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[2016] ZAFSHC 114
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Gebert v S (A271/2015) [2016] ZAFSHC 114 (30 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A271/2015
In
the matter between:
HANSLEY
DESIRE GEBERT
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA,
JP et RAMPAI, J
HEARD
ON:
9 MAY
2016
JUDGMENT
BY:
RAMPAI,
J
DELIVERED
ON:
30
JUNE 2016
[1]
This was an appeal against the sentence. The appellant was
tried and convicted in the Bloemfontein Regional Court.
Following his conviction, he was sentenced to an effective custodial
term of 8 years imprisonment. He was aggrieved by the
sentence
– hence the appeal. He is currently serving his sentence.
[2]
An incident took place in Bloemfontein on 8 November 2012. A
death claim to the tune of R5,0 million was submitted to
the
appellant’s life insurer, Old Mutual Life Assurance (Pty) Ltd.
The claim form and annexures thereto completed and
signed in support
of the death claim were purportedly submitted to the insurer by the
appellant’s wife Ms Mpho Gebert.
In the supporting sworn
statement, it was stated that the appellant had died. I suppose
a fake death certificate, which purportedly
verified that the
appellant was no longer alive, was annexed to the fake statement.
[3]
The insurer was busy processing the death claim in favour of the
“widow” when it emerged that the appellant was
still very
much alive and well. The insurer investigated the matter and
ascertained that the death claim was false and that some
of the
documents submitted in respect of the alleged death were fictitious.
The incident was reported to the police.
[4]
Almost eleven months later, on 4 October 2013 to be precise, the
appellant was apprehended on a warrant of arrest at Ladybrand.
The scene of the arrest was at Maseru Border Gate. He entered
the country from Lesotho.
[5]
Subsequent to his arrest, the appellant was charged with fraud.
His first appearance in the Bloemfontein Regional Court
was on 19
December 2013. He was denied bail. The essence of the
charge was that the appellant, acting together with
his wife in the
furtherance of a common purpose:
·
gave
out and pretended to Old Mutual Insurance Administrators that he had
died;
·
furnished
information which included affidavits, among others, to verify the
alleged death;
·
averred
that the death claim submitted by virtue of the life insurance policy
was legitimate ;
·
stated
that the claim papers submitted in support of such claim were true
and correct; and
·
induced
the said insurer to process the death claim and to pay out the
proceeds of the R5,0 million policy.
[6]
The prosecution also alleged that when the accused made the aforesaid
representations he knew, in truth and in fact, that the
death claim
was not legitimate; that the information furnished in support
of such claim was untrue; that all the aforesaid
representations were false; and that it was a crime to do so.
The prosecution alleged further that the couple made
such
representations unlawfully, falsely and with intent to defraud;
that they made such false representations to the prejudice
of the
insurer and that they did so in Bloemfontein on 8 November 2012.
[7]
On 27 January 2014 the accused pleaded guilty. A written
statement in terms of Section 112(2) Criminal Procedure Act,
Act No.
51/1977 was prepared, read out, recorded and handed up as “exi
a”. Ms DS Soomaroo presided over the proceedings.
Mr J Swanepoel appeared for the state and Mr F Kara for the defence.
The state accepted the plea. Consequently the
accused was
convicted on his plea.
[8]
On the same day the accused was sentenced to 10 years imprisonment of
which 2 years imprisonment was conditionally suspended
for 3 years.
[9]
The accused was aggrieved. In the 4 page notice of appeal dated
20 May 2014 he listed a total of 18 grounds of misdirections.
On 11 June 2014 he successfully applied to the regional magistrate
for condonation and for leave to appeal. Therefore, he
came to
this court with the leave of the regional court.
[10]
The sentencing of an offender, is the primary prerogative of the
trial court. A court hearing an appeal can only interfere
when
the sentencing discretion entrusted to the trial court has not been
properly exercised.
S v Giannoulis
1975 (4) SA
807
(AD).
The
powers of a court hearing an appeal are limited. Such a court
can only interfere if an irregularity that took place during
the
course of a trial has resulted in a failure of justice; or if
the misdirection committed by the trial court as regards
the facts or
the law has resulted in a failure of justice; or if the
sentence imposed by the trial court induces a sense
of shock.
Du
Toit et al: Commentary on the Criminal Procedure Act, 930 –
2
.
[11]
In
S
v Pillay
1977 (4) SA 531
(A) at 535D-F, the court had this to say about a
misdirection and interference on appeal
"Where,
however, the dictates of justice are such as clearly to make it
appear to this Court that the trial Court ought to
have had regard to
certain factors and that it failed to do so, or that it ought to have
assessed the value of these factors differently
from what it did,
then such action by the trial Court will be regarded as a
misdirection on its part entitling
this Court to consider the sentencé afresh."
At
first blush this seems to conflict with the preceding
dicta
quoted above. It has thus given rise to some misgivings about its
meaning and correctness - see
S
.
v
Nel
,
1974
(1) SA 29 (AD)
at
p. 32B - H, and
S
.
v
Hockley
,
1974
(1) SA 183
(RAD)
at
pp. 184 - 5. Now the word "misdirection" in the present
context simply means an error committed by the Court in determining
or applying the facts for assessing the appropriate sentence. As
the essential inquiry in an appeal against sentence, however,
is not
whether the sentence was right or wrong, but whether the Court in
imposing it exercised its discretion properly and judicially,
a mere
misdirection is not by itself sufficient to entitle the Appeal Court
to interfere with the sentence; it must be of such
a nature, degree,
or seriousness that it shows, directly or inferentially, that
the Court did not exercise its discretion
at all or exercised it
improperly or unreasonably.”
[12]
Where an offender has been convicted on his written plea that has
been accepted by the state, the court is inextricably bound
to
sentence such an offender in accordance with the factual matrix as
set out in the written plea. It is a salient principle
of our
law that where an accused individual has been convicted solely on his
plea, his moral blameworthiness should be determined,
among others,
by the role he played. It is well to keep in mind that, in
order to do so properly, a trial court is bound
by the facts as set
out in the plea.
S v Van der Merwe
2011 (2) SACR
509
(FB)
S
v Thole
2012 (2) SACR 306
(FB) par [8] and [9].
[13]
The prime focus of correctional supervision through Section 276 Act
No. 51/1977 is rehabilitation. The introduction
of the
concept of correctional supervision of offenders as a sentencing
option was hailed as a significant milestone in the reformative
process of humanising the criminal justice system. It opened
new avenues of possible, several and imaginative sentencing
measures. The new horizon facilitated the shift of punitive
emphasis from retributive perspective to rehabilitative perspective.
By its introduction the courts were called upon to distinguish
between two types of offenders, namely: those who ought to
be
removed from society and imprisoned and those who, although they
deserve to be punished, do not deserve to be removed from society
and
imprisoned.
S
v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) by the distinguished judge, Sachs J.
[14]
In
S
v Siebert
1998 (1) SACR 554
(SCA) the magistrate court had considered but
rejected correctional supervision as an appropriate sentencing
option. On appeal
the court held that where there was
insufficient factual material to substantiate and to justify an
exclusion of such a sentencing
option, its baseless rejection and
exclusion by the trial court amounted to a misdirection.
“
Sentencing
is a judicial function sui generis. It should not be governed
by considerations based on notions akin to onus of
proof. In
this field of law, public interest requires the court to play a more
active, inquisitorial role. The accused
should not be sentenced
unless and until all the facts and circumstances necessary for the
responsible exercise of such discretion
have been placed before the
court.
An
accused should not be sentenced on the basis of his or her legal
representative’s diligence or ignorance. If there
is
insufficient evidence before the court to enable it to exercise a
proper judicial sentencing discretion, it is the duty of that
court
to call for such evidence. Especially as regards correctional
supervision this duty can be discharged easily and without
any cost
to the accused, by calling for the probation officer’s report
required by a 276A(1) of the Act.”
[15]
Lest we forget, we are dealing with fraud here, a crime often dubbed
a “white collar” crime. About it and
the tendency
by the court to leniently punish fraudsters, some apposite comments
were made
in
S
v Sadler
[2000] ZASCA 105
;
[2000] 2 ALL SA 121
(A).
The
court commented on the fallacious justifications:
“
[11]
I am satisfied that the circumstances of this case call for the
imposition of a period of direct imprisonment and that the
interests
of justice will not be adequately served by leaving the sentence
imposed by Squires J undisturbed. So-called "white-collar"
crime has, I regret to have to say, often been visited in South
African courts with penalties which are calculated to make the
game
seem worth the candle. Justifications often advanced for such
inadequate penalties are the classification of "white-collar"
crime as non-violent crime and its perpetrators (where they are first
offenders) as not truly being "criminals" or "prison
material" by reason of their often ostensibly respectable
histories and backgrounds. Empty generalisations of that kind are
of
no help in assessing appropriate sentences for "white-collar"
crime. Their premise is that prison is only a place
for those who
commit crimes of violence and that it is not a place for people from
"respectable" backgrounds even if
their dishonesty has
caused substantial loss, was resorted to for no other reason than
self-enrichment, and entailed gross breaches
of trust.”
[16]
The court further commented on the repercussions of unjustifiable
leniency:
“
[12]
These are heresies. Nothing will be gained by lending credence to
them. Quite the contrary. The impression that crime of that
kind is
not regarded by the courts as seriously beyond the pale and will
probably not be visited with rigorous punishment will
be fostered and
more will be tempted to indulge in it.”
[17]
The court commented on the serious corrosive impact of “white
collar” crimes on the moral fibre of society:
“
[13]
It is unnecessary to repeat yet again what this Court has had to say
in the past about crimes like corruption, forgery and
uttering, and
fraud. It is sufficient to say that they are serious crimes the
corrosive impact of which upon society is too obvious
to require
elaboration.”
[18]
At the heart of this appeal is the question whether the effective
sentence of 8 years imprisonment imposed by the trial court
induces a
sense of shock or not.
[19]
Mr Kriel, counsel for appellant, submitted that the answer to the
crucial question must be affirmative. He was of the
opinion
that the regional magistrate committed a number of material
misdirections. Counsel’s conclusion was that as
a result
of the misdirections the regional magistrate imposed a shockingly
inappropriate sentence of 8 years imprisonment which
was indicative
of its failure to exercise its sentencing discretion properly and
judiciously. Therefore, counsel urged us
to interfere
[20]
Mr Swanepoel, counsel for the respondent, differed. He
submitted that the facts called for a negative response to the
crucial question. Counsel was of the opinion that no material
misdirection was committed by the regional magistrate in sentencing
the appellant. In his conclusion, counsel submitted that there
was nothing shockingly inappropriate about the sentence of
8 years
imprisonment; that the regional magistrate properly and
judiciously exercised the sentencing discretion entrusted
to her as
the trial court and that the threshold misdirections or principles of
appellate interference as set out in
Sadler,
supra
and the authorities there cited were not met. Accordingly
counsel urged us to decline any form of interference.
[21]
In sentencing the appellant the trial court took into account certain
mitigating factors. The appellant was 40 years
of age. He
was a family man. He had two dependent minor children.
Both were learners at a private school.
He was responsible for
their educational needs. He paid school fees at the rate of
R40 000 per annum per child.
His spouse was a housewife.
He also looked after his sick mother-in-law. He was the sole
breadwinner for the family.
He was a businessman. He had
30 persons in his employ. He pleaded guilty to the charge of
fraud. The insurer
suffered no actual financial loss. He
was a first offender.
[22]
In sentencing the appellant the trial court also took into account
certain aggravating factors. The appellant was convicted
for
committing fraud, which is a serious crime. It was a prevalent
crime within the regional jurisdiction of the court.
The amount
involved was very high. Although the insurer did not suffer
actual financial loss of R5,0 million, the potential
prejudice was
nonetheless very high. The
modus
operandi
was meticulously thought out. The crime itself was well
planned. The public interest required that society be protected
from fraudsters. Law abiding citizens expected those who commit
serious crimes such as fraud to be retributively punished.
[23]
On behalf of the appellant it was submitted, at the trial, that there
were substantial and compelling circumstances to justify
deviation
from the prescribed minimum sentence of 15 years imprisonment.
On behalf of the respondent the submission was conceded.
The
regional magistrate was satisfied that the submission and the
concession were correctly made. The appellant was then
sentenced to 10 years imprisonment of which 2 years were
conditionally suspended.
[24]
Notwithstanding such decremental deviation, the appellant was still
aggrieved by the effective custodial sentence of 8 years
imprisonment. Of the numerous grounds of appeal relied upon,
six were stressed on appeal before us.
[25]
In the first place, the appellant contended that the trial court did
not consider the appropriate sentencing option of correctional
supervision in terms of Section 276(1)(h) Criminal Procedure Act
51/1977. The trial court was urged to consider correctional
supervision which was obviously the appellant’s preferred type
of punishment. In responding to that request the regional
magistrate commented:
“
Your
attorney has asked the Court to consider various sentencing options
such as a period of imprisonment and a fine wholly, partly
suspended,
giving you a fine that would be in the region of about 30 (sic) to
R40 000,
the
Court cannot consider correctional supervision because obviously
there’s not report in front of it to consider so that
type of
sentencing option will not be considered by the Court.
”
(my
emphasis)
[26]
The aforesaid comment by the regional magistrate elicited critique by
the appellant. In his notice of appeal he complained:
“
14.
It is respectfully submitted that the Learned Regional Magistrate
erred and misdirect herself in finding that she cannot consider
Correctional Supervision in terms of Section 276 (1) of the CPA as
there is no Correctional Supervision Report.”
[27]
The appellant’s heads of argument were embodied in an 8 page
type written document. Of those pages 3 were exclusively
devoted to the regional magistrate’s rejection of correctional
supervision as an appropriate sentencing option in this case.
On appeal, a great deal of time was also spent on this particular
ground of appeal. It can, therefore, be seen that the question
of correctional supervision obviously became the dominant rallying
point.
[28]
It has been authoritatively held that where there is insufficient
factual material to substantiate and to justify an outright
exclusion,
ab
initio
,
of the sentencing option of correctional supervision from the pot of
various mix of sentencing options, the exclusion amounted
to a
misdirection.
S
v Siebert
,
supra
.
The question that confronts us was whether there was sufficient
factual material to validate the rejection by the regional
magistrate
of the proposed correctional supervision as possibly the most,
appropriate sentencing option for the appellant.
[29]
In the instant case we have a business man of some standing.
However, he was not an inhabitant of the country.
He was not
resident in this country at all times material to the case. He
was a semi-permanent resident of the neighbouring
state of Lesotho.
He was not a Lesotho national. He is a citizen of the state of
Mauritius, overseas. His family
resided in Lesotho. He
has no permanent physical address of residence in this country.
He was a foreigner in every
sense of the word. All these facts
were common cause. Given the undisputed lack of permanent ties
between the appellant
and the jurisdiction of the court, it appeared
to me that it could not be submitted, with honest conviction, that
there was insufficient
factual material to substantiate and to
justify the exclusion of correctional supervision by the trial court.
[30]
It must be borne in mind that the basic requisite of the Section is
that the offender must have a fixed address from where
(s)he can be
monitored by the correctional supervision officers. It will not
be lawfully possible at all to have a foreigner
who ordinarily
resides in a foreign country monitored. Even a citizen of this
country who has no fixed and reliable residential
address or whose
alleged physical address is questionable, is not a suitable candidate
to be sentenced in terms of Section 276(1)(h).
This disposes of
the argument that to deny the appellant’s the benefits of the
section was tantamount to unfair discrimination.
The statutory
provision applies to everyone alike – foreigners and nationals
– because all are equal before the law.
However, our
domestic laws cannot be applied and enforced extra-territorially.
[31]
In the light of the aforesaid considerations, I am not persuaded that
a correctional supervision report would have served any
useful
purpose. It was obvious from the outset that the appellant
could not be practically monitored. Since he could
not be
monitored as envisaged in the section, he was, therefore, not a
suitable candidate. In these circumstances, I am not
persuaded
that the exclusion or rejection of the correctional supervision by
the regional magistrate amounted to a material misdirection.
[32]
In the second place, the appellant contended that the trial court did
not properly consider the paramount interests of his
dependent minor
children in imposing a custodial sentence on him. The
fundamental rights of children are protected by Section
28 of the
Constitution.
[33]
The appeal was premised on the following ground:
“
9.
It is further submitted that The Learned magistrate erred and
misdirected herself in failing to consider the Constitutional
Rights
of the two minor children of the Applicant, of whom he is the primary
breadwinner.”
[34]
The appellant heavily relied on the decision in
S
v M
[2007] ZACC 18
;
2007 (2) SACR 539
(CC) where the paramountcy of the interests of
minor children was considered within the context of the sentencing of
their delinquent
parent.
[35]
The underlying rationale is that children who are shown to be
entirely dependent on a single parent are, as far as it may be
practically possible, rendered completely destitute, guardianless and
parentless through the imprisonment of their delinquent parent
who is
truly and practically their primary caregiver. That is not the
case in the instant appeal. The children, aged
13 and 8 years,
are not destitute. They are still in the primary care and daily
custody of their mother. The appellant’s
legal
representative conceded at the trial that the appellant is not the
children’s primary caregiver. The appellant’s
wife
is the children’s primary caregiver. Although the
children’s mother is a housewife, it was placed on record
that
she is a partner in one of the appellant’s companies.
Therefore, the children were not in a desperate situation
as were the
children in
S
v M
,
supra
.
[36]
In the instant matter the appellant and his wife were business
partners. Together they owned a construction business
enterprise which trades as Décor Construction that imports
goods from this country. The annual costs of such imports
was
said to be a staggering figure of approximately R35,0 million.
Besides, the appellant is a shareholder in another business
enterprise known as DGP Health Care which imports health products
from India. His annual turnover must have been a staggering
figure. All this made me wonder as to why a man of such seeming
opulence would be tempted to defraud his insurer. It
appeared
to me, therefore, that the imprisonment of such a serious business
man would, apart from emotional detachment, otherwise
possibly have
minimal adverse impact on his two children. It has to be
mentioned, that the appellant was such a resourceful
man that he
could afford to pay an insurance premium of R4 000 per month.
[37]
In these circumstances the trial court was not obliged to call for a
social welfare report pertaining to the two minor children
before it
could properly and judicially exercise its sentencing discretion in
respect of their father who was not their primary
caregiver. I am
therefore not persuaded that the regional magistrate committed a
material misdirection in this regard. It
follows, therefore,
that we cannot interfere on this ground.
[38]
In the third place, the appellant contended that the trial court went
beyond the parameters of his accepted plea in order to
substantiate
and justify the excessively severe sentence it imposed on him.
The essence of the misdirection complained of
was that the regional
magistrate failed to appreciate that she was bound by the factual
matrix as set out in his plea which was
accepted by the respondent
and which ultimately underlined his conviction –
S
v Thole
,
supra
and the authorities there cited.
[39]
Mr Kriel argued the point on behalf of the appellant and relied on
the following passage in
S
v Thole
,
supra
,
par 9.
“
[9]
As stated above, no evidence was adduced before the court a quo
relating to how the offences were committed by the appellant.
For
these details the court relied entirely on the appellant's plea
explanation.
”
[40]
In the instant case unlike in
S
v Thole
,
supra
there was evidence, before the trial court, of how the fraud was
committed by the appellant. He had to fake his own death.
A certain Mohale Thipa, a dubious character, mooted out the idea that
he, the appellant, should pretend to be dead; that
he, Mohale
Thipa would prepare all the necessary paperwork in support of the
proposed fraudulent claim; and that a claim
would then be
lodged with the appellant’s insurer.
[41]
The appellant himself explained how the offence was committed.
At par 6-9 of his statement in terms of Section 112(2)
of the
Criminal Procedure Act 51/1977 he said:
“
6.
A day or 2 later he called me telephonically to make a false claim in
respect of my death against my policy.
The condition was that I
split 50% of the money received in respect of the payout that being
about R5 000 000,00.
He prepared all the necessary
paperwork and handed same to me for my wife to hand over to Old
Mutual.
7.
Mpho Gebert, my wife, was not aware of the fraudulent documents but
was advised by myself that if anyone
contacted her from Old Mutual,
she was to advise them that I had passed on.
8.
Mohale Thipa used another woman to pursue the claim from Old Mutual.
This other woman acted as
my wife.
9.
A month later, I asked him not to pursue the claim as I have no
interest in the claim any longer.”
[42]
During the course of sentencing, the regional magistrate said the
following about the role played by the appellant.
“
Clearly
the fact that you had time to prepare these documentations or worked
with this co-perpetrator shows that your actions are
planned and it
could only be planned in order for it to have succeeded.”
[43]
It was indeed so that the appellant did not personally prepare the
claim papers. They were physically prepared by his
co-perpetrator, Mohale Thipa. But it was really of no moment as
to who actually did what because they were in it together.
Whatever Mohale did, he did in the furtherance of the common criminal
enterprise for the mutual benefit of both. Therefore,
it was
not open for the appellant to say Mohale did that and Mohale did
that. Mohale was in law an extension of the appellant
in
whatever he did to defraud the insurer. Consequently, the
appellant was, according to law, fully liable and criminally
responsible for the actual preparation of the claim papers just as
his co-perpetrator factually was.
[44]
Mohale approached the appellant, sold the fraudulent scheme to him,
sought and obtained his undertaking to participate in the
deceitful
design and recruited an unnamed woman who was paraded as the
appellant’s wife for the purpose of actually submitting
the
false death claim. Of course the appellant knew all that.
He directly or indirectly collaborated in the entire
web of deceit.
He even solicited the participation of his wife in so far as he
requested her to tell the employees of Old
Mutual that he had died,
should any enquiries be made. The whole scheme would not have
taken off the ground if the appellant
did not endorse it and did not
collaborate. Without him the idea mooted out by his
co-perpetrator would have evaporated into
thin air. The
argument that but for Mohale the appellant would not have committed
the crime failed to persuade me.
Similarly, there was no
substance in the argument that Mohale played a greater role than the
appellant in this criminal enterprise.
I have earlier expressed
the view that they did what they did for and on behalf of each
other. They had equal stakes in the
contemplated harvest.
[45]
attempts to trivialize the appellant’s role at the expense of
his co-perpetrator was devoid of any real substance.
The
belated submission begged to be further carefully scrutinized.
The appellant had to play dead. It follows, therefore,
that he
had to play a covert role. However passive his role might have
been, it was nonetheless his very vital passive role.
Naturally, the grand scheme of things required him to withdraw from
the vigilant public eyes. He was not supposed to be seen
alive. He had to and did in fact play a role which was critical
for the ultimate success of the scheme. The appellant
was a
sine
qua non
for
the scam to function and succeed. Put differently the scam
could still have functioned and succeeded without Mohale but
certainly not without the appellant.
[46]
The scam was thoroughly planned as the regional magistrate correctly
found. It almost succeeded. Although the appellant
had a
change of heart later on, it was pathetically belated. The
claim had already been lodged under the false pretext that
the
appellant had died. By then the insurer was already busy processing
the fake claim. Moreover, the appellant did not go
far enough.
He did nothing to prevent the processing of the fake claim. He
did not openly cut off the ties of the unholy
alliance he had with
his co-perpetrator let alone alert the insurer about the imminent
risk of a huge loss. The question
had to be asked as to whether
the appellant would have surrendered his ill-gotten gains of R2,5
million had the insurer paid out?
I leave it to you, the
reader, to take a guess.
[47]
In the light of all these peculiar features of this particular ground
of the complaint, I am not persuaded that the trial court
materially
erred in not giving a mitigating credit to the appellant for his
change of heart. As I see it, there was no misdirection
in
connection with that aspect. Perhaps we need to remind
ourselves about the salient principle that it is the prerogative
of
the sentencing court to decide which factors should influence it in
determining an appropriate measure of sentence and what
value to
attach to each of such factors
S
v Kibido
1998 (2) SACR 213
(SCA) at 216g-j.
[48]
In this case and contrary to the case of
Pienaar
v State
(564/11)
[2012] ZASCA 60
(2 April 2012) the regional magistrate did
not deviate from the accepted facts as set out by the appellant in
the written statement
he made in terms of Section 112 Act No.
51/1977.
[49]
In the fourth place, the appellant contended that the regional
magistrate over-emphasized the seriousness of the offence of
fraud at
the expense of his personal circumstances – vide paragraph 12
notice of appeal.
[50]
There was no evidence adduced before the trial court and none
contained in “exi a” relating to the adverse impact
of
the crime on the insurer’s business. Although the insurer
suffered potential loss only and did not suffer actual
loss
whatsoever, the regional magistrate reckoned that, for the purpose of
sentence, it was irrelevant whether the prejudice suffered
was
potential or actual. During the course of passing sentence the
regional magistrate, on a few occasions, repeatedly stressed
the
gravity of the crime of fraud and repeatedly stressed that the
appellant had to be retributively punished.
[51]
In our view, the regional magistrate exceedingly stressed the
seriousness and the magnitude of the crime committed by the
appellant. As a result of the misdirections outlined above, she
ultimately imposed a sentence which was disturbingly shocking.
Although the regional magistrate was entitled to take notice that
white-collar crime was increasingly becoming rife in our society,
the
gravity of the offence so dominated and clouded her mind that she
failed to adequately individualise the appellant’s
person.
He was a first offender. He pleaded guilty. He expressed
remorse for his actions. There was no
actual loss suffered by
the insurer. Instead the insurer even continued to collect the
premiums for a period of six months
subsequent to the lodging of the
fake claim. Because the policy was cancelled the appellant lost
the total sum of R64 000
in form of premiums and gained
virtually nothing. It may be argued, though, that he was the
architect of his own peril.
[52]
The fact that the appellant did not commit a crime of violence was
not a mitigating factor. Fraud is a serious crime
with
corrosive impact upon our society. Consequently it must be
visited with rigorous but appropriate punishment like any
other
serious crime – violent or not.
Sadler
,
supra.
[53]
Given the inappropriateness of the manner in which the regional
magistrate exercised the sentencing discretion entrusted to
her, I am
inclined to interfere. The misdirections were material.
Having considered all the peculiar circumstances
of this particular
case, I am inclined to uphold the appeal on the basis that there was
no appropriate balance between the gravity
of the crime and the
person of the individual offender. It seemed to me that
reducing the effective sentence of eight years
imprisonment by four
years, would go a long way towards balancing the two considerations.
[54]
Accordingly I make the following order:
54.1
The conviction stands;
54.2
The appeal against the sentence succeeds. The 8 year sentence
is set aside and substituted
with the one below.
54.3
The accused is sentenced to 4 years imprisonment.
54.4
The substitute sentence is backdated to 27 January 2014.
_____________
MH
RAMPAI, J
I
concu
_________________
MB
MOLEMELA, JP
On
behalf of appellant: Adv. PJC Kriel
Instructed
by:
Saleem
Ebrahim Attorneys
Johannesburg
On
behalf of respondent: Adv. JBK Swanepoel
Instructed
by:
Director
of Public Prosecutions
Specialised
Commercial Crime Unit
Bloemfontein
/PK