THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 613/09

In the matter between:

ELLOUISE BRITZ

Appellant

and

THE STATE

Respondent

Neutral citation: Britz v S (613/09) [2010] ZASCA 71 (27 May 2010).

Coram:
CLOETE et MLAMBO JJA et SALDULKER AJA

Heard:
18 May 2010

Delivered:
27 May 2010

Summary:
Criminal appeal: Evidence: application to adduce new evidence
not available when appellant sentenced: approach of appeal court.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Eastern Cape High Court (Grahamstown) (Jansen and
Sandi JJ sitting as court of appeal):
The appeal is dismissed.
______________________________________________________________

JUDGMENT
______________________________________________________________

CLOETE JA (Mlambo JA et Saldulker AJA concurring):

[1] On 6 May 2008 in the Eastern Cape Commercial Crimes Division of the
regional court in Port Elizabeth, the appellant, an adult female aged 33 years,
pleaded guilty to, and was convicted of, 67 counts of fraud. The first fraud was
committed in June 2003 and the last, some three-and-a-half years later in
January 2007. The appellant was employed by a close corporation as a
bookkeeper. She made electronic transfers of money from the close
corporation's bank account into the account of her husband and she also
purchased goods, which she appropriated, from suppliers to the close
corporation using the close corporation's money, whilst representing to the
close corporation and its sole member that the transfers were to settle debts
owed to the close corporation's creditors and representing to the suppliers
that the goods had been purchased for the close corporation. The total
amount involved was over R330 000 and nothing has been voluntarily repaid.

[2] On 9 June 2008, after a correctional supervision report had been
submitted and evidence led from a probation officer (Ms van der Mescht), the
appellant was sentenced, in a careful judgment by the regional magistrate, to
five years' imprisonment of which two years were suspended conditionally for
five years. The appellant served about four-and-a-half months of her sentence
and then brought an application on notice of motion in the regional court for

condonation and leave to appeal against the sentence; and leave to place
evidence, which was allegedly not available when she was sentenced, before
that court and ultimately the court of appeal. At the same time the appellant
brought an application for bail pending appeal. The application was supported
by affidavits from the appellant, her attorney and her husband, and a report
from a psychologist. The evidence that the appellant sought to adduce was
that after she had been sentenced, her mother had died and the latter was
therefore not able to give the appellant's children, a girl born on 12 April 1993
and a boy born on 29 January 1997, 'the necessary care, attention and love
that they needed whilst I served my sentence'. Further, according to the
appellant, her husband 'had to work extra long hours in order to make up for
the loss of income that I was bringing to the family. As such my husband
found it very difficult to look after the children as he could not be there when
they returned from school and as my mother was no longer alive.' The
psychologist's report comprised a psychological assessment of the two
children 'because of the change in their personal circumstances after the
incarceration of their mother and the recent death of the grandmother' and
concluded: 'The family is in desperate need for a mother to take charge again
of the emotional and physical wellbeing of the family. The children are not
neglected but their emotional needs for a mother are great and much needed'.
The submission in the affidavit by the appellant, and the submission on
appeal, was that although the sentence was not inappropriate when it was
imposed, the interests of the children should lead a court of appeal to
substitute a non-custodial sentence. The magistrate granted condonation and
leave to appeal and ordered the appellant's release on bail.

[3] In the court a quo (Jansen J, Sandi J concurring) the application and
appeal were dismissed but that court (Jansen J, Froneman J concurring)
subsequently granted leave to appeal to this court. The basis of the judgment
in the court a quo dismissing the appeal was that an appeal must be decided
on the basis of facts in existence at the time the appellant was convicted or
sentenced; that there are no exceptions to this rule; and that where an
appellant wishes to rely on facts which came into existence after sentence
was imposed, the proper remedy is not to appeal but to approach the

executive authority. The court went on to point out that the Criminal Procedure
Act1 provides for the conversion of a sentence of imprisonment to a sentence
of correctional supervision. The court a quo therefore did not consider the
merits of the application to lead further evidence on appeal, although the court
in its judgment granting leave to appeal considered that this court might do so
because the interests of children were involved

[4] The power of a high court sitting as a court of appeal from a decision in
the magistrate's court to hear further evidence derives from both the Criminal
Procedure Act and the Supreme Court Act.2 Section 309(3) of the Criminal
Procedure Act provides that a provincial or local division sitting as a court of
appeal shall 'have the power referred to in s 304(2)' and paragraph (b) of that
section in turn provides that 'such court may at any sitting thereof hear any
evidence and for that purpose summon any person to appear and to give
evidence or to produce any document or other article'. Section 22 of the
Supreme Court Act, which in terms also applies to this court, provides that:
'The appellate division or a provincial division, or a local division having appeal
jurisdiction, shall have power ─
(a)
on the hearing of an appeal to receive further evidence, either orally or by
deposition before a person appointed by such division, or to remit the case to the
court of first instance, or the court whose judgment is the subject of the appeal, for
further hearing, with such instructions as regards the taking of further evidence or
otherwise as to the division concerned seems necessary. . . .'
This court has itself heard evidence on appeal ─ in R v Carr3 the court
apparently over a period of four days heard the evidence of as many medical
doctors (two for the appellant, two for the State) and itself evaluated the
conflicting evidence they gave, because it considered that this was 'the course
best calculated to achieve the due and expeditious administration of justice in
the present case, the decision of which it was obviously most undesirable to
delay. . . .'4 (The appellant had been sentenced to death.) However, as

1 Act 51 of 1977.
2 Act 59 of 1959.
3 1949 (2) SA 693 (A).
4 At 700.

pointed out in S v De Jager5 the usual course, if a sufficient case has been
made out, is to set aside the conviction and/or sentence and send the case
back for the hearing of further evidence, with a suitable order6 to guide the
court that will hear the evidence. Such a course would be unnecessary where
the evidence contained in the affidavit made in support of the application to
receive it is accepted by the State (as in S v Michele & another7) or is
incontrovertible (as in S v Karolia8 and S v Jaftha9).

[5] Despite the wide wording of the statutory provisions, this court has laid
down requirements which must be complied with before it would be prepared
to hear evidence on appeal. Those requirements were summarised in S v De
Jager,10 have been 'applied in countless cases since',11 and are as follows:
'(a)
There should be some reasonably sufficient explanation, based on allegations
which may be true, why the evidence which it sought to lead was not led at the trial.
(b)
There should be a prima facie likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the trial.'
The same requirements apply equally to any court sitting as a court of appeal:
S v A.12 In addition, the general rule13 is that an appeal court will decide
whether the judgment appealed from (and that includes a judgment on
sentence)14 is right or wrong according to the facts in existence at the time it
was given, not according to new circumstances subsequently coming into
existence. Nevertheless, this court has previously indicated that the rule is not
necessarily invariable15 and the rule has recently been relaxed to allow
evidence to be adduced on appeal of facts and circumstances which arose
subsequent to the sentence imposed, where there were exceptional or

5 1965 (2) SA 612 (A) at 613A.
6 See the order in S v Wilmot 2002 (2) SACR 145 (SCA) at 159d-g and the orders in the
cases referred to at 159d.
7 2010 (1) SACR 131 (SCA).
8 2006 (2) SACR 75 (SCA).
9 2010 (1) SACR 136 (SCA).
10 1965 (2) SA 612 (A).
11 Per Smalberger JA in S v H 1998 (1) SACR 260 (SCA) at 262i.
12 1990 (1) SACR 534 (C) at 540c-d.
13 R v Verster 1952 (2) SA 231 (A) at 236B; R v Jantjies 1958 (2) SA 273 (A) at 279C-D and
Attorney-General, Free State v Ramokhosi 1999 (3) SA 588 (SCA) para 8 at 593D-F.
14 R v Hobson 1953 (4) SA 464 (A) at 465H-466B and 466F-G; S v Barnard 2004 (1) SACR
191 (SCA) para 19.
15 S v Immelman 1978 (3) SA 726 (A) at 730H; S v Marx 1989 (1) SA 222 (A) at 226C.

peculiar circumstances present: S v Karolia;16 S v Michele;17 S v Jaftha,18 and
also where there were misdirections by the court which imposed sentence,
which had the effect that the appeal court was at large to impose the sentence
it considered appropriate: S v Barnard.19 (It is not necessary for present
purposes to consider whether this latter situation should be subject to
particular safeguards to prevent an abuse of the appeal procedure.) The more
liberal approach by this court, shown by a comparison of the decision in
Verster20 (where the court refused to take into consideration a delay in the
hearing of an appeal as a reason for altering a sentence imposed by a
magistrate) and the decision in Michele (where such evidence was taken into
account and the sentence reduced), must not be interpreted as a willingness
to open the floodgates. In cases such as the present where the facts and
circumstances arose after sentence, the application must be carefully
scrutinized to ascertain whether it does indeed disclose exceptional or
peculiar circumstances. It is undesirable to attempt to define these concepts
further.

[6] Apart from scrutinizing applications to ascertain whether they pass the
exceptional or peculiar circumstances test, and in common with previous
decisions of this court dealing with the circumstances under which a court of
appeal would be prepared to hear new evidence in existence at the time of
the trial, two further requirements must be complied with, being those set out
in paragraphs (b) and (c) in De Jager quoted in para 5 above.

[7] The first additional requirement ─ that there should be a prima facie
likelihood that the evidence is true ─ did not arise for consideration in Karolia,
where the facts which arose subsequent to the imposition of sentence were
described as 'unquestionable';21 or in Michele where the six-year delay fell
into the same category; or in Jaftha, where Lewis JA was at pains to

16 Above, n 8.
17 Above, n 7.
18 Above, n 9.
19 Above, n 14, paras 19 tot 21 and p 197h-i.
20 Above, n 13.
21 At 93i-94a.

emphasize22 that the State did not question the truth of the allegations made
by the appellant. It was inter alia for that reason that Lewis JA decided in the
latter case that there was no point in referring the matter back to the trial court
to hear evidence.23 Ordinarily, if the new evidence is accepted, there is no
reason why the matter should be referred back as an appeal court can itself
impose an appropriate sentence, taking into account the new evidence, as
happened in Karolia, Michele and Jaftha. It is not the usual practice of this
court, or of high courts sitting as courts of appeal,24 to refer a matter back for
re-imposition of sentence if a misdirection is discovered; and in the interests
of saving unnecessary delay and expense, this approach should apply equally
where evidence which is admitted by the State is allowed on appeal. But
where there is a dispute, or where the State wishes to challenge the evidence
by cross-examination or to lead rebutting evidence, different considerations
apply. It is notable that Schreiner JA in Goodrich v Botha & others,25 quoted
and followed in Karolia,26 only considered cognisance of subsequent events
by a court of appeal 'where, for example, their existence was unquestionable
or the parties consented to the evidence being so used'. But the right to hear
evidence (in terms of the Criminal Procedure Act) and the right to receive
further evidence or to remit the case for further hearing (in terms of the
Supreme Court Act) are not qualified or made subject to any limitations. And
in my view the policy reasons that underly the justifiable reluctance of appeal
courts to receive evidence of events on appeal27 would not be compromised
if, in the very limited circumstances set out in this judgment, an appeal court
were to set aside the sentence and remit the matter to the trial court with
directions as to the hearing of further evidence which the appellant, the State
or the court might wish to adduce. Such a procedure has been followed by
this court from as early as 1935 in R v Mhlongo & another28 in cases where
the further evidence subsequently obtained casts doubt on whether there

22 Para 16 at 139f-g, para 19 at 140d and para 20 at 140e.
23 Para 20.
24 The practice in the Constitutional Court appears to be different : S v M (Centre of Child Law
as amicus curiae) 2007 (2) SACR 539 (CC) para 49.
25 1954 (2) SA 540 (A) at 546B-C.
26 Above, n 8 para 36 at 93g and 93 in fine-94a.
27 See S v De Jager above, n 5 at 613A-C; R v Jantjies above, n 13 at 279D-E.
28 1935 AD 133.

should have been a conviction; and I see no difference in principle between
that type of case and a case such as the present.

[8] So far as the 'materially relevant' consideration is concerned, the
appeal court should only allow the evidence tendered if satisfied that there is
at least a probability, not merely a possibility, that the evidence, if accepted,
would affect the outcome (R v Weimers & others)29 ─ in casu, whether the
evidence warrants interference with the sentence. In my view the evidence
would not have to be decisive. The dicta to the contrary in English decisions
referred to by Schreiner JA in Weimers30 date from a time when courts of
appeal were most reluctant to allow evidence on appeal in criminal matters
and before the position was regulated by statute.31

[9] In the present matter, the appellant fails at every hurdle. It is
convenient to deal with the three requirements for admission of evidence on
appeal in a case such as the present which I have set out above, in reverse
order.

[10] First, the evidence is not materially relevant. The unchallenged
evidence given by the probation officer, Ms van der Mescht, was that the
appellant herself had told her that her husband would be responsible for
looking after the children if she were not able to do so; and the probation
officer said that the appellant's mother was apparently very ill so she would
not have been in a position to care for the children. The appellant was
accordingly sentenced on the basis that her mother would not have been of
assistance in caring for the children. The magistrate said:
'Die kinders is 'n probleem en dit gee altyd vir ons, wat veral dames voor ons het om
te vonnis, hoofbrekens. Die Grondwet bepaal aan die eenkant dat die belange van
die kinders vooropgestel moet word wanneer hulle belange betrokke is by enige iets,
soos in hierdie tipe geval. Gelukkig in hierdie situasie is daar 'n ander ouer wat
byderhand is en wat die ouerlike werk kan behartig.'

29 R v Weimers & others 1960 (3) SA 508 (A) at 514F-515B and 515G.
30 At 515A-D.
31 For the present position in England see Halsbury's Laws of England (4th ed) vol 11(4) para
1867.

But that apart, even if the evidence which the appellant seeks to place before
the court (summarised in para 2 above) were to be accepted, it would, for the
reasons which immediately follow, make no difference.

[11] The magistrate, with obvious regret, concluded that a sentence of
direct imprisonment was the only appropriate sentencing option (although he
suspended two of the five years' imprisonment which he imposed specifically
because the appellant's children were young, so that her absence from them
would not be, as he put it, unnecessarily long). I agree that direct
imprisonment was the only legitimate option which could have been
considered. The appellant was a first offender. Apart from that, there is very
little that can be said in her favour. She pleaded guilty, but that fact is not
necessarily an indication of remorse as where there was a paper trail as there
must have been in this case, she would have had little option. The
uncontested evidence of the sole member of the close corporation was that
the appellant's confession to him some 14 days after she had resigned was
due to the fact that her fraudulent scheme was going to be uncovered
anyway; and that the amount she confessed to was far less than the actual
amount involved. She was furthermore in a position of trust; the offences were
committed over a fairly long period of time (three-and-a-half years); a
substantial sum of money was involved (over R330 000); and nothing has
been repaid voluntarily (a sale in execution of the appellant's goods realised
only R4 950 and the cost of the proceedings amounted to just less than
R10 000). The appellant also implicated a co-employee who could have lost
his job. She entered appearance to defend the civil proceedings instituted
against her by the close corporation. She threatened the member of the close
corporation that she would report him to the SARS and expose an insurance
fraud should he (as he put it) not 'back off'. She was motivated by pure greed
─ she wished to maintain a standard of living above the family's means. And
she continued to defraud the close corporation when she knew that its
business was suffering financially to the extent that employees, including her
own brother, were being laid off in consequence of the frauds she continued
to commit. In addition the sole member of the close corporation was obliged to

extend the close corporation's overdraft and to borrow money from his brother
and his mother to meet the payroll.

[12] In S v M (Centre of Child Law as amicus curiae)32 Sachs J, writing for
the majority of the Constitutional Court, said:
'There is no formula that can guarantee right to results. However, the guidelines that
follow would, I believe, promote uniformity of principle, consistency of treatment and
individualisation of outcome.
. . .
(c)
If on the Zinn-triad33 approach the appropriate sentence is clearly custodial
and the convicted person is a primary caregiver, the court must apply its mind to
whether it is necessary to take steps to ensure that the children will be adequately
cared for while the caregiver is incarcerated.
. . .
(e)
Finally, if there is a range of appropriate sentences on the Zinn approach,
then the court must use the paramountcy principle concerning the interests of the
child as an important guide in deciding which sentence to impose.
. . .
A balancing exercise has to be undertaken on a case-by-case basis. It becomes a
matter of context and proportionality. Two competing considerations have to be
weighed by the sentencing court.
The first is the importance of maintaining the integrity of family care.
. . .
The second consideration is the duty on the State to punish criminal misconduct. The
approach recommended . . . makes plain that a court must sentence an offender,
albeit a primary caregiver, to prison if on the ordinary approach adopted in Zinn a
custodial sentence is the proper punishment. The children will weigh as an
independent factor to be placed on the sentencing scale only if there could be more
than one appropriate sentence on the Zinn approach, one of which is a non-custodial
sentence. For the rest, the approach merely requires a sentencing court to consider
the situation of children when a custodial sentence is imposed and not to ignore
them.'

32 Above, n 24 paras 36-39.
33 S v Zinn 1969 (2) SA 537 (A) at 540G-H.

For these reasons the evidence which the appellant seeks to place before the
court is not materially relevant as it would not result in a non-custodial
sentence being substituted.

[13] Second, the application does not satisfy the requirement that there
should be a prima facie likelihood of the truth of the evidence. When leave to
appeal was sought in the magistrate's court, counsel representing the
appellant (who is not the same counsel who argued the appeal before this
court) submitted that because the State had not filed opposing affidavits, it
was bound by the allegations made in the appellant's affidavit, and counsel for
the State appearing in those proceedings accepted this submission. The
argument is quite wrong. There is a difference between the evidence of the
probation officer, Ms van der Mescht34 and the appellant's affidavit,35 in regard
to whether the appellant's mother was in a position to look after the children.
To give the appellant the benefit of the doubt, Ms van der Mescht may have
been dealing with the appellant's mother's ability to care for the children
physically whilst the appellant may have been dealing only with the ability to
take care of their emotional needs. But there are other discrepancies. The
appellant says in her affidavit that:
'[M]y husband found it very difficult to look after the children as he could not be there
when they returned from school and as my mother was no longer alive. The two
children had to look after themselves whilst alone at home. This basically meant that
my 15 year old daughter had to act as a mother to my 11 year old son and, inter alia,
cook for him and ensure that he does his homework etc. and look after him whilst my
husband is working late hours. . . . I am worried that something is going to happen to
[my children] being such young children left on their own. There is absolutely no-one
in the area whom my husband or I can call on to assist us to look after the children
whilst my husband works these lengthy hours.'
But according to the psychologist's report, there is a domestic worker
employed by the appellant's husband full time during the week. In addition, it
appears from the affidavit of the appellant's husband that her father lives at
home and that although he is employed full time (by a security company), he

34 Para 10 above.
35 Para 2 above.

is only 63 years old. There seems to be no good reason why he cannot be of
physical assistance in the evenings and over the weekends even if, as the
appellant's husband said, he is heavily in mourning and not much company to
the children. The appellant has accordingly not produced evidence that is
probably true in regard to the physical needs of the children. I shall deal with
their emotional needs immediately below.

[14] Then finally, there are no exceptional or peculiar circumstances
present which would justify reception of the evidence. The fact that the
appellant's mother could not act as a physical caregiver for the children was
an existing fact when sentence was passed, not a consequence of her death
thereafter. No doubt, as counsel who argued the appeal before us
emphasized, the children were left in an emotional void once their mother,
and shortly thereafter their grandmother, was no longer part of the household.
As the father put it, 'they are "lost at sea" at present. They are exceptionally
emotional with the loss of their beloved grandmother and appear to me to be
lost at times, bearing in mind that I (their father) are not able to be present in
the house as often as I was in the past.' One has the greatest sympathy for
the children but their emotional needs cannot trump the duty on the State
properly to punish criminal misconduct where the appropriate sentence is one
of imprisonment. As Sachs J said in S v M:36
'[S]eparation from a primary caregiver is a collateral consequence of imprisonment
that affects children profoundly and at every level. Parenting from a distance and a
lack of day-to-day physical contact places serious limitations on the parent-child
relationship and may have severe negative consequences. The children of the
caregiver lose the daily care of a supportive and loving parent, and suffer a
deleterious change in their lifestyle. 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

36 Above, n 24 para 42.

consideration to which the law attaches the highest value, namely, the interests of
children who may be concerned.'
In the present matter, as I have said, the magistrate specifically suspended
two years of the sentence imposed because of the interests of the children.
And if it be accepted that the appellant's husband has to work long hours to
make up for the income lost in consequence of the appellant's imprisonment,
that is exactly what one would expect. Nor can the appellant legitimately
contend that her sentence should be reduced on appeal (as was done in
Michele)37 or that a non-custodial sentence should be substituted for the
remainder of the period of imprisonment imposed (as was done in S v M)38
because of the delay in her completing her sentence and the undesirability of
sending a person back to jail. Of course it is harsh to send a person back to
jail, particularly a mother who has no doubt re-bonded with her family, and her
family with her. But the process which led to the appellant's temporary release
was not only initiated by her, it had no prospect of success. The decision of
the Constitutional Court in S v M was published in the law reports a year
before the date on which the appellant deposed to her affidavit. In the
circumstances it would be quite wrong to allow the appellant to benefit from
these ill-conceived proceedings and escape the consequences of what, it is
common cause between the appellant and the State, was a fair sentence.

[15] Before making the appropriate order, I would emphasize that the
procedure in terms of s 276A of the Criminal Procedure Act, which would
enable the appellant's sentence to be reconsidered by the magistrate at the
instance of the Commissioner or a parole board, remains open.39 That section
provides:
'(3)(a) Where a person has been sentenced by a court to imprisonment for a
period ─
(i)
not exceeding five years; or
(ii)
exceeding five years, but his date of release in terms of the provisions of the
Correctional Services Act 8 of 1959, and the regulations made thereunder is not
more than five years in the future,

37 Above, n 7 para 13. See also S v Roberts 2000 (2) SACR 522 (SCA) para 22.
38 Above, n 24 paras 57 to 76. See also Karolia above, n 8 paras 38 and 39.
39 Cf S v M above, n 23 para 65.

and such a person has already been admitted to a prison, the Commissioner or a
parole board may, if he or it is of the opinion that such a person is fit to be subjected
to correctional supervision, apply to the clerk or registrar of the court, as the case
may be, to have that person appear before the court a quo in order to reconsider the
said sentence.'
The views expressed in this judgment are in no way a bar to that procedure
being followed as some additional and different considerations apply and the
enquiry is not the same as that in the present appeal.

[16] The appeal is dismissed.

_______________
T D CLOETE
JUDGE OF APPEAL

APPEARANCES:
APPELLANTS:

E Kammies
Instructed by Lee Strydom Fourie Inc, Port
Elizabeth
Hill McHardy & Herbst Inc, Bloemfontein

RESPONDENTS:

Ms U L de Klerk
Instructed by The Director of Public Prosecutions,
Grahamstown
The Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal
Date: 27 May 2010
Status: Immediate
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

E BRITZ v THE STATE
The appellant was sentenced to an effective three years' imprisonment for 67 counts of fraud
committed against her employer over a period of three-and-a-half years and involving over
R330 000.

The appellant sought to adduce evidence on appeal of the fact that after she had been
sentenced and served over four months of her sentence, her mother had died and her children
(a girl aged 17 and a boy aged 13) would therefore not be cared for properly whilst she was
in prison. The magistrate granted bail to the appellant pending appeal.

The SCA rejected the application for three reasons. First, reception of the evidence would
make no difference to the sentence of imprisonment. The magistrate had sentenced the
appellant on the very basis that her mother was too ill to look after the children. Additionally,
the magistrate had correctly considered that direct imprisonment was the appropriate
sentence despite the fact that the appellant had children.

Second, there was no prima facie likelihood of the evidence being true. There were
discrepancies in the facts put before the court. It appeared from the record that the children
could be looked after by the appellant's father over weekends when their own father was at
work, and that there was a domestic helper employed full-time during the week.

Third, the fact that the appellant's husband had to work longer hours to supplement the
income she had earned was not an exceptional or peculiar circumstance that occurred after
sentence but was precisely what one would have expected.

The SCA concluded that the emotional needs of the children could not be allowed to trump
duty on the State properly to punish criminal conduct where the appropriate sentence was one
of imprisonment.

The effect of the judgment is that the appellant will have to return to jail, although the SCA
pointed out that the Commissioner for Prisons or a parole board could invoke the procedure
under the Criminal Procedure Act to enable the magistrate to alter the remainder of the
sentence to correctional supervision.

--ends--