Court name
High Court
Case number
CA 113 of 1997

S v Van Rooyen (CA 113 of 1997) [1998] NAHC 9 (31 August 1998);

Media neutral citation
[1998] NAHC 9



J.P. et Teek, J.


Sentence -
imprisonment of first offender, mother of very small baby, crime
committed when husband left common home and not contributing to
maintenance - offer to pay N$l500-00 - parties reconciled again -
Sentence changed to fine and appellant ordered to repay N$l500-00

• • •

NO. CA113/97


In the matter








The Appellant was charged in the Magistrate's Court with the crimes
of fraud and theft. She pleaded guilty to both charges. On the first
charge of fraud she was sentenced to 30 months imprisonment of which
15 months were suspended for 5 years on the usual conditions. On the
second count the Appellant was sentenced to pay a fine of N$ 100-00
or, in default of payment, to imprisonment of 50 days.

Appellant now appealed against the sentence on the first count,
namely that of fraud. Mr Dicks appeared for the Appellant and Mr
Truter for the State.

From the
evidence and documents placed before the Magistrate it seems that the
Appellant stole a blank page out of a cheque book. She then completed
the cheque and was able to withdraw N$ 1500-00 from the bank. The
circumstances of the Appellant at the time when she committed these
crimes are set out in her address to the court-a-quo as well as a
written document which was presumably handed into Court. The
Appellant is 26 years old and is the mother of three children. At the
time when the Appellant was sentenced these children were
respectively 4 months, 3 years and 6 years old. The Appellant
furthermore informed the Court that when she committed the crimes she
had financial problems. She was at that time estranged from her
husband and he was not contributing anything towards the upkeep of
the three children. She stated that she had to provide for the
children. This included paying rent for the house in which they
lived, for day care of the children so that she could work and other
incidental expenses.

The Appellant
further informed the Court that she and her husband had, in the mean
time, become reconciled and although she was still unemployed her
husband was willing to assist her to repay the N$ 1500-00. The State
did not prove any previous convictions and it is clear that the
Appellant is a first offender.

various grounds of appeal are set out in the notice of appeal I have
come to the conclusion that the first ground of appeal should succeed
namely that the sentence of 30 months imprisonment of which half was
suspended is disturbingly inappropriate in all the circumstances and
that this Court is therefore entitled to interfere with the sentence
imposed by the magistrate.

The learned
magistrate is no doubt correct when he stated that the crimes
committed by the Appellant were serious and were prevalent. For proof
of this one need not look further than the many cases to which he has
referred the Court. It is also correct that there is no general rule
that first offenders should be kept out of jail and that women who
commit serious crimes can always shield behind the fact that they
have small children. Furthermore
reform of a particular criminal and other would be criminals are the
ultimate and legitimate goal of sentencing. So too, as was pointed
out by the learned magistrate, should presiding officers aim to
achieve uniformity of sentencing where this is attainable. However
the application of these principles does not take place in vacuo.

To what
extent some of these principles do apply and the role they play in
the consideration of what an appropriate sentence would be in a
particular instance depends on the circumstances of each case and the
particular individual whom the ■ Court must punish.

Looking at
the circumstances of the Appellant in the present instance one is
struck by the fact that the crime was committed at a time when she
had become estranged from her husband and had lost :he financial
support for her three young children. Because of the unwillingness of
her husband to fulfil his duties the Appellant landed in financial
difficulty which caused her to commit the crimes of which she was
convicted. This motive must be distinguished from those cases where a
person steals or commits fraud to satisfy his or her own personal
greed. Most of the cases to which we were referred are cases where
accused persons abused their position of trust and, sometimes over
extended periods of time, stole money from their employers. Surely
the moral blameworthiness of a person, such as the Appellant in this
case, must be less than that of the person who acts solely with the
intention to feather his own nest. This does not mean that the
Appellant is excused for what she has done. However our law reports
abound with cases where the Courts, for purposes of sentencing, drew
a distinction between precisely these two situations.

Taking this
as a starting point one must now also have regard to the other
circumstances present. These circumstances are that the Appellant is
a first offender, that she is the mother of three very small
children, the one still a baby and one other no more than a toddler.
Furthermore the Appellant has become reconciled with her estranged
husband and she: and the children are again supported by him. This,
to a great extent, removed the reason for possible further criminal
activity by the Appellant. It does however not need a vivid
imagination to realise the possible effect of long term imprisonment
on a marriage which may be shaky and which has not had time to
recover again.

On top of
this the Appellant also offered, with the assistance of her husband,
to repay the amount of NS1500-C0. In the latter regard I am also of
the opinion that the learned magistrate was wrong to hold against the
Appellant that she only made the

at her trial and did not start to repay the complainant during the
two months which had elapsed since the commission of the crimes on 1
September 1997, and the 5th of November, 1997 when she was
sentenced. In this regard the Appellant informed the Court that she
was still unemployed. She could only make such offer with the
assistance of her husband and this assistance clearly only came to
light after Appellant's reconciliation with her husband some time
between the two abovementioned dates.

Bearing in
mind all the above circumstances and the fact that the amount
involved is not big I am of the opinion that this was an instance
where the Court-a-^uo should have imposed a sentence other than
direct imprisonment. Again I want to state that I am not thereby
saying that a person who defrauded or stole N$ 1500-00 from another
cannot or should not be sent to prison. What I am saying is that in
the circumstances of this particular case and the circumstances of
this particular accused a sentence of 30 months imprisonment of
which 15 months were suspended is disturbingly inappropriate.

Mr Dicks
again repeated the offer of the Appellant to repay the N$ 1500-00 to
the bank. He indicated that this could be done in instalments over a
period of 6 months.

In the
result the appeal succeeds and the sentence imposed by the
magistrate is set aside and the following sentence is substituted:

1000-00 or in default of payment 1 (one) year imprisonment, plus
further imprisonment of 1 (one) year which is suspended for 4 (four)
years on condition:


I agree.

  1. that she is
    not again convicted of fraud or theft committed during the period of
    suspension; and

  2. that the
    amount of N$l 500-00 is repaid to Bank Windhoek in six monthly
    instalments of N$250-00 each, the first payment to be made on or
    before 7 September, 1998 and the other payments to be made on or
    before the 7th of each consecutive month until the amount of N$
    1500-00 is repaid. Such payments to be made to the Clerk of the
    Magistrate's Court, Windhoek, for payment to Bank Windhoek.



Instructed by: