IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
       		   CASE NO: 2013/7023
REPORTABLE
OF INTEREST TO OTHER JUDGES

In the matter between:
SD WATERS                                                                                                             Applicant
and
MR TLADI N.O.
(In his capacity as Chairman of the 
Parole Board, Diep Kloof Prison)                                                           First Respondent 
THE CASE MANAGEMENT COMMITTEE,
DIEP KLOOF PRISON                                                                           Second Respondent
THE DEPARTMENT OF CORRECTIONAL SERVICES                            Third Respondent

JUDGMENT
______________________________________________________________________________
SATCHWELL J:
1.	Applicant   (‘Waters’) was convicted in the  Commercial Crimes Court  of numerous counts of fraud and sentenced to serve  a term of eight years imprisonment.   From  his place of confinement,  he brings an application to review the decision of  the  first respondent ( in his capacity as Chairman of the Parole Board) (‘Parole Board’’) in which the Parole Board declined  to recommend an application to the Regional Court,  in terms of section 276A(3)(a)(ii) of the Criminal Procedure Act,  that the custodial sentence imposed on  Waters be converted to one of correctional supervision. 

2.	The  chronology of events is not complicated:
a.	Waters operated as an  insurance advisor and was found, over a period of time,  to have  committed multiple counts of  defrauding  a client who was an elderly lady resulting in her almost destitution.  In sentencing Waters,  the learned magistrate  referred to the position of trust which he occupied and which  he betrayed,  the planning involved in the 18 month period over which the frauds were committed,  the rendering of the victim to a penniless position,   that Waters  did not play open  cards with the court but placed everything in dispute including that the client was mentally incapable.
b.	The report of a social worker was presented to the court with the recommendation of a  non-custodial community service sentence.   The learned magistrate took the view that such a sentence was would not be commensurate with the offences committed.     On  1st February 2011   Waters was   sentenced to serve a term of five years imprisonment  plus a further term of three years imprisonment  suspended in whole on condition that Waters repay to the victim the capital amount of R 400 541.00 plus interest  before 1 March 2011.  The learned magistrate stated that “If for one or other reason the monies are not forwarded to the account that I specified you will serve another  three years in prison.”
c.	Payment of the  specified sum  was not made in accordance with the order of the magistrate. The result is  that  Waters is  currently serving a sentence of eight years imprisonment.

3. However, on 24th February 2012   payment of the aforesaid sum was made by or on behalf of  Waters.     Immediately,  thereafter,  on 24th February 2012,  a meeting at the office of the Head of the Prison in which  Waters is incarcerated  was convened.   Present were Water’s legal representatives, the Head of the Prison and representatives of the Case Management Committee.   Proof of the late payment of the  approximately R 400 000 was tendered and a request was made that the Case Management Committee approach the learned convicting and sentencing magistrate  for Waters sentence to now be endorsed as being five and not eight years.   Notwithstanding visits by  Waters legal representatives,  the learned magistrate declined to alter the sentence.    

4.	At the end of March 2012, Waters legal representatives requested the Case Management Committee to bring an application in terms of Section 276 (3)(a) of the CPA to ask for condonation of the late payment of the fine and for an order that the magistrate to reduce the sentence period from eight to five years.    Part of the court record is the recommendation of the  Case Management Committee  for conversion of Waters sentence to correctional supervision.   The “reasoning” for the recommendation is set out under the headings of “general behaviour and adaptation”,  “treatment programmes and reaction”, “remorse and admission of guilt”, “availability and stability of support systems”, probability of further criminal activity”.

5.	In this application before me,  it was argued that the views and recommendations of the CMC cannot be simply ignored or brushed aside.     I do myself have the following concerns about the basis for this ‘recommendation”:
a.	Firstly, there is reference to  “the offender serving the sentence for armed robbery”.  This is clearly incorrect.  It may be no more than a typing error.  However, it does mean that the CMC failed to take into account the period over which the offences were committed,  that Waters preyed on an elderly lady over a period of time,  that a position of financial trust was abused.
b.	Secondly,   there is reference to “the offender shows remorse for committing fraud.  He paid the money he defrauded the victim”.    There is no indication anywhere of any remorse.   The learned magistrate commented upon this in sentencing.  Quite clearly from the correspondence,  the payment was made  with the sole intention of reducing the sentence.   No regret has ever been shown for the harm done to the elderly victim though there certainly is distress  on the part of Waters at his  incarceration.
c.	Thirdly,    I find certain comments by the CMC to be rather naïve and superficial – viz -  “the offender feel that being in prison has robed him to maintain his family” ,    “the offender enjoys the support of his family, who has undertaken to continue their support should he be released”.

6. The Correctional Supervision and Parole Board gave consideration to  this recommendation  and,  on 5th December 2012, “declined to forward Offender Waters application for conversion of sentence of direct imprisonment into correctional supervision to the court a quo”.     Numerous reasons were cited by the Parole Board ranging from  the nature of the offences  (“ninety four counts of  theft and fraud”  “committed over a periods of 18 months”  involving a “careful amount of planning”   while he “was in a position of trust”  in relation to a “ helpless not very astute lady in her twilight years who died penniless”.   There is reference to the “p”.    It is commented that “the offender did not take responsibility for his crimes,  he did not show remorse during the trial, he declared his victim unfit to testify”.   The Board found   “the offender’s presentation during the CSPB sitting was not convincing.  He did not take responsibility for his crime.  He blamed others – bad advice he received from his legal team,  victims family attitu8de and the difficult magistrate who presided”.     Waters comments to the Board that  failure to grant him correctional supervision  will cause “his religious involvement to suffer”,  “his family will be devastated’,  his “31 year old marriage will b e affected”    were viewed by the Board as “reasons emphasizing personal interest and self preservation rather than victim/complainant/relatives interest”.  

7. It was argued in this application  that   factors taken into account and/or the reasons given by the  Parole Board  are confined to those which are  ‘aggravating’   ie which  conduce towards a  harsher sentence.     For instance,  it was submitted that  the Parole Board did not take into account that Waters had  eventually made payment  of the sum of four hundred thousand rand which was indicative of remorse.   However,  the  letter of 30th March 2012 addressed to the  sentencing magistrate makes it clear that  payment of this sum was made with the intention of attempting to resuscitate  the reduction of sentence  from eight years to five years  through revival of the community service portion of the order.   There was no mention of ‘remorse’.  The only reason ever given  for payment of those funds was to  secure reduction of sentence.

8. In his founding affidavit,  Waters states that “what the Parole Board  did was to rehash the aggravating factors taken into consideration by the learned magistrate in imposing a custodial sentence”.     I fail to see why this approach is, per se,  objectionable.  These are exactly the factors and considerations which are relevant to the   imposition of sentence.  Waters states in his affidavit that by so doing the Parole Board is “to literally punish me again by considering those aggravating factors  and then declining to recommend a conversion of the custodial sentence to one of correctional supervision”.    Of course,   Waters has now served  just over two years of his eight year sentence of imprisonment.  There are certain  arrangements for remission and amnesty  of which he is the beneficiary.  But   there is no right to a non-custodial sentence as Waters in his  affidavit   almost seems to suggest.

9. Waters says that the Parole Board should have taken into account  the period of time he had spent in prison “both as an awaiting trial prisoner”.    Why?  This is what is done by the court when determining an appropriate sentence.   Waters says that his conduct in prison  has been “exemplary”.    That is what is expected by judicial officers – it should be the norm not the exception.    Waters says that he has a “warm, lovely and stable family and permanent resident”.  One must then ask why he stole over R400 000 from an old lady over a period of time – clearly, this family environment was no deterrent to planned crime.    He  refers to his repayment of the R 400 000.  That does not conduce towards a change in sentence.  It was not done in advance of trial nor during the trial nor within the time period ordered by the magistrate.  It was done  for his own benefit not because it was the moral thing to do.    Waters states that  his evidence  to the Parole Board is that “I am remorseful at what I did”.   The Parole Board expressed it’s own views on this as did the learned magistrate.   The correspondence and meetings to which  have referred above are also instructive in this regard.

10. Waters makes other complaints in his affidavit.  He seems to believe that there is something untoward in the granddaughter of his victim  in declining to be involved in either discussing or supporting  this application.    Waters appears to have some difficulty in  appreciating what he has done,  the results thereof and the  (dis)regard in which third parties are entitled to hold him.   

11. I do not  see that the  decision of the Parole Board is one which is indicative of any bias against Waters.  None was argued.  He appears to have been treated  as would any applicant.   I was not alerted to inadmissible considerations to which the Parole Board gave any or undue weight.    It has not been suggested that the Parole  Board  failed to take into account  relevant considerations.

 12.  The only criticisms of the Parole Board at the hearing  were that it failed to follow the recommendation of the Case Management Committee and that it focussed on the  ‘aggravating’ factors.      I see no merit in either of these arguments.   The CMC makes recommendations not decisions.   As one sees in the reasons of the Parole Board,  the Parole Board takes into account, not only the recommendations of the CMC but  also forms it’s own views – hence it heard from Waters and formed a view with regard to his approach to his current predicament.  The Parole Board is certainly not bound by any ‘recommendation’  of the CMC.

13. In the result an order is made as follows:
a.	The application is dismissed with costs.

_________________
K. SATCHWELL

      Counsel for the Applicant: Adv. S.S. Cohen
      Attorneys for the Applicant: Larry Marks Attorneys 
      Counsel for the Respondents: Adv. R. Pooe
      Attorneys for the Respondents: State Attorney 
      Date of hearing: 14th May 2013
      Date of Judgement: 7th August 2013