S v GROBLER 2015 (2) SACR 210 (SCA)

Fraud — Sentence — Correctional supervision — Generally — Fraud committed by misrepresenting that investments were going into JSE listed company whereas misappropriated for himself — Sentence of three years’ correctional supervision with strict supervision regime, entailing community service, monitoring and house arrest, appropriate sentence where 13 years had elapsed since accused charged — Accused first offender with tertiary qualification who had at all times been economically active — Sentence appropriate.

The appellant was convicted in a regional court of 11 counts of fraud involving an amount of approximately R1,5 million. The fraud had been committed by the appellant misrepresenting to investors that their money was being invested in a JSE listed company whereas he was taking the money for himself. The counts were all taken together for the purposes of sentencing and he was sentenced to three years’ correctional supervision in terms of s 276(1)(h) of the Criminal Procedure Act 51 of 1977 and, in addition, was sentenced to five years’ imprisonment suspended in its entirety for five years on certain conditions. The conditions included the reimbursement of the complainants to the full extent of their financial loss. When he appealed to the High Court against his conviction his legal representative was given notice that, in the event of the appeal against the conviction failing, he had to be prepared to address the court on the suitability of the sentence. On appeal the High Court confirmed the conviction and set aside the sentence and replaced it with one of five years’ direct imprisonment. He appealed against this sentence. It appeared that the appellant was a first offender. He was an educated man with a tertiary qualification and was married with three dependent children. The charges had been laid against him in 2000 and he had endured emotional and mental suffering since then. On appeal,
Held, that there was no indication in the judgment of the High Court why it saw fit to interfere with the sentence imposed by the regional court. In arriving at what it thought was an appropriate sentence, the regional court had been aided by a comprehensive correctional supervision report with a strict correctional supervision regime, entailing inter alia community service, monitoring by the commissioner, and included rehabilitative programmes and house arrest for three years.
Held, further, that it was difficult to understand how the High Court had come to the conclusion that direct imprisonment was suitable in the light of the carefully reasoned judgment of the trial court. The reasoning of the High Court that because another person would be making the payments for the reimbursement of the complainants this would mean that the appellant would get off ‘scot-free’, was flawed. Should the appellant fail to make any payment, he would be in breach of the conditions imposed and the sentence of five years’ direct imprisonment would then come into operation. There was no evidence before the High Court to suggest that he would not have to repay his benefactor.
Held, further, that, pragmatically, it would be unreasonable to incarcerate the appellant, who had been an economically active member of society for the past 13 years since he was charged, and who had not committed any other offences during this period. His circumstances provided a compelling case for a non-custodial sentence and the regional court had clearly not misdirected itself when it imposed a finely tuned sentence without resorting to imprisonment. The appeal accordingly succeeded and the conviction and sentence imposed by the regional court were confirmed.