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[2013] ZAKZPHC 28
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Stainbank v S (AR 258/07) [2013] ZAKZPHC 28 (4 June 2013)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
AR NO: 258/07
In
the matter between:
WILLIAM
STAINBANK
................................................................................
APPELLANT
and
THE
STATE
..............................................................................................
RESPONDENT
J U D G M E N T
___________________________________________________________________
KOEN
J
:
INTRODUCTION
:
[1] The Appellant was
convicted of fraud involving R44 252.36 and sentenced on 23 August
2006 to undergo 3 years imprisonment.
[2] He applied to the
trial court for leave to appeal against his conviction and sentence.
This application was struck off the roll.
On 27 September 2006 Hugo J
granted an order in case No. 421/2006
1
that the appellant inter
alia
2
be granted leave to
appeal to the High Court of the Natal Provincial Division against
conviction and sentence.
[3] It appears that Hugo
J only granted the order, being satisfied that the relief claimed was
appropriate, and did not deliver
a judgment setting out his reasons
for the order. Mr Matthews, who appeared for the Appellant, gave us
the assurance that the fact
that the application for leave to appeal
was struck off the roll, as opposed to leave to appeal being refused
by the court
a
quo
,
was raised before Hugo J. This issue was therefore no doubt
considered. It appears that the learned Judge probably treated the
magistrate’s decision to strike the application for leave to
appeal (which in the ordinary course appeared regular and should
have
been heard) off the roll, as a refusal by the court
a
quo
of
the application for leave to appeal.
3
No appeal was pursued in
respect of the order by Hugo J. We accept that the present appeal is
accordingly properly before us pursuant
to a competent order of a
Judge
4
granting leave to appeal.
[4] Broadly, three issues
arise for determination in this appeal, namely:
(a) Whether the loss of documents in
respect of the rival optometrist business, Bay Opticals (hereinafter
referred to as ‘Bay
Opticals’) conducted by the Appellant
whilst he was employed by Moffat Optical Richards Bay (hereinafter
referred to as ‘Moffat’)
confiscated by the police at the
Appellant’s house and subsequently apparently mislaid,
prejudiced him in his defence;
(b) Whether the Court
a quo
erred in finding that the State had proved the guilt of the Appellant
beyond a reasonable doubt;
(c) Whether the sentence of three
years’ imprisonment is inappropriate and induces a sense of
shock.
In what follows I shall
consider the first issue when discussing the appeal against
conviction, and shall thereafter deal with the
appeal on sentence.
THE APPEAL AGAINST
CONVICTION:
[5] It is trite law that
the crime of fraud comprises of ‘the unlawful and intentional
making of a misrepresentation which
causes actual prejudice or which
is potentially prejudicial to another’.
5
[6] An accused is
entitled to insist that any charge against him, should set out with
reasonable clarity the case the State intends
to prove against him.
Where the charge is fraud, it is of material importance that he be
informed of the nature of the misleading
statement that he made or
the conduct that he evinced. The charge must not be so vague that he
has to speculate about the misrepresentations
on which the State
intends to rely.
6
[7] The annexure to the
charge sheet alleged:
‘…
THAT
upon or about the period from 1997 to 2000 and at or near Moffat
Optical Richards Bay in the District of Lower Umfolozi, the
accused
did unlawfully, falsely and with the intent to defraud give out and
pretend to General Optical that the telephonic orders
he placed for
optical lenses where (
sic
)
genuine orders for Moffet Optical patients and did then and there and
by means of the said false pretences induce the said general
optical
to supply the said lenses so ordered to the prejudice or potential
prejudice of Moffat optical to the value of R44 252,
36.
WHEREAS the accused when
he gave out as above mentioned, knew that in truth and in actual fact
he was not authorised to make such
orders and that such orders on the
said patient this (
sic
)
were not genuine orders.’
[8] In the context of
the facts of the present appeal, Mr Matthews submitted that the State
had to prove that:
The Appellant ordered the lenses;
General Optical Company Limited
(hereinafter referred to as ‘GO’) in fact supplied the
lenses to Moffat;
The lenses were received at Moffat;
The lenses were not sent back or used
in the genuine business and for
bona fide
patients of Moffat;
Moffat in fact paid for these lenses
so ordered.
In reply he added a
further requirement namely that it was for the State to have called a
witness from the courier company which
would deliver the lenses to
Moffat. This is not really a separate requirement but merely evidence
which would prove receipt of
the lenses by Moffat.
In the view I take of the
matter I respectfully disagree, for reasons which will appear below,
that the onus borne by the State
extended as widely to all these
issues listed by him.
[9] The formulation of
the charge is somewhat inelegant and possibly lacked some
particularity. However, no objection was taken
to the charge as
formulated. Nor were further particulars requested to the charge, nor
was any amendment sought pursuant to the
provisions of section 86 of
the Criminal Procedure Act 51 of 1977 (hereinafter referred to as
‘the Act’). As I shall
endeavour to demonstrate with
reference to the evidence which was adduced, any giving out and
pretending to GO that the telephonic
orders placed for optical lenses
were genuine orders for Moffat patients and inducing GO to supply the
lenses, did not
per
se
result
in prejudice or potential prejudice to Moffat. It was only once the
lenses were received and then internally processed by
the appellant
as lenses for patients of Moffat and for which Moffatt would thus be
liable to pay GO, that actual or potential prejudice
was suffered by
Moffat in that the appellant knew that the lenses were not ‘genuine
orders’
7
for patients of Moffat.
[10] The evidence
revealed the following:
(a) At all times relevant
to the charge, the Appellant was employed as a technician by Moffat.
He had his own laboratory within
Moffat’s business premises
where only he worked, being the only technician employed by Moffat.
In his laboratory he had the
equipment to test the prescription
(optical strength) of all ordered lenses received at Moffat, which
were to be fitted in spectacle
frames
8
for patients of Moffat.
The task of cutting and fitting lenses to frames to make up
spectacles for patients of Moffat, was exclusively
and mainly his
function.
(b) The procedure
followed in Moffat was as follows:
(i) Existing and new
patients would call to have their eyes examined by a registered
optometrist, such as Mr Howard and Ms Cowley.
Every patient would be
assigned an unique patient number.
(ii) If the particular
patient’s eye sight required correction the optometrist would
determine the strength of the lens required.
Correcting eye sight
could be achieved either by a prescription of contact lenses or
specific lenses to be fitted to spectacles.
As the charge related to
only lenses, only that aspect of the business was considered;
(iii) After the
prescription for a patient has been determined by the optometrist, a
small tray would be allocated in respect of
each patient, reflecting
the name and account number of the patient. The frame into which the
lenses were to be fitted would be
placed in this tray together with
details of the prescription required as determined by the
optometrist.
(iv) The tray with the
frame and the prescription would then be taken by one of a number of
the members of the administrative staff
of Moffat, who would order
the lenses required by the particular patient from Moffat’s
supplier of lenses. The supplier of
lenses relevant to the charge was
GO;
(v) Orders for lenses
would almost invariably be placed in writing to ensure accurate
communication of the details of each prescription
required. Oral
orders were from time to time phoned through to GO, where urgency or
other considerations required it. These orders
were phoned through by
members of the administrative staff, but orders were also phoned
through by Ms Cowley in instances of urgency
and the Appellant also
placed orders by phone. Although the Appellant phoning through orders
was not supposed to be the normal
practice, there was nothing
untoward in this, as the phoning through of orders and speedy
processing of orders was facilitated
by him also placing orders
telephonically. In instances where lenses supplied might be damaged
during the fitment process, or the
lenses received, upon testing by
the Appellant, found to be not be in accordance with the
prescription, replacement lenses would
be urgently required and this
would often if not invariably be attended to by the Appellant;
(vi) The placing of oral
orders with GO by the Appellant became so prevalent, it seems, that a
point was reached where because of
frequent telephone use, the
telephone landline to the Appellant’s laboratory was removed.
He however continued to make calls
from his private cell phone;
(vii) All orders placed
with GO were identified with reference to the particular patient
number for whom they were intended. In
the case of an existing
patient requiring further spectacles on a second or third occasion,
this would be indicated by the suffix
‘/2’ or ‘/3’
being added to the patient number;
(viii) In instances where
a written record in the form of a note apparently jotted down by an
employee of GO at the time of receiving
an oral order was available
9
,
the Moffat patient number and details of the prescription in respect
of the patient for whom the lenses were allegedly required,
are
clearly indicated;
(ix) Once GO had
manufactured the required lenses, the lenses would be dispatched with
a GO combined delivery note/invoice to Moffat.
This document would
inter-alia identify the party supplied as Moffat Board Walk or some
variation of that name i.e. Moffat, the
date of the order, the
prescription of the lenses supplied, and the price. It would use as
the order number, the number of the
particular patient as allocated
by Moffat with the suffix identifying which number order in respect
of the particular patient of
Moffat it allegedly represented i.e. the
first or second or third or whatever order,
and
the date of the order;
(x)
Ex facie
the
delivery notes, which became exhibits in the trial, each prescription
had a specific delivery note in respect of a particular
lense or set
of lenses for the individual patients of Moffat;
(xi) The order (the
delivery note/invoice and lenses) were sent by GO by courier to
Moffat. It seems that because of frequency in
trade, the individual
orders dispatched some of which might indeed genuinely be required
for patients of Moffat and others allegedly
required, would from time
to time, when ready for dispatch, be packaged together and delivered
to Moffat;
(xii) At Moffat the
package from GO would be received, generally by the administrative
staff of whom there were up to five members,
but it seems also on
occasions by the Appellant. It seems that only the administrative
staff should have received the packages
but this was by no means a
rigid rule. The packages should be sent by the administrative staff
to the Appellant who should have
been the one to open the packets and
then perform the functions outlined below. It appears however that
the administrative staff
sometimes might have opened these packages
for example to check whether the required number of lenses as per the
delivery notes
were in the packages. Accordingly, if the delivery
note indicated that there should be 10 lenses, then they could verify
whether
there were in fact 10 lenses physically present in the
packet. The administrative staff would however not be able to
determine
whether the lenses enclosed with the delivery note would be
of the correct prescription;
(xiii) Irrespective of
who received the packets and opened them, the lenses would be placed
in the small trays containing the frames
and prescription of the
individual patients, for fitment by the Appellant. It seems that the
placing of lenses in the individual
patient trays might have been
undertaken variously by members of the administrative staff, the
Appellant and also on occasions
by Ms Cowley;
(xiv) Ultimately, it was
the responsibility of the Appellant, and this function only he could
perform, to test the strength/prescription
of the lenses supplied by
GO, with specialised equipment which he operated, and for him to
correlate it with what was reflected
on the delivery notes received
from GO and to confirm that the lenses received were in accordance
with what was originally determined
by the optometrist upon
examination of the patient and ordered (as per the optometrist’s
prescription in the tray) in respect
of each particular patient. If
the lenses correlated with what was ordered as also reflected on the
delivery note, the Appellant
would tick it off and send the delivery
note/invoice through to the accounts section of Moffat for processing
and payment. If he
determined that the lenses were not correct, then
the correct lenses would again have to be ordered, now probably as a
matter of
urgency, as the supply of the spectacles to the customer
would have been delayed due to the wrong prescription having been
sent.
Where appropriate the process for an appropriate credit, if
required, would also have to be initiated;
(xv) If the correct
lenses were received, the Appellant would then make up the required
spectacles for the particular patient.
(xvi) As the Appellant’s
sole and unique involvement in this regard is of particular
significance, I set out below some of
the verbatim evidence
10
given which stood
uncontradicted.
Mr D J B Moffatt
testified that:
‘…
the
invoice arrives, it gets checked against the goods that are in the
box, it gets initialled and the invoice gets sent to our
accounts
department. And the accounts department then at the end of the month
check the invoices against the statements and when
everything is
correct obviously they pay the account’.
‘…
We
had a system whereby the lenses that we were buying – the
lenses that we were buying would tie up to the patient’s
record
card’.
‘
The
lenses would come back, they would be opened by our technician who
would tick off that we had received them and he would then
make the
person’s glasses up for him and we would get them in for
collection. And that would be a normal and standard routine.
And
every order is tied back, as I said, to the patient’s record
cards, so if you were to get two pairs of glasses and your
account
number with us was 111, we would call it 111/1 for the first pair and
111/2 for the second pair….’ (pg 22).
‘
(The
Appellant) was responsible for opening the parcels in the laboratory
and he was responsible for ticking off we had received
them and that
went through to our accounts department … but the accounts
department would never see the lens and nor would
the accounts
department know whether the lens was for that particular individual
because the lenses remained in the laboratory.’
(pg 24).
‘
But
those lenses, because he ticked off the packing slip, and because
they used our patient account numbers, when that went through
to our
accounts department we assumed that it was our work. But some of it
wasn’t. All of this was charged to us, so we were
paying
inflated laboratory accounts which is what affected our gross
profit.’
“
And
it was his responsibility to count the number of lenses in the box
and check them against the packing slip. So in fact as long
as we got
that packing slip back signed by Mr Stainbank who was the technician,
then that would then go through our/that would
go through our
accounting process in the normal way. So frankly I don’t really
see where it is going because no matter who
opened them ultimately he
had to count the lenses in the box, tally them with the packing slip,
sign the packing slip, which would
go to the accounts department. It
was after he signed the packing slip that he took the lenses out,
removed them and removed them
from our premises. Nobody would take
those lenses and know which pair of glasses they belong to, except
for the technician. Because
he has the instruments there to actually
check the prescription and make sure that the correct prescription is
going into the correct
frame for the correct patient. … He is
the only person having that instrument”. (pg 124).
The optometrist Mr J A
Howard testified:
‘
And
we found that our order numbers were being duplicated.’
‘
..We
found with the orders that there would be a miscellaneous number 3 or
4 coming in the parcels which we had not ordered. When
we enquired as
to this from General Optical they said that the majority, well all of
these orders, these miscellaneous ones were
telephonically ordered by
Mr Stainbank.’
Who/what are the duties
of the technician after the order has been made? Who receives those
boxes? … The technician at the
time would receive the box from
the couriers. He would open it in which he would find the orders. He
would correspond the account
numbers. In other words the patient
account number with the lenses in the box and then he would cut the
lenses into the frame …
we use little boxes to store
everything in and that would have the account number written it, so
he would simply take the patient’s
box with his account number
and match it to the orders in the correct box’.
‘
When
we receive incorrect lenses we normally notify General Optical and
then we process the lenses. We write it into a credit returns
book,
so there is a policy. … and we await the credit approval’.
Ms Cowley testified that
other staff members were all instructed not to order by telephone.
She conceded that on occasion in emergency
situations she had asked
the Appellant to make orders telephonically but that this was on
request by her. She also opened the packages
when the Appellant was
not there to help him but he ‘did insist on doing it himself
most of the time…’
During cross-examination
she stated:
‘
(The
Appellant) was employed as a technical/optical technician, that
meaning we gave him the duty to open the box where all the
patients
lenses or glasses ... (indistinct). He had to open it up, match the
number of the sent items with the patients’
waiting trays.
Check the prescriptions and then also cut the lenses that needed to
be fitted. The lens comes in, it is about this
big, and then it has
to be cut down to the frame of the patient. And then it gets put on a
special shelf for phoning …’
(pg. 313).
[11] The State did not
attempt to take a particular individual order of lenses reflected in
a delivery note and present evidence:
(a) as to who at GO took
such order, leading the evidence of such employee of GO to show that
the appellant in fact placed the order;
(b) that the order
thereafter was dispatched per courier under a particular reference to
Moffat;
(c ) that the courier
service conveyed a parcel from GO to Moffat under such reference;
(d) as to who at Moffat
signed for receipt of such package by adducing evidence of the
particular employee of Moffat who had signed
for the particular
package and what he/she did therewith i.e hand it to the appellant,
or whatever;
(e) that Moffat paid GO
for the particular lenses; and
(f) that the patients in
whose names the lenses were ordered never received spectacles with
such lenses.
Had that been done, an
iron clad case might have been presented and the task of this court
would have been considerably easier.
The fact that it was not done,
does not however mean that the State necessarily failed to discharge
the onus.
[12] The State’s
evidence on some aspects can justly be criticised. There is no
credible direct evidence that it was indeed
the Appellant who placed
oral orders with GO in respect of each of the consignments referred
to in the delivery notes which served
as exhibits. Mr Meintjies of GO
purported at the outset of his evidence to confirm that the Appellant
had placed all these orders
orally or telephonically with him.
However, once subjected to cross-examination, it became clear that as
a matter of probability
he would not have taken these calls as the
CEO of GO and that his personal knowledge might be confined to
isolated orders placed.
His evidence was mainly based on reports made
to him allegedly by members of his staff.
[13] The placing of the
orders telephonically by the Appellant has significance, being the
misrepresentation relied upon in the
annexure to the charge sheet. Ms
Sibiya, on behalf of the State, has however argued that even if the
individual employees of GO
had been called and were to state that the
Appellant had placed the orders telephonically
11
,
in the absence of them knowing the voice of the Appellant, it could
still be disputed that it was in fact the Appellant who had
placed
the orders orally. There is merit in that submission.
[14] Ultimately, proof of
the representation to GO could be proved either by direct evidence or
alternatively by circumstantial
evidence justifying as the only
reasonable inference or as an overwhelming probability that it must
have been the appellant who
placed such orders.
[15] On a conspectus of
all the evidence, I see the position as follows. It was the task of
the Appellant to test and correlate
consignments of lenses as per the
delivery notes with the prescriptions of patients of Moffat, before
sending the delivery notes/invoices
through to the accounts
department for further processing (which would also entail eventual
payment to GO), when making up spectacles.
In sending the delivery
notes through to the accounts section (which they were, as payment
was made to GO, Mr Meintjies of Go having
testified that payment was
received in full for these orders), the Appellant confirmed that the
lenses received as per the delivery
notes received, were genuinely
required for patients of Moffat for whom he was making up their
spectacles, and had been received
at the prices indicated on the
invoices. Implicit in and flowing from the aforesaid is that orders
for such lenses had been placed
with GO. Whether the lenses in fact
existed or not, and who ordered them, and who opened the package is
of little practical significance.
The Appellant knew that in response
to each order of lenses received and which he had confirmed as being
in accordance with a prescription,
and had sent the delivery
notes/invoice to the account department, that payment would be made
by Moffat to GO, or then, at the
very least, that a liability by
Moffat to GO would be created in the books of Moffat, to the
prejudice of Moffat.
[16] It was not necessary
for the individual patients of Moffat to testify that they did not
receive the spectacles. Mr Howard and
Ms Cowley could, and did
testify that the lenses on the delivery notes which served as
exhibits, were not for the patients of Moffat
identified on the
delivery notes, inter alia:
(a) Some patients had simply attended
consultations with no prescription for spectacles ever being issued;
(b) Some patients had previously been
provided with spectacles with a prescription and the strengths of the
lenses reflected on
the delivery notes did not accord with the
prescription in respect of that particular patient, such as the
little girl who had
been examined by Ms Cowley, a prescription
prepared, but then subsequently lenses found to have been ordered and
received which
were wholly inappropriate to her.
[17] The State proved
that through the system that was employed, lenses were received for
and on behalf of the account of Moffat
by the Appellant and
acknowledged to have been received thus, by the delivery
notes/invoices being processed and sent through to
the accounts
department. These lenses were not for patients of Moffat. If the
lenses were not for the patients indicated by each
patients unique
number on the delivery notes, which on the evidence they were not,
then the Appellant wrongfully and intentionally
through his conduct
had evinced that these lenses were for the account of Moffat when
they were not, resulting in the prejudice
to Moffat. If these lenses
were not required for patients of Moffat, then a useless stock of
prescription lenses would have built
up in the Appellant’s
laboratory with Moffat, which would be a non sensical thing to do.
[18] Specific lenses are
peculiar to particular persons. The Appellant was operating Bay
Optical, a rival optometrist business in
competition with the
business of Moffat. Bay Optical provides the outlet for which these
otherwise useless stockpile of lenses
which would build up were
destined. It also provides the motive for the Appellant ordering
these lenses. The evidence of Ms Neethling,
the receptionist at the
business of the Appellant is also significant. She testified that she
was charged with taking prescriptions
in respect of patients as
assessed by the optometrist employed at Bay Optical to the Appellant
at Moffat with the frames for spectacles
to be made up, and the
frames supplied now fitted with lenses intended for Bay Optical’s
customers would later be received
from the Appellant. No orders for
spectacles were made up inside Bay Opticals. Frames from Ray Ban,
Calvin Klein and Bondi Blue
and contact lenses from Bausch and Lomb
were ordered by the Appellant and collected for Bay Opticals at the
Post Office. She made
no reference, and it was never suggested to
her, that lenses were ordered and received at Bay Optical for
customers of Bay Optical.
As the practice of her taking prescriptions
for patients of Bay Optical to the Appellant at Moffat continued and
enquiring glances
came to be cast on her frequent regular visits to
the Appellant at Moffat, the exchanges of prescriptions by her to the
Appellant
occurred clandestinely in a passage outside the toilets.
This evidence irresistibly points to only one reasonable inference,
namely
that the Appellant used the lenses he procured from GO in the
manufacture of spectacles for customers of Bay Optical without him
having to pay for them, and in fact with Moffat having to foot the
bill. As prescription lenses are peculiar to patients and dependent
on prescription being determined after examination of a particular
patient’s eyes, the orders for such lenses placed with
GO could
only have been placed by the Appellant or someone on his behalf.
[19] There would be no
incentive whatsoever to any third party placing these orders
telephonically with GO where the lenses were
as their final
destination to be received in the hands of the Appellant at Moffat.
[20] The Appellant
through his conduct, having regard to the system that was employed in
Moffat, acknowledged that these lenses
were in fact supplied at the
offices of Moffat by GO and were received in his laboratory and were
not sent back or otherwise dealt
with.
[21] In that factual
scenario, the totality of the evidence points irresistibly to the
guilt of the Appellant in respect of each
of the orders represented
by the various delivery notes which served as exhibits in the trial.
[22] Whatever records the
Appellant might have kept in respect of his rival optometrist
business and which were lost following the
search by the police,
would not have affected this issue one iota. Certainly no such
prejudice was demonstrated on the record.
He was not prevented from
advancing his defence fully. It has not been shown that as a result
of the records of Bay Optical being
lost, that he did not have a
constitutionally fair trial. No specific arguments on this point were
advanced at the hearing of the
appeal by Mr Matthews.
AD SENTENCE
:
[23] In sentencing the
Appellant to three years imprisonment the learned magistrate took
into account the value of the lenses involved,
stated to be
R44 252,36, and that the Appellant occupied a position of trust
where Moffat relied on him to conduct himself
honestly in the
interest of its business. The magistrate concluded that the Appellant
had developed and employed a practice ‘in
such a way that the
complainant could lose millions of rands and according to him, he
indeed lost far more than could be proved
in court’.
[24] The magistrate also
did not consider correctional supervision to be ‘severe enough
… to tally with the gravity
of the offence’. He
commented that the Appellant did not show any remorse and concluded
that if a person fails to realise
the seriousness of his wrongful act
that it is doubtful whether correctional supervision will have any
impact on him.
[25] That this was indeed
an instance of white collar crime, cleverly planned, and that
breaches of trust by employees can cause
businesses to suffer so
badly that they might face closure, are no doubt correct.
[26] In my view however,
the learned magistrate committed misdirections in apparently being
influenced to believe that the loss
was ‘far more than what
could be proved in court’ and in concluding that ‘correctional
supervision was not severe
enough to tally with the gravity of the
offence’. Although an instance of an abuse of trust, the amount
was only R44 252,36.
That is the amount proved and on which a
sentence must be based, and not some suspicion of the amount involved
being ‘far
more than what could be proved in court’. I
consider imprisonment of three years to be too severe.
[27] The report by the
Correctional Department’s Ms Mabuyakhulu had found the
Appellant to be a suitable candidate for a sentence
of correctional
supervision in terms of section 276 (1) (h) of the Act.
[28] In
S v R
1993
(1) SA 476
A Kriegler AJA commented that the legislature has
distinguished between offenders who ought to be removed from society
by means
of imprisonment and those who, although deserving of
punishment, should not be so removed from society. As a whole,
punishment,
whether it be rehabilitative or, if need be, highly
punitive in nature, is not necessarily or even primarily attainable
by means
of imprisonment. It is now clear that it is possible for a
trial court to impose severe punishment upon even very serious
offences
without making use of imprisonment (and without thereby
sometimes, if not most of the time, destroying whatever good
characteristics
remain as far as the offender or prisoner is
concerned). A severe punishment can be imposed and the interest of
the community served
by imposing a deterrent and strict sentence,
other than imprisonment.
[29] Fraud and corruption
have become a cancer destroying our society. In
casu
,
notwithstanding attempts having been made to curb the Appellant’s
abuse of his landline phone to his laboratory, he persisted
in making
regular calls (and placed orders) over an extended period of time
from at least January 1999 to July 2000.
[30] I am not persuaded
that the Appellant falls into the category of offenders who should be
removed from society. He was a first
offender, 37 years old and
self-employed, engaged to be married with three minor children and a
pregnant fiancée, a sole
supporter of his family and not a
danger to society.
[31] That having been
said however, the abuse of the position of trust in which he had been
placed, calls for a strong message to
be sent out that such conduct
will not be tolerated. In my view that can be achieved by a ‘finely
tuned sentence’ of
correctional supervision.
[32] The sentence
referred to in the order below would in my view be appropriate and
satisfy all the objectives of sentencing.
[33]
Accordingly:
(1) The appeal against conviction is
dismissed;
(2) The appeal against sentence is
upheld.
(3) The sentence of the court
a quo
is set aside and substituted with the following
‘
The
accused is in terms of section 276(1)(h) of the Criminal Procedure 51
of 1977, sentenced to three years correctional supervision.
The
correctional supervision shall comprise of the following measures:
House
arrest
at his residential home:
[a]
for the full duration of the correctional supervision.
[b]
from 18h00 to 6h00 on working days and for 24 hours on non working
days.
Provided
that the house arrest shall not operate during the periods reasonably
required for the following activities:-
Community service;
Church services;
Attendance of
programmes;
Acquisitions of
household goods during periods to be determined by the Supervision
Committee.
Community
Service for a period of 16 hours per month,
The
Supervision Committee is empowered to amend the order regarding
community service.
Participation
in the programs determined by the Supervision
Committee,
under the control of the Supervision Committee.
Other
Conditions:
The
accused shall:-
[a] take up and remain in
employment, must perform his work to the best of his ability, comply
with the conditions of any contract
of employment and may not leave
his place of employment or business during working hours for purposes
unrelated to the employment
or business without the permission of the
Commissioner of Correctional Services.
[b] contribute
financially towards the costs of the community corrections to which
he is subjected, the amount to be determined
by the Commissioner of
Correctional Services and he must also provide the said Commissioner
with a statement of income and expenditure.
[c ] reside at a fixed
address.
[d] refrain from abusing
alcohol or drugs.
[e] refrain from
committing any criminal offence for which imprisonment without the
option of a fine is imposed.
[f] subject himself to
monitoring by the Supervision Committee.
[g[ The accused is
restricted to the magisterial district in which he is residing and is
in employment.
The accused must report
to the Supervision Committee on or before 10 June 2013.
__________________________________
HENRIQUES
J
__________________________________
DATE OF HEARING: 16 MAY
2013
DATE OF DELIVERY: 4 JUNE
2013
APPELLANT’S
COUNSEL: ADV. S MATTHEWS
APPELLANT’S
ATTORNEYS:
RESPONDENT’S
COUNSEL: ADV. B.P. SIBIYA
RESPONDENT’S
ATTORNEYS:
1
The
application papers are not in the file and not available to me.
2
The
appellant was also released on bail pending this appeal.
3
We
were advised that this was also the attitude adopted by the State.
4
At
that stage, prior to the decision in
Shinga
v The State; S v O’Connell
2007
(2) SACR 28
(CC) at 54 d on 8 March 2007 which introduced the
requirement that ‘a petition contemplated in this section must
be considered
in Chambers by two Judges designated by the Judge
President’, section 309C(5)(a) of the Act required a decision
from a
single judge only.
5
See
C R Snyman Criminal Law 4
th
edition pg 520.
6
DuToit
et al
Commentary
on the
Criminal Procedure Act with
reference to the decision in
S
v Hugo
1976 (4) SA 536
(A)
at 540-2.
7
As
the charge alleged.
8
The
frames to which the Appellant fitted the lenses were either supplied
by patients or chosen by patients of Moffat from a range
stocked by
Moffat.
9
Some
examples, such as exhibit ‘K’ were handed in without
objection by the defence.
10
These
extracts must obviously be read in the context of all the evidence
adduced and not construed in isolation.
11
It
should be pointed out that the recording of orders by GO where
available and attached to delivery notes in the exhibits did
not
identify the particular caller placing such order. Accordingly
employees of GO who might have taken any order telephonically,
even
if identified with reference to their handwriting on the order,
seemingly would have to rely purely on a personal recollection
of
such orders amongst probably hundreds or thousand orders they took.