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[2011] ZAFSHC 169
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Cossie v S (A114/2011) [2011] ZAFSHC 169 (3 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A114/2011
In
the appeal between:
PAUL
COSSIE
….......................................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
CORAM
: VAN
DER MERWE, J
et
KUBUSHI, AJ
HEARD
ON:
10 OCTOBER 2011
_____________________________________________________
DELIVERED ON:
3
NOVEMBER 2011
KUBUSHI, AJ
[1] This is an appeal of
the judgment of the Regional Magistrate, Bloemfontein. The appellant
(accused number two in the trial court)
and his co-accused were
charged with three counts, namely, fraud, forgery and uttering. Both
accused persons pleaded guilty to
the charge of fraud and were
convicted as such. The appellant was on the 13 October 2009 sentenced
to five years imprisonment.
He is now with the leave of the trial
court, appealing against the sentence only.
[2] The appellant wanted
to purchase a motor vehicle. He could not qualify for financing
because he was blacklisted at the time.
The appellant and his
co-accused, who was his customary law wife, decided that the
co-accused should apply for the financing. The
co-accused approached
Auto Supreme to purchase a motor vehicle, a 2002 Chrysler PT Cruiser
LTD. A certain Ms Van Heerden, of Auto
Supreme, assisted her in
obtaining the finance from Wesbank. An amount of R108 620, 20 for
financing the motor vehicle was as a
result approved by Wesbank.
[3] In support of the
application for the finance, the co-accused provided Ms Van Heerden
with false documents, namely, a driver’s
licence, bank
statements and salary advice. She was however caught out and as a
result the appellant and the co-accused were arrested
and charged
with the three counts.
[4] At the hearing of the
case, the appellant and the co-accused pleaded not guilty to all the
charges and did not proffer any plea
explanation. After the state had
led the evidence of its first witness, the appellant and his
co-accused changed their plea to
that of guilty on a charge of fraud.
They made certain formal admissions in terms of
section 220
of the
Criminal Procedure Act, 51 of 1977
. The state accepted their plea of
guilty and the admissions on the charge of fraud.
[5] Having found them
guilty of the charge of fraud the trial court in sentencing the
appellant applied the provisions of
section 51
(section
51
(2) (a)
(i) thereof) of the Criminal Law Amendment Act, 105 of 1997 (the
Act). In terms of the section the trial court was obliged
to sentence
the appellant to imprisonment for a period of not less than fifteen
years unless it found that substantial and compelling
circumstances
which justified the imposition of a lesser sentence existed. The
trial court found such circumstances to exist and
sentenced the
appellant to five years imprisonment instead.
[6] The appellant’s
counsel contended that the trial court erred in assuming that the
amount involved in the fraud was R108
620, 20. According to him the
fraud exposed the financing institution only to the potential that
some of the monthly instalments
may not have been paid. He based his
argument on the fact that the appellant and his co-accused admitted
that ‘there was
potential prejudice because there was in that
(sic)
it may have happened that some of the instalments would
not be paid’.
[7] The relevant parts of
this admission relating to the amount involved in the fraud is quoted
hereunder:
“
This was done with the
intention to fraudulently move the bank to indeed give finance in the
amount of R108 000, 00. Your worship,
I say R108 000, 00 but there
are R620, 20 . . . R108 620, 20. These actions were unlawful and with
the intention to defraud. Your
worship, as far as the prejudice is
concerned, it is admitted that there was indeed potential prejudice.
And lastly the bank statements
of accused 2 was made available to the
state from which it appears that the monthly average of accused 2 was
more or less R40 000,
00. What it boils down to therefore is that
they acted fraudulently and that the intention was merely to gain
financing and that
the monthly instalments would be paid by accused
2. Your worship, I just want to stress that this does not mean that
they do not
acknowledge the fact that there was potential prejudice
because there was in that it may have happened that some of the
instalments
would not be paid. Let me say it could have happen
(sic)
but that was obviously not the intention.”
[8] My view is that the
trial court was correct in accepting that the principal debt of R108
620, 20 was the triggering mechanism
for the application of the
minimum sentence. The amount Wesbank stood to loose was the R108 620,
20. To my mind, the fraud was
occasioned by the misrepresentation by
the appellant’s co-accused in providing Wesbank with false
documentation and thus
inducing Wesbank to finance the motor vehicle
she wanted to purchase. The amount that Wesbank intended to finance
was the principal
debt of R108 620, 20. The potential prejudice was
therefore, in my view, occasioned by the fact that Wesbank would have
given the
appellant’s co-accused finance for the motor vehicle
which it would not otherwise have done. The potential prejudice
occurred
at the time Wesbank approved the loan and whether or not, as
argued by his counsel, the appellant was going to be able to pay the
instalments is irrelevant.
[9] In
S v HUIJZERS
1988 (2) SA 503
(A) it was held that:
“
Fraud is committed where the
complainant is induced to make a loan to the accused by reason of a
false representation made by the
latter as to the purpose for which
the loan is required.
By
reason of the misrepresentation the complainant is induced to
exchange his existing right of ownership in his money for a right
to
reclaim such and it is this alteration in his position which
constitutes the element of prejudice.
”
(my emphasis)
And at 511C – E the
learned judge went on to say the following:
“
In haar betoog het mej De
Swardt klem gele op onweerspreekte getuienis deur die appellant dat
hy altyd bedoel het om die klaers
terug te betaal, en gemeen het dat
hy in staat sou wees om dit te doen. Myns insiens kan hierdie
gesindheid van hom, selfs al sou
‘n mens aanvaar dat dit
bestaan het, geen verskil aan sy skuldigbevinding maak nie. Indien
soos ek bevind het, die klaers
benadeel was deur riskante
vorderinsregte te bekom en geruil vir geld, kan myns insiens nie
verskil maak as die appellant geweet
het dat die risiko’s
bestaan maar geglo het dat hulle nooit werklikhede sou word nie.
Die
benadeling het reeds ingetree toe die geld oorhandig is, en die blote
feit dat die appellant geglo het dat die klaers uiteindelik
hul geld
sou terugkry, kan nie hieraan afdoen nie.
”
(my emphasis)
[10] I find this case to
be apposite in this instance. By reason of the misrepresentation by
the appellant’s co-accused Wesbank
was induced to finance her.
The amount involved in the fraud, which caused the potential
prejudice, is thus the amount with which
Wesbank was induced to
finance her. If Wesbank had known in advance that the appellant’s
co-accused does not have the required
documents it would not have
approved the finance. As was said by the learned judge in the
HUIJZERS
case above at 510A:
“
Ook in die onderhawige geval
het die wanvoorstelling gegaan oor die gebruik wat die appellant van
die geld wou maak.
As hy nie
die wanvoorstelling gemaak het nie, sou die klaers geen geld
hoegenaamd aan hom oorbetaal het nie.
Die
resultaat van die wanvoorstelling was dus dat die klaers, metafories
gesproke, nie meer hul geld in hul sake gehad het nie,
maar in plaas
daarvan skuldeisers van die appellant geword het.”
(my
emphasis)
[11] The appellant’s
counsel contended also that the Act must be interpreted restrictively
in terms of the Constitution. According
to him, in terms of this
interpretation the trigger for minimum sentences must be understood
to mean the gravity of the offence
which has been concretized by
monetary thresholds.
[12] The relevant
provisions of Section 51 (2) (a) (i) reads:
“
(2) Notwithstanding any other
law but subject to subsections (3) and (6), a regional court or High
Court shall sentence a person
who has been convicted of an offence
referred to in –
Part II of Schedule 2, in the case of
–
a first offender, to imprisonment
for a period not less than 15 years; . . . “
The relevant portions of
Schedule 2, Part II reads:
“
. . .
Any offence relating to exchange
control, extortion, fraud, forgery, uttering, theft, . . . –
involving amounts of more than R500
000, 00;
involving amounts of R100 000, 00, if
it is proved that the offence was committed by a person, group of
persons, syndicate or
any enterprise acting in the execution or
furtherance of a common purpose or conspiracy; . . . “
[I3] I am of the view
that the language used in this section is clear and unambiguous and
must therefore be interpreted to give
it its grammatical and ordinary
meaning. And, to my mind, its ordinary meaning is that a person must
have been convicted of an
offence relating to fraud involving amounts
of R100 000, 00. In this instance the appellant was convicted of the
offence of fraud
and the amount involved was R108 620, 20.
[14] The fraud, in this
instance, is one of the offences mentioned in Schedule 2 of Part II
referred to in section 51 (2) (a) (i)
of the Act and its gravity is
concretized by the monetary value of R100 000, 00. The trial court
had therefore acquired an enhanced
penalty jurisdiction and was
obliged to apply the provisions of section 51 of the Act. See
S
v LEGOA
2003 (1) SACR 13
(SCA) at 21f –
g.
[15]
Secondly, the appellant’s counsel argued that the trial court
misdirected itself by making a finding that the appellant
was clearly
the mastermind of the scheme who imperilled his wife and used her to
carry out the scheme. Counsel argued that there
was no such proof
before the trial court for the trial court to have come to such a
conclusion.
[16]
It was, in my view, a material overstatement on the part of the trial
court to find that the appellant was clearly the mastermind
behind
the scheme who imperilled his wife and used her to carry out the
scheme. There was no such evidence before the trial court
and by
making such findings the trial court misdirected itself. For all we
know the co-accused could in fact have masterminded
the scheme to
obtain the motor vehicle for use by herself.
This to my mind
is a material misdirection by the trial court which vitiated its
exercise of its discretion, and entitles us to
consider the question
of sentence afresh.
[17]
As
regards the imposition of the sentence, the appellant’s counsel
argued that, firstly, the trial court erred in finding
that the
imposition of a direct imprisonment sentence was appropriate in this
instance. According to the counsel direct imprisonment
for five years
was inappropriate because: the co-accused was given a fine and
suspended sentence; the trial court failed
to take into
account that firstly, its primary care considerations of the
non-custodial sentence for the co-accused will not to
be
realistically achieved if the breadwinner is to be incarcerated for 5
years; secondly, direct imprisonment will be the end of
appellant’s
income and the family will suffer; thirdly, the previous conviction
should have been differentiated from the
current conviction as there
was only potential prejudice; and lastly that the appellant was
financially able to pay a fine.
[18] The appellant’s
counsel prayed for the imposition of a sentence of a stiff fine of
between R20 000, 00 and R40 000, 00
coupled with community service in
a hospital and an additional term of imprisonment to be suspended
with conditions as an appropriate
sentence in this instance.
[19]
In terms of the Zinn triad an appropriate sentence should reflect the
severity of the crime, while at the same time giving
full
consideration of all the mitigating and aggravating factors
surrounding the person of the offender and should also have regard
to
or serve the interests of society. In addition the purposes of
sentencing, namely, retribution, prevention, deterrence and
rehabilitation, must also be taken into account when considering
sentence. See
S v ZINN
1969
(2) SA 537
(A) at 540G.
[20] In this instance,
the offence of which the appellant has been convicted is a serious
offence which, as stated by the trial
court, is becoming more and
more prevalent. The prevalence thereof is shown by the alarming
increase of this type of offence, as
experienced in this court and
other courts and also as reported in the media. It has also been held
that sentencing officers must
take cognizance of the times in which
sentencing takes place so that where offences have become prevalent,
as is the case in this
instance, sentences that will have a deterrent
effect should be imposed. It must also be noted that this offence has
been singled
out by the Legislature as one of the serious offences
that warrants a minimum sentence of imprisonment (section 51 of the
Act).
See
S v RABIE
1975
(4) SA 855
(SCA) at 862H and
S v
SADLER
2000 (1) SACR 331
(AD) at
336 B.
[21] In the face of such
grievous offences the interests of society must come first. Courts
are expected, as was the case in this
instance, to take into account
the fact that businesses and financial institutions place a high
premium on honesty and that fraud
and corruption are nowadays the
cause of losses of millions of Rands. The community in general,
businesses and financial institutions
in particular must be protected
against people like the appellant.
A sentence
to be meted must serve as a protection to the community against
people like him. It must also serve as a deterrent to
the appellant
so that he may not repeat this offence as well as a deterrent to
other would-be offenders.
See
S v
HOLDER
1979(2) SA 70 (A) at 81B.
[22] My view is that the
personal circumstances of the appellant in mitigation of sentence are
overshadowed by the aggravating circumstances
herein. I found the
following circumstances to have aggravated the sentence, namely: the
fact that the
offence was planned and carried out
with persistence; the possibility that more offences could have been
committed, more particularly
that of having corrupted other people to
forge the documents; the amount Wesbank may have lost was high, R108
620, 20, even though
such loss was potential. The trial court made a
finding that the appellant was remorseful because after the state had
led the evidence
of its first witness, he changed his plea to that of
guilty. I do not agree with this finding. In my view, this was not
genuine remorse on the part of the appellant. He had no option
but to change his plea because the evidence of that witness directly
implicated his co-accused in the commission of the offence.
[23] More than anything,
I was swayed by the appellant’s previous conviction. He was
convicted of a similar offence and on
the 20 April 2004 sentenced to
R30 000, 00 or three (3) years imprisonment and a further two (2)
years imprisonment suspended for
four (4) years with conditions. The
offence presently in question was committed during July 2007. He had
the benefit of a fine
and a suspended sentence for that conviction,
but he committed a similar offence, worst still, during the period of
suspension.
The previous sentence failed to rehabilitate him and/or
deter him from repeating this offence and I do not see what good
another
similar sentence as prayed for by his counsel, would do.
[24] I
t
must to be noted that any serious offence of whatever nature, can
lead to imprisonment and frequently imprisonment is the only
appropriate sentence which ought to be imposed. The approach set out
in the Appellate Division case of
S v
HOLDER
supra
at
77H – 78A
is that imprisonment ought
not to be lightly imposed, especially if the object of the punishment
can be met by another form of punishment,
eg. a fine with or without
a suspended imprisonment. In this instance, however, my view is that
the circumstances of the case are
such that the imposition of direct
imprisonment is the only sentence that will be appropriate,
particularly in the light of the
previous sentence that did not serve
to rehabilitate and/or deter the appellant.
In
S v BLANK
supra
at 76a it was stated that:
“
The justification for the
severity of sentences such as these is seen in the prevalence of the
offences and the deterrent effect
which the severe sentences are
supposed to have.”
[25] My view is that the
personal circumstances of the appellant as raised by his counsel in
argument must yield to the requirements
of deterrence. The suspended
sentence may be put into operation. I consider, therefore, that a
sentence of three (3) years imprisonment
will be appropriate and just
in the circumstances. Accordingly I would make the following order:
25.1 The appeal against
the sentence succeeds.
25.2 The sentence imposed
by the trial court is set aside and replaced by the following:
“
Three (3) years
imprisonment antedated to the 27 October 2009”.
________________
E.M.
KUBUSHI, AJ
I concur.
_______________________
C.
H. G.VAN DER MERWE, J
On
behalf of the
appellant: Adv. K.J. Kemp SC
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the respondent
: Adv. V. de Bruyn
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
EMK/sp