S v Price and Another (452/02) [2003] ZASCA 75; [2003] 4 All SA 26 (SCA) (5 September 2003)

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[2003] ZASCA 75
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S v Price and Another (452/02) [2003] ZASCA 75; [2003] 4 All SA 26 (SCA); 2003 (2) SACR 551 (SCA) (5 September 2003)

REPUBLIC
OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 452/02
Reportable
In
the matter between:
DAVID
ASHLEY PRICE FIRST APPELLANT
CHRISTIAAN
MAURITZ LABUSCHAGNE SECOND APPELLANT
and
THE
STATE
Respondent
CORAM
: HOWIE
P, FARLAM et BRAND JJA
HEARD
: 20
MAY 2003
DELIVERED
: 5
September 2003
SUMMARY:
Prescribed
minimum sentence – proceeds of stolen cheques laundered through
attorneys’ trust accounts – whether substantial
and compelling
circumstances prevent justifying imposition of lesser sentences than
those prescribed.
___________________________________________________________
JUDGMENT
___________________________________________________________
FARLAM JA
INTRODUCTION
[1]
The two appellants in this matter together
with one Gerrit Nel (to whom I shall hereinafter refer as ‘Nel’
were indicted in the
South Eastern Cape Division of the High Court on
two counts of fraud. When the trial began Nel was absent and the
trial continued
without him. The first appellant was convicted on
both counts and the second appellant was acquitted on the first count
and convicted
on the second. Thereafter, on the 11
th
October 2000 the first appellant was sentenced to fifteen years
imprisonment on each of the two counts and it was ordered that the
sentences be served concurrently. In addition he was ordered in terms
of
section 300
of the
Criminal Procedure Act 51 of 1977
in respect of
count 1 to pay R326 140-10 as compensation to the Standard Bank of
South Africa Ltd. The second appellant was sentenced
to fifteen years
imprisonment on count 2.
[2]
In respect of both appellants the sentences
imposed were the minimum sentences prescribed in terms of
section
51(2)(a)(i)
of the
Criminal Law Amendment Act 105 of 1997
, read with
Part II
of the second schedule to that Act, in view of the fact that
the trial judge held that he was not satisfied that there were
‘substantial
or compelling circumstances’, as contemplated by
sub-section (3)(a) of the section, which would have justified the
imposition of
a lesser sentence than the sentence prescribed in
sub-section (2)(a)(i).
[3]
At the time of the trial this Court had not
yet delivered its judgment in
S v Malgas,
2001(2) SA
1222(SCA), in which
section 51
of Act 105 of 1997 (to which I shall
hereinafter refer as ‘the Act’) was fully considered. Prior to
the
Malgas
case a number of decisions had been delivered by
various judges of the High Court and widely diverging views on the
correct interpretation
of the section had been expressed. In the
result the view which commended itself to the trial judge was in
broad outline the same
as that upheld by this Court in the
Malgas
decision except for the fact that the trial judge was of the view
that the fact that the first appellant had no previous convictions
could not be taken into account when the question of substantial and
compelling circumstances was considered. Counsel were agreed
that the
trial court’s failure to take the first appellant’s clean record
into account when considering whether substantial and
compelling
circumstances were present constituted a misdirection with the result
that this Court is at large in considering whether
the minimum
sentence prescribed by the Act should have been imposed on the first
appellant.
FACTS
[4]
The counts on which the appellants were
indicted related to two cheques drawn by Mercantile Registrars
Limited which were stolen and
subsequently deposited into the trust
accounts of two Port Elizabeth attorneys.
[5]
The first cheque, which was drawn on the 9
th
November 1998 in favour of the trustees of the EM Gorton Trust in an
amount of R325 000, was issued pursuant to the provisions of
a scheme
of arrangement under section 311 of the Companies Act 61 of 1973,
whereby certain shareholders (among them the trustees
of the EM
Gorton Trust) sold their shares in Alpha Limited. At some stage
between the 9
th
and 20
th
November 1998 this
cheque was stolen. It was deposited on the 2
nd
December
1998 at the Braamfontein branch of the Standard Bank of South Africa
Ltd for the credit of first appellant’s trust account
at the North
End branch of the Standard Bank.
[6]
On the 3
rd
December 1998 Nel faxed
a copy of the cheque and the deposit slip recording the deposit to
the first appellant’s trust account
to him. On the 12
th
December 1998 the first appellant drew a cheque on his trust account
in an amount of R323 632 in favour of Tjeriktik Eiendomsbeleggings
Bpk and handed it to Nel. The amount for which the cheque was drawn
represented the amount of R325 000 less a fee of R1 200-00 and
14%
VAT. The first appellant’s trust cheque for R323 632 was in turn
deposited by Nel into a bank account in the name of the payee
from
which various amounts were withdrawn until a balance of R8 964-01
remained.
[7]
The first appellant opened a file in which he
made false entries indicating that one of the trustees of the EM
Gorton Trust deposited
the stolen cheque into his trust account for
the purposes of a property transaction which did not materialise and
that he had thereafter,
at the request of the trustee, paid the
amount deposited, minus his fee amd VAT, by means of the cheque drawn
in favour of Tjeriktik
Eiendoms Bpk.
The first appellant was to have received an amount of
R100 000 for his participation in the obtaining of the proceeds of
the cheque
but eventually he received nothing apart from the fee of
R1 200.
[8]
The first appellant knew that the cheque was
stolen, that it had been deposited into his trust account and
subsequently cleared for
payment to his account by someone in the
bank who was involved in the conspiracy. When the paid stolen cheque
was returned to the
drawer it was intercepted by someone who was also
involved in the conspiracy and destroyed.
[9]
As a result of the actions of the first
appellant and his accomplices the Standard Bank suffered financial
loss in the amount of R326
140-10.
[10]
The second stolen cheque was drawn by
Mercantile Registrars Ltd on the 23
rd
December 1998 on
behalf of Samancor Ltd in an amount of R1 620 000-00 in favour of the
trustees of the C Cardases Testamentary Trust.
It was drawn following
the delisting of Samancor Ltd and the amount for which it was drawn
represented the value of Samancor shares
owned by the trust. The
cheque was stolen between the 23
rd
December 1998 and the
22
nd
January 1999 and it was deposited on the 29
th
January 1999 at the Braamfontein branch of the Standard Bank to the
credit of the trust account of one Stephen Wille Martin, a young
attorney practising for his own account as Martin’s Attorneys at
Port Elizabeth. Martin’s name had been provided by the first
appellant to his co-conspirators in Gauteng after he had persuaded
Martin to help him to realise the proceeds of the cheque and had
offered him R25 000-00 remuneration for his assistance. In terms of
his arrangement with the first appellant Martin had to deposit
the
money into an interest bearing account for the credit of the second
appellant.
[11]
The first appellant originally told Martin
that the second appellant, who he said was a client of his, wanted to
hide the proceeds
of the cheque from his wife, from whom he was in
the process of being divorced. The proposal was that Martin would
receive the proceeds
of the cheque into his trust account as if it
was a business transaction and would later repay the money on the
basis that the transaction
had fallen through. Martin was to draw an
uncrossed trust cheque in favour of the second appellant who would
then take the cheque
to the bank and have the proceeds of the cheque
paid out to him in cash.
[12]
This proposal was not implemented because
Martin had second thoughts and told the first appellant that he was
unwilling to issue an
uncrossed cheque in favour of the alleged
client. Without telling the first appellant, he reported the matter
to the police.
[13]
The first appellant secured the co-operation
of a client of his, one Eric Julian Smith, who was the owner of a
cash loan business
and operated a trust account with a cheque account
in the name of Good Hope Financial Services Trust. The first
appellant obtained
Smith’s co-operation by asking him if he would
be willing to assist a client to hide an amount of R1 620 000-00,
which, he said,
had been obtained from the sale of shares, from his
wife who had instituted a divorce action against him. In return for
the promise
of remuneration of R25 000-00 Smith agreed to pay the
amount concerned (in respect of which an attorney’s trust account
cheque
was to be drawn in favour of his business) into his account
and then issue a cash cheque for the amount paid in, less his
remuneration.
[14]
The first appellant, together with the
second appellant and Nel, both of whom had travelled specially to
Port Elizabeth for the purposes
of the transaction, then arranged for
Martin to receive a fax instructing him to issue a cheque in favour
of Good Hope Financial
Services Trust for the amount deposited into
Martin’s trust account and the interest earned thereon. Martin,
however, kept the
police informed of what was happening and after the
first appellant had gone to Martin’s office to fetch the cheque,
he, the second
appellant and Nel were arrested.
[15]
According to what the first appellant had
told Martin he was to receive 10% of the amount concerned for his
involvement in the realisation
of the stolen cheque.
[16]
The trial court found that the second
appellant was what was described as a ‘stooge’ or foot soldier.
He had learned some months
beforehand of the scheme to realise the
proceeds of a stolen cheque in which he and Nel were to be involved.
He knew that the Samancor
cheque had been stolen and deposited in a
bank account and that he was to be responsible for withdrawing the
amount so deposited.
He allowed a copy of his identity document to be
faxed to Martin so as to set up the realisation transaction and was
well aware that
the stolen money would eventually pass through his
hands into those of his fellow conspirators and that he himself would
derive a
financial benefit,
viz
an amount of R50 000-00, for
his participation. Although, as the trial court found, he played a
smaller role than those who planned
the scheme his role was a
necessary element in its successful execution.
[17]
The relevant personal circumstances of the
first appellant may be summarised as follows:
he was at the time a 49 year old married man, with two
children from his first marriage, who were no longer dependant upon
him,
and three children from his second marriage who were dependent
on him and who were still in primary school.
He had practised as an attorney since 1976, except for
a period when he worked as an insurance broker and an investment
adviser.
As a result of the negative publicity which resulted from
the court case his practice had at the time of the trial virtually
come
to an end.
As a result of his conviction on the two counts of
fraud in the present case his career in the legal profession had
effectively
terminated;
he was financially ruined as a result of this matter;
since his arrest he had experienced considerable strain
and he was, as it was put by the trial judge, on sick leave;
he had personally derived no financial advantage from
his fraudulent conduct;
he was, as has already been stated, a first offender:
he had an impeccable record as an attorney and had never been guilty
of any
conduct which could reflect adversely on the profession of
which he was a member.
[18]
As far as the circumstances relating to the
crimes are concerned I have already pointed out that the Standard
Bank sustained damages
in an amount of R326 140-10 in respect of
count one. No loss was in fact occasioned to anyone in respect of
count 2.
[19]
The relevant personal circumstances of the
second appellant may be summarised as follows:
he was 34 years old at the time when sentence was
imposed;
the highest standard he passed at school was Standard
Eight;
he was self supporting and did,
inter alia,
security work;
he was divorced and had a young daughter who was two
years old when sentence was passed;
he supported his daughter and his mother with whom his
daughter was staying;
he had previous convictions for fraud (for which he was
sentenced to a fine of R1 000 or six months plus eighteen months
imprisonment
suspended for three years) and theft (for which he was
sentenced to a fine of R300 or three months imprisonment);
he had been in custody as an awaiting trial prisoner
for approximately nine months pending the conclusion of the trial.
[20]
As appears from what I have said as regards
the first appellant no one suffered any financial loss in respect of
the count on which
the second appellant was convicted.
RELEVANT STATUTORY PROVISIONS
[21] As far as is material, section 51 of the Act reads
as follows:
‘…
Notwithstanding any other law but subject to ss (3) …, … a High
Court shall –
(a) if it has convicted a person of an offence referred to in Part II
of Schedule 2, sentence the person in the case of –
(i) a first offender, to imprisonment for a period not less than 15
years;
(ii) a second offender of any such offence, to imprisonment for a
period not less than twenty years; and
a third or subsequent offender of any such offence, to imprisonment
for a period not less than 25 years;
…
(3) (a) If any Court referred to in ss …(2) is satisfied that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed in [that
subsection], it shall enter those circumstances on the record
of the
proceedings and may thereupon impose such lesser sentence.
…
Any sentence contemplated in this section shall be calculated from
the date of sentence.’
Part II of Schedule 2, as far as is material, reads as
follows:
‘ Part II
…
Any offence relating to exchange control, corruption, extortion,
fraud, forgery, uttering or theft –
involving amounts of more than R500 000
involving amounts of more than R100 000, 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 …’
SUMMARY IN
S V MALGAS
[22]
Marais JA summarised the views of this Court
on the correct interpretation of s 51 in
S v Malgas, supra,
at
1235F - 1236E, as follows:
‘A. Section 51 has limited but not eliminated the courts’
discretion in imposing sentence in respect of offences referred to
in
Part I of Schedule 2 (or imprisonment for other specified periods for
offences listed in other parts of Schedule 2).
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
should
ordinarily
and in the absence of weighty justification
be imposed for the listed crimes in the specified circumstances.
Unless there are, and can be seen to be, truly convincing reasons
for a different response, the crimes in question are therefore
required to elicit a severe, standardised and consistent response
from the courts.
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
The Legislature has, however, deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all
other considerations are to be ignored.
All factors (other than those set out in D above) traditionally
taken into account in sentencing (whether or not they diminish
moral
guilt) thus continue to play a role; none is excluded at the outset
from consideration in the sentencing process.
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (“substantial
and
compelling”) and must be such as cumulatively justify a departure
from the standardised response that the Legislature has
ordained.
In applying the statutory provisions, it is inappropriately
constricting to use the concepts developed in dealing with appeals
against sentence as the sole criterion.
If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be
done by imposing that sentence, it is entitled to impose a lesser
sentence.
In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark which
the
Legislature has provided.’
JUDGMENT OF TRIAL COURT
[23]
In his judgment on sentence the learned
trial judge, after setting out the personal circumstances of the
first appellant and stating
that the first appellant’s counsel in
the trial court had drawn attention to the fact that no one suffered
any financial loss as
far as the activities of the first appellant on
count 2 were concerned and that he had received no personal gain from
the crime committed,
said:
‘On the other hand, the crimes committed by accused No 1, an
attorney of this court, were well planned, He was part of a
syndicate.
He knew exactly how the crimes were to be committed. He
related to Attorney Martin that a person would steal a cheque and
that the
cheque would then be deposited into a trust account, ant the
further steps thereafter to be taken. On one occasion accused No. 1
made his trust account available for the stolen cheque. He wrote out
a cheque and handed it to a co-conspirator. He would have received,
on his story to Martin, an amount of approximately R100 00 had he not
been done in by his co-conspirators.
On the second occasion accused No. 1 involved a friend who happened
to be a junior attorney. When Martin wanted to get out of the
scheme,
accused No. 1 at first tried to persuade him to continue with the
criminal act. Telling him that if he withdraws he would
be the weak
link in the scheme. When accused No. 1 realised that there would be
certain difficulties to retain the co-operation of
Martin, he, still
in the furtherance of the criminal objectives, involved another
person, Mr Smith, and his trust account.
All these factors are in my view aggravating facts against accused
No. 1. His profession as an attorney required of him the utmost
honesty. A breach thereof puts the crime committed in even a more
serious light.
If I look at the aggravating circumstances, and to the facts
mentioned by Mr
De Jager
that I should take into account in
favour of the accused, I have no doubt at all that there are no
substantial and compelling circumstances
as required by the Act.’
[24]
The portions of the trial court’s judgment
dealing with the second appellant were in Afrikaans. After setting
out the personal circumstances
of the second appellant and referring
to the submission advanced by his counsel that he played a lesser
role in the commission of
the crime, was what was described as a
‘stooge’ and a foot soldier and had gained no advantage from the
commission of the crime
covered by count 2 of the indictment and that
no financial harm was suffered by anyone as a result of the crime,
the trial judge
said:
‘Dit is inderdaad so dat beskuldigde nr. 2 die “stooge” of
voetsoldaat was. Dit is egter heeltemal tereg deur mnr
Roberts,
namens die Staat, uitgewys dat in elke een van hierdie skemas daar
inderdaad ’n voetsoldaat moet wees. Beskuldigde nr. 2 was bewus
daarvan. Hy het op sy weergawe reeds maande voor die gebeure in die
gevangenis van Nel verneem van die skema waarmee hulle betrokke
sou
raak. Hy het presies geweet watter rol hy sou speel in die skema. Hy
het presies geweet dat ’n tjek gesteel is en in ’n
bankrekening
gedeponeer is en dat hy verantwoordelik sou wees vir die trekking
daarvan . Hy het toegelaat dat sy identiteitsdokument
gebruik word,
wel wetend dat gesteelde geld uiteindelik
via
sy hande in dié
van sy mede-samesweerders sou beland en dat hy self geldelike
voordeel daaruit sou trek. Hy het inderdaad
’n kleiner rol gespeel
as die beplanners, maar sy rol was ’n noodsaaklike element in die
suksesvolle uitvoering van die skema.
Alhoewel hy nie die finale
brief met die instruksie aan Martin opgestel het nie, het hy geweet
waarmee hy besig was en het gegaan
na ’n plek waar hy so min as
moontlik spore sou laat om die instruksie om die tjek te kry aan
Martin deur te faks.
Slegs sy weergawe, wat aanvaar moet word, ten aansien van die
vergoeding wat hy sou ontvang het, is voor my geplaas. Die feit dat
dit relatief klein is en die feit dat hy ’n mindere rol gespeel het
as byvoorbeeld beskuldigde nr. 1 en Nel, tesame met sy persoonlike
omstandighede, kan egter, na my oordeel, ook nie dwingende
omstandighede daarstel wat ’n mindere vonnis regverdig ingevolge
die
terme van die bepalings van die Wet nie.’
In the course of his judgment the trial judge said that
had it not been for the Act he would ‘most probably’ not have
imposed
the prescribed minimum sentence on either of the appellants.
In his judgment granting the appellants leave to appeal the trial
judge
said:
‘Ek kan op hierdie stadium meld dat ek met oorweging van vonnis
behoorlik aandag aan die saak gegee het, en ek het uiteindelik
tot
die gevolgtrekking gekom dat indien ek nie verplig was deur die Wet
om die statutêre minimum van 15 jaar gevangenisstraf
op te lê
nie, ek waarskynlik in die geval van die eerste applikant ’n vonnis
in die omgewing van 10 jaar gevangenisstraf
sou opgelê het en
ten aansien van die tweede applicant, in die lig van sy vorige
veroordelings, maar ook in die lig van die
mindere rol wat hy gespeel
het, ’n vonnis in die omgewing van agt jaar gevangenisstraf. Ek sou
waarskynlik ten aansien van beide
’n gedeelte van die vonnis
opgeskort het.’
SUBMISSIONS ON BEHALF OF FIRST APPELLANT
[25]
Mr
Van Zyl,
who appeared on behalf of
the first appellant laid great stress in his submissions on behalf of
his client on the factors that the
first appellant derived no
financial benefit from the offences, that no-one suffered financial
loss in respect of the fraud forming
the subject matter of the second
count and that the first appellant’s career has been destroyed and
he is financially ruined as
a result of the convictions.
[26]
He also contended that the first appellant
had played a much smaller role than Nel, whom he described as the
main protagonist. He
also drew attention to the fact that the first
appellant was, as he put it, financially vulnerable at the time
because he had had
to repay an amount of R450 000 which he had
borrowed to lend on to someone who had since died without repaying
him the debt. He contended
in this regard that it was probable that
the first appellant had succumbed to the temptation to participate in
the two offences as
a result thereof.
[27]
Mr
Van Zyl
then proceeded to refer to
a number of decisions all decided before the Act came into operation,
in which substantially lesser sentences
were imposed on persons
convicted of crimes broadly similar to those presently under
consideration.
SUBMISSIONS ON BEHALF OF THE SECOND APPELLANT
[28]
Mr
Pretorius,
the attorney who
appeared on behalf of the second appellant before this Court,
contended that, in the light of the personal circumstances
of the
second appellant, his substantially lesser role in the commission of
the offence of which he was convicted, the fact that
he was only to
receive R50 000 for his part in the crime and in fact received
nothing, and the fact that no financial loss was in
the result
suffered by anyone, the prescribed sentence was unjust with the
result that an injustice would be done if the sentence
imposed on the
second appellant would have to be served.
DISCUSSION
[29]
As far as the first appellant is concerned I
shall consider the sentence imposed on each count separately,
although I agree with the
trial judge that nothing in section 51 of
the Act prevented him from ordering that the sentences should run
concurrently and that
in the circumstances of this case it was
appropriate so to order.
[30]
I agree with the trial judge that had it not
been for the Act a lesser sentence in the region of ten years
imprisonment, part of which
would be suspended, would have been
appropriate. The cases to which Mr
Van Zyl
referred confirm
that that is so. One cannot ignore, however, that, as Marais JA put
it in
Malgas, supra,
at 1230 D-E, after the Act came into
operation ‘it was no longer to be “business as usual” when
sentencing for the commission
of the specified crimes’ and that the
Legislature has provided a new ‘bench mark’ against which the
sentence to be imposed
must be assessed.
[31]
The first offence involved a significant
amount of money, which the bank has lost. In the light of the fact
that the first appellant
is, as the Court was told, financially
ruined it does not seem as if the compensation order made in its
favour will do much to reduce
that loss.
[32]
The crime was carefully planned. Its
execution involved the co-operation of a number of accomplices. In
addition, the use of an attorney’s
trust account for what amounts
to the laundering of the proceeds of crime is an important
aggravating factor. Conduct of this kind
by a practising attorney is
reprehensible and cannot be tolerated.
[33]
I do not think that the mitigating factors
to which reference was made and the fact that the first appellant was
a first offender
are sufficiently powerful to constitute substantial
and compelling circumstances so as to justify a departure from the
bench mark
laid down by the Legislature.
[34]
Similar considerations apply in respect of
the second fraud. It is true that in respect of that offence no loss
was suffered. On the
other hand the amount was substantially greater
and there were the aggravating factors that the first appellant not
only involved
a much younger practitioner in the offence but also
tried to persuade him to continue when he had second thoughts.
Moreover he took
great care to see to it that the fact that the paper
trail relating to the transaction did not lead in any way to him so
that if
the police discovered that the proceeds of the stolen cheque
had been paid into Martin’s trust account the suspicion would have
fallen on Martin and not on him.
[35]
In all the circumstances I am not satisfied
that there are substantial and compelling circumstances justifying
the imposition of lesser
sentences than those prescribed in the case
of the first appellant and his appeal against the sentences imposed
upon him must fail.
[36]
I turn now to deal with the sentence imposed
upon the second appellant. In my view the trial judge overemphasised
the fact that his
participation was a necessary element in the
successful implementation of the scheme. The fact is that he was a
relatively unimportant
cog in the criminal engine which produced the
offence in the present case. There is nothing to suggest that he was
in any way involved
in the planning of the crime or the recruitment
of the other accomplices. He did not benefit in any way and in fact
spent nine months
in custody before the trial concluded: it will be
remembered in this regard that in terms of s 51(4) prescribed
sentences run from
the date of imposition. It is true that, as his
list of previous convictions indicates, he is a pretty criminal. But
that is no reason
for him to receive the same sentence on count 2 as
the first appellant, whose role and culpability were substantially
greater.
[37]
In my view the imposition of the prescribed
sentence in the case of the second appellant would cause an injustice
to be done and that
a lesser sentence should be imposed. Regard being
had to the benchmark provided by the legislature, the question to be
considered
is what sentence falling short of 15 years is appropriate.
[38]
The crime was, as I have said when
considering the first appellant’s appeal, very serious even though
no financial loss to anyone
in fact resulted. In my view a sentence
of ten years’ imprisonment will be appropriate in the
circumstances.
[39]
The following order is made:
The appeal by the first appellant is dismissed.
The appeal by the second appellant succeeds: The
sentence of 15 years’ imprisonment imposed upon him is set aside
and there is
substituted for it a sentence of imprisonment for ten
years. Insofar as it may be necessary to do so, the sentence so
imposed is
antedated to 11
th
September 2000 being the
date upon which the sentence of 15 years’ imprisonment was
imposed.
……………
..
IG FARLAM
JUDGE OF APPEAL
CONCURRING:
HOWIE P
BRAND JA