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[2013] ZAFSHC 189
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Hatting v S (A135/2013) [2013] ZAFSHC 189 (19 December 2013)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Appeal No: A135/2013
In the matter between:
JUAN HATTING
and
THE STATE
CORAM:
...........................................
RAMPAI,
AJP et MONALEDI, AJ
JUDGMENT
BY:
.............................
RAMPAI,
AJP
HEARD
ON:
............................. .....
14
OCTOBER 2013
DELIVERED
ON:
..........................
19 DECEMBER
2013
[1] The appellant was convicted on
multiple counts of fraud, one count of theft and one count of money
laundering. Following his
conviction, on 27 September 2010 a
custodial sentence was imposed on him. He was aggrieved by the
sentence. He came on appeal
before us with the leave of the court a
quo.
[2] The appellant was sentenced on his
plea in the Bloemfontein Regional Court on 23 May 2011. He pleaded
guilty to a total of
66 charges. Of those 64 were fraud charges.
The remaining two charges, viz charge 65 and 66, concerned theft and
money laundering
respectively. His written statement in terms of
section 112(2)
of the
Criminal Procedure Act 51 of 1977
was handed in
and marked exhibit “a”.
[3] In the first place the appellant
was sentenced in terms of
section 276(1)(b)
Act 51 of 1977 to a
period of 10 year imprisonment in respect of the first count of fraud
taken together with 31 other counts of
fraud, to wit:
Charges: 2, 3, 4, 5, 6, 7, 15, 18, 19,
29, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 55,
56, 58, 61, 63, 64.
[4] In the second place the appellant
was sentenced in terms of
section 51(3)(a)
of the
Criminal Law
Amendment Act 105 of 1997
to 10 years imprisonment in respect of the
eighth count of fraud taken together with 31 other counts of fraud,
namely:-
Charge 9, 10, 11, 12, 13, 14, 16, 17,
20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 48, 49, 50, 51, 52,
53, 54, 57, 59, 60, 62.
[5] In the third place the appellant
was sentenced in terms of
section 276(1)(b)
of Act 51 of 1977 to 6
years imprisonment in respect of charge 65, namely: - theft. The
court a quo directed in terms of section
280(2) of Act 51 of 1977
that the appellant should serve the sentence concurrently with the
sentence of 10 years imprisonment imposed
in terms of section
276(1)(b) supra.
[6] In the fourth place the appellant
was sentenced in terms of section 4
Prevention of Organised Crime Act
121 of 1998
to 8 years imprisonment conditionally suspended for 3
years. The specific condition was that the appellant should not be
convicted
of contravening
section 1
and
section 8
of Act 121 of 1998
during the period of suspension in respect of charge number 66,
namely: money laundering.
[7] Thus the appellant is to serve an
effective term of 20 year imprisonment unless his current appeal
against sentence succeeds.
[8] Subsequent to the imposition of the
sentence, the appellant successfully applied for leave to appeal
against the sentences imposed
on him in respect of the fraud charges
only. He was granted leave to appeal on 3 August 2012.
[9] The appellant, who was not legally
represented on appeal, drafted and filed inordinately long and
cumbersome heads of argument.
He canvassed issued outside the narrow
scope of his restricted parameters of his leave to appeal against the
sentence as regards
the fraud charges only. Accordingly this
judgment will not exceed the bounds of the leave to appeal as granted
by the court a
quo.
[10] The regional magistrate’s
approached the question of sentencing mindful of the basic principle
that punishment has to
fit the criminal as well as the crime; that it
has to be fair to society and that it has to be blended with a
measure of mercy
according to the circumstances –
S v
Zinn
1969 (2) SA 537
(A) at 540G-H and
S v Kumalo
1973 SA
697
(A) at 698A (vide p 553:18 – p554:17 record).
[11] In determining an appropriate
sentence, the main purpose of sentencing must be constantly kept in
the forefront of a trial
judge’s mind. The regional magistrate
appreciated that a balanced sentence strives to attain the
reformative, preventative,
deterrent and retributive objectives of
punishment –
S v Rabie
1975 (4) SA 855
(A) 862A. The
protection of society is central to all those objectives. None of
these objectives can be overlooked in the difficult
search for an
appropriate and balanced sentence. The regional magistrate was aware
of this – vide p 622:10 – 623:10.
[12] In
S v Rabie
supra, at 857D
– E Holmes JA remarked that in every appeal against sentence
the court hearing the appeal should be guided
by the salient
principle that punishment of an offender is pre-eminently a matter
for the discretion of a trial court; that the
court hearing the
appeal should only interfere with the original sentence if the trial
court has not judicially and properly exercised
its sentencing
discretion. The test, the court held, is always whether the sentence
is vitiated by an irregularity or by a misdirection
or by a
disturbing degree of inappropriateness.
[13] It is not every irregularity,
misdirection or inappropriateness which vitiates the sentence and
justifies appellate interference
–
S v Pillay
1977 (4)
SA 531
(A). The irregularity, inappropriateness or misdirection
complained of must be of such a material nature that a reasonable
court
hearing the appeal can conclude that the trial court did not
judicially or properly exercised its sentencing discretion. In S v
Pillay supra at 535E-G Trollip JA aptly elucidates the disqualifying
misdirection as follows:
“…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. Such a
misdirection is usually and conveniently
termed one that vitiates the
Court's decision on sentence. That is obviously the kind of
misdirection predicated in the last quoted
dictum above: one that
"the dictates of justice" clearly entitle the Appeal Court
"to consider the sentence afresh".”
The passage was quoted with approval
by Olivier JA in
S v Jimenez
2003 (1) SACR 507
(SCA) at para
[13].
[14] In S
v Kibido
1998 (2) SACR
213
(SCA) at 216g-i Olivier JA said:
“Now, it is trite law that the determination of a sentence in a
criminal matter is pre-eminently a matter for the discretion
of the
trial court. In the exercise of this function the trial court has a
wide discretion in (a) deciding which factors should
be allowed to
influence the court in determining the measure of punishment and (b)
in determining the value to attach to each factor
taken into account
(see S v Fazzie and Others
1964 (4) SA 673
(A) at 684A - B; S v
Pillay
1977 (4) SA 531
(A) at 535A - B). A failure to take certain
factors into account or an improper determination of the value of
such factors amounts
to a misdirection, but only when the dictates of
justice carry clear conviction that an error has been committed in
this regard
(S v Fazzie and Others (supra) at 684B - C; S v Pillay
(supra) at 535E).”
[15] The fraud charges referred to in
para [4] supra attracted the prescribed minimum sentence of 15 years
imprisonment in respect
of a first offender by virtue of the fact
that each of those charges were listed in Part II of Schedule 2 to
the
Criminal Law Amendment Act 105 of 1997
in that the actual or
potential value involved in each charge of fraud was in excess of
R500 000,00.
[16] After a lengthy review of the
caselaw dealing with the legal principles applicable to sentencing,
the trial magistrate imposed
an effective custodial sentence of 20
years on the appellant.
[17] The question in the appeal was
whether the aforesaid sentence was so disturbingly inappropriate or
so materially erroneous
or irregular that it virtually vitiated the
sentencing discretion entrusted to the trial court –
S v
Jimenez
supra.
[18] On the one hand the appellant
contended that the sentence imposed on him was exceedingly
disproportionate to the crime(s) he
committed. The thrust of his
argument was that the trial court overlooked a strongly mitigating
factor in his written statement.
He contended that because the
respondent had accepted his plea, the trial court was strictly
confined to his plea. Yet the
trial court, so he argued, went beyond
the scope of his plea in sentencing him. That the trial court could
not do. For this proposition
he cited as his authority the decision
of “The Reitz Four” in other words
S v Van der Merwe &
Others
2011 (2) SACR 509
(FB). By going beyond the scope of his
plea, which plea the respondent had accepted, the appellant submitted
that the trial court
thereby materially misdirected itself.
Therefore, the appellant urged us to uphold his appeal, set aside the
sentence and substitute
it with a drastically reduced form of
sentence commensurate to the loss of R2,0m which he admitted was
involved in his fraudulent
criminal enterprise and not R52,0m as
alleged in the charge sheet.
[19] On the other hand, Ms Claassens,
counsel for the respondent, sharply differed. Counsel contended that
the regional magistrate
followed the correct approach in that a great
variety of factors was evaluated. Such a broad spectrum of relevant
factors was
not limited to the appellant’s plea only but also
included the evidence tendered by and on behalf of the respondents as
well
as the evidence tendered by the appellant himself. Ms Claassens
submitted that, although precise details were lacking as to the
exact
amount of losses actually or potential suffered by the defrauded
victims such as the banks and bridging finance enterprises,
the
regional magistrate came to the final conclusion that huge losses
were suffered and experienced. Those losses were inherently
hidden,
albeit temporarily, in the credit risks, double bonds, lost
interests, “buys-ins”, additional costs, liquidation
costs and procedures. She submitted, therefore, that the trial court
committed no material misdirection. Accordingly counsel
urged us to
dismiss the appeal and to confirm the sentence.
[20] The trial court punished the
appellant against the backdrop of the triad consisting of the
personal circumstances of the appellant,
the interests of the
community as well as the magnitude, seriousness and nature of the
offences the appellant had committed –
S v Zinn
supra.
To those cornerstones of sentencing I now turn.
[21] In sentencing the appellant the
trial magistrate took into account the personal circumstances of the
appellant as an individual
offender in conflict with the law. The
appellant was 36 years of age. He matriculated from a good school,
Grey College, in Bloemfontein.
He studied law at the University of
the Free State. He became an attorney by profession. He established
his own law-firm. He
also ventured out to try his luck in the
property development sector of the economy.
[22] He is a family man. He is a
biological father of the 2 of the 4 children the couple has. He
contributed towards the maintenance
of his wife’
s 2
dependent
minor children. At the time of his arrest, he was the sole
breadwinner. He had a clean criminal record. He was incarcerated
for 14 months before he was sentenced.
[23] The appellant was a fugitive from
justice for some time before he was arrested. However, he came back
to his motherland on
his own accord. He then freely surrendered
himself to the police. He actively helped the police investigation
team. He divulged
other possible criminal activities. He gave back
to the defrauded banks and to the liquidators various properties and
thereby
mitigated their financial losses to an extent. He and his
wife have since been sequestrated. He lost everything as a result of
the sequestration. He could no longer sustain the opulent lifestyle.
He could no longer afford to contribute anything towards
the
maintenance of his family.
[24] To rub salt into the wound, “The
Law Society” successfully applied to have his awfully tarnished
name struck off
the roll of practising attorneys. His professional
status was seriously dented and his social esteem drastically
impaired. In
short he was badly shamed.
[25] He made a full disclosure of his
entire fraudulent network of his criminal activities. Besides his
assistance to the police
he also voluntarily cooperated with the
prosecution in the framing up of his indictment when there was no
obligation on him to
do so. He finally pleaded guilty to the 64
charges. The trial court accepted without any reservations, that the
last four factors
were strongly indicative of his genuine remorse.
So much about the mitigating factors. In my view the appellant was
adequately
profiled and individualised by the trial court.
[26] All the same I shall revert to his
contention that he was not given adequate credit for what he
described as the small amount
of the loss the victims suffered as a
result of his fraudulent enterprise.
[27] In sentencing the appellant the
trial court also took into account a range of aggravating factors,
the nature and the seriousness
of the offence(s). Four major banks
in the country that suffered financial losses were Absa Bank, First
National Bank, Nedbank
and Standard Bank.
[28] The trial court commented as
follows on the evidence given by the banks:
“It is difficult for the court because the various of factors
to attach a sort of rands and cents figure to each bank’s
losses at this stage. A number of the property repossessed by the
bank has not yet been disposed of by the. One must at this
point in
all fairness speculate as to the stability of the property market in
years to come in order to determine if there would
be a profit or a
loss made by these institutions.”
[29] Two significant things emerge from
the aforegoing passage in particular and upon careful reading of the
sentencing component
of the judgment in general. The first is that
the trial court did not blindly and unquestioningly accept the
evidence given by
the bank witnesses concerning the financial losses
merely because the respondent tendered it against the appellant. The
second
is that the trial court interrogated the evidence by the bank
witnesses in order to have a broadly informed understanding of the
adverse financial impact of the appellant’s widespread
fraudulent scheme.
[30] The underlying idea as to why such
evidence was tendered by the bank witnesses themselves, was not to
ascertain the mathematically
precise quantum of the actual or
potential losses suffered by the banks. The evidence was primarily
tendered for the purpose of
assisting the trial magistrate to have a
proper perspective of the magnitude of the moral blameworthiness of
the appellant’s
deceptive, pervasive and criminal enterprise.
[31] The trial court found that at the
time of sentencing, none of the banks themselves was in a position to
precisely determine
its final losses. Moreover, even the liquidators
were still a long way from finalising the liquidation and the
sequestration processes.
I am of the view that the trial court
followed the correct approach. It evaluated the evidence of the bank
representatives on a
broad spectrum of relevant factors. Having done
so, the trial court came to the final conclusion that the huge losses
were experienced
by all the victims of the appellant’s
self-enrichment fraudulent scheme. In that process the trial court
correctly made
no attempt to quantify the exact amounts of the losses
suffered by the appellant’s victims. Anyhow, the trial court
was
not called upon to do so.
[32] The trial court quite correctly
found that the appellant had exposed the banks to great risk on
account of his fraudulent activities.
The trial court correctly
rejected the appellant’s contention that the banks and the
liquidators were to blame for the magnitude
of their losses. On the
contrary the trial court found, and again correctly so in my view,
that the appellant “was the architect
of this entire
situation”. Like the banks, the providers of the bridging
finance also suffered significantly substantial
financial losses as
would more fully appear from the particulars of the last 6 charges.
[33] The appellant, an attorney by
profession, did the very opposite of what one would come to expect
from a member of such an honourable
profession. In S v Guntenhöner
1990 (1) SACR 642
(W) at 648c Gordon AJ had this to say about breach
of trust.
“However, clothed with the powers
that he did have, he performed work of importance and he undoubtedly
occupied a position
of trust.
For a banker to take advantage of these
important powers and to betray this trust placed in him so as to
steal R47 million or so
from his bank must be viewed in a most
serious light.”
[34] The embezzlement or
misappropriation or theft of trust money, especially by an attorney,
is seen in a very serious light.
The appellant was, by virtue of his
vocation, intrinsically linked to several positions of trust in
relation to the various banks,
bridging financial enterprises and
many more other victims all of whom were his loyal clients. Needless
to say he woefully took
an unfair advantage of his unsuspecting and
trusting clients by the abuse of the powers and inside knowledge he
had of the affairs
of his clients. He betrayed the trust they had in
him. He tarnished the image of the attorney’s profession.
[35] His position of trust in relation
to each and every bank he defrauded was twofold. First and foremost
he was a trusted attorney
specialising in conveyancing on the one
hand. Secondly he was a trusted bank official on the other hand. As
regards his private
clients, he abused his position of trust by
looting their trust account(s) – charge 65. He was also in a
trust relationship
with the governing body of the profession. Such
professional relationship is governed by the Attorneys Admission Act
53 of 1979
as amended. Se preamble to the charge-sheet –
p58A:01:16.
[36] He unwisely tried to trivialise or
down-play his powerful position of trust he had with the banks.
That, in my view, was not
only indicative of his complete disregard
and disrespect for the trust the banks had in him and betrayal of his
profession but
it was also indicative of the lack of genuine remorse.
This symbolised his unrepentant stance. Such a stance was telling
against
him. An offender, who swifts blame to his victims, lacks
insight into his wrongs. An offender who demonstrates such
unwillingness
to accept full responsibility for the consequences of
his unlawful actions cannot be regarded as a suitable and
rehabilitable candidate
in the foreseeable future. See exhibit “b”,
p644, exhibit “c” and exhibit “f” p709.
[37] The first 65 charges all come
together as one in the last charge, charge 66 – money
laundering. The appellant deceitfully
used the trust account of his
law-firm as a vehicle for the laundering of the fraudulently acquired
funds or proceeds of organised
criminal activities.
[38] The integrity of the appellant’s
trust account was drastically compromised and the credibility of his
profession put
into serious disrepute. Living it up was cool but he
may never rise up again. The fraudulent scheme was not a simple
delinquent
schoolboy’s stuff. It was rather an intricate plan,
cleverly thought out. Therefore the finding of the trial court that
those multiple offences of fraud were meticulously premeditated is
one which I support without any reservation.
[39] The appellant was on the panels of
all the four prestigious banks in the land. He was au fait with the
inner procedures, practices,
systems and workings relative to
homeloans. He exploited the institutional weaknesses for personal
gain. An attorney worth his
salt would have tightened the loose ends
in the system to protect the interests of his clients. He was the
architect of this well
devised plan to defraud, among other victims,
the banks, the bridging finance enterprises and the members of
society who had entrusted
their affairs to him.
[40] He cunningly schemed and greedily
wove a web of deceit by recruiting and drawing in friends and
relatives to expand his empire
of fraud. The practical execution of
the fraudulent enterprise, as evidenced by the double bonds
underlined thorough premeditation
and in-depth knowledge. The
planning went further than amassing wealth by stealth and organised
collaborative ventures. It included
how he would escape the police
should his crimes be exposed. He acquired a false passport in
advance by fraudulent means so he
could immediately go on the run to
enjoy the fruit of his ill-gotten gains.
[41] There could be no doubt that the
appellant was induced to defraud by sheer greed and not real need to
defraud the victims of
their money. He had a burning desire to
accumulate wealth by hooks or crooks not only as an attorney but also
as a property developer.
He chose to feather his nest and to cushion
his lifestyle with proceeds of organised crime. He sought to
mitigate the damage
occasioned by his unlawful and deplorable actions
by blaming the thieves or thief who allegedly once stole money from
him. He
can tell that story to the birds. He simply needed to be
reminded of the old adage that:
“Two
wrongs can never make a right.”
[42] He resorted to criminal activity
to fix a purely personal financial loss by stealing from the innocent
victims who had nothing
to do with his alleged financial loss. He
certainly knew that there were ethically and legally permissible
avenues to follow.
As a lawyer, the appellant knew it very well.
[43] The appellant committed a series
of fraudulent misdeeds over a prolonged period of no less than four
years. He made no attempt
whatsoever during that period to desist,
on his own accord, from his widespread criminal activities. Indeed
he had an unblemished
criminal record. Although he was a first
offender, it must be borne in mind and held against him that he
defrauded his victims
not once or twice or so but repeatedly on 64
different occasions over an inordinately long period of time, 48
months.
“He could, at any time during the course of that period, have
desisted from his conduct but he failed to do so and in fact
may well
have continued with his scheme but for the fact that he was 'found
out'.”
See
S v Landau
2000 (2) SACR 673
(W) at 677d-e per Kuny AJ. Moreover it did not end there. He went a
step further. He defrauded, stole and laundered the ill-gotten
proceeds of his crimes. This is the first thing. Let us shelve it
for the time being.
[44] The appellant then took to flight.
He fled the country. He evaded the law for twelve months. He only
surrendered himself
when he reckoned the situation was idyllic for
him. As a fugitive heavily but handsomely loaded with money he
probably lived a
stylish and high life of luxury abroad. All that he
sustained at the expense of his defrauded victims. There can be no
doubt
that the overseas expenses could have mitigated the loss
suffered by the victims. This is the second point. Let us also
shelve
it for a while.
[45] The appellant constantly and
shamelessly tried to shift the blame to his victims, particularly the
banks. He thereby tried
to extenuate the moral blameworthiness of
his own unlawful actions. The trial court rejected his version. It
found that he was
the mastermind of his own demise. I could not
agree more with the finding. He cannot extricate himself from this
furnace of crime
by unfairly vilifying the victims of his criminal
enterprise. None of them was to blame. He made his bed and so he
must lie on
it. This is the third point.
[46] When the appellant’s alleged
remorse is considered against the backdrop of the aforesaid three
factors, then his contention
that he was remorseful evaporates into
thin air. Those factors were indicative of his remorselessness and
nothing less. See
S v Seegers
1970 (2) SA 506
(A) at 511G-H
where Rumpff remarked:
“Remorse, as an indication that the offence will not be
committed again, is obviously an important consideration, in suitable
cases, when the deterrent effect of a sentence on the accused is
adjudged. But, in order to be a valid consideration, the penitence
must be sincere and the accused must take the Court fully into his
confidence. Unless that happens the genuineness of contrition
alleged
to exist cannot be determined.”
See also S
v Matyityi
2011 (1)
SACR 40
(SCA) at para [13] where Ponnan JA aptly described remorse as
a gnawing pain of an offenders’ conscience for the plight of
another. I could not discern that kind of remorse here.
[47] The appellant has been convicted
of very serious crimes. Worst still, those crimes were very
prevalent. The appellant’s
case itself demonstrated the
prevalence of the crime of fraud. His fraudulent actions had an
adverse impact on the interest of
the lawyering community in general
and the conveyancing sector of the legal profession in particular.
The banks had to review
their selection criteria. They revised their
procedures, practices and systems concerning appointment of attorneys
to their panels.
The stringent measures subsequently implemented by
the banks regrettably closed doors of opportunities to many deserving
attorneys.
The appellant has to shoulder the blame for that harmful
state of affairs.
[48] In my view the deterrent and the
retributive elements of sentence surged forward very strongly in this
matter. The personal
circumstances of the appellant together with
the mitigating factors were substantially eclipsed by the strong tide
of the aggravating
factors. The magnitude, the multiplicity, the
nature and the seriousness of the fraud which attracted the
sentencing regime in
terms of section 51(3)(a) as well as the
impaired interests of society dictated that the appellant be
deterrently and retributively
punished.
[49] Indeed it is not the function of a
court to break an offender and to sacrifice him on the proverbial
altar of retribution or
deterrence. The trial court demonstrably
steered away from such a course. Nonetheless it remains a salient
principle, well established,
recognised and applied in our law that:
“The sentencing officer takes account of all the recognised
aims of sentencing including retribution; the psychiatrist is
concerned with diagnosis and rehabilitation. To focus on the
well-being of the accused at the expense of the other aims of
sentencing,
such as the interests of the community, is to distort the
process and to produce, in all likelihood, a warped sentence.”
S v Lister
1993 (2) SACR 228
(A)
at 232g-h per Nienaber JA. The passage was quoted with approval by
Olivier JA in
S v Jimenez
supra, at 522f.
[50] The trial court was at pains in
search for an appropriate sentence. In a detailed and meticulous
manner, the trial magistrate,
Ms D. M. Soomaroo, carefully considered
the two sides of the coin. She patiently went out of her way to
afford the appellant ample
opportunity. Although the appellant was
legally represented by an experienced and seasoned counsel she
allowed him not only to
give evidence in mitigation but also to
present what, for lack of better terms, I may call supplementary
closing address. Such
extra-ordinary measures showed that the trial
magistrate patiently listened to the appellant’s plea in
mitigation and painstakingly
considered all factors favourable to him
as an offender and thus thoroughly individualised him.
[51] All these peculiar pre-sentencing
features objectively suggested that the seriousness, the prevalence,
the multiplicity and
the magnitude of the offences and the adverse
impact of those offences on the general interest of society were not
improperly considered
in a vacuum but rather properly against the
backdrop of the appellant’s adequately profiled person. It
appeared to me, in
the light of the admirable way in which the
sentencing proceedings were conducted, that the appellant was
sentenced in a balanced
manner.
[52] The sentence imposed on the
appellant was indeed stiff. That notwithstanding, I am not persuaded
that the sentence of 20 years
imprisonment was disproportionate to
the multiple, serious and prevalent offences we had to grapple with
in the appeal. The societal
interest coupled with those rife crimes
dictated nothing less.
Although the custodial term may, at a
glance, appear to be on the heavy side of the sentencing scale, it
has to be readily appreciated
that the prescribed minimum sentence
applicable to each of the 32 section 51(3)(a) convictions has already
been substantially tempered
with mercy. I shall demonstrate in the
next paragraph, the merciful features of the sentence imposed on the
appellant.
[53] Firstly, the trial court found
that substantial and compelling circumstances existed to justify a
lesser sentence than the
prescribed minimum sentence. As a result of
such a finding the court a quo deviated to the extent of 5 years
imprisonment in respect
of each of the 32 offences. The appellant
was thus sentenced to 10 years imprisonment instead of 15 years
imprisonment in respect
of each of those offences.
Secondly, all the 32 fraud charges
which attracted the prescribed minimum sentence of 15 years
imprisonment were, without any exception,
taken together as one for
the purpose of sentencing the appellant.
Thirdly, the 6 year imprisonment
sentence imposed on the appellant in connection with the charge of
theft will be concurrently served
with the composite sentence of 10
years imprisonment imposed in terms of section 276(1) on the
appellant in connection with the
32 charges of fraud in respect of
which there was no prescribed minimum sentence.
Fourthly, the sentence of 8 year
imprisonment imposed on the appellant in connection with the charge
of money laundering was conditionally
but wholly suspended.
[54] I am persuaded by Ms Claassens’s
submission that the trial court did not materially misdirect itself
as alleged or on
any other ground whatsoever. In the absence of any
proven material misdirection, no appellate interference is warranted.
That
being the case, I am inclined to dismiss the appeal.
[55] I now turn back to the substratum
of the appellant’s appeal. The crux of his contention was
that, in sentencing him,
the trial images disregarded a strongly
mitigating factor. That factor concerned his admission, which the
respondent accepted,
to the effect that the composite potential loss
suffered by the victims was no more than R2,0m. That amount was tens
of million
rand less than the loss as originally stated in the charge
sheet.
[56] I hasten to point out that the
facts in the instant appeal are distinguishable from those in the
appeal of
S v Van der Merwe & Others
supra In that case
there was virtually no evidence before the trial magistrate other
than the joint statement the accused had made
in terms of section
112(2) Act 51 of 1977. The position was completely different in the
instant matter. Besides the appellant
written plea of guilty in
terms of section 112(2), the appellant also orally testified. In
addition to that the respondent led
the evidence of four witnesses
who testified on behalf of the banks. Therefore the ratio decidendi
in
S v Van der Merwe’s
case does not apply here. The
trial court was not strictly confined to the appellant’s
written plea in determining an appropriate
punishment.
[57] In the exercise of its function
the trial court had a wide two-fold discretion in deciding, firstly
which factors should be
allowed to influence it in determining the
measure of punishment, and secondly in determining the value to
attach to each factor
taken into account –
S v Kibido
supra.
[58] It seemed to me that the trial
court carefully considered all the facts including those on which the
appellant pleaded. The
written plea encompassed all the facts and
details as per the charge sheet. It covered all the charges per the
charge sheet.
It covered all the charges. It included the purchase
price as per column 5 and 12 as well as the interest rate in column 6
and
13 of annexure “a”. The appellant’s plea also
included the amounts as per column 7 of annexure “b”.
[59] The appellant has made a huge
issue of para 8 of his plea which he called his “method of
calculation”. On his
own say-so that would represent the
potential loss the banks stood to suffer. It follows, therefore that
the appellant himself
was not in position to calculate the precise
loss – actual or potential. His method of calculation could
not be considered
in isolation. It had to be broadly considered in
line with the entire plea and the rest of the evidence in aggravation
of sentence.
[60] The potential loss on which the
appellant so heavily but selectively relied, was exactly that: an
imprecise potential which
the appellant himself could not accurately
calculate. The bankers were called for the purpose of giving
evidence in an effort
to determine extent of the appellant’s
moral blameworthiness by indicating whenever practically possible
what the actual
losses were or what the potential losses could be.
[61] The amounts of the initial bonds
were not affected by the appellant’s plea since those amounts
and the charges of fraud
were housed in the contracts. The
appellant’s plea covered the amounts as specified in each
contract – item 7.2 annexure
“a”. Accordingly the
provisions of section 51(2) Act 105 of 1997 applied to each of those
contract amounts.
[62] Where a particular property had
since been sold, the sale was depicted and the proceeds thereof taken
into account in assessing
the loss. Where a given property still
remained unsold, that fact was also taken into account. An
estimation was made and a projection
was forecast of what the banks
might reasonably expect given the current trends in the property
market. The bank also took into
account the interest to which they
were entitled and the payments made by the appellant – exhibit
“e”, “g”,
“i” and “j”.
In respect of the double bonds, the losses to the banks were actual
total losses. These
were unsecured loans for which the value of the
property could not be utilised – vide 9.1 and 9.3 exhibit “a”.
[63] In my view there was no substance
in the appellant’s contention. Such contention was correctly
rejected by the trial
court. Therefore, I am inclined to dismiss the
appeal.
[64] In the result I propose the
following order:
64.1 The
conviction stands unchallenged.
64.2 The appeal
against the sentence is dismissed.
p.p._________________
M. H. RAMPAI, AJP
I concur and it is so
ordered.
p.p._________________
S. R. MONALEDI, AJ
On behalf of the
appellant:
.............................
Mr.
J. Hattingh
.......................................................................
The
Appellant
.......................................................................
Acting
in persona
On behalf of the
respondent:
.........................
Adv.
B. G. Claassens
.......................................................................
Instructed
by:
.......................................................................
Director
of Public Prosecutions
.......................................................................
BLOEMFONTEIN
/ebeket