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2011
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[2011] ZAGPJHC 221
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Preston and Another v S (A68/2011) [2011] ZAGPJHC 221 (20 October 2011)
IN
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
Case
No:(A68/2011)
Date:20/10/2011
N.P.
PRESTON
..................................................................
FIRST
APPELLANT
S.P. BADENHORST
…....................................................
SECOND
APPELLANT
vs
THE STATE
…..................................................................
RESPONDENT
JUDGMENT
MEYER, J
[1] The first
appellant was convicted of 113 counts of fraud committed during the
period September 2003 to August 2006 and the second
appellant of 91
counts of fraud committed during the same period.
[2] The first
appellant was an employee of a company called Aranda Textile Mills
(Pty) Ltd (‘Aranda’) during the period
of about 3 years
when the fraud was committed and the second appellant a former
employee. The two of them set upon a fraudulent
course of conduct by
which they defrauded Aranda with amounts that totalled up to an
amount of about R 5, 3 million.
[3] The first
appellant was sentenced to 15 years’ imprisonment and the
second appellant to 12 years’ imprisonment.
All the charges
against each appellant were taken together for the purpose of
sentencing her. Each appellant now appeals against
such sentence
that was imposed upon her.
[4] The
trial court, in my view, materially misdirection itself in the
imposition of sentence in each instance. The sentence imposed upon
each appellant, when all the circumstances of the particular case of
each appellant are considered, is disproportionate to the
crimes
committed by her, the criminal in each instance, and the legitimate
needs of society. The trial court, in my view, further
materially
misdirected itself in finding an absence of sincere remorse on the
part of appellant no 2. She took the court
a
quo
into her confidence as to her motives in commissioning the crimes, as
to what provoked her change of heart, and it appears clearly
from the
evidence presented that she indeed has a a true appreciation of the
consequences of her actions. See
S
v Matyityi
2011
(1) SACR 40
SCA, para [13].
[5] This court is
accordingly at large to consider the matter of each appellant’s
sentence afresh. In doing so the traditional
objectives of
punishment – prevention, retribution, deterrence, and
rehabilitation – apply, and we are enjoined to
weigh the
personal circumstances of each accused (including the interests of
their minor children), against the crimes committed
by them, and the
interests of society.
[6] I am of the
view that the court
a
quo
correctly
differentiated between the sentences imposed upon the appellants.
The imposition of sentences of lengthy periods of imprisonment
is, on
a consideration of all the circumstances, also just and warranted.
An appropriate and balanced sentence, which is also
blended with
mercy, in the case of appellant no 1 is, in my judgment, imprisonment
for a period of twelve years, and in the case
of appellant no 2,
imprisonment for a period of 9 years.
[7] In the result,
I propose that the appeal of each appellant against her sentence
should succeed and that the following order
be made:
1. The sentence of fifteen years’
imprisonment imposed upon appellant no 1 is hereby set aside and
replaced with a sentence
of twelve years’ imprisonment.
2. The sentence of twelve years’
imprisonment imposed upon appellant no 2 is hereby set aside and
replaced with a sentence
of nine years’ imprisonment.
MAKHANYA, J
[8] I agree with my brother Meyer, J.
[9] It is s ordered.