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[2010] ZAWCHC 575
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Maddock v S (A641/2010) [2010] ZAWCHC 575 (26 November 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
CASE
NUMBER
:
A641/2010
DATE
:
26
NOVEMBER 2010
In the matter between:
GRAHAM
MADDOCK
….......................................................................
Appellant
and
THE
STATE
…..................................................................................
Respondent
J
U D G
M
E
N T
TRAVERSO.DJP
:
The appellant, Graham
Maddock, is appealing the decision of the Bellville Regional Court,
refusing to reconsider the sentence imposed
on Mr Maddock by the
magistrate, Mr Shabalal.
The application was
brought in terms of section 276A(3)(a) of Act 51 of 1977 ("the
Act"). The appellant applied for leave
to appeal against this
decision, but it was refused. Leave was subsequently granted to the
appellant on petition to the Judge
President.
The background of this
matter is the following. The appellant and his company, Maddock
Incorporated, were the auditors and accountants
for most of the
companies in the notorious Fidentia Group. He was charged with theft
and fraud and it was alleged that he aided
and abetted the ring
leaders of the criminal venture, of which the Fidentia related
companies were the main players.
A plea and sentence
agreement in terms of section 105(A) of the Act was entered into. In
terms of the plea agreement, the appellant
pleaded guilty to all the
counts save for one. He pleaded guilty to the crimes of fraud, theft,
money laundering and contravention
of
section 4
of the
Prevention of
Organised Crime Act 121 of 1998
, recklessly or fraudulently
conducting the business of a company in contravention with
section
423
read with 421 and 441D of the Companies Act of 1973. Pursuant to
the plea and sentence agreement, the appellant was convicted of
the
charges and sentenced to an effective term of imprisonment of seven
years. This sentence was imposed on 1 February 2008.
Ex
facie
the
plea agreement, it became apparent that the State accepted that the
appellant was not one of the main players of the fraud committed
by
the Fidentia Group of Companies. He did not personally benefit from
the monies received, except that his salary was paid out
of the
funds. At the time when the salary payments were made, the appellant
was aware that the money was not earmarked for the
payment of
salaries and should not have been used for that purpose. Despite
this, he instructed the transfer of the money for that
very purpose.
Although it is clear that
the appellant was not the principal player in the fraud, he actively
participated in perpetuating the
fraud and that he acted in such a
manner as to facilitate the fraud perpetrated by his erstwhile
co-accused, Brown and Goodwin.
In terms of the plea agreement, the
appellant expressed his deep remorse and indicated that he would
testify for the State against
his co-perpetrators and the main
perpetrator of the offences in any further prosecution in respect of
the Fidentia investigation.
The parties accepted, for purposes of the
plea agreement, that there were substantial and compelling
circumstances in terms of
section 51(3) of the Act for the imposition
of a sentence less than the prescribed minimum sentence.
These circumstances were
the following. At the time the appellant was 53 years old. He was
married with two children. He had agreed
to repay the benefits which
had accrued to him in the amount of R6.3 million. Further there is
the consequential hardship to his
family pursuant to him being
committed to prison, as well as the financial hardships as a result
of these crimes.
It is common cause that
at the time the application for the conversion of sentence was made
to the Regional Court in terms of section
276A(3)(a) of the Act, the
appellant had one and a half years of his sentence left to serve. His
release date, as determined by
the prison's parole board, is 31 July
2011, and accordingly the appellant, presently, still has to serve
approximately seven months
of his sentence. In the application the
department recommended that the remaining sentence be converted into
house arrest in terms
of section 276(1)(h) of the Act.
I turn now to the
statutory provisions. Section 276A(3)(a) provides:
"Where a person has
been sentenced by a Court to imprisonment for a period:
(i)
not
exceeding for 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, and such a
person has already been admitted to 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 sentence."
The magistrate's
reasoning with reference to the application can best be dealt by
quoting fairly extensively from his judgment.
I proceed to do so:
"It is common cause
that in this matter the conviction of the accused arose of section
105A proceedings and section 105A proceedings
are proceedings where
the State and the defence reach a agreement as to a plea and a
sentence to be imposed. The trial court is
then required to consider
the proposed sentence after the accused person has pleaded in
accordance with the agreement and the role
of the Court, in those
proceedings in terms of
105A, is to either accept
•
that the proposed
sentence is fair and just, in which
case the Court convicts
the accused and sentences him accordingly, or finds that such
sentence is not just and then rejects the
proposed sentence and the
plea.
So the fact that in this
matter the accused pleaded and was convicted in terms of 105A, means
that the Court was required to consider
the proposed sentence and
then to accept or reject it. The Court, having accepted the proposed
sentence, it means that in fact
it was so done at the time that the
Court considered all of the relevant facts placed before the Court
by way of section 105A
agreement and from the perusal of the section
105A agreement, it is apparent that the following factors were taken
into account
in the process. The accused has shown remorse and that
he was a first offender. He had co-operated with the State in their
investigation,
where he personally was involved, also where other
entities were involved. The Court considered at the time that there
had been
agreement to make repayment in an amount of R6.3 million
and the Court at the present time, has not been informed as to
whether
or not that R6.3 million has been recovered by the curators
of the insolvent estate.
However, it is not
crucial to the finding made by this Court today as to whether or not
payment had in fact been made. It was
due in October 2008. There as
at the time, and the Court considered the offer to testify by the
accused against the other entities
who might in the future be
charged with complicity at the same crime, the Court took into
account that the accused, by pleading
guilty, and that this resulted
in a substantial saving, time and convenience to the State, the
Court took into account the age,
family, circumstances, professional
status of the accused, and having done so, thus decided to accept
that the proposed sentence
was a just and equitable sentence in the
circumstances. That for the benefits that the State would derive
from the plea and sentence
agreement, that in fact the accused was
being offered a sentence that might at the time have been considered
lenient, but that
there were other spin offs for the State. So in
those circumstances, the Court accepted the proposed sentence as
fair and just.
Today, two years and one
month down the line, the application is before the Court for
conversion of the sentence from that of
imprisonment to correctional
supervision and like the Court said earlier, there is a duty on the
Court to see to it that the
administration of justice is not brought
into disrepute by the imposition of sentences that are startlingly
inappropriate. If,
at the conclusion of the section 105 agreement,
the Court had been informed that the proposed sentence was one of
two years imprisonment
and a period of three years correctional
supervision, there is little doubt that the sentence would not have
been accepted by
the Court as being fair and just and equitable.
This Court accepted a term of seven years imprisonment for the
reason that there
was a trade off between the State and the defence
and today, where the only circumstance that can be brought to the
attention
of the Court to change its mind from the original
sentence, is that the accused has been a model prisoner. Someone, in
the circumstances
of the accused, an accountant, 55 years old,
coming from a decent background, can hardly be expected, for the
time that he is
in custody, to be anything but a model prisoner.
This Court does not consider that it is in the nature of exceptional
circumstances
that the accused stands before this Court and can be
considered a model prisoner."
From
the aforegoing it is clear that the court a
quo
was
of the view that it was anticipated at the time of confirming the
sentence in terms of the section 105 agreement, that the
appellant
would be a model prisoner and that, therefore, no circumstances were
placed before the Court which would enable it
to reconsider the
sentence. This is a completely wrong approach. The Court is enjoined
by the section to reconsider the sentence
in view of all the facts,
not only those facts that existed at the time of the trial. A
literal application of the magistrate's
attitude would amount to a
situation that in no situation where a section 105A plea bargain had
been entered into between the
State and the accused, will a Court at
a later stage be able to reconsider the sentence.
The
application of section 276A(3) was considered lucidly and described
in some detail by
Satchwell
.
J in ex
parte
Department
of Correctional Services in re
S
v Katisi
2002
(1) SACR 497
TPD. She points out at p 500g that subsection (3)
envisages a two stage procedure. Firstly, an application for the
original sentence
to be "reconsidered"; and secondly,
action by the Court upon such reconsideration:
"It
is the application by the commissioner, which precipitates such
reconsideration. The result may be no interference by
the Court, in
that the sentence of the court a
quo
is
confirmed. Alternatively the Court may interfere and change the
status
quo
in
two ways, an order of correctional supervision or another sentence."
As
I have stated earlier, the court
a
quo
misdirected
itself by having adopted the approach that the reconsideration of
the sentence involves a consideration of whether
or not the original
sentence was an appropriate sentence in the circumstances. What the
Court should do is to reconsider the
sentence that it imposed in
view of all the circumstances, including those facts and
circumstances since the imprisonment of
the person concerned and the
circumstances that existed at the trial and which continued to have
significance when the sentence
is considered in terms of this
section (See
S
v Elliott
1996
(2) SACR 531
(E) at 534A.)
The
evidence of the commissioner which was placed before the court a
quo
was
not simply that the appellant was a model prisoner, who had not
committed any further offences. The Department put forward,
in
respect of the appellant, that he was an extraordinary person. That
he was remarkable in his behaviour in prison. That he
was
respectful. That he had been an excellent, positive and outstanding
prisoner, who is a committed teacher and who had made
a vast and
positive impact, not only on the prisoners within the prison, but
also on the wardens.
The lead prosecutor in
the overall Fidentia matter, commented as follows. He stated that
the appellant was not somebody who could
be rehabilitated in prison
as he did not have a criminal mind. The appellant further developed
a business course for the inmates.
He lectured the inmates. He was a
study leader and he started a number of programmes aimed at
rehabilitating offenders, and he
not only assisted prisoners, but
also, as I have said, wardens on various instances. In making his
finding, the magistrate, in
my view, did not have sufficient regard
to the methodology followed in matters of this kind and he ignored
the true motivation
and the evidence which support an application
for the revaluation of the sentence. There has been a considerable
delay in finalising
this matter due to the magistrate's refusal to
grant leave to appeal. And in the circumstances it would, in my
view, serve no
purpose to refer the matter back tot the magistrate
with a direction that he convert the sentence, as in my view, this
Court
is in as good a position to do so.
The
State, represented by Mr
Jonas
,
did not, in my view quite correctly, oppose this application. The
Department of
Correctional
Services, however, adopted a rather strange and ambivalent attitude.
Initially they were not a party to this appeal
at all. Their
interests, I assume, were taken care of by the State's
representative, Mr
Jonas
.
However, during the course of last week, Mr N
Arendse
SC
and Mr G
Papier
approached
me in chambers to state that they had received instructions from the
Department of Correctional Services to oppose
the appeal, but that
Mr
Arendse
would
not be available today to argue the matter and that, therefore, the
appeal might possibly have to be postponed.
I
indicated my reluctance to postpone the appeal and after some
discussion, Mr
Arendse
undertook
to take further instructions from his client and to revert to me by
not later than Monday 22 November 2010. He did not
revert to me and
neither did his junior. Accordingly my office attempted to contact
him on Tuesday 23 November 2010. Having left
several messages with
his secretary (who informed my secretary that it would not assist
her to call him on his mobile, because
he does not answer calls if
he does not recognise the number), he could not be raised and did
not return any calls. I, accordingly,
enquired from his junior, Mr
Papier
,
what the situation was and whether the appeal would be able to
proceed today. I was informed that his client would abide the
decision of this Court and would merely be present in court to
observe the proceedings.
Yesterday
afternoon, 25 November 2010, just before 16:00, heads of argument,
in terms of which the Department of Correctional
Services is
actively opposing this appeal, was unceremoniously handed to my
secretary. No explanation for this change of heart
was given,
neither was the Court, as a matter of courtesy, asked to accept
these heads of argument or to condone the late filing
thereof. In
court, Mr
Papier
verbally
stated that in essence he is abiding the decision of the Court. When
it was pointed out to him that ex
facie
the
heads of argument, filed on behalf of his client, his client
actively opposed the matter, he had no satisfactory explanation.
He
simply informed the Court that despite his oral advices that his
client would abide, his heads of argument would stand. No
further
oral argument was presented.
It
must be borne in mind that the Department of Correctional Services,
in terms of the provisions of the Act, was the
pro
forma
applicant
for the reconsideration of the appellant's sentence. A Court should
at all times be able to rely on counsel for assistance
in coming to
a correct, fair and just decision. Unfortunately, the attitude of
the Department of Correctional Services sketched
above, was of scant
assistance. It is regrettable that legal costs, at the taxpayers'
expense, gets run up in this manner.
Be that as it may, in
considering the facts relevant to this case, I conclude that this
application is successful. The operation
of the remaining portion of
the appellant's imprisonment is converted to 12 months correctional
supervision in terms of
section 276(1)(h)
of the
Criminal Procedure
Act 51 of 1977
. The sentence shall comprise the following programmes
and measures:
(a) House arrest at a
place, and during the times determined by the commissioner of
Correctional Services, for the full duration
of the correctional
supervision, provided that the commissioner has the power to suspend
or extend any period of house arrest
on such conditions as it deems
fit, or thereafter for as long an on such conditions as it deems
fit, reintroduce such house arrest.
(b) Community service
for a total period of 16 hours per month. The nature of the
community service, the place where and the times
during which such
services could be performed, will be determined by the commissioner
of Correctional Services, provided that
the commissioner is
empowered to add additional community service in order to promote
the fulfilment of the sentence if merited,
to suspend a part of the
period of community service, on such conditions as he deems fit or
thereafter for as long and under
such conditions as he deems fit to
reintroduce such community service.
Submission
to treatment programmes, rehabilitation programmes, placement under
supervision of a probation officer with,
inter
alia,
the
following programme content, in order to realise the objectives of
correctional supervision: the location, times, duration,
content of
such programmes will be determined by the commissioner of
Correctional Services. Any costs involved in such programme
supervision, may be recovered from the appellant.
Submission to monitoring
by the commissioner of Correctional Services in order to realise the
objectives of his sentence.
The appellant may not
leave the magisterial district in which he resides without the
permission of the correctional office official.
The appellant shall,
during the full duration of his sentence, refrain from using
alcohol or the abuse of drugs, other than
those prescribed by a
medical practitioner, comply with any original instructions given
by the commissioner of Correctional
Services regarding the
administration and compliance with the sentence, and notify the
commissioner of Correctional Services
forthwith in writing of any
change of residential or work address.
STEYN.
J
:
I agree.
STEYN.J
TRAVERSO.
DJP
:
It is so ordered.
TRAVERSO. DJP