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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO : 022/2004

PARTIES:

IMTIAZ MOHAMED EBRAHIM APPELLANT

and

THE STATE RESPONDENT

RERENCE NUMBERS -

• Registrar: CA & R 201/04

DATE HEARD: 1 SEPTEMBER 2004

DATE DELIVERED: 9 SEPTEMBER 2004

JUDGE(S): MHLANTLA AND PLASKET JJ

LEGAL REPRESENTATIVES -

Appearances:

• for the State/Applicant(s)/Appellant(s): H OBERMEYER

• for the accused/respondent(s): T PRICE

Instructing attorneys:

• Applicant(s)/Appellant(s): NETTELTONS

• Respondent(s): DPP

CASE INFORMATION -

• Nature of proceedings : CRIMINAL APPEAL

• Topic: SENTENCE FOR FRAUD

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CA & R 201/04

Date Delivered:9/09/04

In the matter between:

IMTIAZ MOHAMED EBRAHIM APPELLANT

and

THE STATE RESPONDENT

JUDGMENT

PLASKET J:

[1] The appellant was tried in the Regional Court, East London on 12 counts of fraud involving the loss to the complainant of R128 374.23. He pleaded guilty, was convicted on the basis of his plea and was sentenced to a term of imprisonment of eight years, five of which were suspended for five years on the usual conditions. He appeals now against sentence.

[2] The argument advanced on behalf of the appellant is essentially this: in all of the circumstances a sentence of correctional supervision (or a prison sentence that could be converted into correctional supervision) or periodical imprisonment was appropriate; the magistrate misdirected himself by not considering these as options, such misdirection being established by the magistrate’s failure to mention these options in his judgment; alternatively, the sentence imposed is so excessive that it induces a sense of shock, entitling this court to set it aside.

[3] Some background is necessary before considering this argument.

[4] As stated above, the appellant pleaded guilty to defrauding the complainant of R128 374.23. He committed the acts of fraud over an 11 month period. The complainant was his employer, a bank, in which the appellant had been employed as a foreign exchange clerk.

[5] Evidence was given by an employee of the bank that the conduct of the appellant was not entirely exceptional: conduct like it was an on-going problem that the bank faced. When the appellant was subjected to a disciplinary enquiry, the result of which was, not surprisingly, his dismissal, he agreed to allow his pension benefits to be taken to pay back some of his ill-gotten gains. The amount repaid was in the region of R11 000.00. This means that approximately R117 000.00 is still outstanding.

[6] These factors, along with the breach of trust that characterised the appellant’s conduct, were all considered by the magistrate.

[7] So too were a number of mitigatory factors. They include that: the appellant was a first offender; he had expressed remorse; he is relatively young, having been 24 years old at the time of the trial; he had passed matriculation examinations and had attained an N5 qualification in Business Management; he had undertaken to pay back the amount appropriated by him (but at the unrealistic amount of R1 000.00 per month); he had worked at the bank for four years.

[8] It was argued by the appellant’s attorney that the appellant should be given a wholly suspended sentence. The magistrate held, however, that this would be inappropriate in the view of the seriousness of the offence. In recognition of what he termed ‘these very strong mitigating circumstances’, however, the magistrate decided to suspend a substantial portion of the sentence.

[9] The first issue that we are required to decide is whether the magistrate misdirected himself by not properly considering a non-custodial sentence or periodical imprisonment. It is true that he did not mention these as options in his judgment, probably because the focus of the appellant’s attorney’s argument was directed at an wholly suspended prison sentence. It has been held in S v L 1998 (1) SACR 463 (A), 468c-d:

‘Soos opgemerk in vorige uitsprake van hierdie Hof (wat ek nie nodig ag om aan te haal nie) dui die blote versuim om ‘n besondere feit of aspek van die saak pertinent in ‘n uitspraak te opper, nie noodwendig daarop dat dit nie oorweeg is nie. Korrektiewe toesig en gevangenisstraf onder artikel 276(1)(i) is iets alledaags in streekhowe en dit is ondenkbaar dat landdroste van daardie hof nie voortdurend bewus is van die opsie wat artikel 276(1)(i) bied nie. Daar bestaan geen rede om in die huidige geval anders te vermoed nie en daar is geen aanduiding in die verhoorhof se uitspraak dat die opsie oor die hoof gesien is nie. Dit is volkome duidelik dat die streeklanddros gewone gevanggenisstraf opgelê het enkel en alleen omdat hy dit as die enigste gepaste straf beskou het.’

[10] Precisely the same considerations apply in this case. It must be accepted that the magistrate’s failure to deal expressly with correctional supervision, conversion from imprisonment to correctional supervision and periodical imprisonment was not in itself a misdirection. When the magistrate’s judgment is considered as a whole, it is clear to me that he took the view that direct imprisonment, albeit with a large proportion of it suspended, was the only appropriate sentence. In my view (but subject to what is said below), he cannot be said to have misdirected himself on that score.

[11] The courts have always treated the theft of money from an employer, or the defrauding of an employer as serious, particularly because it involves a breach of the trust that an employer is entitled to place in his or her employee. Even in cases involving first offenders – in which it would, all things being equal, be more satisfactory to impose a non-custodial sentence – it is probably true to say that prison sentences are the norm, thereby giving expression to the seriousness of the offence. (See in this respect, S v Nathan 1992 (1) SACR 467 (N); S v Sinden 1995 (2) SACR 704 (A); S v Prinsloo 1998 (2) SACR 699 (W).)

[12] I am, however, of the view that the magistrate erred. Having decided that direct imprisonment was required, he imposed a sentence of eight years imprisonment for the offence. One may lose sight of this fact because he then proceeded to suspend more than half of it, but the fact remains that he decided that a sentence of eight years imprisonment was appropriate for the offence before him. He thereafter gave a ‘discount’ for the factors that he found were mitigatory, settling on an effective sentence of three years imprisonment. But the five years imprisonment that have been suspended cannot be wished away or ignored. They will probably have an effect on the date on which the appellant could be considered for parole, they will hang over him for five years, as they are expressly meant to do, after he has been released, and the fact that an eight year prison sentence has been imposed prevents the application of s276(1)(i) of the Criminal Procedure Act. No reasons are to be found in the judgment for what is an unusual sentence, to say the least – one in which more than half of an eight-year sentence is suspended. In these circumstances interference with the sentence on appeal is justified.

[13] I share the magistrate’s view that imprisonment for this type of offence is warranted, even though the appellant is relatively young and a first offender. I differ from him in respect of the length of the prison term. When consideration is given to the cases that are mentioned in paragraph [11] above – which serve as a useful guide – I take the view that a sentence of three years imprisonment is appropriate: it is sufficient to express society’s strong disapproval of the type of conduct that the appellant engaged in, and to serve, to an extent, as a deterrent to others who might think that ‘the game is worth the candle’ (S v Sparks and another 1972 (3) SA 396 (A), 410G-H). It takes into account the mitigatory factors that have been set out above and allows for the sentence to be converted into correctional supervision in terms of s276(1)(i), if appropriate.

[14] As a result, the appeal succeeds and it is ordered that the sentence imposed on the appellant is set aside and replaced with a sentence of three years imprisonment, backdated to 8 September 2003.

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C PLASKET

JUDGE OF THE HIGH COURT

I agree

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N MHLANTLA

JUDGE OF THE HIGH COURT

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