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[2008] ZASCA 132
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S v Pretorius and Another (145/2008) [2008] ZASCA 132; [2009] 1 All SA 567 (SCA) (26 November 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
No precedential significance
Case
No: 145/2008
MARIUS CHRISTO
PRETORIUS AND ANOTHER Appellants
and
THE STATE
Respondent
Neutral
citation: Pretorius v The State
(271/2008)[2008]
ZASCA 132 (26 November 2008)
Coram:
LEWIS
JA and LEACH and MHLANTLA AJJA
Heard:
12
November 2008
Delivered:
26
November 2008
Summary:
Appeal
against sentences of five years’ imprisonment for 91 counts of
fraud: no material misdirection: sentences regarded
as appropriate:
appeal dismissed.
ORDER
On appeal from the Free State High Court (Malherbe
RP and Kruger J, Van Zyl J dissenting, sitting as a court of appeal)
The appeal is dismissed.
JUDGMENT
LEWIS JA ( Leach and Mhlantla AJJA concurring)
[1]
The appellants, two
brothers, who pleaded guilty to 91 counts of fraud in a regional
court (P J Visser presiding), appeal to this
court against the
sentences of five years’ imprisonment imposed on each by the
regional court. Their appeal to a full court
(Free State) failed, and
the appeal against their sentences is before us with the leave of the
full court.
[2]
The regional court
also ordered the appellants to pay compensation in the sum of R208
309 to the complainant, Mutual and Federal
Insurance Co, in terms of
s 300
of the
Criminal Procedure Act 51 of 1977
.
[3]
The appellants had
established a business in Bethlehem, Free State, fitting windscreens
on motor vehicles. Most of their business
came from Mutual and
Federal, which instructed them to fit new windscreens of a particular
quality, on insured vehicles. Their
fraud lay in fitting windscreens
of inferior quality but claiming for the more expensive product –
thus dishonestly making
for themselves over a period of more than a
year a profit of some R122 309. The appellants had admitted to their
fraud, and agreed
to repay the amount in question plus the sum of R86
000, being the cost of the investigation into their conduct by Mutual
and Federal
on discovering that lesser quality windscreens were being
fitted by the appellants – hence the trial court’s order
that the appellants pay the sum of R208 309 to Mutual and Federal in
terms of
s 300.
[4]
The argument of the
appellants both before the full court and this court is that the
sentence of five years’ imprisonment
each is startlingly
inappropriate, particularly given the compensation order to which
insufficient regard was had by the trial
court. It was conceded that
since an order made in terms of
s 300
of the Act is not penal –
it amounts to a civil judgment – the magistrate had not imposed
‘double’ punishment.
The crux of the appellant’s
argument was, however, that the burden of paying this amount, and the
fact that the appellants
had agreed to pay it even before the order
was made, had not been given sufficient weight as a mitigating factor
when determining
sentence.
[5]
The appellants
argued also that the trial court had not given sufficient
consideration to the imposition of correctional supervision
under
s
276(1)(h)
of the Act, which had been recommended by a correctional
official in respect of them both. The interest of the public, and the
deterrent message the court considered necessary to send to the
community, had been emphasised too heavily at the expense of the
individual interests of the appellants, it was argued.
[6]
Counsel for the
appellant could not, however, point to any material misdirection on
the part of the learned regional magistrate
in imposing sentence. It
is trite that a court on appeal cannot substitute a sentence that it
considers more appropriate unless
the trial court has materially
misdirected itself, or the sentence induces a sense of shock.
1
[7]
In my view the
regional court’s approach to sentencing was exemplary. The
appellants had no legal representation at the trial.
They pleaded
guilty, as I have said, to all 91 charges. The court asked of its own
accord for reports from a correctional official
on the propriety of
imposing correctional supervision as a sentence. The regional
magistrate then considered the reports carefully
– reminding
himself of his duty to consider all suitable sentencing options –
before deciding that only direct imprisonment
was appropriate as a
sentence for the appellants. He discussed thoroughly the various
mitigating factors that operated in favour
of both appellants: both
were first offenders, at the time of trial in their early thirties.
Both were the principal breadwinners
in their respective families and
had young children. They had pleaded guilty and had shown remorse.
They had undertaken to repay
Mutual and Federal the moneys claimed
fraudulently and had co-operated in the investigation. Their families
would be disrupted
and severely affected by their imprisonment. Their
ability to repay Mutual and Federal would be limited, if not rendered
impossible.
[8]
But the court was
bound to have regard to the factors that aggravated the appellants’
conduct. They had planned to deceive
Mutual and Federal and had gone
about it systematically over a period of 16 months. There was nothing
to suggest that they would
have stopped doing so but for being
discovered. Most importantly, they had not only deceived Mutual and
Federal, but had endangered
people whose vehicle windscreens were
inferior and constituted a hazard – as a witness for Mutual and
Federal testified.
The regional court correctly considered this to be
morally reprehensible.
[9]
In the light of
these factors it cannot be said that the sentences imposed were
startling or induced a sense of shock. On the contrary.
Moreover,
they are consistent with sentences recently confirmed or imposed by
this court for fraud. In
De Sousa v The
State
,
2
for example, this court imposed a sentence of four years’
imprisonment for fraud against an employer even though the appellant
had been lured unwittingly, originally, into a scheme to defraud the
complainant.
3
She had benefited from the fraud, and had spent some of her gain on
‘lavish items’.
4
She too had pleaded guilty, repaid the sum by which she had
benefited, and shown remorse. But this court considered that direct
imprisonment was the only appropriate sentence, given the ‘corrosive
impact’ of white collar crimes.
5
[10]
It seems to me that
the conduct of the appellants in this case, in devising a scheme to
defraud Mutual and Federal, and which had
as a consequence
endangering people in vehicles with inferior windscreens installed by
them, is particularly reprehensible. Imprisonment
for a period of
five years is in my view an entirely appropriate sentence.
[11]
Accordingly the
appeal is dismissed.
_____________
C H Lewis
Judge of Appeal
Appearances:
For the Appellants: N Snellenburg
Instructed by: Du Plessis Bosch & Meyerwitz
Bethlehem
Honey Attorneys
Bloemfontein
For the Respondent: S Giorgi
Instructed by: Director of Public Prosecutions
Bloemfontein
1
See, for example,
S
v Sadler
2000 (1) SACR 331
(SCA) para
8, and
S v Malgas
2001 (1) SACR 469
(SCA) para 12.
2
(626/2007)
[2008] ZASCA 93
(12 September 2008). See also
Lawrence
v S
(unreported judgment case 357/04 delivered on 15 September
2005) where this court confirmed a sentence of four years’
imprisonment
for fraud against an employer, committed over a long
period. However, the sentence was made subject to
s 276(i)
of the
Criminal Procedure Act 51 of 1977
, allowing the Commissioner of
Correctional Services a discretion to place the person sentenced
under correctional supervision.
In addition, 18 months of the
sentence was suspended.
3
The regional court had imposed a sentence of
seven and a half years’ imprisonment – but was bound by
the provisions
of the
Criminal Law Amendment Act 105 of 1997
, which
requires (absent substantial and compelling circumstances) the
imposition of a minimum sentence of 15 years’ imprisonment
where the fraud involves an amount in excess of R500 000. This court
reduced the sentence having regard to the substantial and
compelling
circumstances it considered required the imposition of a lesser
sentence. The amount involved in
Da
Sousa was some R1m.
4
Para 10. The extent of her personal gain was R90
000.
5
Para 11.