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[2014] ZASCA 20
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Steyn v S (100/13) [2014] ZASCA 20 (27 March 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 100/13
DATE: 27 MARCH
2014
NOT REPORTABLE
In the matter
between:
GEOFFREY
MARK STEYN
..............................................
Appellant
And
THE
STATE
.....................................................................
Respondent
Neutral
citation:
Geoffrey Mark Steyn v The
State
(100/13)
[2014] ZASCA 20
(27
March 2014)
Coram:
Mhlantla and Bosielo JJA et Van Zyl AJA
Heard:
24 February 2014
Delivered:
27 March 2014
Summary:
Appeal against sentence – delay
between sentencing and hearing of appeal – no misdirection
committed by court below
– appeal dismissed.
ORDER
On
appeal from:
South Gauteng High Court,
Johannesburg (Horn J,Tshabalala J concurring sitting as court of
appeal):
1
The appeal is dismissed.
2
Paragraph 2 of the order of the high court of 31 August 2012 is
amended by the insertion of para (b) thereto to read:
‘
(a)
The accused is sentenced to three years’ imprisonment in terms
of section 276 (1)(
i
)
of the Criminal Procedure Act 51 of 1977.
(b)
It is recorded that the accused has already served a period of five
months in prison.’
JUDGMENT
Mhlantla
JA
(Bosielo JA and Van Zyl AJA
concurring):
[1]
The appellant was convicted in the Regional Court,
Johannesburg of 23 counts of fraud, six counts of theft
and one count
of assault.
All the counts of fraud
and theft were taken together for purposes of sentence and he
was sentenced to ten years’ imprisonment. The regional
magistrate suspended two years thereof on certain conditions. A
sentence
of one month’ imprisonment with an option of a fine
was imposed for the assault charge. An appeal against sentence was
upheld
by the South Gauteng High Court, Johannesburg (Horn J,
Tshabalala J concurring). The court below set aside the sentence and
imposed
one of three years’ imprisonment in terms of section
276(1)(
i
) of the Criminal Procedure Act 51 of 1977 (the Act).
The appellant appeals against that sentence with the leave of the
court below.
[2]
The essence of the attack on the decision of the court below is
two-fold. First, it failed to adequately
take into account the
appellant’s rehabilitation and erred when it imposed a sentence
of direct imprisonment. Second, there
is no indication on the record
that the court below had considered the fact that the appellant had
already served a period of five
months before his release on bail
pending his appeal and whether he should be given credit for the time
served.
[3]
The facts are briefly stated. From 1992, the
appellant conducted a business of fixing and selling motor vehicles.
He operated from his brother’s home in Kibler Park,
Johannesburg. Once a prospective customer showed an interest in
purchasing
a motor vehicle from the appellant, they would meet in
order to finalise a transaction for the sale of that vehicle. The
customer
would pay a deposit and receive a receipt as proof of
payment. The appellant promised to deliver the vehicle once a
roadworthy
test had been conducted.
[4]
The appellant however never delivered these vehicles to the
respective customers. He refused to meet
or speak to them when they
returned to enquire about the date of delivery of the vehicles. The
appellant promised to repay the
deposit in monthly instalments but
failed to do so. As a result, the customers suffered losses of
between R170 000 and R180 000.
They eventually preferred charges of
theft and fraud against the appellant.
[5]
In 1995, the appellant was charged with various counts of fraud and
theft as well as one count of assault.
The offences in question were
committed over a long period from April 1992 until February 1995. The
trial in the Regional Court
commenced on 15 January 1997. There were
various delays during the trial. The matter was eventually finalised
on 12 December 2003
when the appellant was convicted of 23 counts of
fraud, six counts of theft and one count of assault and the sentences
referred
to in para [1] above were imposed.
[6]
After the trial, the appellant was granted leave to
appeal against the convictions and sentences imposed.
The magistrate
however refused to release him on bail pending his appeal causing him
to commence serving his sentence. During April
2004, the appeal
against the denial of bail was upheld and the appellant was released
on bail. At that stage he had served a period
of five months of his
sentence.
[7]
On 30 August 2012, almost nine years after the conclusion of the
trial, the appeal came before Horn
J and Tshabalala J in the court
below. Before the hearing, the appellant abandoned his appeal against
the convictions and only
persisted in his appeal against the sentence
imposed on the counts relating to fraud and theft. Before considering
the merits of
the appeal, the court below dealt with the issue
relating to the delays in prosecuting and hearing the appeal. The
court accepted
that the delays from April 2004 until 2008 were due
to
,
what the court described
as lapses in the administration and processing of the appeal, as well
as the fact that the record was
defective and had to be
reconstructed. It concluded that the blame for the delay could not be
attributed to any specific party.
Regarding the delays from 2008
until 2012, the court held that both parties were to blame.
[8]
The appellant made application and was afforded an opportunity to
present further evidence on appeal
before the high court. This
concerned his personal circumstances since 2003 and the manner in
which he had rehabilitated himself
since his conviction. In this
regard, he stated that he had to a certain extent been influenced by
his elder brother and that he
managed to improve his life after
moving out of his brother’s house. Since his conviction and
sentence in 2003, he has not
been charged with any offence nor were
any charges investigated. There are no criminal cases pending against
him. He is self-employed
as a mechanic and vehicle restorer and is
the sole breadwinner. In 2008 he joined the local community policing
forum and is the
deputy chairperson thereof. He works closely with
members of South African Police Service at the Alberton and
Brackendowns Police
Stations. He visits schools and orphanages to
foster relationships with the local community and ensure the safety
and security
of these establishments. These services are performed
without reward. He is prepared to compensate the victims at
R5000 per
month. He has already served five months of his sentence.
He is prepared to commit himself to house arrest and monitoring when
not working and render community service.
[9]
After considering the further evidence, the court below concluded
that the delay of the appeal since
2003 constituted exceptional
circumstances and that it was at large to interfere with the sentence
imposed by the trial court.
The court accepted that the appellant had
shown true remorse and had mended his ways. It upheld the appeal, set
aside the sentence
and replaced it with a sentence of three years’
imprisonment in terms of section 276(1)(
i
) of the Act. The
appellant now appeals against that order contending that a non-
custodial sentence in terms of section 276(1)(
h
) of the Act
should have been imposed.
[10]
Before us, it was submitted that the court below committed a
misdirection in that it failed to take into account
the changed
circumstances of the appellant as well as the period of five months
already served by him.
[11]
The
imposition of sentence is pre-eminently within the discretion of the
trial court. A court of appeal will be entitled to
interfere
with the sentence imposed by the trial court if the sentence is
disturbingly inappropriate or so totally out of proportion
to the
magnitude of the offence, sufficiently disparate, vitiated by
misdirection showing that the trial court exercised its discretion
unreasonably or is otherwise such that no reasonable court would have
imposed it.
[1]
[12]
In so far as the first challenge is concerned, I am not persuaded
that the court below misdirected itself. It has
to be borne in mind
that each case must be determined in the light of its own facts and
circumstances. It may be necessary to consider
comparative cases in
determining whether the court below exercised its discretion
properly.
[13]
The first of these cases is
S
v
Karolia
[2]
where the accused had served the sentence imposed on him by the court
a quo and had paid compensation of R250 000. The court found
that if
the accused were to be rearrested and required to serve a lengthy
prison sentence, it would be callous in the extreme.
The court
imposed a sentence of ten years’ imprisonment on the charge of
murder, four years’ imprisonment on the charge
of attempted
murder and one year’s imprisonment on the charge of assault
with intent to do grievous bodily harm. The court
suspended the
sentences, save for eight months thereof. It further recorded that
the accused had already served the period of eight
months’
imprisonment and he had paid the requisite compensation.
[14]
In
S
v
Michele
and Another
,
[3]
the appellants had been convicted of fraud and sentenced to seven
years’ imprisonment, two years of which were suspended.
There
was a substantial delay of six years before the appeal was heard.
This Court considered the delay and the effect of the fraud
on the
complainant. It
held
that it would be callous to leave out of account the mental anguish
the appellants must have endured by waiting for a period
of six years
without clarity as to their future. The Court concluded that the
actual loss suffered was less severe and took into
account the delay.
The sentence was reduced to four years’ imprisonment, two years
of which were suspended.
[15]
In
S
v
Jaftha
,
[4]
the
accused had been charged for driving while under the influence of
alcohol. He pleaded guilty and was convicted. This was the
third time
he had committed this offence. A sentence of three years’
imprisonment in terms of section 276(1)(
i
)
of the Act was imposed. He lodged an appeal against the sentence and
was released on bail pending his appeal. He
was
not aware that his appeal against sentence had failed. This aspect
was brought to his attention ten years later.
He appeared to have been rehabilitated.
This
Court accepted his undisputed evidence that he had completely
reformed. It interfered with a sentence of three years’
imprisonment and imposed a sentence of two years’ imprisonment
or payment of a fine of R10 000.
[16]
In
S
v
Malgas
,
[5]
the appellants, who were police officers, were sentenced in 2003.
They were released on bail pending their appeal, which was eventually
heard in 2012. There was no proper explanation for the delays. It was
clear that they had decided not to do anything but wait for
the
appeal to be brought to court. This Court held that the long delay
could not operate in their favour and dismissed their appeal
against
sentence.
[17]
In
MS
v
S
[6]
(
Centre
for Child Law as Amicus
),
the Constitutional Court concluded that a sentence in terms of
section 276(1)(
i
)
of the Act was appropriate where it considered a custodial sentence
essential but found that the nature of the offence and circumstances
of the offender warranted a shorter period of incarceration.
[18]
The common factor in the cases referred to above and the present
matter is the delay before the appeal was heard
or when the appellant
became aware of the outcome of the appeal. There are however
distinguishing factors between the facts of
these cases and the facts
of this case. For example, in
Karolia
one of the reasons this
Court decided to suspend the sentences was the fact that the accused
had already complied with the order
and paid compensation. In
Michele
this Court declined to suspend the entire sentence, but reduced the
prison term. In
Jaftha
the conviction related to a
traffic offence. There was no prejudice to any victim. The impact on
society was therefore less severe.
[19]
On the other hand, in the case before us, the offences were committed
over three years. The appellant had time
to reconsider his actions
but proceeded to defraud the complainants who suffered huge financial
losses. The court below therefore
took into account the appellant’s
circumstances that he had shown remorse and rehabilitated himself. It
also considered the
inordinate delay, the gravity of the offences
which were committed over a period of time and the losses incurred by
the complainants.
Against that background, it reassessed the
sentence. In my view, the contention that the court below
over-emphasised the elements of retribution and
deterrence at the expense of the appellants’ personal
circumstance is without
merit. It is evident that the court
placed
much emphasis on the question of delay and the appellant’s
personal circumstances. This resulted in the sentence imposed
by the
trial court to be substantially reduced leaving a sentence that is
lenient under the circumstances.
Accordingly,
there is no basis for interfering with the sentence.
[20]
Regarding the second attack, counsel for the appellant submitted that
the court below failed to take into account
the period already served
by the appellant. It is correct that the court below did not make
specific reference that it had taken
the five month period into
account in arriving at its decision to impose the sentence it did. It
is however clear from a reading
of the judgment that the court was
well aware of the fact that the appellant had already served a period
of five months’
imprisonment before his release on bail. I
am not convinced that this aspect alone should be accorded much
weight having
regard to the aggravating factors in this matter so as
to justify a sentence other than one of direct imprisonment. In my
view
this is no basis for interfering with the sentence. The appeal
therefore cannot succeed.
[21]
Thus although the appeal should otherwise be dismissed, the court
below should have recorded in its order that
the appellant had
already served a period of five months of his sentence. In the
result, the order of the high court has to be
amended to reflect the
period already served. That period will be accommodated by the
insertion of an appropriate
caveat
in the order. I will amend
the order accordingly.
[22]
In the result, the following order is made:
1
The appeal is dismissed.
2
Paragraph 2 of the order of the high court of 31 August 2012 is
amended by the insertion of para (b) thereto to read as follows:
‘
(a)
The accused is sentenced to three years ‘imprisonment in terms
of section 276(1)(
i
)
of the Criminal Procedure Act 51 of 1977.
(b)
It is recorded that the accused has already served a period of five
months in prison.’
N.Z
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
....................
M W
Verster
…
.........................................
Instructed
by: BMV Attorneys
…
........................................
Johannesburg
…
........................................
c/o
Honey Attorneys
…
........................................
Bloemfontein
For
Respondent:
...............
Adv R Bester
…
.......................................
Instructed
by: Director of Public Prosecution,
…
.......................................
Bloemfontein
[1]
S
v
Romer
2011
(2) SACR 153
(SCA) para 22.
[2]
S
v
Karolia
2006 (2) SACR 75 (SCA).
[3]
S
v
Michele
and Another
2010 (1) SACR 131
(SCA) para13.
[4]
S
v
Jaftha
2010 (1) SACR 136
(SCA).
[5]
S
v
Malgas
2013
(2) SACR 343
(SCA) paras 20 & 21
.
[6]
MS
v
S
(
Centre
for Child Law as Amicus Curiae
)
2011 (2) SACR 88
(CC) para 57.