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IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG

REPUBLIC OF SOUTH AFRICA

CASE NO.: AR6/2013

In the matter between:

MICHAEL BESTER................................................................................................................................. Appellant

and

THE STATE..........................................................................................................................................Respondent

JUDGMENT

Vahed J

[1] In the Special Commercial Crimes Court sitting in Durban, the appellant was convicted, on a plea of guilty, of 281 counts of fraud involving a total amount of R387 806,00. On 19 November 2012 he was sentenced to serve a term of imprisonment of 5 years. His appeal serves before us, leave in that regard having been granted on petition to this court.

[2] Prior to conviction the learned magistrate a quo postponed the proceedings in order to facilitate the preparation and reception of presentence reports and evidence on sentence. When the court convened on 19 November 2012 for the purposes of sentence the magistrate had before him a report from a correctional supervision officer and a report from one M. S. Badat, the probation officer assigned to the appellant’s case.

[3] The correctional supervision officer, in his report, found that the appellant met the criteria for correctional supervision but nevertheless did not recommend a particular sentence to the learned magistrate a quo.

[4] However, Mr Badat, in his report as the probation officer, opined that negative results would ensue if the appellant was sentenced to direct imprisonment and recommended periodical imprisonment in terms of Section 285 of the Criminal Procedure Act, Act 51 of 1977 (“The Act”).

[5] As I indicate above, when the magistrate imposed sentence on 19 November 2012, he imposed a sentence of direct imprisonment of 5 years.

[6] In his judgment on sentence the learned magistrate a quo dealt at some length with the question of the offences committed by the appellant and the fact that fraud was a scourge that society expected to be protected from. In a nutshell he found that society expected harsh sentences to be metered out in order to act as a proper deterrent with regard to such offences.

[7] The magistrate also went to some length to examine the suggestion by the probation officer, Mr Badat, that it was appropriate to fix some sort of repayment scheme with regard to the proceeds that the appellant apparently has benefitted from.

[8] However, and here lies the rub, in arriving at a conclusion that the appropriate sentence was one of five years’ imprisonment, the magistrate did not at all consider apart from the question of a wholly suspended sentence, other alternatives to the period of imprisonment that he ultimately imposed. For example he paid no regard at all in his judgment to a consideration of appropriate sentences in terms of Section 276 1 (h) or (i) of The Act.

[9] In my view, having decided to impose a term of five years’ imprisonment, it was incumbent upon the learned magistrate a quo, particularly having decided on a five year term, to consider whether the alternatives of correctional supervision either in terms of sub-section 1 (h) or 1 (i) of Section 276 of The Act and, if deemed inappropriate by him, to explain why he thought so. As I had said, he did not do so and in my view that was a material misdirection on his part leaving this court free to consider the question of sentence a fresh.

[10] The appellant was a first offender and there is some suggestion that particular personal circumstances and family circumstances served as an impetus of the crime. The accepted facts upon which he was found guilty on his plea also suggest that he might have been persuaded and goaded on by another person in committing the crimes concerned.

[11] Be that as it may, Mr Howse, who appeared for the appellant, submitted in his heads of argument that “… the appellant experienced much more than the ‘clang of the prison door’…” in as much as he is already served a period of imprisonment of some three months and seven days. That, it was argued, was sufficient for him to properly taste and experience all the essential features of imprisonment. It was submitted further that “…the intended purpose of imprisonment was achieved with full force and effect during this period…”. A further submission made by Mr Howse which weighs with me is that there was no need to further imprison the appellant for punitive purposes.

[12] I am accordingly of the view that given that the appellant has already served some time in jail there is no need for him to be incarcerated further in the particular circumstances of this case. A sentence imposed in terms of Section 276 (1) (i) of the Act would be better served.

[13] In saying so I am mindful of what the Supreme Court of Appeal has said in S v Barnard 2004 (1) SACR 191 (SCA):

‘A balance needs to be struck between the interests of society in having deterrent sentences imposed and the interests of the appellant in having his personal circumstances taken into account in amelioration of his sentence, as well as the purposes of judicial punishment per se. The recurrence of this type of offence needs to be curbed by the imposition of sentences with address this upsurge. Deterrence is therefore crucial. Appropriate severe punishment should, therefore, be imposed to achieve this objective. The quest for severity in a sentence, however, should not override considerations of mercy and an understanding of human weakness.’

[14] I accordingly make the following order:-

The appeal against sentence is upheld.

The sentence of five years imprisonment imposed by the court a quo is set aside and replaced with the following:-

a) The accused is sentenced to five years imprisonment, half of which is suspended for five years on condition that the accused is not convicted of fraud, forgery, uttering, theft or a competent verdict on a charge of theft for which he is sentenced to imprisonment without the option of a fine, committed during the period of suspension.

b) The sentence is antedated to 19 November 2012.

c) The unsuspended portion of the sentence is subject to the provisions of Section 276 (1) (i) of the Criminal Procedure Act 51 of 1977.

Vahed J

I agree

Marks AJ

Appearences:

For the appellant: J. E. Howse

Instructed by: Colin Thandroyen and Partners

Dawncliff Hall, 59 Dawncliff Road

Westville

Durban

For the State: D. Govender

Director of Public Prosecutions

Third Floor, High Court Building

301 Church Street

Pietermaritzburg

Date of Hearing: 18 March 2014

Date of Judgment: 01 April 2014

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