Mia v S (604/08) [2009] ZASCA 47; [2009] 4 All SA 33 (SCA) (22 May 2009)

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[2009] ZASCA 47
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Mia v S (604/08) [2009] ZASCA 47; [2009] 4 All SA 33 (SCA) (22 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 604/08
No precedential significance
NURULLAH
MIA
Appellant
and
Respondent
THE
STATE
___________________________________________________________________
Neutral citation:
Mia v The State (604/08)
[2009] ZASCA 47
(22 May 2009)
CORAM:
STREICHER ADP, NUGENT, PONNAN, MLAMBO JJA and
KROON AJA
HEARD:
7 MAY 2009
DELIVERED:
22 MAY 2009
SUMMARY:
Fraud – sentence – no substantial
and compelling circumstances present –
minimum sentence on each count confirmed – striking
disparity between effective sentence imposed and that which appellate
court
would have imposed – sentence reduced from 20 to 15 years’
effective imprisonment.
___________________________________________________________________
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
The Pretoria High Court
(Seriti J and Mavundla J) sitting as a court of appeal.
The appeal succeeds to the following limited extent:
(a) The appellant’s sentence to a term of imprisonment of 15 years
on each of the two charges is confirmed.
(b) The second term of 15 years’ imprisonment is ordered to run
concurrently with the first.
(c) The appellant is thus sentenced to an effective term of
imprisonment of 15 years.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA
(STREICHER ADP, NUGENT, MLAMBO JJA and KROON
AJA concurring):
[1] The appellant, who was arrested on 2 July 2001, originally stood
arraigned on six charges before the Pretoria Regional Court.
At the
commencement of the trial on 5 February 2004, three of the six
charges were withdrawn by the State. To the remaining three
– all
charges of fraud – the appellant tendered a plea of not guilty. He
did, however, admit the preamble to the charges in
terms of
section
220
of the
Criminal Procedure Act 55 of 1977
, save for paragraph 1.6.
[2] The general preamble to the charges, provided:
'
WHEREAS
,
at all times relevant to the charge sheet:
1.1 Cheques, which included a complete chequebook with
cheque numbers 117801 to 118000, all of which were for the account of
Vodacom
Service Providers Co (Pty) Ltd-Creditors were stolen during
2001.
1.2 Vodacom Service Providers Co (Pty) Ltd held account
number 421033894 with Standard Bank.
1.3 The accused opened an account with the Brooklyn
branch of ABSA, bearing account number 4052197013 and styled as N Mia
t/a Azra's
Transporters.
1.4 Cheque number 118000 for R920 000-00, emanating from
the range mentioned in 1.1, was deposited to the account of the
accused
on 26 April 2001.
1.5 Cheque number 117893 for R4 800 000-00, emanating
from the range mentioned in 1.1, was deposited to the account of the
accused
on 18 May 2001.
1.6 The accused knew, or ought reasonably to have known,
that the abovementioned deposits to his account were fraudulent in
nature.
1.7 The accused purchased a BMW on 25 May 2001 from Outo
Glen Motors for the amount of R394 000-00. The accused paid with
cheque
number 111 drawn on the account mentioned in 1.3.
1.8 The accused purchased another BMW on 5 June 2001
from Randburg Motorlink for the amount of R450 000-00. The accused
paid with
cheque number 128 drawn on the account mentioned in 1.3.
1.9 On 14 June 2001 the accused handed cheque number
152, also drawn on the account mentioned in 1.3, and for the value of
R950
000-00 to the personnel of Randburg Motorlink. This was for the
purchase of 3 Mercedes Benz motor vehicles. The accused cancelled

this deal but received the cash value of this cheque.
1.10 On 4 June 2001 the accused purchased a VW Microbus
for the amount of R160 000-00 from Paarl Vallei Motors. The accused
paid
with cheque number 118 drawn on the account mentioned in 1.3.'
[3] The matter was then postponed and when the trial resumed on 24
May 2004, the court was informed that the appellant was desirous
of
altering his plea of not guilty to one of guilty on two of the
remaining three charges. The court did not invoke the procedure

envisaged in
s 112
of the Act in respect of those two charges to
which a plea of guilty had been tendered. Nor did the defence adduce
a statement
in terms of
s 112(2)
of the Act. Instead, a document
headed ‘Formal Admissions in terms of
s 220
of the
Criminal
Procedure Act, 1977
’ was handed in on behalf of the appellant. It
read
:
'I, the undersigned,
NURULLAH MIA
(ID No. 620905 5246 087)
hereby declare as follows:
1
I am the accused in this matter.
2
As far as Counts 2 and 3 are concerned, I hereby
formally admit:
2.1 that cheques which included a complete cheque book
with cheque numbers 117801 to 118000, all of which were for the
account of
Vodacom Service Providers Co. (Pty) Ltd–Creditors, were
stolen during 2001;
2.2 that Vodacom Service Providers Co. (Pty) Ltd held
account number 421033894 with Standard Bank;
2.3 that I opened an account with the Brooklyn Branch of
ABSA Bank, bearing account 4052197013 and styled as N Mia t/a Azra's
Transporters;
2.4 that cheque number 118000 for R920 000.00, emanating
from the range mentioned in 2.1, was deposited in my said bank
account
on 26 April 2001;
2.5 that cheque number 117893 for R4 800 000.00,
emanating from the range mentioned in paragraph 2.1 was deposited in
my said banking
account on 18 May 2001;
2.6 that at the time the said deposits were made into my
banking account I in fact foresaw the possibility that these were
fraudulent
in nature and nevertheless accepted these deposits in my
said banking account.
3
I do hereby further admit:
3.1 that on 26 April 2001 and 18 May 2001, respectively,
and at Southdale in the Regional Division of Southern Transvaal, I
did
unlawfully, falsely and with the intention to defraud, give out
and pretend to ABSA Bank Limited that the respective cheque numbers

118000 for the amount of R920 000.00 and 117893 for the amount of R4
800 000.00, purported to be drawn by Vodacom Service Providers
Co.
(Pty) Ltd-Creditors on the Standard Bank Limited in favour of Azra's
Transporters were good and valid cheques and that myself
or Azra's
Transporters were entitled to the proceeds of the said cheques;
3.2 that I induced ABSA Bank Limited to its prejudice to
credit my said banking account with the respective amounts of the
said
cheques;
3.3 that when I gave out and pretended as aforesaid, I
in fact foresaw the possibility that:
- the said cheques were not valid cheques;
- were not drawn by Vodacom Service Providers Co. (Pty)
Ltd-Creditors;
- I nor Azra's Transporters were not entitled to the
proceeds of the said cheques.
4
I do hereby further admit:
4.1 that I was not entitled to act as mentioned above
and that I, at the time of my said conduct knew that what I was doing
was
wrong.
5
I am making these admissions out of my own free will and
was in no way induced or influenced to make the same.'
[4] The state then closed its case without adducing any further
evidence. As did the appellant. The appellant was thus duly
convicted
as charged on counts 2 and 3 and acquitted on count 4.
[5] On 4 March 2005, the appellant was sentenced to 15 years’
imprisonment on each count, 10 years’ of which on the second
count
was ordered to run concurrently with the sentence on the first. The
effective sentence was thus a term of imprisonment of
20 years. An
appeal to the Pretoria High Court (per Seriti J, Mavundla J
concurring) solely in respect of sentence, having proved

unsuccessful, the further appeal is with the leave of this court.
[6] It is common cause that Act 105 of 1997 (the so-called minimum
sentencing legislation) finds application and that the offences
in
question fall within the purview of Part 2 of Schedule 2 of the Act.
In terms of s 51(2)(
a
)(i) the legislature has ordained 15
years’ imprisonment for a first offender found guilty of an offence
of this kind, unless
substantial and compelling circumstances are
found to exist in terms of s 51(3)(
a
), which would justify the
imposition of a lesser sentence. Neither the trial court nor the high
court could find such circumstances
to indeed be present. Each thus
found itself unable to depart from the statutorily prescribed minimum
sentence. In that, given
the paucity of information adduced by the
appellant as to the circumstances surrounding the criminal enterprise
and his own role
in it, as also the staggering amounts involved,
neither court can be faulted.
[7] The approach of a sentencing tribunal to the imposition of the
minimum sentences prescribed by the Act is to be found in the

detailed judgment of Marais JA
S v Malgas
2001 (1) SACR 469
(SCA). (See also
S v Fatyi
2001 (1) SACR 485
(SCA) para 5;
S
v Abrahams
2002 (1) SACR 116
(SCA) para 13.)
[8] The circumstances entitling a court of appeal to interfere in a
sentence imposed by a trial court were recapitulated in
Malgas
(para 12) where Marais JA held:
'A court exercising appellate jurisdiction cannot, in
the absence of material misdirection by the trial court, approach the
question
of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers
it. To do
so would be to usurp the sentencing discretion of the trial
court. . . . However, even in the absence of material misdirection,

an appellate court may yet be justified in interfering with the
sentence imposed by the trial court. It may do so when the disparity

between the sentence of the trial court and the sentence which the
appellate Court would have imposed had it been the trial court
is so
marked that it can properly be described as "shocking",
"startling" or "disturbingly inappropriate".'
[9] It has not been suggested that the sentence was vitiated by any
misdirection. The thrust of the argument advanced on behalf
of the
appellant is that the two offences although distinctly separate were
closely related and were in reality the execution of
the same broad
criminal transaction. It followed, so the argument went, that the
second term of imprisonment of 15 years should
have been ordered to
run concurrently in its entirety with the first. I agree – there
appears to me to have been no warrant for
ordering a portion of the
second sentence to run consecutively with the first. Such a course
resulted in a sentence, the cumulative
effect of which was manifestly
severe. In my view the degree of disparity between the effective
sentence imposed and that which
this Court would have imposed is such
that interference is competent and warranted. For, as it was put in
S
v Sadler
2000 (1) SACR 331
(SCA) para 8:
'The traditional formulation of the approach to appeals
against sentence on the ground of excessive severity or excessive
lenience
where there has been no misdirection on the part of the
court which imposed the sentence is easy enough to state. It is less
easy
to apply. Account must be taken of the admonition that the
imposition of sentence is the prerogative of the trial court and that

the exercise of its discretion in that regard is not to be interfered
with merely because an appellate Court would have imposed
a heavier
or lighter sentence. At the same time it has to be recognised that
the admonition cannot be taken too literally and requires
substantial
qualification. If it were taken too literally, it would deprive an
appeal against sentence of much of the social utility
it is intended
to have. So it is said that where there exists a "striking"
or "startling" or "disturbing"
disparity between
the trial court's sentence and that which the appellate Court would
have imposed, interference is justified.
In such situations the
trial court's discretion is regarded (fictionally, some might
cynically say) as having been unreasonably
exercised.'
[10] In the result the appeal succeeds to the following limited
extent:
(a) The appellant’s sentence to a term of imprisonment of 15 years
on each of the two charges is confirmed.
(b) The second term of 15 years’ imprisonment is ordered to run
concurrently with the first.
(c) The appellant is thus sentenced to an effective term of
imprisonment of 15 years.
________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: A B Booysen
Instructed
by:
De
Meyer Serfontein Attorneys
Pretoria
Honey
Attorneys
Bloemfontein
For
Respondent: A J Rossouw
Instructed
by:
The
Director of Public Prosecutions
Pretoria
The
Director of Public Prosecutions Bloemfontein