S v Wasserman

• Jurisdiction: South Africa
• Citation: 2004 (1) SACR 251 (T)

S v Wasserman
2004 (1) SACR 251 (T)

2004 (1) SACR p251

Citation	2004 (1) SACR 251 (T)
Case No	A906/2002
Court	Transvaal Provincial Division
Judge	Patel J and Fourie AJ
Heard	November 11, 2003
Judgment	November 21, 2003
Counsel	S H Kunene for the appellant.; L I Netshitumbu for the respondent.

Flynote : Sleutelwoorde G

Sentence — Prescribed sentences — Minimum sentences — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Addiction to gambling is mitigating H factor and will certainly impact upon sentencing considerations — Pathological gambling disorder must qualify as 'substantial and compelling circumstance'.

Headnote : Kopnota

Pathological gambling is a progressive disease. It is an illness characterised by persistent and recurrent maladaptive patterns of I gambling behaviour. Addiction to gambling is a mitigating factor and will certainly impact upon sentencing considerations and a pathological gambling disorder must qualify as a 'substantial and compelling circumstance' in terms of s 51(3) of the Criminal Law Amendment Act 105 of 1997. (Paragraphs [7], [9] and [13] at 254c, 255c - d and 257i.) J

2004 (1) SACR p252

Annotations:

Cases cited

Reported cases

DPP v Raddino [2002] VCSA 66 (8 May 2002) (Supreme Court of Victoria, Court of Appeal): applied A

Garnsey v Stamford [2002] TasSC (4 July 2002) (Supreme Court of Tasmania): applied

Her Majesty the Queen v Daniel S Bambury B 2001 NSSC 73: considered

R v Atalla [2002] VSCA 141 (27 August 2002) (Supreme Court of Victoria, Court of Appeal): applied

R v Horvath (1997) 117 CCC (3d) 110 (SaskCA): applied

R v Petrovic [1998] VSCA 95: applied

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423): referred to C

S v Homareda 1999 (2) SACR 319 (W): applied

S v Kotze 1994 (2) SACR 214 (O): applied

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222): referred to

S v Mofekeng and Another 1999 (1) SACR 502 (W): referred to

S v Montgomery 2000 (2) SACR 318 (N): dictum at 322e applied

S v R 1993 (1) SACR 209 (A) (1993 (1) D SA 476): referred to

The Queen v Landry [1997] NSJ No 508: applied

The Queen v Mitchell (1996) AJ No 1176 (Alberta Provincial Court): applied

The Queen v Rizzetto (1983) 59 NSR (2d) 132: applied

The Queen v Wilson (1999) NSJ 476: applied.

Legislation cited

Statutes

E The Criminal Law Amendment Act 105 of 1997, s 51(3): see Juta's Statutes of South Africa 2002 vol 1 at 1-521.

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment. F

S H Kunene for the appellant.

L I Netshitumbu for the respondent.

Cur adv vult.

Postea (November 21). G

Judgment

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

2004 (1) SACR p253

Patel J

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

2004 (1) SACR p254

Patel J

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...