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1993
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[1993] ZASCA 85
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S v Sindhi (5/92) [1993] ZASCA 85 (28 May 1993)
CASE NO. 5/92
J VD M
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
YUSUF SINDHI
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: SMALBERGER, JA et KRIEGLER, HARMS,
AJJA
DATE HEARD
: 26 MAY 1993
DATE DELIVERED
: 28 MAY 1993
J U D G M E N T
HARMS, AJA:
This is an appeal against sentence. The appellant was convicted in the
regional court at Dundee
2
on four counts of fraud and a sentence of one year' s imprisonment was
imposed in respect of each count. An appeal to the Natal Provincial
Division
against sentence was successful to the extent that half of the sentences was
suspended for a period of five years on suitable
conditions. That court granted
leave for this further appeal.
The appellant was during the period March 1987 to February 1989 in the
employ of a motor dealer as a salesman. During this period,
and on four
occasions, he falsely represented to customers of his employer that he was
entitled to accept moneys due to the employer
on the latter's behalf. Acting on
this representation, the customers paid to him the following amounts in cash:
R223,46 on 28 May
1988, R2000 on 3 January 1989, R550 on 8 February 1989 and
R2500 on 25 February 1989. He left his employment some days later but
returned
during July at the request of the employer and was at the date of
3
the trial on 15 March 1990 still so employed.
At the trial
the appellant pleaded guilty and tendered a statement in terms of
sec 112(2)
of
the
Criminal Procedure Act 51 of 1977
in which he admitted all the elements of
the crimes. He was correctly convicted thereon. In mitigation an administrative
manageress
of his employer, Mrs Badenhorst, testified. She said that the
appellant was a good salesman who "brings in sales" and that is why,
in spite of
the frauds, he was re-employed. He had also made good the first two amounts, had
repaid R1400 of the third and was making
undisclosed repayments of the
last.
The appellant did not testify in mitigation but his attorney provided
some relevant information from the bar. The appellant was 36
years of age,
married according to Islamic rites and had two minor children. His average
income was R1200. (This elicited the response
from the magistrate: "And that for
a good
4
salesman?") . His wife was also in receipt of a salary and she owned all
"their" assets. The reason given for the crimes was that
his erstwhile creditors
had pressed him for payment. The court was also informed that the appellant was
not in a position to pay
a fine immediately but would pay off a deferred
fine.
The appellant admitted a previous
conviction
dated 28 January 1985 for the theft of a cheque of
R300.
A suspended sentence of four months' imprisonment
was
imposed. The period of suspension had not lapsed
when
the present crimes were committed.
In his judgment on sentence the learned magistrate dealt with all the
facts relevant to it. He held that the crimes were grave and
were committed over
a period of time (some nine months) and during a period of suspension. He
rejected a fine as a suitable sentencing
option because if it were to be
imposed, it had to be substantial and past experience had shown that
5
if subjected to financial pressure, the appellant committed frauds. He
was also not overly impressed by the employer's trust in the
appellant and
regarded it as misplaced. (I may add that it is unlikely that the employer was
prejudiced by the frauds; it was the
customers who were.)
On appeal, Levinsohn J (Galgut J concurring) held that the learned
magistrate had correctly taken a serious view of the appellant's
conduct
because, first, it was one of gross dishonesty affecting members of the public;
second, because of the suspended sentence
and third, because the crimes were
committed over a period of time. The court
a quo
further held that in
spite of the plea of guilty and the employer's attitude towards the appellant,
the case was a proper one for
imprisonment especially in the light of the
previous conviction. It concluded by stating that the cumulative effect of the
sentence
created the impression
6
that the learned magistrate had under-emphasized the mitigating
circumstances. As a court of first instance, Levinsohn J said, he
would have
been disposed to suspend at least half of the sentence imposed on each count.
There was therefore a sufficient disparity
between such sentence and that
imposed in the regional court. Hence the partial success on appeal.
It is against this background that the present appeal has to be
considered. It is based on the submission that although there were
no
misdirections a sentence of imprisonment is, under the circumstances, shockingly
inappropriate. Counsel pointed out that the appellant
could still not afford a
fine and that the only proper sentence would be a totally suspended one. In
response to a question put during
argument it was faintly argued that
correctional supervision might provide a suitable alternative.
It was submitted that undue weight should
7
not be attached to the previous conviction and suspended sentence,
because, according to counsel, it had some deterrent effect since
it deterred
the appellant from committing crimes for more than three years. This argument
smacks of cynicism. The previous conviction
was of particular relevance to the
sentence option because it dealt with the same type of offence and because its
period of suspension
had not lapsed. It shows that a suspended sentence has no
deterrent effect on the appellant and there is no reason to believe that
another
suspended sentence will.
It was further submitted that having regard to the appellant's family
life, his stable employment and the attitude of his employer
society will not be
benefitted by a sentence of imprisonment. That raises the interesting, but in
this case irrelevant, question
whether any sentence of imprisonment in respect
of a non-violent crime is to the benefit of society. The
8
appellant's personal circumstances are not of such a compelling nature as
to justify an exceptionally lenient approach. He defrauded
members of the public
and not his employer. He was able to use his position with his employer to do
so. The fact that his employer
is prepared to keep him as a salesman, does not
mean that the public is thereby protected. His excuse for the crimes is not
impressive.
The pressure of creditors could not have been so coercive as to
justify, in isolation, the taking of R223,46 in May 1988. It will
be recalled
that the other frauds were all committed during the following February.
To sum up, if regard is had to the conspectus of evidence, I am of the
view that the sentence imposed by the court
a quo
was a proper and
balanced sentence.
9 The appeal is dismissed.
L T C HARMS
ACTING JUDGE OF APPEAL
SMALBERGER, JA )
) CONCUR KRIEGLER, AJA )