S v van Eck (636/02) [2003] ZASCA 92 (23 September 2003)

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[2003] ZASCA 92
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S v van Eck (636/02) [2003] ZASCA 92; 2003 (2) SACR 563 (SCA) (23 September 2003)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 636/02
In the
matter between:
ANDRé
VAN ECK Appellant
and
THE STATE
Respondent
_____________________________________________________
Coram
:
SCOTT,
HEHER JJA
et
MLAMBO AJA
Date of hearing
: 16 SEPTEMBER 2003
Date of delivery
: 23 SEPTEMBER 2003
Summary
:
Sentence –
habitual criminal in terms of s 286(1) of Act 51 of 1977
____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT JA/…
SCOTT JA:
[1] Following a plea of guilty, the appellant was duly convicted on
19 February 1999 in the Port Elizabeth Regional court on one
count of
theft and 14 counts of fraud. At the time of his trial he was 37
years of age. He had no fewer than 43 previous convictions,
all of
which, save one, involved dishonesty. After hearing evidence in
mitigation the Regional Court declared him an habitual criminal
in
terms of s 286(1) of the Criminal Procedure Act, 51 of 1977
(‘the Act’). His appeal against sentence to the Eastern Cape
Provincial Division was unsuccessful. The present appeal is with the
leave of that Court.
[2] The count of theft related to the theft of a cheque book on
12 August 1997. Thereafter, and during the period 1 to 6 September
1997, the appellant on 14 occasions used forged cheques either
to
obtain cash at banks or to purchase goods at various retailers. Each
occasion constituted the subject of one of the 14 counts
of fraud.
The appellant’s purchases included luxuries such as a camera and a
watch. Apart from the cost of the cheque book, the
total amount
involved was, however, the relatively modest sum of R3 172,02.
[3] The appellant’s record of previous convictions makes
distressing reading. His first brush with the law occurred in May
1984
at the age of 22 years. During the period May to November 1984
he was convicted on no fewer than 21 counts of offences involving
dishonesty in the course of six separate appearances in court. The
offences in question comprised one count of housebreaking with
intent
to steal and theft, four of theft of cheques and 16 counts of fraud
relating to cheques. Once again the amounts involved were
relatively
modest and no doubt for this reason the sentences imposed were
lenient. On one occasion he was cautioned and discharged.
On the
other occasions he was either fined or sentenced to periods of
imprisonment which were wholly suspended.
[4] On 6 February 1985 the appellant was again convicted of
housebreaking with intent to steal and theft. The value of the goods
stolen is stated in the police record (the SAP69 form) to have been
R860. On this occasion the appellant was finally sent to prison.
He
was then just 23 years of age. The sentence was two years
imprisonment. Furthermore, on 19 September 1985 a suspended sentence
of 4 months imprisonment previously imposed was put into operation.
In the meantime, on 28 March 1985, the appellant was back in
Court on
charges relating to crimes committed prior to his imprisonment. On
this occasion he was convicted of the theft of a cheque
as well as on
one count of forgery and one count of uttering. The three counts
were taken together for the purpose of sentence and
the period of six
months imprisonment which was imposed was ordered to run concurrently
with the sentence he was then serving. On
24 May 1986, after serving
just short of 16 months imprisonment, the appellant was released on
parole.
[5] It appears that for a period of some four years the appellant
kept out of trouble. On 25 October 1991 he was again convicted
of
stealing a cheque book and fraud. He was sentenced to 12 months
imprisonment. Two months later on 12 December 1991 he faced a
further
charge of theft of a cheque book and one count of forgery and one of
uttering. He was sentenced to a further period of 12
months for these
offences which were committed either during or before May 1990, ie
some four years after his release on parole.
[6] On 31 March 1992 he was convicted of fraud relating to the
failure to pay an account. The offence appears not to have been
serious
and he was cautioned and discharged. On 22 July 1992 he was
convicted on two counts of fraud committed prior to his imprisonment
in October 1991 and sentenced to five years imprisonment. Once again
the offences related to cheques. On this occasion he was warned
of
the provisions of s 286 of the Act. A month later on 25 August 1992
he was back in court facing further charges relating to offences
committed prior to his imprisonment in October 1991. These comprised
a total of seven counts of fraud, once again involving cheques,
one
count of theft of a cheque book and one count of driving a motor
vehicle without the owner’s permission. On the counts of fraud
and
theft he was sentenced to a total of nine years imprisonment of which
four years were conditionally suspended. On the count of
driving a
motor vehicle without the owner’s permission he was sentenced to
six months imprisonment. However, the sentence was ordered
to run
concurrently with the sentence imposed on the other counts. The
effective period of imprisonment imposed on 22 July and 25
August
1992, therefore, amounted in total to ten years.
[7] On 20 June 1997 the appellant escaped from Pollsmoor prison in
the Western Cape where he was being detained. It appears that
three
years previously he had become a monitor. This enabled him simply to
‘walk out’ of prison after being refused permission
to make a
phone-call. At the time, his date of parole had been fixed at 23
March 1998. He remained on the run until 28 November 1997
when he
gave himself up to the police at Kempton Park. He explained in
evidence that he realised that he could not remain a fugitive
for the
rest of his life. He was subsequently sentenced to five months
imprisonment for escaping. The offences which are the subject
matter
of the present case were committed shortly before the appellant gave
himself up.
[8] Section 286(1) reads:
‘
(1) Subject to the provisions of subsection (2), a
superior court or a regional court which convicts a person of one or
more offences,
may, if it is satisfied that the said person
habitually commits offences and that the community should be
protected against him,
declare him an habitual criminal, in lieu of
the imposition of any other punishment for the offence or offences of
which he is convicted.’
Section 286(2) provides that no person shall be declared an habitual
criminal if under the age of 18 years or if in the opinion of
the
court the offence by itself or together with any offence in respect
of which the accused is simultaneously convicted, warrants
imprisonment for a period exceeding 15 years. In terms of s 286(3) a
person declared an habitual criminal is to be dealt with in
accordance with the laws relating to prisons. Section 65(4)(
b
)(
iv
)
of the Correctional Services Act 8 of 1959 provides, in turn, that
such a person ‘shall be detained in prison until, after a period
of
at least seven years, he is placed on parole’.
[9] The requirements for a declaration under s 286(1) of the Act are
therefore: (i) the Court must be ‘satisfied’ (in the sense
of
convinced; see
S v Makoula
1978 (4) SA 763
(
supra
) at
768B-E) both that the accused habitually commits crimes
and that those crimes are of such a nature that the community
should
be protected from the accused for at least a period of seven years;
(ii) the accused must not be under the age of 18 years,
and (iii) a
punishment is warranted which does not exceed 15 years imprisonment.
However, even if all these requirements are satisfied
the court
retains a discretion whether or not to make a declaration under s
286(1); it may in the exercise of its discretion impose
some other
appropriate sentence. The discretion is to be exercised in the light
of all the relevant circumstances and in accordance
with the ordinary
principles governing the sentencing of offenders. A court will not
ordinarily make a declaration in the absence
of a prior warning to
the accused of the provisions of s 286.
[10] Notwithstanding the amelioratory effect of the discretion,
s 286 remains a far reaching provision which emphasises the
preventative aspect of punishment and is aimed at punishing an
offender for a persistent tendency to commit crime rather than for
the crime or crimes of which he or she stands convicted. It has been
described, not without justification, as a drastic and exceptional
punishment. See
S v Masisi
1996 (1) SACR 147
(O) at 152d.
However, in
S v Niemand
2001(2) SACR 654 (CC) the section was
held to serve a useful sentencing purpose and, subject to the
reading-in of a proviso in s
65(4)(
b
)(
iv
) to ensure
that the sentence does not exceed 15 years, to be consistent with the
provisions of the Constitution.
[11] Counsel for the appellant conceded that she was unable to
contend that the trial Court had erred in finding that the appellant
committed crimes habitually or that the crimes were such that the
community should be protected from him. In my view, the concession
was properly made. The appellant is a qualified panelbeater who was
undoubtedly capable of earning an honest living. Indeed, he did
not
contend the contrary; nor did he suggest that he was compelled by
necessity to commit his previous offences. It appears from
his police
record that at least some of these involved the theft of items of no
great value, such as books, clothing and music cassettes,
usually
from a family member or friend. His typical
modus operandi
,
however, was to steal a cheque or cheque book, more often than not
from a member of his family or a friend, and then to use the
cheques
either to draw cash or to make sundry purchases. Even when a fugitive
from justice his purchases with stolen cheques included
items such as
a watch, a camera and clothing from retailers who could fairly be
described as up-market. The inference is overwhelming
that he
habitually resorted to crime whenever the occasion presented itself
or whenever he found himself financially hard pressed
or unable to
afford something he wanted. Admittedly, the amounts involved were
relatively modest. But cheque fraud is a serious and
prevalent
offence. It harms not only its immediate victims but causes prejudice
to the community at large. Because of its prevalence
many retailers
and other persons dealing with the public have become reluctant to
receive payment by cheque and refuse to do so.
The offences committed
by the appellant are, undoubtedly serious enough to require the
community to be protected from him.
[12] The thrust of counsel’s argument was that the trial Court
erred in not exercising its discretion to impose a sentence other
than a declaration in terms of s 286(1) of the Act. As has been said
time without measure, the power of a court of appeal to interfere
with the sentence imposed by the trial court is limited. It may do so
only when the exercise of the trial court’s discretion is
vitiated
by misdirection or the sentence imposed is so inappropriate as to
indicate that the discretion was not properly exercised.
In the
instant case the trial Court had regard to the personal circumstances
of the appellant and other considerations relevant to
sentence. It
also, and quite correctly, took into account that the appellant had
previously been warned of the provisions of s 286,
that he had once
again resorted to his old ways in the face of a suspended sentence of
four years hanging over his head and that
he had done so while a
fugitive from justice and to purchase items which included luxury
goods. It is true that after serving a period
of just short of 16
months in prison the appellant had previously succeeded in keeping
out of trouble for some four years. This was
commendable. But his
return to crime was not an isolated incident. Had this been the case
some significance could have been attached
to the four-year gap in
his criminal activities. Instead, he returned to his old ways with a
vengeance, typically adopting the same
modus operandi
as
before. Between the period from about May 1990 to October 1991 when
the appellant was again imprisoned, he committed theft on
two
occasions and fraud involving a cheque on no fewer than 11 occasions.
As I have said, after escaping from prison he again adopted
the same
modus operandi
and was in due course convicted on one count of
theft and 14 counts of cheque fraud. Counsel was unable to point to
any misdirection
on the part of the trial Court and I can see no
reason for interfering with the sentence imposed.
[13] The appeal is accordingly dismissed.
D G SCOTT
JUDGE OF APEAL
CONCUR
:
HEHER JA
MLAMBO AJA