5] When imposing sentence the regional court correctly criticized the
correctional supervision report as unhelpful and lacking in substance. The
regional court confirmed that the appellant was a suitable candidate for
correctional supervision because she was gainfully employed and had a
fixed residential address. The court further noted that it was significant
that the appellant was a first offender and that courts do not lightly
sentence a first offender to direct imprisonment. The regional court also
noted that, by pleading guilty, the appellant had shown remorse though
observing that (given the strength of the state case) she did not have much
of a choice.

[6] The regional court also took account of evidence led in aggravation
of sentence from Mr Masado. He informed the court that despite the
appellant’s undertaking to pay off her debt in monthly instalments of
R2 000, she had failed to make any payments even though she had
obtained a job after her dismissal. This evidence exposed the appellant as
having lied to the correctional officer when she stated that she was in fact
paying off the amount.

[7] Masado told the court that when the appellant was approached for
information about the whereabouts of the stolen Mazda she lied, claiming
that she had sold it to a Mr van Eck – but offered no cooperation in
tracing him or in providing any details about him, until her daughter

surfaced, seeking assistance to register the motor vehicle in her name.

[8] The regional court also considered the appellant’s personal
circumstances as recorded in the correctional supervision report. At the
time of her trial she was 45 years old and married with four children aged
28, 26, 23 and 16 years. Her husband, though sickly, was in the employ
of Telkom earning a modest income.

[9] Against this background the regional court found that motor
vehicle theft was a serious offence: the more so because the appellant had
stolen from her employer, thus abusing her position of trust. The regional
court in those circumstances concluded – though mindful that it would
severely affect her – that direct imprisonment was the only appropriate
sentence.

[10] In this court, counsel for the appellant criticised the regional court
for imposing direct imprisonment and submitted that the regional court
had misdirected itself in not giving appropriate cognizance to the fact that
the appellant was a first offender and that she had shown remorse by
pleading guilty. Counsel also submitted that the regional court had
misdirected itself by considering the circumstances around the
commission of the theft of money (counts 2 to 5) as aggravation for the
motor vehicle theft count. It must be said in this regard that Masado’s
evidence painted a poor picture of the appellant’s scrupulousness,
truthfulness and integrity.

[11] It is correct that a plea of guilty is an indication of remorse and the
regional magistrate though acknowledging this appeared to downplay its
significance. This cannot however be viewed as a misdirection in itself.

In fact I can find no misdirection in the regional court’s reasons in
arriving at its sentence. Certainly the theft of a motor vehicle by an
employee who breaches a position of trust merits in my view a custodial
sentence, and not merely correctional supervision. In my view, however,
the sentence is excessive if one takes account of two cardinal facts: first,
that the appellant was a first offender, and second that the car she stole
was of relatively low value. I refer in this regard to the judgment of this
court in S v Gerber 2006 (1) SACR 618 (SCA). There this court gave
global consideration to sentences imposed in a number of cases on first
offenders for motor vehicle theft. This court concluded – in a case that
involved, like the present, a ‘white collar’ offender – and the theft of
vehicles of considerably higher value than in the present case – that a
sentence of ten years’ imprisonment, of which three years were
conditionally suspended, was excessive. A sentence of seven years’
imprisonment with two years conditionally suspended was substituted.
The reasoning (at 623G) was:

‘Die appellant verdien beslis ‘n straf wat aan die boonste grens van gangbare strawwe
lê. Nietemin dink ek dat die opgelegde straf met inagneming van huidige vlakke van
strafoplegging en die persoonlike omstandighede van die appellant, treffend onvanpas
is.’

[12] Indeed consistency in the sentencing of offenders in desirable and
should be strived for. This however does not mean that courts should
tailor-make their sentences in keeping with sentences imposed in other
cases, in total disregard of the particular circumstances of each particular
case. In this case the factors in favour of the appellant which can be
regarded as mitigatory are that she is a first offender and demonstrated
remorse by pleading guilty. Although some damaging evidence in

aggravation was led, my view is that the sentence is inappropriately
severe, the more so because the loss she occasioned to her employer was
mitigated. The magistrate took no discernible account of the fact that the
appellant’s employer received an insurance pay-out for more than half of
the on-sale value of the vehicle. The loss eventually suffered thus totalled
only R9 000. That is toward the lowest end of losses inflicted by the
crime of vehicle theft.

[13] In these circumstances in my view an appropriate sentence is one
of four years’ imprisonment, two of which are suspended for five years
on condition that the appellant is not convicted of theft or attempted theft
of a motor vehicle within the period of suspension.

[14] The appeal therefore succeeds. The sentence imposed by the
regional court is set aside and replaced with a sentence of four years’
imprisonment, two of which are suspended for five years on condition
that the appellant is not convicted of theft or attempted theft of a motor
vehicle within the period of suspension.

____________
D MLAMBO
JUDGE OF APPEAL

CONCUR:
CAMERON JA
THERON AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
28 March 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

HEATHER JUNE SMITH v  THE STATE

1.
The Supreme Court of Appeal today upheld an appeal by the appellant
against a sentence of four years’ imprisonment. The sentence was
imposed by the Wynberg Regional Court and upheld by the Cape High
Court on one count of motor vehicle theft.

2.
The Supreme Court of Appeal found that, although motor vehicle theft
was a serious offence, more so in this case, that the appellant had stolen
from her employer, a four year custodial sentence was excessive. The
Supreme Court of Appeal found that the regional court had not given
appropriate weight to the fact that the appellant was a first offender and
had shown remorse by pleading guilty and that the sentence of four
years was out of proportion when considering sentences imposed in
other cases for similar offences.

3.
The Supreme Court of Appeal set aside the sentence of four years’
imprisonment and replaced it with a sentence of four years’ imprisonment
but suspended two years for five years on condition that the appellant
was not convicted of theft of a motor vehicle or attempted theft of a motor
vehicle committed within the period of suspension.