S v Stokes

• Jurisdiction: South Africa
• Judge: Steyn J
• Judgment Date: 22 March 2017
• Docket Number: AR233/05
• Hearing Date: 22 March 2017
• Court: KwaZulu-Natal Division, Durban

Steyn J:

[1]

The accused a former attorney was convicted on a count of theft by general deficiency of R5 728 310.75 on 4 August 2016. During the time when the offence was committed he practiced as an attorney for his own account under the name of Stokes and Company, La Lucia Ridge.

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[2]

The sentencing phase of a trial is the most difficult phase for any presiding officer. This case is no different, mainly because the focus now shifts from the merits of the case to factors which are irrelevant to the merits, such as the motive for the crime, the personal circumstances of the accused, the impact of the crime on the victims and society's interest. One of the reasons for this difficulty is that there is no universal formula to apply to each and every case that results in an appropriate sentence.

[3]

In deciding upon an appropriate sentence, it is expected of me to have regard to the purpose of sentencing, which would be deterrent, reformative and retributive. To achieve it, I should have regard to the accused's personal circumstances and needs, the nature of the crime and the interests of society. None of these factors must be over or under emphasised. An appropriate sentence is one which gives a balanced consideration to the offender, the crime and society. A value judgment has to be made taking into account the aims of punishment and to keep in mind the triad factors as stated in S v Zinn. [1] Recently it is expected of a presiding officer to be mindful of the obligations posed by the Constitution [2] whence sentencing. In this case the constitutional obligation is to consider the interests of the accused's child and that of his wife, since he is the primary caregiver of both.

[4]

In consideration of the constitutional imperatives when sentencing a primary caregiver, I am obligated to consider s 28(2) of the Constitution and the jurisprudence that developed over the years (see S v M 2007 (2) SACR 539 (CC); S v Chetty 2013 (2) SACR 143 (SCA); MS v S 2011 (2) SACR 88 (CC); and S v De Villiers 2016 (1) SACR 148 (SCA)). The importance of M supra is that a court in sentencing a primary caregiver, should consider the child's interest as one of the factors in addition to the Zinn triad. At 562a-c Sachs J concluded:

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'Sentencing officers cannot always protect the children from these consequences. They can, however, pay appropriate attention to them and take reasonable steps to minimise damage. The paramountcy principle, read with the right to family care, requires that the interests of children who stand to be affected receive due consideration. It does not necessitate overriding all other considerations. Rather, it calls for appropriate weight to be given in each case to a consideration to which the law attaches the highest value, namely, the interests of children who may be concerned.'

[5]

It is common cause that the Criminal Law Amendment Act 105 of 1997 finds application and that the matter falls within the purview of Part 2 of Schedule 2 of the Act. In terms of s 51(2)(a)(i) the legislature has prescribed 15 years' imprisonment for a first offender found guilty of an offence of this kind, unless substantial and compelling circumstances exist which would justify the imposition of a lesser sentence.

[6]

I will take due cognisance of the Supreme Court of Appeal's approach and the Constitutional Court when deciding upon the circumstances of the accused and whether it constitutes substantial and compelling circumstances (See S v Malgas 2001 (1) SACR 469 (SCA) and S v Dodo 2001 (1) SACR 594 (CC) at 602-603 and S v Blignaut 2008 (1) SACR 78 (SCA) para 3 and S v Nkunkuma & others 2014 (2) SACR 168 (SCA) paras 9 and 10.)

[7]

In a number of sentencing judgments little more than lip service has been paid to Malgas. It is therefore necessary to deal with the judgments of the Supreme Court of Appeal and High Courts where Malgas was discussed and followed before I come to an ultimate conclusion. I align myself with the words of Ponnan JA (para 23) in S v Matyityi 2011 (1) SACR 40 (SCA):

'As Malgas makes plain courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and like other arms of state owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of State. Here Parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as "relative youthfulness" or other equally vague and ill-founded hypotheses that

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appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.'

[8]

The following personal circumstances of Mr Stokes will be taken into account:

He is 51 years of age, married with two children. He earns an income of between R80 000 – R100 000 per month. His income is derived from conducting a legal consulting business called Advanced Legal Services (Pty) Ltd and Advanced Consumer Protection Services. He is the primary caregiver of his daughter Tahlia and his wife Carla who is presently being treated at the Waynol Anti-Narcotics Christian Manor at ±R6 500.00 per month. His daughter is 16 years old, diagnosed with dyscalculia, a condition whereby she finds it challenging to process numerical data. Mr Stokes suffers from epilepsy, and is a first offender. Most of the accused's and his family's circumstances were dealt with in detail in exhibits "WWW", "YYY" and "ZZZ".

[9]

The following witnesses testified in mitigation of sentence:

(i)

The accused;

(ii)

Mr Mack, an educational psychologist;

(iii)

Mrs Purchase, a family friend;

(iv)

Ms Phillipa Styles, a clinical psychologist; and

(v)

Ms Amanda Randle, a...