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[2014] ZASCA 147
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Grobler v S (433/13) [2014] ZASCA 147; 2015 (2) SACR 210 (SCA) (26 September 2014)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 433/13
DATE:
26 SEPTEMBER 2014
Reportable
In the matter
between:
MARTIN
GROBLER
...............................
APPELLANT
And
THE
STATE
.........................................
RESPONDENT
Neutral citation:
Grobler v The State (433/13)
[2014] ZASCA 147
(26 September 2014)
Coram: PONNAN,
SALDULKER JJA and DAMBUZA AJA
Heard: 12
September 2014
Delivered 26
September 2014
Summary: Sentence –
fraud – accused convicted on 11 counts of fraud involving
approximately R1,5 million – regional
court imposing three
years’ correctional supervision under
s 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
, plus five years’
imprisonment wholly suspended on certain conditions, including the
reimbursement of the complainants –
high court mero motu
increasing sentence to five years’ direct imprisonment –
whether it erred in doing so.
ORDER
On appeal from:
Western Cape High Court, Cape Town (Blignaut and Davis JJ sitting as
court of appeal):
1 The appeal against
sentence succeeds.
2 The order of the
high court is set aside and substituted with the following:
‘a The appeal
is dismissed.
b The conviction and
sentence imposed by the court a quo is confirmed.’
JUDGMENT
SALDULKER JA
(Ponnan JA and Dambuza AJA Concurring):
[1] This is an
appeal against sentence. The appellant, Mr Martin Grobler, was
charged in the regional court, Knysna with 13 counts
of fraud,
alternatively theft, committed between 31 March 1999 and 24 January
2000. On 29 July 2010 he was convicted on 11 counts
of fraud, all of
which were taken together for purposes of sentencing. On 28 March
2011, he was sentenced to three years’
correctional supervision
in terms of
s 276(1)(h)
of the Criminal Procedure Act 51 of 1977 (the
Act). In addition he was sentenced to five years’ imprisonment
wholly suspended
for five years on certain conditions, which included
the reimbursement of the complainants of the full extent of their
financial
loss being approximately R1,5 million together with
interest, calculated from the date of conviction.
[2] The appellant
appealed to the Western Cape High Court solely against his
conviction. His legal representative was given notice
by the high
court that in the event of the appeal against the conviction failing,
he had to be prepared to address it on the suitability
of the
sentence. On 9 November 2012 Blignaut J (with Davis J concurring)
confirmed the conviction and set aside the sentence of
the regional
court and replaced it with one of five years’ direct
imprisonment. He now appeals against that sentence with
the leave of
this court.
[3] The appellant,
together with Mr GCJ Naude (Naude), was a founding member of Money
Wise Holdings Ltd (Money Wise), a company
that conducted a
micro-lending business. On 2 December 1998 and after Money Wise was
listed on the Johannesburg Stock Exchange,
the appellant became an
employee of the group and was appointed as a marketing manager.
According to the complainants, he conducted
himself as if he were a
director of Money Wise. The appellant’s modus operandi was to
approach potential investors (in this
instance the complainants) with
a view to them investing in Money Wise. Handsome rates of interest
were offered and indeed paid
monthly to them. Over time, however, the
interest payments stopped and the complainants were unable to
thereafter secure the return
of their investments. All of them
subsequently learnt that they had been misled by the appellant into
believing that they were
investing in Money Wise, when in fact the
appellant had misappropriated those moneys for himself.
[4] In substituting
a sentence of direct imprisonment for that imposed by the trial
court, the high court stated:
‘Die probleem
met die huidige vonnis is dat die gevangenisstraf opgeskort word op
voorwaarde dat appellant die bedrae wat
die klaers verloor het, aan
hulle moet terugbetaal. Die vonnis bevat besonderhede van
verskillende bedrae wat op verskillende datums
terugbetaal moet word.
Afgesien van praktiese probleem soos allerlei geskille en
onbepaalbare uitstelle, is ’n boete van
hierdie aard na my
mening nie ’n genoegsame bestraffing van appellant se misdade
nie. Daar is ’n brief as bewysstuk
ingehanding van ’n
persoon wat skynbaar bereid was om die betrokke bedrae namens
appellant te betaal. Indien dit sou gebeur
en appellant daarna vir ’n
tweede keer gesekwesreer word, wat nie onwaarskynlik is nie, sal hy
stokvry wegstap.’
[5] It is trite that
the imposition of sentence is pre–eminently a matter for the
discretion of the trial court and a court
on appeal will not
interfere with the exercise of such discretion unless it can be said
that the sentencing court did not exercise
its discretion judicially
by reason of an irregularity or material misdirection or that the
sentence imposed is so shockingly inappropriate
that it is clear that
the trial court acted unreasonably. (See S v Pieters
1987 (3) SA 717
(A) at 727F-H: S v Malgas
2001 (1) SACR 469
(SCA) para 12; Director
of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) para 11; and
S v Le Roux & others
2010 (2) SACR 11
(SCA) para 35).
[6] In S v R
1993
(1) SACR 209
(A) Kriegler J said that by introducing correctional
supervision, the Legislature had provided a method of imposing finely
tuned
sentences without resorting to imprisonment with all its known
disadvantages for both the prisoner and the broader community. At
220
G-H he observed that:
‘Ons
straftoemeting het egter nou 'n heel nuwe fase betree. Korrektiewe
toesig is weliswaar 'n as nog-onbeproefde vonnisopsie
maar dit blyk
reeds uit die magtigende wetgewing dat dit groot potensiaal inhou.
Wat veral tref, is die veelsoortigheid daarvan.
By nadere ondersoek
word dit duidelik dat die benaming ‘'korrektiewe toesig’'
nie soseer 'n vonnis beskryf nie maar
'n versamelnaam is vir 'n wye
verskeidenheid maatreëls waarvan die enkele gemeenskaplike
kenmerk is dat hulle buite die gevangenis
toegepas word.
’
[7] In S v Samuels
2011(1) SACR 9 (SCA) para 9-10, Ponnan JA pointed out that:
‘An
enlightened and just penal policy requires consideration of a broad
range of sentencing options from which an appropriate
option can be
selected that best fits the unique circumstances of the case before
the court. It is trite that the determination
of an appropriate
sentence requires that proper regard be had to the well-known triad
of the crime, the offender and the interests
of society. After all,
any sentence must be individualised and each matter must be dealt
with on its own peculiar facts. It must
also in fitting cases be
tempered with mercy. Circumstances vary and punishment must
ultimately fit the true seriousness of the
crime. The interests of
society are never well served by too harsh or too lenient a sentence.
A balance has to be struck.
It was urged upon us
that correctional supervision would have been an appropriate sentence
for the appellant. Sentencing courts
must differentiate between those
offenders who ought to be removed from society and those who,
although deserving of punishment,
should not be removed. With
appropriate conditions, correctional supervision can be made a
suitably severe punishment, even for
persons convicted of serious
offences . . .’
[8] There is no
indication in the judgment of the high court why it saw fit to
interfere with the sentence imposed by the regional
court. In
arriving at what it thought was an appropriate sentence, the regional
court was aided by a comprehensive correctional
supervision report
with a strict correctional supervision regime entailing, inter alia,
community service, monitoring by the commissioner,
including
rehabilitative programmes and that the appellant remain under house
arrest (outside of his working hours) for three years.
[9] The trial court
took into account the personal circumstances of the appellant as set
out in the correctional supervision report,
namely that he was: (a) a
first offender; (b) an educated man – he had a tertiary
qualification; and (c) married with three
dependant children and had
strong family ties. It also took into account that there was a long
delay between the time the original
charges were laid against the
appellant in the year 2000 and his eventual conviction in 2010 and
the emotional and mental suffering
that the appellant had to endure
during this period. The seriousness and the reprehensibility of the
appellant’s conduct
in betraying the trust of the complainants
was also taken into account by the regional court as an aggravating
factor.
[10] Furthermore,
the regional court gave serious consideration to whether a custodial
or non-custodial sentence would be appropriate,
and decided that a
custodial sentence did not commend itself in the circumstances of
this case. It weighed heavily with the regional
court that each of
the complainants would be reimbursed for their loss, which would have
only been feasible if the appellant was
economically productive.
[11] In contrast,
the high court in a short judgment stated that it had taken into
account the relevant facts and considerations,
including the
unfortunate long delay in the finalisation of the case against the
appellant and considered that a sentence of five
years’
imprisonment was appropriate. It is difficult to understand how the
high court came to the conclusion that direct
imprisonment was
suitable in the light of the carefully reasoned judgment of the trial
court. In justifying the increased sentence,
Blignaut J reasoned that
the problem with the regional court’s sentence was that
imprisonment was suspended on condition
that the appellant reimburse
the complainants for their losses. In his view, reimbursement was the
equivalent of a fine, the practical
aspects of which could lead to a
variety of disputes and incalculable delays and that the appellant
would in all probability be
sequestrated for a second time and that,
because another person was making the payments on the appellant’s
behalf, he would
then go ‘scot-free’. This reasoning is
flawed. The sentence of the regional court places the appellant under
house
arrest for three years combined with five years’
imprisonment wholly suspended, which is subject to certain
conditions, including
the onerous burden of paying back large sums of
money totalling almost R1,5 million to the complainants. Should the
appellant fail
to make any payment, he would be in breach of the
conditions imposed and the sentence of five years’ direct
imprisonment
would then come into operation. Furthermore, there was
no evidence before the high court to suggest that he would not have
to repay
his benefactor. The conclusion that the appellant will in
fact go ‘scot-free’ is thus devoid of any factual
foundation.
[12] Pragmatically,
it would be unreasonable to incarcerate the appellant who has been an
economically active member of society
for the past 13 years since he
was charged, and who has not committed any other offences during this
period. It is also a relevant
consideration that after that lengthy
passage of time the high court sought to impose a custodial sentence.
As pointed out by Kriegler
J in S v R, the introduction of
correctional supervision ushered in a new phase in our criminal
justice system, clearly distinguishing
between those offenders who
ought to be removed from society by being incarcerated and those who,
even though deserving of punishment,
should not be removed. The
appellant’s circumstances provide a compelling case for a
non-custodial sentence. The regional
court clearly did not misdirect
itself when it imposed what is described by Kriegler J in S v R as a
‘finely–tuned
sentence’ without resorting to
imprisonment.
[13] Counsel for the
State was constrained to concede that in the circumstances of this
case interference by the high court was
not warranted. And further
that as the State had not itself seen fit to appeal against the
sentence imposed by the trial court,
it had difficulty defending the
approach of the high court.
[14] In the result
the appeal must succeed. The following order is made:
1 The appeal against
sentence succeeds.
2 The order of the
high court is set aside and substituted with the following:
‘a The appeal
is dismissed.
b The conviction and
sentence imposed by the court a quo is confirmed.’
H SALDULKER
JUDGE OF APPEAL
APPEARANCES:
Appellant(s): Mr
F. Van Zyl SC
Instructed by:
Bornman &
Associates, Bellville
Symington &
De Kock, Bloemfontein
Respondent(s) Ms
Du Toit - Smit
Instructed by:
Director of
Public Prosecutions Cape Town