The
appellant was sentenced to 4 years imprisonment of which 1 year was
suspended on condition of future good behavior. A further 1 and
half years
imprisonment was suspended on condition he restitutes the complainant
in the sum of $21,300=. This left the appellant with an effective
sentence of 18 months imprisonment assuming he made restitution.
The
appellant has appealed against sentence only on the grounds, inter
alia,
that
the court a
quo
paid lip service to the strong mitigating factors in his favour; it
erred in considering that he has a similar previous conviction when
that conviction came in 2010; and that it erred in not considering
non-custodial options like community service.
Having
noted an appeal against sentence, the appellant then approached the
trial court for bail pending appeal arguing that he has prospects of
success on appeal, and, as such, should be admitted to bail. On 26
April 2016, that court dismissed the application. In dismissing the
application the court reasoned that:
“It
is noted that there will be a very great risk of flight if appellant
is only appealing against sentence and the most he can hope for is
that the prison sentence will be subject to some minor adjustment.
Coming to the circumstances of this application or which are before
me, the appellant is appealing against sentence only and the offence
of fraud is regarded as serious; he has been sentenced to 48 months
imprisonment which is quite a substantial period. Looking at the
grounds that have been raised in his notice of appeal, the court
doesn't see any prospects of success. Actually, the grounds that
were given were considered in passing of sentence. It has been
pointed out that a non-custodial sentence will trivialize this
offence; there is no doubt this is a serious offence and the amount
involved is substantial. In S
v Benator
1985 (2) ZLR 205 (H) it was indicated that in serious cases, even
where there was a reasonable prospect of success on appeal, bail
should…, be refused notwithstanding that there is little danger of
the convicted person absconding.
It
is correct to say that there is no indication that the appellant has
a propensity to abscond. However, having said the above, the court
finds him being unsuitable to be admitted to bail, thus the
application by the defence is hereby dismissed.”
The
State
proved at the trial that in March 2014 the appellant misrepresented
to one Stella Ngwenya that he was selling Plot numbers 11, 13 and 15
Sebungwe Road, Richmond, Bulawayo well knowing that they did not
belong to him. He was duly paid the sum of $21,300= as purchase price
in the presence of his lawyer, one Mlamuli
Ncube.
Therefore, at the time of conviction, the appellant had had the
benefit of the complainant's money for two years and had not
refunded it.
It
is generally accepted that in an application for bail pending appeal
the appellant would have lost the benefit of the presumption of
innocence having been convicted. This is particularly so where he is
not contesting the conviction but only the sentence meaning that the
conviction will forever stand and the applicant for bail therefore
would be a convict - in this case a convicted fraudster who spirited
away a substantial sum of $21,300= from a property seeker.
The
point is made in S
v Williams
1980 ZLR 466…, that:
“The
proper approach should be towards allowing liberty to persons where
that can be done without any danger to the administration of justice.
In my view, to apply this test properly it is necessary to put in the
balance both the likelihood of the applicant absconding and the
prospects of success. Clearly, the two factors are inter-connected
because the less likely are the prospects of success, the more
inducement there is on an applicant to abscond.”
See
also S
v Benator
1985 (2) ZLR 205.
The
court a
quo
appeared to discount the possibility of abscondment. It, however,
leaned in favour of the concept adopted in S
v Kilpin
1978 RLR 282 (AD) 286 A that:
“The
principles governing the grant of bail before conviction are entirely
different from those governing the grant of bail after conviction and
the difference is even more marked when the guilt of the accused is
not in issue and the usual sentence for the offence is an effective
prison sentence of substantial duration. It is wrong that a person
who should properly be in gaol should be at large and nothing is more
likely to encourage frivolous and vexatious appeals than the attitude
adopted by the magistrate in the present case.”
Counsel
for the appellant has complained, bitterly, that the court a
quo
had regard to the appellant's conviction on similar fraud charges
in 2010. He is of the view that the conviction was irrelevant having
occurred six years earlier, and, therefore, should have been
disregarded by the court. In other words, that the appellant has
previously defrauded someone by purporting to sell a house that he
did not own should count for nothing in considering his suitability
for bail pending appeal.
I
do not agree, and, in doing so, I subscribe to the pronouncement of
this court in AG
v Phiri
1987 (2) ZLR 33 (H)…, although dealing with a slightly different
set of facts, commends itself to me. The court said:
“The
test, in my view, should be one of deciding whether or not there is a
real danger, or a reasonable possibility, that the due administration
of justice will be prejudiced if the accused is admitted to bail. If
this real possibility exists, then the public is entitled to
protection from the depredations of the accused and bail should be
denied to him. In the absence of exceptional circumstances, I believe
that it would be irresponsible for a judicial officer to allow bail
to a person who has given every indication that he is an incorrigible
and unrepentant criminal. (S
v Maharaj
1976
(3) SA 205 (D) 209 H; S
v Hlongwa
1979 (4) SA 112 (D) at 113 H).”
The
appellant has been convicted of similar infractions before. He has
now been convicted again; his hand having been found in the cookie
jar again. He is therefore unrepentant and is likely to do it again.
The
fact that the conviction was six years ago is only relevant in
considering sentence and not bail. In fact, that he is a repeat
offender also disqualifies him for community service, a factor which
literally brings the appeal to its knees because the appellant was
not a first offender. See S
v Mutenha and Another
HB35-16; S
v Mabhena
1996 (1) ZLR (H)..,.
I
tend to agree with counsel for the State that considering all the
relevant factors, including the substantial amount involved, a term
of imprisonment was unavoidable and the effective sentence imposed
was “a mere slap on the wrist.”
In
that regard, I am of the view that the appellant has dim prospects of
success on appeal. This is a person who should, in the interest of
justice, be in custody. I am unable to find any misdirection in the
judgment of the court a
quo.
It would be an affront to all sense of justice to release him to
allow him to go and look for money to make restitution as he
suggests.
Considering
his previous behavior, that is an exercise that may involve the
commission of another offence.
In
the result, the appeal is hereby dismissed.
