THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT REPORTABLE
Case No: 100/13
In the matter between:

GEOFFREY MARK STEYN

Appellant
and
THE STATE

Respondent

Neutral citation: Geoffrey Mark Steyn v The State (100/13) [2014] ZASCA
20 (27 March 2014)
Coram:

Mhlantla and Bosielo JJA et Van Zyl AJA
Heard:

24 February 2014
Delivered:

27 March 2014
Summary: Appeal against sentence – delay between sentencing and
hearing of appeal – no misdirection committed by court below – appeal
dismissed.

_____________________________________________________________
ORDER
_______________________________________________________________
On appeal from: South Gauteng High Court, Johannesburg (Horn
J,Tshabalala J concurring sitting as court of appeal):
1 The appeal is dismissed.
2 Paragraph 2 of the order of the high court of 31 August 2012 is amended by
the insertion of para (b) thereto to read:
‘(a) The accused is sentenced to three years’ imprisonment in terms of section 276 (1)(i) of
the Criminal Procedure Act 51 of 1977.
(b) It is recorded that the accused has already served a period of five months in prison.’

JUDGMENT

Mhlantla JA (Bosielo JA and Van Zyl AJA concurring):
[1]    The appellant was convicted in the Regional Court, Johannesburg of 23
counts of fraud, six counts of theft and one count of assault. All the counts of
fraud and theft were taken together for purposes of sentence and he was
sentenced to ten years’ imprisonment. The regional magistrate suspended two
years thereof on certain conditions. A sentence of one month’ imprisonment
with an option of a fine was imposed for the assault charge. An appeal against
sentence was upheld by the South Gauteng High Court, Johannesburg (Horn J,
Tshabalala J concurring). The court below set aside the sentence and imposed
one of three years’ imprisonment in terms of section 276(1)(i) of the Criminal

Procedure Act 51 of 1977 (the Act). The appellant appeals against that
sentence with the leave of the court below.

[2] The essence of the attack on the decision of the court below is two-fold.
First, it failed to adequately take into account the appellant’s rehabilitation and
erred when it imposed a sentence of direct imprisonment. Second, there is no
indication on the record that the court below had considered the fact that the
appellant had already served a period of five months before his release on bail
pending his appeal and whether he should be given credit for the time served.

[3]    The facts are briefly stated. From 1992, the appellant conducted a
business of fixing and selling motor vehicles. He operated from his brother’s
home in Kibler Park, Johannesburg. Once a prospective customer showed an
interest in purchasing a motor vehicle from the appellant, they would meet in
order to finalise a transaction for the sale of that vehicle. The customer would
pay a deposit and receive a receipt as proof of payment. The appellant
promised to deliver the vehicle once a roadworthy test had been conducted.

[4] The appellant however never delivered these vehicles to the respective
customers. He refused to meet or speak to them when they returned to enquire
about the date of delivery of the vehicles. The appellant promised to repay the
deposit in monthly instalments but failed to do so. As a result, the customers
suffered losses of between R170 000 and R180 000. They eventually preferred
charges of theft and fraud against the appellant.

[5] In 1995, the appellant was charged with various counts of fraud and theft
as well as one count of assault. The offences in question were committed over
a long period from April 1992 until February 1995. The trial in the Regional
Court commenced on 15 January 1997. There were various delays during the
trial. The matter was eventually finalised on 12 December 2003 when the
appellant was convicted of 23 counts of fraud, six counts of theft and one count
of assault and the sentences referred to in para [1] above were imposed.

[6]    After the trial, the appellant was granted leave to appeal against the
convictions and sentences imposed. The magistrate however refused to release
him on bail pending his appeal causing him to commence serving his sentence.
During April 2004, the appeal against the denial of bail was upheld and the
appellant was released on bail. At that stage he had served a period of five
months of his sentence.

[7] On 30 August 2012, almost nine years after the conclusion of the trial,
the appeal came before Horn J and Tshabalala J in the court below. Before the
hearing, the appellant abandoned his appeal against the convictions and only
persisted in his appeal against the sentence imposed on the counts relating to
fraud and theft. Before considering the merits of the appeal, the court below
dealt with the issue relating to the delays in prosecuting and hearing the appeal.
The court accepted that the delays from April 2004 until 2008 were due to,
what the court described as lapses in the administration and processing of the
appeal, as well as the fact that the record was defective and had to be
reconstructed. It concluded that the blame for the delay could not be attributed
to any specific party. Regarding the delays from 2008 until 2012, the court
held that both parties were to blame.

[8] The appellant made application and was afforded an opportunity to
present further evidence on appeal before the high court. This concerned his
personal circumstances since 2003 and the manner in which he had
rehabilitated himself since his conviction. In this regard, he stated that he had
to a certain extent been influenced by his elder brother and that he managed to
improve his life after moving out of his brother’s house. Since his conviction
and sentence in 2003, he has not been charged with any offence nor were any
charges investigated. There are no criminal cases pending against him. He is
self-employed as a mechanic and vehicle restorer and is the sole breadwinner.
In 2008 he joined the local community policing forum and is the deputy
chairperson thereof. He works closely with members of South African Police
Service at the Alberton and Brackendowns Police Stations. He visits schools
and orphanages to foster relationships with the local community and ensure the
safety and security of these establishments. These services are performed
without reward.  He is prepared to compensate the victims at R5000 per month.
He has already served five months of his sentence. He is prepared to commit
himself to house arrest and monitoring when not working and render
community service.

[9] After considering the further evidence, the court below concluded that
the delay of the appeal since 2003 constituted exceptional circumstances and
that it was at large to interfere with the sentence imposed by the trial court. The
court accepted that the appellant had shown true remorse and had mended his
ways. It upheld the appeal, set aside the sentence and replaced it with a
sentence of three years’ imprisonment in terms of section 276(1)(i) of the Act.
The appellant now appeals against that order contending that a non- custodial
sentence in terms of section 276(1)(h) of the Act should have been imposed.

[10] Before us, it was submitted that the court below committed a
misdirection in that it failed to take into account the changed circumstances of
the appellant as well as the period of five months already served by him.

[11] The imposition of sentence is pre-eminently within the discretion of the
trial court.  A court of appeal will be entitled to interfere with the sentence
imposed by the trial court if the sentence is disturbingly inappropriate or so
totally out of proportion to the magnitude of the offence, sufficiently disparate,
vitiated by misdirection showing that the trial court exercised its discretion
unreasonably or is otherwise such that no reasonable court would have
imposed it.1

[12] In so far as the first challenge is concerned, I am not persuaded that the
court below misdirected itself. It has to be borne in mind that each case must
be determined in the light of its own facts and circumstances. It may be
necessary to consider comparative cases in determining whether the court
below exercised its discretion properly.

[13] The first of these cases is S v Karolia 2 where the accused had served the
sentence imposed on him by the court a quo and had paid compensation of
R250 000. The court found that if the accused were to be rearrested and
required to serve a lengthy prison sentence, it would be callous in the extreme.
The court imposed a sentence of ten years’ imprisonment on the charge of
murder, four years’ imprisonment on the charge of attempted murder and one
year’s imprisonment on the charge of assault with intent to do grievous bodily

1 S v Romer 2011 (2) SACR 153 (SCA) para 22.
2 S v Karolia 2006 (2) SACR 75 (SCA).

harm. The court suspended the sentences, save for eight months thereof. It
further recorded that the accused had already served the period of eight
months’ imprisonment and he had paid the requisite compensation.

[14] In S v Michele and Another,3 the appellants had been convicted of fraud
and sentenced to seven years’ imprisonment, two years of which were
suspended. There was a substantial delay of six years before the appeal was
heard. This Court considered the delay and the effect of the fraud on the
complainant. It held that it would be callous to leave out of account the mental
anguish the appellants must have endured by waiting for a period of six years
without clarity as to their future. The Court concluded that the actual loss
suffered was less severe and took into account the delay. The sentence was
reduced to four years’ imprisonment, two years of which were suspended.

[15] In S v Jaftha, 4 the accused had been charged for driving while under the
influence of alcohol. He pleaded guilty and was convicted. This was the third
time he had committed this offence. A sentence of three years’ imprisonment
in terms of section 276(1)(i) of the Act was imposed. He lodged an appeal
against the sentence and was released on bail pending his appeal. He was not
aware that his appeal against sentence had failed. This aspect was brought to
his attention ten years later.  He appeared to have been rehabilitated. This
Court accepted his undisputed evidence that he had completely reformed. It
interfered with a sentence of three years’ imprisonment and imposed a
sentence of two years’ imprisonment or payment of a fine of R10 000.

3 S v Michele and Another 2010 (1) SACR 131 (SCA) para13.
4 S v Jaftha 2010 (1) SACR 136 (SCA).

[16] In S v Malgas,5 the appellants, who were police officers, were sentenced
in 2003. They were released on bail pending their appeal, which was
eventually heard in 2012. There was no proper explanation for the delays. It
was clear that they had decided not to do anything but wait for the appeal to be
brought to court. This Court held that the long delay could not operate in their
favour and dismissed their appeal against sentence.

[17] In MS v S 6 (Centre for Child Law as Amicus), the Constitutional Court
concluded that a sentence in terms of section 276(1)(i) of the Act was
appropriate where it considered a custodial sentence essential but found that
the nature of the offence and circumstances of the offender warranted a shorter
period of incarceration.

[18] The common factor in the cases referred to above and the present matter
is the delay before the appeal was heard or when the appellant became aware
of the outcome of the appeal. There are however distinguishing factors
between the facts of these cases and the facts of this case. For example, in
Karolia one of the reasons this Court decided to suspend the sentences was the
fact that the accused had already complied with the order and paid
compensation. In Michele this Court declined to suspend the entire sentence,
but reduced the prison term.  In Jaftha the conviction related to a traffic
offence. There was no prejudice to any victim. The impact on society was
therefore less severe.

5 S v Malgas 2013 (2) SACR 343 (SCA) paras 20 & 21.
6 MS v S (Centre for Child Law as Amicus Curiae) 2011 (2) SACR 88 (CC) para 57.

[19] On the other hand, in the case before us, the offences were committed
over three years. The appellant had time to reconsider his actions but
proceeded to defraud the complainants who suffered huge financial losses. The
court below therefore took into account the appellant’s circumstances that he
had shown remorse and rehabilitated himself. It also considered the inordinate
delay, the gravity of the offences which were committed over a period of time
and the losses incurred by the complainants. Against that background, it
reassessed the sentence. In my view, the contention that the court below over-
emphasised the elements of retribution and deterrence at the expense of the
appellants’ personal circumstance is without merit. It is evident that the court
placed much emphasis on the question of delay and the appellant’s personal
circumstances. This resulted in the sentence imposed by the trial court to be
substantially reduced leaving a sentence that is lenient under the
circumstances. Accordingly, there is no basis for interfering with the sentence.

[20] Regarding the second attack, counsel for the appellant submitted that the
court below failed to take into account the period already served by the
appellant. It is correct that the court below did not make specific reference that
it had taken the five month period into account in arriving at its decision to
impose the sentence it did. It is however clear from a reading of the judgment
that the court was well aware of the fact that the appellant had already served a
period of five months’ imprisonment before his release on bail.  I am not
convinced that this aspect alone should be accorded much weight having
regard to the aggravating factors in this matter so as to justify a sentence other
than one of direct imprisonment. In my view this is no basis for interfering
with the sentence. The appeal therefore cannot succeed.

[21] Thus although the appeal should otherwise be dismissed, the court
below should have recorded in its order that the appellant had already served a
period of five months of his sentence. In the result, the order of the high court
has to be amended to reflect the period already served. That period will be
accommodated by the insertion of an appropriate caveat in the order. I will
amend the order accordingly.

[22] In the result, the following order is made:
1 The appeal is dismissed.
2 Paragraph 2 of the order of the high court of 31 August 2012 is amended by
the insertion of para (b) thereto to read as follows:
‘(a) The accused is sentenced to three years ‘imprisonment in terms of section 276(1)(i) of
the Criminal Procedure Act 51 of 1977.
(b) It is recorded that the accused has already served a period of five months in prison.’

_____________________
N.Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
M W Verster

Instructed by: BMV Attorneys

Johannesburg

c/o Honey Attorneys

Bloemfontein

For Respondent:
Adv R Bester

Instructed by: Director of Public Prosecution,

Bloemfontein