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2015
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[2015] ZAFSHC 240
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Dunjane v S (A33/2015) [2015] ZAFSHC 240 (24 November 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal
Number : A33/2015
In
the appeal between:-
MOHAPI
ESAU DUNJANE
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
ZYL, J
et
WILLIAMS, AJ
JUDGMENT
BY:
VAN
ZYL, J
DELIVERED
ON:
24
NOVEMBER 2015
[1]
The accused was charged with one count of fraud. He pleaded
guilty to the said charge and was subsequently convicted.
The
accused was sentenced to 5 years’ imprisonment in terms of
section 276(1)(b) of the Criminal Procedure Act, 51 of 1977
(“the
Act”). The appellant applied to the court
a
quo
for leave to appeal against the sentence, which was refused. He
subsequently petitioned the High Court, whereupon leave to appeal
against the sentence was granted.
[2]
The following relevant background circumstances appear from the
appellant’s statement in terms of section 112 of the Act:
“
3.1
In January 2011 I was in a relationship with my former co-accused. We
have been talking about buying a car but were
struggling because
although I could afford to pay a car, we could not obtain a loan as
we were not employed formally and were unable
to then supply the
banks with the papers they wanted.
3.2 In January I was
in Bloemfontein where I saw an Audi 1.8. It was a beautiful car
and I left and told
my girlfriend about it. We discussed the
matter. She also went to have a look at the car with me.
3.3 We were told
what documents were needed and we knew that we were not going to be
able to produce such documentation.
I was very disappointed and
told a friend about this. He then told me that he knew someone
that could supply us with false
documents. I discussed this
again with my girlfriend and we agreed that she will use her name on
the documents. We
then went back after obtaining the documents
and handed it in at Nissan Central Motors where a loan was granted by
Wesbank for
an amount of R258 577,92. This was the amount
of all costs for the purchasing of the car.
3.4 It was always
the intention to keep up with the servicing of the loan from Wesbank
until the car was paid
off.
3.5
The bank later discovered that the payslip used was false and the car
was then found with me. The car
was also taken back and we were
both arrested. This happened a little more than a month after I
received the car.”
[3]
Mr Van der Merwe, on behalf of the appellant, submitted that the
court
a
quo
erred by overemphasising the premeditation element of the offence.
He contended that premeditation is inherently part of
the nature of
fraud, as fraud is almost never committed on the spur of the moment.
Mr Van der Merwe furthermore submitted
that the court
a
quo
overemphasised the gravity of the offence and the interests of
society at the expense of the personal circumstances of the
appellant.
It was also his submission that it is apparent from
the record that the court
a
quo
disregarded the correctional supervision report on the basis that the
appellant has a relevant previous conviction for fraud and
that he
can therefore not be considered to be an appropriate candidate for
correctional supervision. Mr Van der Merwe submitted
that the
court
a
quo
erred in this regard in view of the fact that the conviction was more
than 10 years ago. Mr Van der Merwe consequently argued
that in
view of the totality of the circumstances, the imposed sentence is
shockingly inappropriate. Although he initially
contended that
an appropriate sentence would be one of 5 years’ imprisonment
in terms of section 176(1)(h) of the Act, he
conceded during his oral
argument that a sentence in terms of section 276(1)(i) of the Act
could also be an appropriate sentence.
[4]
Mr Botha, on behalf of the state, submitted that the moral
blameworthiness of the appellant is very high in the particular
circumstances of this case. In this regard he referred to the
degree of premeditation involved and the fact that the appellant
involved third parties as accomplices. He conceded that the
previous conviction of the appellant should not be taken into
consideration as such, but he submitted that it still is indicative
of the appellant`s propensity to commit fraud. Mr Botha
submitted that a sentence in terms of section 276(1)(i) of the Act
will not be appropriate in that it will send the wrong message
to
potential criminals as it would have no deterrence value.
Although conceding that the court
a
quo
proverbially got a bit carried away in her judgment, Mr Botha
submitted that she did not misdirect herself to the extent that it
justifies interference.
[5]
When considering this appeal, the following trite principle should be
applied:
“
[5]
It is trite that the imposition of sentence is pre-eminently a matter
for the discretion of the trial court
and the 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 Grobler
2015 (2) SACR 210
(SCA) at 212G-H.
[6]
In coming to her conclusion regarding an appropriate sentence, the
court
a
quo
,
in my view, committed certain misdirections. In this regard I
refer to the following:
1.
The
court
a
quo
found as follows in her judgment on the sentence:
“
It
was not just that you presented a false documentation to them and you
were unable to pay for this vehicle, you full well knew
that you
could not afford this vehicle …”
(
sic
)
This
finding is contradictory to the contents of the accepted section 112
statement in which the following was stated in paragraph
3.1 thereof:
“…
although I could
afford to pay a car we could not obtain a loan as we were not
employed formally and were unable to supply the bank
with the papers
they wanted.”
The
findings by the court
a
quo
that the appellant was unable to pay for the vehicle and that he
could not afford the vehicle, are therefore unfounded.
2.
The
court
a
quo
relied on the judgment of
S
v Sadler
2000 (1) SACR 331
(SCA) and quoted from the headnote:
“
White-collar
crime – Accused, a senior manager in bank, convicted of
corruption, forgery and fraud relating to loans granted
by the bank –
Accused having received benefit of more than R300 000,00 as a
result of his crimes – Sentence of
fine and wholly suspended
imprisonment replaced on appeal by sentence of 4 years’
imprisonment.”
In
an attempt to marry the facts of the current matter to those of the
Sadler
-matter,
the court
a
quo
found as follows in her judgment on sentence:
“
What
is relevant in this particular case is that the accused there
benefited for some, in the amount of some R300 000,00 from
his
actions and in your particular case the value of the vehicle that you
took from the complainant was to the value of R358 577.92,
which
is very close to the sum of R300 000.00. So you may not
have benefited that amount in cash, but you benefited
it in terms of
the vehicle that you fraudulently was able to obtain.”
However,
the said is incorrect. From the section 112 statement it
is evident that the loan granted by Wesbank was for
an amount of
R258 577,92. In addition the court
a
quo
failed to take into account that although the vehicle had been
damaged when it was recovered after 2 months, it was still sold
for
R95 000.00. The loss suffered by Wesbank was therefore an
amount of R163 577.92.
In
addition the court
a
quo
also misdirected herself in relying on the aforesaid judgment without
recognising that it is distinguishable in so far as the appellant
in
that matter was convicted of multiple crimes, whilst he was in a
position of trust and it extended over a period of time.
3.
Nowhere
in her judgment did the court
a
quo
take into consideration, in favour of the appellant, that in terms of
the section 112 statement it was his intention to keep up
with the
servicing of the loan from Wesbank until the loan would have been
paid in full.
4.
The
court
a
quo
also
relied on the judgment in
S
v Blank
1995 (1) SACR 62
(A), more specifically pages 75 and 76 thereof,
referring to that court’s reasoning as to why correctional
supervision was
not appropriate in that case, which, according to the
court
a
quo
,
was also an offence involving fraud. Although the court a quo
referred to the fact that in that matter the fraud “
was
on a massive scale
”
,
she still used that
dicta
“
to
highlight the inappropriateness of correctional supervision when it
comes to such serious offences as in this case presently
before the
court”.
The
court
a
quo
then concluded as follows:
“
Now
obviously the court can see that the amount involved there is far
greater and the magnitude of that offence is far greater than
what
you have been convicted of here, but the principle of the deceit on
how you went about committing your crime, being planned
and
pre-meditated, is the same and that is what the court needs to
sentence you for.”
In
my view the court
a
quo
misdirected herself in her attempt to consider these two matters to
be on par, considering that in the
Blank
-matter
the appellant was convicted of 48 counts of fraud involving an amount
of R9,75 million, which stretched over a period of
17 months.
5.
The
court
a
quo
found that correctional supervision is not an appropriate sentencing
option, but failed to consider the possible appropriateness
of
correctional supervision combined with a suspended sentence of
imprisonment; nor did the court
a
quo
consider the possible appropriateness of a sentence in terms of
section 276(1)(i) of the Act.
6.
Although
the court
a
quo
considered the plea of guilty of the appellant to be a mitigating
factor, the manner in which she found the plea of guilty to not
necessarily be a sign of remorse, is non-sensical. In this
regard she found as follows:
“
But
that does not necessarily mean it is a sign of remorse, because
surely from the way you planned this offence you had no remorse
right
from the start. Your actions were well planned and
pre-meditated.”
The
said finding is in any event in contradiction to the accepted
contents of the section 112 statement, wherein the following was
stated:
“
I
have no defence in law against the charge levied against me and
accept full responsibility for my actions in this regard.
I am
very sorry what I did and accept guilt fully in this matter.”
7.
The
court
a
quo
also
made the following finding:
“
Nonetheless
it is also an aggravating factor that you have a previous conviction
as well, according to Exhibit “B”,
which is of the year
2002 and it was also of fraud…”
In
my view the court
a
quo
erred
in considering the said conviction to be a previous conviction and by
taking it into consideration as such as an aggravating
factor. The
conviction is dated 18 February 2002 and therefore older than 10
years; wherefore it should not have been considered
as a previous
conviction.
[7]
In view of the aforesaid, we, sitting as a court of appeal, are at
liberty to consider an appropriate sentence afresh.
[8]
It is indeed so that the Supreme Court of Appeal is urging that a
stand should be made against white-collar crime. See
S
v Sadler
,
supra.
Also see
Pretorius
v The State
(271/2008)
[2008] ZASCA 132
(26 November 2008). However, every
matter should still be considered in view of the particular facts and
circumstances of
that matter. This is evident from the fact
that the Supreme Court of Appeal itself supported a non-custodial
sentence even
in a matter where 11 counts of fraud to an approximate
amount of R1,5 million were involved. See
S
v Grobler
,
supra
.
[9]
A pre-sentence/suitability report for correctional supervision was
obtained before sentencing. It was concluded in the
said report
that the appellant is a suitable candidate for correctional
supervision in terms of section 276(1)(h) of the Act and
that such a
sentence can be considered as an appropriate sentencing option.
[10]
The following personal circumstances of the appellant were evident
from the record. The appellant was born on 1
November
1982 and was therefore 30 years of age at the time of sentencing.
The appellant has 2 children with different mothers
and at the time
of his sentencing he was staying together with his fiancé.
The appellant passed Grade 10 at school.
At the time of his
arrest the appellant owned his own construction company from which he
earned an average monthly income of R12 000,00
per month.
He and his fiancé are also running a small business from their
premises where they buy and sell second
hand clothing and conduct a
tuck-shop, from which they earn an income of approximately R4 500,00
per month. With regards
to the appellant’s so-called
previous conviction for fraud, dated 18 February 2002, for which he
was sentenced to 12 months
correctional supervision and community
service for a period of 16 hours per month in terms of section
276(1)(h) of the Act, I have
already found that in my view the court
a
quo
erred by considering the said conviction as a previous conviction. I
am also of the view that it cannot even be considered to be
indicative of a tendency by the appellant to conduct fraud. It
was only one conviction of fraud and it is evident that the
appellant
has since withheld himself from committing any further crimes for a
period of 11 years up until the current conviction.
In my view
the appellant should therefore be considered to be a first offender.
[11]
The fact that the appellant pleaded guilty to the offence is a
further mitigating factor in favour of the appellant. I also
accept
that by means of the said plea, the appellant is accepting
responsibility for his conduct and thus also showing remorse.
[12]
It cannot be argued that this particular offence of fraud is not
serious. It is indeed serious. Mr Van der Merwe`s
contention that the planning and premeditation which
formed part of this crime should be considered to be a neutral
factor, can, in my view, not be upheld. The degree of planning
and pre-meditation in this particular instance has to be taken
into
consideration as an aggravating factor. However, having said
that, I am in agreement with Mr Van der Merwe’s further
submission that the court
a
quo
overemphasised this factor in her consideration of an appropriate
sentence. She referred to this factor multiple times in
her
judgment and the impression is created that it was taken into
consideration as an aggravating factor in more than one way.
[13]
An important factor in this case and, as already indicated earlier,
which was not referred to in the judgment of the court
a
quo
,
is the fact that the appellant stated in his section 112 statement
that he intended making the required monthly payments on the
loan.
This averment has to be accepted in the appellant’s favour, as
it formed part of the accepted contents of the section
112 statement
and there was no evidence to the contrary and/or that he would not
have been financially able to do so.
[14]
When coming to the interests of society, it is important to be
mindful of the following
dicta
set out in
S
v Samuels
2011 (1) SACR 9
(SCA) at paras [9] – [10]:
“
[9]
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.
[10]
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.”
[15]
When all of the above factors and circumstances are taken into
consideration, I am of the view that a sentence of correctional
supervision in terms of section 276(1)(h) of the Act will indeed be
too lenient considering the seriousness of the offence.
Section
276(1)(i) of the Act, however, includes a period of incarceration in
that it determines as follows:
“
Imprisonment
from which such a person may be placed under correctional supervision
in the discretion of the commissioner or a parole
board.”
In
terms of section 73(7) of Act 111 of the 1998 a person sentenced in
terms of section 276(1)(i) of the Act must serve at least
one sixth
of the sentence before he/she can be considered for correctional
supervision.
[16]
In
S
v Scheepers
2006 (1) SACR 72
(SCA) at paras [9] – [10], the following was
stated regarding the useful purpose a sentence imposed in terms of
section 276(1)(i)
of the Act can serve:
[9]
Both courts' reasoning is in essence that, because neither another
suspended sentence nor correctional supervision is appropriate,
a
three-year term of imprisonment is. This approach seems to me
mistaken, for it fails to consider the midway. That is a term of
imprisonment, but one mitigated by the provisions of s 276(1)
(i)
,
which permits the discretionary conversion of the prison sentence
into correctional supervision.
[10]
The particular advantage of s 276(1)
(i)
should always be in the foreground when the sentencer considers that
a custodial sentence is essential, but the nature of the offence
suggests that an extended period of incarceration is inappropriate.
In such cases, s 276(1)
(i)
achieves the object of a sentence unavoidably entailing imprisonment,
but mitigates it substantially by creating the prospect of
early
release on appropriate conditions under a correctional supervision
programme.
[17]
In my view a sentence in terms of section 276(1)(i) of the Act is an
appropriate sentence in the particular circumstances of
this matter
that will strike a balance between the three basic elements of
sentencing and the purposes of punishment.
[18]
Had I been the presiding officer on 25 October 2013, being the date
on which the appellant was sentenced, I would have imposed
a sentence
of 5 years’ imprisonment in terms of section 276(1)(i) of the
Act. However, the appellant has now been in
prison for two
years. Had he originally been sentenced in terms of section
276(1)(i) of the Act, he would only have had to
serve one sixth of
the five years’ imprisonment term. In my view it would
therefore be unjust towards the appellant
to sentence him to a term
of 5 years’ imprisonment in terms of section 276(1)(i) of the
Act at this stage. Therefore,
in order to balance out the fact
that he has already spent 2 years’ in prison, I consider it
just in all the circumstances
that the appellant be sentenced to 30
months’ imprisonment in terms of section 276(1)(i) of the Act.
[19]
The following order is consequently made:
1.
The
appeal against the sentence is upheld, the sentence is set aside and
substituted with the following:
“
Thirty
(30) months’ imprisonment in terms of
section 276(1)(i)
of the
Criminal Procedure Act, 51 of 1977
.”
2.
The
aforesaid sentence should be considered to have been imposed on 25
October 2013.
______________
C. VAN ZYL, J
I concur.
_______________
A. WILLIAMS, AJ
On
behalf of the appellant: Adv. P. L. van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. J. Du P. Botha
Instructed
by:
Office
of the Director of Public
Prosecutions
BLOEMFONTEIN
/eb