CASE NO. 33/99
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
SUSAN NAY WRIGHT
APPELLANT
AND
THE STATE
RESPONDENT
BEFORE:
SCHUTZ, STREICHER JJA AND MTHIYANE AJA
HEARD:
22 MARCH 2000
DELIVERED:
24 MARCH 2000
Criminal law - theft of police docket - sentence increased.
W P SCHUTZ

____________________________________________________________
____
J U D G M E N T
____________________________________________________________
____
SCHUTZ JA:
[1] The appellant pleaded guilty to the theft of a police docket and was
convicted accordingly in the Magistrate’s Court, Port Elizabeth.  The sentence was
12 months imprisonment, of which 8 months was conditionally suspended for five
years.  An appeal against sentence to the Eastern Cape High Court failed, but that
court granted leave to appeal to this court.  Some days before the appeal was
argued the parties were notified that their representatives should be prepared to
argue whether the sentence should be increased.
[2] The facts were these.  The appellant and her co-accused conspired to steal

the police docket in a case in which a charge of fraud against one Aroonslam was
being investigated.  The appellant’s complicity was secured by the promise of a
sum of R10,000.  She never received this money, as the police had been alerted to
the intended theft and had prepared a duplicate docket, which the informer stole
and gave to the appellant, who passed it on to her co-accused, who was a friend
of Aroonslam.  Before the docket could reach him the police arrested the appellant
and her co-accused.
[3] The appellant’s personal circumstances are these.  She has no previous
convictions and is a 40 year old married woman with three children.  She was
earning R2 200 per month gross, but lost her job because of her arrest.  Her father
suffered from  heart disease and she paid his medical bills.  In consequence she
was unable to meet her household expenses.   She was heavily in debt.  Her
intention was to use the R10 000 to pay her father’s medical bills.  After arrest she
co-operated with the police, and, as I have said, pleaded guilty.

[4] The prosecutor requested a fine coupled with a suspended sentence of
imprisonment, but the magistrate rightly took a more serious view of the matter and
imposed the sentence mentioned earlier.  He motivated his sentence as follows:
“a)
Die hof beskou hierdie voorval in ‘n baie ernstiger lig as die gewone
voorvalle van diefstal wat voor die hof gebring word.  Hierdie kom
neer op korrupsie in ‘n staatsdepartement wat in effek beide die
Departement van Polisie en die Departement van Justisie raak.
b)
Korrupsie veral, in die staatsdepartemente is deesdae aan die orde van
die dag.  Ongelukkig word die wandaders selde aan die kaak gestel.
Hierdie korrupsie het as ‘n reël ernstige finansiële implikasies en
gevolge.
c)
As gevolg van hierdie tipe voorvalle verloor die publiek respek en
vertroue in die relevante departemente.
d)
Die Departemente van Justisie en Polisie is die hoekstene van al die
staatsdepartemente.  Hulle primêre funksie is immers die handhawing
van wet en orde.  Huidiglik is hierdie land misdaadgeteisterd.  Die
blote feit dat misdaad nou op ‘n drafstap in die verskillende
staatsdepartemente is, is vir die gewone man op straat onaanvaarbaar.
e)
Die howe sal ‘n drastiese standpunt moet inneem om persone met
soortgelyke planne af te skrik en om die publiek se vertroue in die
verskeie staatsdepartemente te herstel.
f)
In hierdie geval is melding gemaak van ‘n groot bedrag geld, naamlik
R10 000 wat hande sou wissel vir die diefstal van die dossier.
g)
Die dossier wat gesteel moes word, bevat ‘n baie ernstige klag,

naamlik bedrog, nodeloos om te sê bedrog is ook een van die
misdrywe wat deesdae vry algemeen voorkom.”
[5] On the appellant’s behalf it has been contended that the magistrate erred in
holding “Hierdie kom neer op korrupsie in ‘n staatsdepartement.”  This argument
is based on there being no clear evidence that the informer who stole the docket
was a policeman or state official, so that it has not been established that anyone was
perverted from doing his duty.  It could have been a theft in the normal course, if
I may put it that way.  The High Court accepted that technically this argument was
correct, but nonetheless declined to interfere with the sentence, because it
considered the theft to be a serious one which merited the sentence imposed
regardless.  I would agree that corruption in the strict technical sense has not been
proved.
[6] Insofar as a reduction in sentence is sought, no other misdirections have been
demonstrated, nor has it been shown that the magistrate closed his mind to forms

of sentence other than direct imprisonment; and he has had  regard to the personal
circumstances of the appellant. The circumstances that I have set out were
accepted as correct by the prosecutor.  Nonetheless they are very meagre.  The
appellant made no real attempt to take the court into her confidence.  Consequently
there is no evidence, for instance, as to how she came to be involved in the
conspiracy to steal.  In any event, I agree with the statement of Nienaber JA in S v
Lister 1993 (2) SACR 228 (A) at 232 H - I  “To focus on the well-being of the
prisoner at the expense of the other aims of sentencing, such as the interests of the
community, is to distort the process and to produce, in all likelihood, a warped
sentence.”
[7] When one has regard to the nature of the crime and the interests of the
community in having it punished, it must be stressed that the  crime of stealing a
police docket goes to the root of the maintenance of law and order and demands
condign punishment.  Further, I would associate myself with the magistrate’s

remarks (suitably corrected as to corruption in this particular case).   In S v
Newyear 1995 (1) SACR 626 (A) this court sustained a sentence of four years
imprisonment with two suspended in the case of a first offender policeman with 25
years of flawless service, who had corruptly taken four motor car tyres.  Admittedly
he was a policeman, and he did not plead guilty but falsely denied his guilt.  In these
respects his offence merited a heavier sentence than the appellant deserves.  On the
other hand, the value of the benefit she was to receive was considerably higher than
that of four tyres.   A sentence of corrective supervision, which was pressed on us,
would send the wrong message to the public.
[8] Sentence is a matter for the discretion of the court burdened with the task
of imposing sentence.  A court of appeal may only interfere, whether a reduction
or an increase of sentence is sought, if the court imposing the sentence failed to
properly and reasonably exercise the discretion bestowed on it.  Various tests have
been formulated to determine whether that was the case.  Ons such test is whether

the sentence can be said to be startlingly inappropriate.  Another one is whether the
sentence induces a sense of shock.  (Cf S v Pieters 1987 (3) SA 717 (A) at 727 G -
728 A.)  Taking all the relevant factors into account the sentence imposed in this
case does not shock me as being excessive.  On the contrary, the sentence is
startlingly inappropriate and justifies the conclusion that the magistrate failed to
properly and reasonable exercise his discretion in that it does not nearly allow for
the seriousness of the crime.  To my mind the appropriate sentence would be 12
months imprisonment without any part suspended.  This was the maximum
sentence that the magistrate could impose at the time.  Such a sentence could lead
to a disparity between the appellant and her co-accused, who received the same
sentence as she did, but did not appeal, a disparity that would arise if it is to be
assumed that  the circumstances of the two accused were similar.  Ordinarily one
seeks to avoid such disparities, but I do not consider that the creation of a possible
disparity should deter us from imposing a fitting sentence on the appellant.  After

all, she chose to appeal, and if she had been successful, there would also have been
a disparity the other way, unless the co-accused’s sentence was altered on review.
[9] This judgment deserves the attention of prosecutors.  As I have stressed, the
theft of a police docket is a serious matter, which should be charged in a court with
adequate jurisdiction and pursued with more firmness than was the case here.
[10] The appeal by the appellant fails and the sentence of the magistrate in the
case of the appellant is set aside and replaced with the following:
“12 months imprisonment.”
W P SCHUTZ
JUDGE OF APPEAL
CONCUR
STREICHER JA
MTHIYANE AJA