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[2001] ZASCA 142
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S v Koutandos and Another (119/2001) [2001] ZASCA 142; 2002 (1) SACR 219 (SCA) (29 November 2001)
Case No 119/2001
REPORTABLE
In the matter
between:
STARVOS KOUTANDOS
1
ST
APPELLANT
MARIO
JORGE CORREDEIRA
2
ND
APPELLANT
and
THE
STATE
RESPONDENT
CORAM : VIVIER ADCJ, MARAIS et
SCOTT JJA
HEARD : 22
NOVEMBER 2001
DELIVERED:
29 NOVEMBER 2001
Sentence : On plurality of counts – cumulative effect
J U D G M E N T
SCOTT
JA/
…..
SCOTT
JA
:
[1] This
is an appeal against sentence only. The two appellants were charged
in the Regional Court on various counts of theft
and fraud relating
to motor vehicles. Both appellants pleaded guilty on the second
alternative to count 5 as well as on counts
6 and 7. The second
appellant, in addition, pleaded guilty on counts 8 and 9. The former
was sentenced to a total period of
15 years imprisonment and the
latter to 27 years imprisonment. Their appeal to the Transvaal
Provincial Division was unsuccessful.
The present appeal is with the
leave of this Court.
[2] The
appellants were convicted on the strength of a written statement made
in terms of
s 112
(2) of the
Criminal Procedure Act 51 of 1977
. The
factual basis upon which the plea of guilty was tendered on each
count is briefly as follows.
[3] The
second alternative to count 5 was one of fraud. On 20 June 1997 the
appellants, acting in collusion with the owner of
a BMW 540 motor
car, removed it from a pre-arranged place with a view to disposing of
it so that the owner could allege
it had been stolen and
claim an amount of R180 000 from the vehicle’s insurers.
The appellants thereafter arranged
to sell the vehicle for R6 000 to
someone who unbeknown to them was a police informer.
[4] Count
6 related to the theft of a motor car. During June 1997 the
appellants were asked by the owner of a BMW 325 motor car
to give a
quotation for the repair of the vehicle’s computer. While it
was in their possession the appellants decided to
sell the vehicle
for R80 000. They negotiated a price with the same police informer
and eventually sold the vehicle to her for
R6 000.
[5] Count
7 was similarly one of theft. On 3 July 1997 a person, who was
unidentified, delivered a Ford Telstar motor car to
the first
appellant and informed him that the vehicle had been stolen the
previous night. The first appellant met with the second
appellant
and together they removed the vehicle to a place of safe-keeping
where it remained for two weeks. Thereafter they sold
it to the same
police informer for R3 000.
[6] Counts
8 and 9 were both counts of fraud and related to the second appellant
only. With regard to count 8, the second appellant
on 17 October
1996, acting in collusion with the owner of a diesel delivery
vehicle, removed it from the owner’s possession
and disposed of
it so that the owner could institute a fraudulent claim against the
vehicle’s insurers for R60 797. In the
case of count 9, the
fraud followed the same pattern. On 3 June 1996 the second
appellant removed a Mercedes Benz truck and trailer
from the owner’s
possession so that the latter could fraudulently claim R250 000 from
the vehicles’ insurers.
[7] On
counts 5, 6 and 7 each appellant was sentenced respectively to 7, 3
and 5 years imprisonment. On counts 8 and 9 the second
appellant was
sentenced respectively to 3 and 9 years imprisonment. None of the
sentences were ordered to run concurrently so
that in the result the
first appellant, as I have said, was sentenced to an effective period
of 15 years imprisonment and the second
appellant to 27 years
imprisonment.
[8] Both
appellants were in their late twenties when the crimes were
committed. Neither had previous convictions. According
to the
social worker who gave evidence on their behalf, both came from
relatively stable backgrounds and there was no reason for
them to
have embarked on such criminal conduct. Both were married and each
had a young child. The State, in turn, adduced evidence
as to the
prevalence of motor vehicle theft and fraud of the kind committed by
the appellants. It is clear from the evidence so
presented, and
indeed from the statement made by the appellants themselves, that
they had made a business of motor vehicle theft
and fraud, that in
so doing they had involved others and encouraged them to engage in
criminal conduct and that by their conduct
they had served to create
a market for stolen vehicles.
[9] In
this Court counsel for the appellant referred to certain passages in
the judgment of the Regional Magistrate which he submitted
amounted
to misdirections. It is unnecessary to consider these in view of
counsel’s principal submission that the trial
Court had failed
to have proper regard to the cumulative effect of the sentences
imposed on the various counts.
[10] The
seriousness of motor vehicle theft and fraud of the kind committed in
the present case has been repeatedly emphasised
both by this Court
and the Courts of the various Provincial Divisions. There is no
need to repeat what has already been said
time without measure. The
offences were without doubt deserving of long term imprisonment.
Nonetheless, when regard is had to
the cumulative effect of the
sentences imposed on both appellants, the result strikes me as so
excessive as to justify interference
by this Court. Indeed, counsel
for the respondent very fairly conceded this to be the case.
[11] In
my judgment a total period of 10 years imprisonment in the case of
the first appellant and 15 years in the case of the
second appellant
would have been appropriate in all the circumstances.
[12] In the result the appeal succeeds. The
sentences imposed by the Regional Magistrate are set aside and the
following are substituted
–
“(1) (i) Accused 1 is sentenced on the second alternative to
count 5 to 7 years imprisonment, on count 6 to 3 years imprisonment,
and on count 7 to 5 years imprisonment.
It is ordered that
the sentence on count 7 is to run concurrently with the sentence on
the second alternative to count 5.
(2) (i) Accused 2 is sentenced on the second alternative to count
5 to 7 years imprisonment, on count 6 to 3 years imprisonment,
on
count 7 to 5 years imprisonment, on count 8 to 3 years imprisonment,
and on count 9 to 9 years imprisonment.
(ii) It is ordered that the sentences on counts 8 and 9 are to run
concurrently with the sentence on the second alternative to
count 5
and on count 7.
D
G SCOTT
JUDGE OF
APPEAL
CONCUR
:
VIVIER ADCJ
MARAIS JA