S v Saeed (432/05) [2006] ZASCA 45; [2006] SCA 43 (RSA) (29 March 2006)

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[2006] ZASCA 45
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S v Saeed (432/05) [2006] ZASCA 45; [2006] SCA 43 (RSA) (29 March 2006)

THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
CASE
NO: 432/05
Not
reportable
In
the matter between
THE
STATE First Appellant
and
EJAZ
SAEED Respondent
Coram
: Mthiyane, Lewis, Heher JJA
Heard:
10
March 2006
Delivered: 29
March 2006
Summary:
Not appropriate for court of appeal to remit matter
to trial court to impose a particular sentence where that sentence
has been properly
considered and regarded as unsuitable by trial
court. No misdirection by trial court: sentence imposed by it
reinstated.
Neutral citation: This case may be cited as
State v Saeed
[2006] SCA 43 (RSA).
JUDGMENT
LEWIS JA
[1] The
respondent, Mr Ejaz Saeed, was charged in the Bellville Regional
Court with 18 counts of fraud, alternatively 18 counts of
contravening s 59(1)(a) of the Value-Added Tax Act 89 of 1991. The
state alleged that over a period of 34 months he had submitted
false
VAT returns, fraudulently claiming VAT refunds in the sum of R279
152.18.
[2] Saeed
pleaded guilty and was convicted and sentenced to five years
imprisonment of which two years were suspended for five years
on
condition
that he
was not convicted of fraud or theft committed during the period of
suspension. Saeed appealed against the sentence to the
High Court,
Cape Town. That court upheld the appeal and ordered the trial court
to impose a sentence of correctional supervision
in terms of
s
276(1)(h)
of the
Criminal Procedure Act
51 of
1977
. The appeal before us is with the leave of this court.
[3] The
State contends first that the order of the high court was not
competent because it has fettered the sentencing discretion
of the
trial court in determining an appropriate sentence by requiring that
correctional supervision be imposed.
1
Secondly, the State contends that there was no misdirection on the
part of the trial court that entitled the court below to interfere
with the sentence imposed by the regional court.
[4] As to
the first issue, there is precedent for remitting a matter to a trial
court to impose a particular sentence. In
S v R
2
this court (per Kriegler JA), after a full discussion of correctional
supervision as a sentencing option, set aside a sentence of
imprisonment and remitted the matter to the trial court in order for
it to impose correctional supervision under
s 276(1)(h).
At issue in
that case, however, were the terms of the correctional supervision,
something not in contention in this case. This court,
in
S v R,
was not in a position to consider, let alone to impose, the
appropriate terms of correctional supervision for the accused since
no
evidence in this regard from a correctional officer had been given
at the trial. Accordingly, having determined that correctional
supervision was the appropriate sentence to be imposed, the court in
S v R
had no option but to refer the matter back for
evidence.
[5] The
matter before us now is not of the same ilk: the trial court did hear
evidence from, and had the report of a correctional
officer, and was
in a position to evaluate that evidence, which it did. The proposed
terms of the correctional supervision were fully
set out in the
report of the correctional officer. The trial court concluded,
however, that the appropriate sentence in the circumstances
of the
case was one of direct imprisonment.
[6] It is
not necessary to decide, however, whether the court below erred in
remitting the matter to the trial court in order to impose
a
prescribed sentence in view of the conclusion to which I come about
the other issue. Suffice it to say that in the circumstances
of this
case, where a sentence of correctional supervision had indeed been
carefully considered by the trial court, it was not appropriate
to
remit the matter to impose the sentence which the court had already
rejected as unsuitable.
[7] The
second issue is whether the high court should have interfered at all
with the sentence imposed by the regional court. The
proposition that
an appeal court may interfere with the trial court’s sentencing
discretion only where there has been a misdirection,
or where the
sentence is shockingly inappropriate, needs no authority. Counsel for
Saeed could refer us to no misdirection. He argued
rather that the
trial court had not paid sufficient attention to the personal
circumstances of Saeed and had placed too much weight
on the
interests of society and the need to send a deterrent message to the
community. Thus, he argued, the trial court had not
paid sufficient
attention to the individualisation of sentence. That was the finding
of the court below.
[8] The
argument, and the court below’s finding, is not borne out by the
regional court’s judgment on sentence. The regional magistrate
discussed Saeed’ s personal circumstances in considerable detail
and Saeed’s counsel could point to none that had been overlooked.
He took into account the fact that Saeed had shown contrition (by
pleading guilty); that he had a wife and children; that he ran
a
business; and that he had offered to pay back what he had stolen from
the fiscus. In the circumstances, said the learned regional
magistrate, Saeed was a suitable candidate for correctional
supervision. However, he considered that other factors weighed
against
a non-custodial sentence. The fraud had taken place over a
lengthy period, and Saeed had enriched himself not out of need but
from
greed. He had breached the trust of the fiscus. By its nature
the system of VAT collection is dependent on the trustworthiness of
the VAT vendor. The state had led the evidence of the investigating
officer who showed how difficult it is to keep track of frauds
against the fiscus, and the serious economic impact that these have.
And although Saeed had offered to make restitution, at the time
of
the trial none had been made. Any amounts paid subsequently (we were
informed from the Bar that some payments have now been made)
are not
relevant to the sentence imposed by the trial court.
[9] In
several recent cases courts have imposed custodial sentences for
theft from employers because of the ‘corrosive nature’
that it
has on society as a whole.
3
While these and other cases were considered by the court below, it
nonetheless considered that insufficient attention had been given
to
the individualisation of punishment, and thus considered itself at
large to interfere with the sentence imposed by the regional
court.
[10] In my
view, the court below erred in this regard. The regional magistrate,
as I have said, gave very careful consideration to
the personal
circumstances of Saeed, and was conscious of the need to balance
these with the seriousness of the offence, the breach
of trust, and
the impact of the many acts of fraud committed over a sustained
period. The sentence was in keeping with those recently
imposed by
this and other courts, and all sentencing options considered.
[11] There
was no misdirection by the regional court. And it certainly could not
be argued that the sentence imposed was shockingly
inappropriate
given that the amount misappropriated was considerable and custodial
sentences for longer periods have been imposed
for crimes arguably
less serious. Accordingly the high court should not have interfered
with the regional court’s sentence. That
sentence is in all the
circumstances suitable, and should be reinstated.
[12] The
appeal is upheld. The order of the court below is replaced with the
following;
‘The
accused is sentenced to five years’ imprisonment of which two years
imprisonment are suspended for a period of five years
on condition
that he is not convicted for fraud or theft during the period of
suspension.’
_____________
C H Lewis
Judge of
Appeal
Concur:
Mthiyane
JA
Heher JA
1
See
S v Toms; S v Bruce
1990 (20 SA 802
(A) at 806H-I where
Smalberger JA expressed the ‘cherished principle’ that a court
should have an unfettered discretion in
relation to sentence such
that there be balanced and fair sentencing.
2
1993
(1) SA 476
(A).
3
Per
Marais JA in
S v Sadler
2000 (1) SACR 331
(SCA) paras 11- 13.
See also
S v Sinden
1995 (2) SACR 704
(A);
S v Erasmus
1998 (2) SACR 466
(SE);
S v Lawrence
(unreported, case
357/04, SCA, delivered on 15 September 2005).