S v SETLHOLO 2017 (1) SACR 544 (NCK)


Corruption — Sentence — Police officer soliciting bribe from person who had been lured into fake illicit diamond transaction — Fact that perpetrator a police officer an aggravating factor — Sentence of 10 years’ imprisonment confirmed on appeal.


The appellant, a 23-year-old police officer, appealed against his sentence of 10 years’ imprisonment imposed for corruption and fraud, his appeal against the convictions previously having been dismissed. The convictions came about as a result of his participation in a misrepresentation to a complainant who was the potential client in an illicit diamond sale. The appellant and his cohorts pretended to the complainant at the crucial moment that they were part of a police trap and that he would be arrested and charged for the offence, but could avoid this by paying them R50 000. The appellant accompanied the complainant to an ATM where the latter drew R10 000. An arrangement was made that he would later pay a further R40 000 and be provided with the police docket. The complainant, however, approached the police and the appellant was arrested when he received the rest of the money. It was contended for the appellant that the sentence of 10 years’ imprisonment for a youthful offender such as him was excessive.

Held, that the appellant had been fortunate in that the trial magistrate had not taken into account the minimum-sentencing regime, which required a minimum sentence of 15 years’ imprisonment if no substantial and compelling circumstances were found to exist, as there was no reference in the charge-sheet to the applicability of that sentencing regime, nor was any mention made of it at the commencement of the trial. (Paragraph [13] at 550b–e.)

Held, further, that the fact that the appellant was a police offiicer was an aggravating factor as he was supposed to be vigilant and protect the community against crime. There could be no doubt that the corrupt and fraudulent activities in the present case had been carefully planned.

The appellant had played a significant role in the execution of the bogus police operation and had had ample opportunity to reconsider his actions. He was a gainfully employed public servant and there had been no need for him to engage in any fraudulent and corrupt activities. The sentence was furthermore not out of kilter with the sentence that the court itself would have imposed and there were accordingly no grounds for the court to interfere with the sentence on appeal. The appeal was dismissed.


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