S v Wasserman

• Judge: Patel J and Fourie AJ
• Judgment Date: 21 November 2003
• Citation: 2004 (1) SACR 251 (T)
• Docket Number: A906/2002
• Hearing Date: 11 November 2003
• Counsel: S H Kunene for the appellant. L I Netshitumbu for the respondent.
• Court: Transvaal Provincial Division

Patel J:

A Introduction

[1] This is an appeal against sentence. The imposition of the prescribed minimum sentence of 15 years' direct imprisonment on the appellant, who is debilitated by pathological gambling disorder, for H purloining an amount in excess of R1,1 million and almost half of which was repaid to the victims, evokes a sense of disquiet and shock because:

'(P)risons are not the greatest, they breed bitterness and crime, destroy people who work and live in them; and it is not nice to cage your fellow human being.' [1]

[2] The court a quo, in punishing the appellant, simply I adopted an inflexible and mechanical approach in sentencing her to the prescribed

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minimum term of imprisonment. This is discernible from the following passage in A its decision on sentence:

'Hierdie hof is van mening dat u dobbelprobleem wat u voorgedra het, die feit dat u berou het oor wat u gedoen en die feit dat u as gevolg van oorgewig en kinderloosheid die dobbelprobleem ondervind het is nie dringend en of wesenlik van aard nie en die hof is van mening dat die bepaling van art 51(2) inwerking meet nie.' B

[3] The prescribed minimum sentences enacted by the Legislature are inimical to the exercise of judicial discretion and are subversive of restorative justice. They have provoked trenchant judicial castigation, [2] however they have received the endorsement of both the highest Courts. [3]

[4] Briefly, the appellant was charged with 64 counts of C theft involving an amount of R1 101 313,26. She was convicted on her plea of guilty on all counts. These were taken together for purposes of punishment and she was sentenced to 15 years' imprisonment in terms of s 51(2)(a)(1) of the Criminal Law Amendment Act 105 of 1997, as amended. This provision prescribes that a person who is convicted of theft involving an amount of more than R500 000 and who D is regarded as a first offender must be sentenced to imprisonment for a period of not less than 15 years unless there are substantial and compelling circumstances justifying a lesser punishment than the prescribed minimum sentence.

[5] The critical question is: is the sentence of 15 years' imprisonment imposed on the appellant just and fair when regard is had E to the uncontested fact that ten years ago she was diagnosed as being afflicted with pathological gambling disorder. To answer this question it is prudent to consider whether pathological gambling disposition is an acknowledged disease and whether it qualifies as substantial and compelling circumstance in rendering the prescribed minimum sentence F unjust and unfair and thereby warranting the imposition of a lesser sentence.

B Is pathological gambling a disease?

[6] To determine whether pathological gambling disorder is a G mitigating factor, it is necessary to secure a clear description of how gambling affects the brain. According to Associate Professor Howard Schaffer, the Director of the Division on Addictions at the Harvard Medical School:

'Gambling affects the central nervous system like other drugs, other powerful experiences. Now by the way, everything influences the central nervous system. So let's not miss that point. Gambling is not H dramatically different from all human experience except that it's more potent, more reliable and the gaming industry is making sure that our sensory systems are being overwhelmed and impacted by the gambling experience.

But let me just say that there is neurotransmitter activity that accompanies gambling and it is much like taking a psycho-stimulant and by psycho-stimulant I mean nicotine, caffeine, cocaine, so that it is I similar to those quick hitting, rapid, stimulating drugs. These can be group addictive clusters as at least I think

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about them. The taking in are the ingesting, the food, heroin, narcotics, A sedatives. The acting out are the stimulants, the gambling, risk-taking behaviours. These things can all hold addictive potential. And now let me describe it in simpler language. Anything which shifts our subjective experience holds additional potential. The most reliable robust shifters of human experience hold the greatest potential for addiction. Gambling is a relatively reliable and relatively intense experience which does shift B the biochemistry of our brain and, therefore, our experience.' [4]

[7] Pathological gambling is a progressive disease. It is an illness characterised by persistent and recurrent maladaptive patterns of gambling behaviour. It devastates not only the gambler but everyone with whom he or she has a significant relationship. In 1980, the American Psychiatric Association accepted pathological gambling as a C 'disorder of impulse control'. It is a chronic and progressive illness that can be diagnosed and treated. [5] The research by the Department of Psychiatry at the Medical School of the University of Minnesota has shown that medications and therapies have been used to treat the symptoms of pathological gambling. There is a spectrum of medication that is promising for relieving pathological D gambling symptoms. Cognitive-behaviour therapy also reduces the preoccupation with gambling.

C Is pathological gambling disorder a mitigating factor?

[8] Pathological gambling disorder has been recognised as a E disease by the courts in overseas jurisdictions. However, I have not been able to find any authoritative recognition of the pathology in our law. In the Supreme Court of Nova Scotia, Cacchione J, in Her Majesty the Queen v Daniel S Bambury 2001 NSSC 73, [6] noted:

'[16] Counsel for Mr Bambury questioned the doctor this morning F with respect to an article entitled ''Pathological Gambling'' by Richard J Rosenthal, MD, found at Psychiatric Annals 22:2/February 1992. I have had occasion to read that article and there are some comments which I believe are relevant to this sentencing and to any sentencing involving a pathological gambler. Dr Rosenthal states at 72 and 73 of that article:

''Today, pathological gambling is defined as a progressive G disorder characterized by a continuous or periodic loss of control over gambling; a preoccupation with gambling and with obtaining money with which to gamble; irrational thinking; and a continuation of the behaviour despite adverse consequences. This definition, with its emphasis on loss of control, progression, preoccupation, and disregard for consequences, is similar to that for alcohol and substance H dependence. . . .''

[17] Further on Dr Rosenthal writes:

''Starting with its first official recognition in DSM-III, the term pathological gambling was deemed more accurate than the layman's compulsive gambling, since the behaviour is usually ego-syntonic; most pathological gamblers, at least until later stages of the disorder, love to gamble. While money is important, most say they are seeking 'action', an aroused, euphoric state I

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comparable to the 'high' derived from cocaine and other drugs. The desire to A remain in action is so intense that many gamblers...