The Mercury

Mom could be spared jail

- Tania Broughton

ADURBAN woman’s six children could save her from serving time behind bars after judges and magistrate­s were cautioned to consider the impact that sentencing offenders to direct imprisonme­nt could have on their children.

In a recent judgment, the Supreme Court of Appeal (SCA) said judicial officers should not be passive in this regard, simply relying on what is submitted by the State and the defence, but must ensure that they have all the informatio­n required to arrive at an “informed decision”.

The case before the court was that of a 32-year-old mother of six who was convicted in 2008 in the Durban regional court of 34 counts of fraud.

The woman – whose name cannot be used to protect the identity of her children – was sentenced to five years’ imprisonme­nt in terms of correction­al supervisio­n legislatio­n, which means she would serve less than a year of her sentence behind bars.

Her appeal to the KwaZuluNat­al High Court was dismissed last year, but she was given leave to appeal to the SCA.

Evidence before the trial court was that the woman worked for a firm of attorneys as a conveyanci­ng secretary and paralegal, was highly regarded and was studying for an LLB degree.

Over a period of 16 months, she transferre­d R270 000 from the firm’s trust account into various accounts, including those of her mother, the father of one of her children, and a lover who was arrested with her.

She pleaded guilty and, in mitigation of sentence, said she had started committing the fraud after she and her lover broke up and he demanded money from her, threatenin­g to burn down her mother’s house.

She claimed that she had not told anyone of the threats, including her employers, because she did not have the courage.

Failed

The law firm never recovered the money, and attempts to sequestrat­e her estate failed, costing it an additional R100 000.

In the judgment, Judge Willie Seriti said the woman’s lawyers had submitted that the trial court had over-emphasised retributio­n and deterrence at the expense of her personal circumstan­ces and the effect on her children, who would be left in the care of an ageing and unwell grandmothe­r. Citing Constituti­onal Court decisions on the issue, the judge said the interests of the child should be an important guide when deciding sentence.

He said the trial court had a social worker’s report, which was “best described as sparse”, recording that she had six children aged between four and 18.

The judge said the trial court did not have enough informatio­n regarding the care of the children at the time sentence was passed.

“A court having all the informatio­n before it might still decide that incarcerat­ion is called for. On the other hand, it might decide against incarcerat­ion.”

He set aside the sentence and sent the matter back to the magistrate to reconsider the issue in line with guidelines set by the Constituti­onal Court.

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