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[2024] ZAECMKHC 86
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Taylor v S (CA&R: 14/2024) [2024] ZAECMKHC 86 (12 August 2024)
THE
HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
No: CA&R: 14/2024
In
the matter between:
CLEO
TAYLOR
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
BANDS J:
[1]
This
appeal is limited to sentence only. The appellant was convicted on 6
counts of fraud by the District Court, Gqeberha, having
pleaded
guilty to the charges in accordance with the provisions of
section
112(2)
of the
Criminal Procedure Act 51 of 1977
(“
the
Act
”). She was thereafter
sentenced to an effective 6 years’ imprisonment; 1 year in
respect of each count. No order was
made in terms of
section 280(2)
of the Act. The applicant unsuccessfully sought leave from the trial
court to appeal her sentence, whereafter she was ultimately
granted
leave to appeal, on petition to this court, on 5 February 2024.
[2]
In
her written statement, the appellant sets out,
inter
alia
, that the 6 offences were
committed against 6 separate complainants over a period of 11 months,
from 27 November 2021 to 25 October
2022. Her
modus
operandi
for depriving the
complainants of their property, without compensation, remained
consistent. On each occasion, she approached her
unsuspecting victims
through various e-commerce marketplaces under the guise of desiring
to purchase their pre-owned goods, advertised
for sale. The appellant
induced the complainants, by false pretences, to relinquish
possession of their goods under the belief
that she had paid for the
items by way of electronic transfer. In each instance, the appellant
who had no intention of paying for
the goods, provided the
complainants with falsified documentary proof of payment, evidencing
the transactions. The value of the
goods in question was R39,000.00
in aggregate; with the individual items selling for between R2,500.00
and R16,000.00 each.
[3]
The
principal issue on appeal is whether the cumulative effect of the
appellant’s sentences is so harsh and disproportionate
that it
warrants the interference by this court. Central to this question is
whether the counts ought to have been taken cumulatively
or
individually for the purposes of sentencing. On a reading of the
trial court’s judgment, both in the sentencing proceedings
as
well as in the application for leave to appeal, it does not appear
that this aspect was considered by the Magistrate.
[4]
This
notwithstanding, when the matter served before us, Ms Phikiso who
appeared on behalf of the State initially argued that the
trial court
had correctly exercised its discretion in imposing the sentences that
it did, given that: (i) the 6 counts of fraud
were not inextricably
linked; and (ii) the appellant has 2 previous convictions of
relevance, dating back to 2010, for which she
was given non-custodial
sentences. However, when pressed further on the point, Ms Phikiso
correctly conceded that the cumulative
effect of the sentences was
manifestly disproportionate. I accordingly turn to the appeal at
hand.
Considerations
of the sentencing court
[5]
In
approaching the sentencing of the appellant, the sentencing court was
alive to the fact that it was to impose sentences which
struck an
appropriate balance between the seriousness of the offences of which
the appellant was convicted; her personal circumstances;
and the
legitimate expectations and legal interests of the community.
[1]
The trial court correctly pointed out that in the assessment of
appropriate sentences, it was also required to give due consideration
to the four objectives of punishment, namely, its deterrent,
preventative, reformative and retributive aspects.
[2]
[6]
In
mitigation of sentence, the trial court had due regard to the age of
the appellant, being 32 at the relevant time. It further
considered
that she has a 15-year-old child with her husband (
albeit
that they are separated), with whom the minor resides. Prior to her
arrest and incarceration, she was employed as a domestic worker,
earning between R3,000.00 and R5,000.00 per month. It was submitted
from the bar that the offences were committed during a period
when
the appellant was struggling to find employment, and accordingly were
motivated by need to fulfil her obligations. It is unclear
as to what
weight, if any, the trial court attached to this factor.
[7]
The
trial court remarked that the appellant had previously been convicted
and sentenced on a count of theft in June 2010; a count
of fraud in
August 2010; and a count of assault in June 2014, and accordingly she
was not a stranger to the law. Whilst the trial
court acknowledged,
correctly so, that the prior convictions of theft and fraud were
older than 10 years, it concluded that they
still served as an
aggravating factor which fell to be considered in the context of this
case. I agree with the trial court that
the previous convictions of
theft and fraud are relevant despite the lengthy passage of time. Not
only were the offences of a similar
nature (as taken into account by
the trial court), but seemingly, whilst the appellant’s
previous convictions and non-custodial
sentences may initially have
served as a deterrent, that she again committed the offences with
somewhat renewed vigour, the 6 offences
being committed in a
relatively short period of time, is an aggravating factor which falls
to be considered. In such circumstances,
the trial court cannot be
faulted in the imposition of custodial sentences.
[8]
Where
the trial court erred, in my view, was its failure to consider the
cumulative effect of the sentences imposed in circumstances
where the
total resultant sentence is disturbingly inappropriate and
disproportionate to the offences of which the appellant was
convicted. This factor alone entitles this court to reconsider the
imposed sentences on appeal.
Legal
considerations and the effect thereof in the present case
[9]
The
approach to sentencing on appeal is well established.
[10]
The
imposition of sentence is pre-eminently within the discretion of the
trial court, the interference thereof on appeal, being
justified only
if one or more of the recognised grounds have been shown to exist.
[3]
Such grounds being that the imposed sentence is: (i) disturbingly
inappropriate; (ii) so totally out of proportion to the magnitude
of
the offence; (iii) sufficiently disparate; (iv) vitiated by
misdirection, showing that the trial court exercised its discretion
unreasonably; and (v) is otherwise such that no reasonable court
would have imposed it. In the presence of one or more of these
grounds, it follows as a matter of course that the discretion of the
sentencing court was not properly exercised. Put simply, an
appellate
court, when considering a sentence imposed, in the exercise of a
sentencing court’s ordinary sentencing discretion,
will
interfere with such sentence only if there is a clear misdirection on
the part of the court or if the sentence is disturbingly
inappropriate or induces a sense of shock.
[11]
With
reference to the aspect of proportionality, the Constitutional Court
in
S
v Dodo
[4]
stated at paragraph [37] as follows:
“
The
concept of proportionality goes to the heart of the inquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue. This was recognised
in S
v Makwanyane.
Section 12(1)(a)
guarantees, amongst others, the
right “not to be deprived of freedom ... without just cause”.
The “cause”
justifying penal incarceration and thus the
deprivation of the offender’s freedom, is the offence
committed. ‘Offence’,
as used throughout in the present
context, consists of all factors relevant to the nature and
seriousness of the criminal act itself,
as well as all relevant
personal and other circumstances relating to the offender which could
have a bearing on the seriousness
of the offence and the culpability
of the offender. In order to justify the deprivation of an offender’s
freedom it must
be shown that it is reasonably necessary to curb the
offence and punish the offender. Thus the length of punishment must
be proportionate
to the offence.
[12]
In
this respect, and whilst I accept that there is a need to have regard
to the cumulative effect of sentences for closely connected
offences,
[5]
such duty also
arises when a sentencing court is faced with a possible unacceptable
cumulative term of imprisonment, regardless
of whether the offences
are connected in time and place.
[13]
As
succinctly stated by Shongwe JA in the unanimous judgment of the
Supreme Court of Appeal,
S
v Kruger
:
[6]
“
In
the present case the trial and high courts considered the previous
convictions as an aggravating factor. I too agree. The trial
as well
as the high court reasoned that it was inappropriate to order the
sentences to run concurrently because the offences were
committed at
different places and on different times. While this may be a
consideration, it cannot justify a failure to factor
in the
cumulative effect of the ultimate number of years imposed. I believe
that a sentencing court ought to tirelessly balance
the mitigating
and aggravating factors in order to reach an appropriate sentence. I
also acknowledge that it is a daunting exercise
indeed.
”
[14]
To
suggest otherwise, would be irrational. It would serve to place an
artificial limitation on the court’s discretion under
section
280
of the Act, not contemplated by the legislature, and would be
tantamount to absolving the sentencing court from considering the
cumulative effect of multiple sentences when they relate to offences
committed at different times and places. This would, in some
instances, result in the imposition of manifestly excessive
sentences, without due regard to proportionality.
[15]
The
courts have consistently held that fraud is a serious offence. On
each occasion, the offences were premeditated by the appellant,
and
the complainants were necessarily targeted. Having said that, the
value of the goods involved, taken individually as well as
cumulatively, is not substantial (comparatively speaking) if regard
is had to the plethora of reported cases involving offences
of a
similar nature. As stated previously, the appellant is not a
first-time offender, the relevance of which I have dealt with.
Given
the appellant’s age and the passage of time since her previous
convictions, the prospect of her rehabilitation cannot
be ruled out.
[16]
Regard
being had to the triad of factors, to which I have referred, and the
objectives of punishment, I am satisfied that the circumstances
of
this case call for the imposition of custodial sentences. The
so-called inappropriateness of direct imprisonment for “white-collar
crimes” has long since been disavowed.
[7]
[17]
I
do not intend interfering with the trial court’s imposition of
1 year imprisonment in respect of each offence. In order
to mitigate
the cumulative effect of the respective sentences, I do however
intend making an order that such sentences be served
concurrently, in
such a manner that the effective term of imprisonment shall be 18
months. In the result, the appeal must succeed.
[18]
In
the premises, the following order is issued:
1.
The
appeal against sentence is upheld.
2.
The
sentences imposed by the trial court are set aside and replaced with
the following:
“
1.
Counts 1 to 6: The accused is sentenced to 1 year imprisonment in
respect of each count.
2.
In order to mitigate the cumulative effect of the individual
sentences, all the sentences imposed shall be served in such a manner
that the effective term of imprisonment shall be 18 months.
”
3.
The
substituted sentence is antedated, in terms of
section 282
of
the
Criminal
Procedure Act 51 of 1977
,
to 6 February 2023.
4.
The
appellant, having served the full term of the sentence imposed in
accordance with paragraph 2 of this order (read together with
paragraph 3) is to be released from incarceration forthwith.
I
BANDS
JUDGE
OF THE HIGH COURT
M.W.
NOBATANA AJ:
I
agree.
pp
M.W.
NOBATANA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Appellant:
Adv.
Geldenhuys
Instructed
by:
Legal
Aid South Africa
For
the Respondent:
Adv.
Phikiso
Instructed by:
Office of the Director
of PublicProsecutions,
Eastern Cape
Heard:
31
July 2024
Judgment:
12
August 2024
[1]
S v
Zinn
1969
(2) SA537 (A).
[2]
As
set out in
Director
of Public Prosecutions, KwaZulu-Natal v P
2006
(3) SA 515
(SCA).
[3]
S
v Mtungwa en ‘n ander
1990
(2) SACR 1
(A);
State
v
Romer
(412/10)
[2011]
ZASCA 46
(30
March 2011).
[4]
2001 (3) SA 382 (CC).
[5]
S
v Soni
2021
(2) SACR 241 (SCA).
[6]
2012
(1) SACR 369
(SCA) at para [9].
[7]
S
v Sadler
[2000] ZASCA 105
;
[2000]
2 All SA 121
(A).