S v Bester

• Jurisdiction: South Africa
• Judge: Vahed J and Marks AJ
• Judgment Date: 01 April 2014
• Docket Number: AR6/2013
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 18 March 2014
• Citation: 2014 JDR 0778 (KZP)

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.

2014 JDR 0778 p2

Vahed J

[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

2014 JDR 0778 p3

Vahed J

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...