MATHONSI
J: The accused person appeared before a provincial
magistrate at Beitbridge charged with seventeen counts of fraud in contravention
of section 136 of the Criminal Law Code [Chapter 9:23]. He pleaded guilty to all the charges but had
his guilty plea in respect of count 15 altered to not guilty after he had
rendered an explanation which struck the court as a defence. He was however convicted of theft in respect
of that count following a trial which is a permissible verdict to fraud in
terms of s275 as read with the Fourth Schedule of the Criminal Law Code.
The court sentenced the accused
individually in respect of each count giving an aggregate sentence of 27 years
imprisonment of which 5 years imprisonment was suspended for 5 years on
condition of future good behavior. A
further 1 year was suspended on condition he restitutes the complainants of the
respective sums they were defrauded.
That left an effective sentence of 21 years imprisonment which sentence,
by any standards, does not fit the offence neither does it fit the offender.
The facts in respect of all the counts are
similar. The accused, who was known to
the complainants as a money changer, would take their money on the pretext that
he was going to change it to a different currency. He would disappear with the money which he
subsequently converted to his own use as he lived large in Harare, Tanzania and
Zambia where, like the biblical prodigal son, he spent all of it and nothing
was recovered, a typical spent thrift.
That way he was able to prejudice the complainants of various sums totalling
R995 960-00 and US$105 690-00.
When he appeared before a provincial magistrate
in Beitbridge he was convicted of 16 counts of fraud and one of theft and
sentenced aforesaid. In arriving at that
sentence the magistrate reasoned as follows:
“In assessing the appropriate
sentence for the accused person the court took into account what the accused
person said in his mitigation. He is a
first offender. He pleaded guilty to
most of the charges and did not waste the court's time.
In aggravation is the prevalence of
the offences. The accused breached the
complainant's trust. He planned the
offences well and boldly executed them.
He benefited highly from the commission of the offences since all of the
money was not recovered. His moral
blameworthiness is very high. The offences are serious. Accused used his prior knowledge of the
complainants and trust to steal large sums of money from them. The aggravation far our weighs the mitigation
and a custodial sentence will be just.”
There is something which the court did not
address at all. It is that the accused
person is said to be “a foreign currency exchange dealer.” The question which arises is whether he is a legal
dealer or illegal one. This was not
canvassed at all, but considering that the accused person resides at Lutumba
village under Chief Sthaudze and was transacting with the complainants
generally from Dulibadzimu bus terminus in Beitbridge the probability is that
he is an illegal money changer. The
complainants wanted to change currency illegally. That on its own is relevant in assessing
sentence as it goes to the moral blameworthiness of the accused person. Illegality can only beget illegality.
In addition, the sentences imposed induce
a sense of shock. Although the
magistrate came to the conclusion that a custodial sentence is the appropriate
one, she did not explain why it had to be such a lengthy term. She did not explain why some of the counts
were not treated as one for purposes of sentence when they related to kindred
offences committed on the same day using the same modus operandi. She appears
to have adopted a “tariff” approach to sentencing which has its serious
disadvantages especially as the determination of sentence is a matter for the
discretion of the court. There was
therefore a misdirection in the assessment of sentence which has resulted in an
unduly lengthy term of imprisonment completely disproportionate to the
offences.
While uniformity of sentences may be
desirable, that is, imposing uniform sentences in respect of similar offences
or those offences of kindred nature, the desire to achieve uniformity should
not be allowed to interfere with the free exercise of discretion by the
sentencer. The prime consideration in
exercising sentencing discretion should be the achievement of a sentence
befitting the relevant facts and the circumstances of the accused person. See S
v Fazzie and Others 1964 (4) SA 673
(A) 684 A; S v Reddy 1975 (3) SA 757 (A) 759H (both quoted with approval in S v Mugwenhe
and another 1991 (2) ZLR 66 (S) 69 D –E).
In that case (S v Mugwenhe and Another)
EBRAHIM JA made the crucial point at 71A – C that:
“All that is being suggested is
that judicial officers exercise their judicial discretion to the full and
acknowledge where necessary the shortfalls of existing penal policy. The dynamism necessary for this approach is
not achieved by reference to alleged 'tariffs' of sentences for specific categories
of offences. Invariably when dealing
with sentences the court refers, or is referred to, innumerable cases which
purportedly lay down the limits of the range of appropriate sentences for the
case actually before it. All but the
most dogmatic will confess the narrowness of this approach; for it becomes
apparent that it is by no means easy to treat the various cases as entirely
uniform and even less so to attempt to extract therefrom a means of propounding
a precise statement of principles which can be invoked before the courts which
would guide it in respect of the quantum of the sentence to be imposed. (see e.g. S
v Ncube HB 19/86; S v Machetbi
1974 (2) SA 369 (T); S v Mutadza 1983 (1) ZLR 123 (HC); S v Ndlovu
HH 197/87.”
The magistrate appears to have been intent
on punishing the accused person separately in respect of each count and was
informed only by the value of the prejudice in arriving at sentences ranging
from 6 months to 4 years imprisonment.
That tariff approach led to a sentence of 27 years imprisonment. Although 5 years was suspended on condition
of future good behavior only I year was suspended to condition of restitution.
It has been said before that where the
sentencing court considers it necessary to suspend a portion of the sentence on
condition of restitution, it must make it possible for the accused person to
fulfill the condition in order to benefit.
An accused person serving 21 years imprisonment will have no motivation
whatsoever to restitute the complainants only to benefit one year reduction of
sentence. It is just a drop in the ocean
and therefore a useless exercise of discretion as clearly the accused person
will not take up the offer. At the same
time, the complainants will not be served by such a sentence because they will not
be compensated. See S v Mukura and Others
2003 (1) ZLR 596 (H) 599 G- 600A where HUNGWE J said:
“Where a court considers suspending
part of the sentence, subject to the stated conditions, it must not ask the
impossible of the person in whose favour the suspension is granted, just as one
must not, when imposing a fine, impose a fine of such severity that it cannot
be paid. In such circumstances, the
condition is unrealistic and bears no relation to any desire by the offender to
comply with it. The condition must be
reasonably capable of fulfillment. If it
is not, then it is not the kind which should be made a condition of
suspension: See R v Lamb 1969 (2) RLR 193
(A).”
See also S v Zulu HB 174/11.
In my view, the accused person is indeed a
pathological fraudster who deserves to be severely punished for his
transgressions. He fleeced seventeen different people of large sums of
money. However the sentence of 27 years
imprisonment is patently excessive, unreasonable and induces a sense of
shock. This is a matter in which
complainants dealt with an illegal money changer and in a way voluntarily
assumed the risk attendant to such activity.
These were kindred offences in which the same modus operandi was employed and the first five offences were
committed on the same day, 18 December 2015.
The next eight offences were also committed on the same date, 19
December 2015 with count 15 falling on 6 December 2015 and counts 16 and 17
coming on 23 July 2015.
I take the view that an appropriate
sentence would been achieved by grouping counts 1, 2, 3, 4, and 5 as one for
purposes of sentence. Counts 6, 7, 8, 9,
10, 11, 12 and 13 should be treated as one.
Counts 14, 16, 17 and for convenience only, 15 as one.
In the result, it is ordered that:
(a). The conviction of the accused person in
respect of all the 17 counts is hereby confirmed.
(b). The sentences are hereby set aside and in
their place substituted the following sentences:
“1. Counts 1, 2, 3, 4, and 5 are treated as
one for sentence and the accused is sentenced to 8 years imprisonment of which
2 years is suspended on condition he restitutes the complainants in those
counts in the sums of R367000-00; R121200-00; $9800-00; R400000-00 and R100
000-00 respectively.
2. Counts 6, 7, 8, 9, 10, 11, 12 and 13 are treated as one for
sentence and the accused is sentenced to 4 years imprisonment of which 1 year
imprisonment is suspended on condition that he restitutes the complainants in
those counts in the sums of $8000-00; $3700-00; $4000-00; $3500-00; $4140-00;
$1100-00; R7760-00 and $3000-00 respectively.
(c). Counts 14, 15, 16 and 17 are treated as
one for sentence and the accused is sentenced to 7 years imprisonment of which
1 ½ years imprisonment is suspended on condition he restitutes the complainants
in those counts in the sums of $10 000-00; $5000-00; $12400-00 and $35000-00
respectively.
Of the remaining 14 ½ years imprisonment 5
½ years imprisonment is suspended for 5 years on condition the accused does
not, within that period commit any offence of which dishonesty is an element
for which, upon conviction, he is sentenced to imprisonment without the option
of a fine.
Effective sentence: 9 years imprisonment.”
Mathonsi J…………………………………………..
Makonese J agrees…………………………………….
