IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case No 119/2001

REPORTABLE

In the matter between:

STARVOS KOUTANDOS

1ST APPELLANT

MARIO JORGE CORREDEIRA

2ND APPELLANT

and

THE STATE

RESPONDENT

CORAM
:
VIVIER ADCJ,  MARAIS  et  SCOTT JJA

HEARD
:
22  NOVEMBER 2001

DELIVERED:      29  NOVEMBER 2001

Sentence
:
On plurality of counts – cumulative effect

J U D G M E N T

SCOTT JA/…..
SCOTT  JA:
[1] 
This is an appeal against sentence only.   The two appellants
were charged in the Regional Court on various counts of theft and fraud
relating to motor vehicles.  Both appellants pleaded guilty on the second
alternative to count 5 as well as on counts 6 and 7.   The second appellant, in
addition, pleaded guilty on counts 8 and 9.  The former was sentenced to a
total period of 15 years imprisonment and the latter to 27 years imprisonment.
Their appeal to the Transvaal Provincial Division was unsuccessful.  The
present appeal is with the leave of this Court.
[2] 
The appellants were convicted on the strength of a written
statement made in terms of s 112 (2) of the Criminal Procedure Act 51 of
1977.  The factual basis upon which the plea of guilty was tendered on each
count is briefly as follows.

[3] 
The second alternative to count 5 was one of fraud.  On 20 June
1997 the appellants, acting in collusion with the owner of a BMW 540 motor
car, removed it from a pre-arranged place with a view to disposing of it so
that   the   owner  could  allege  it had  been  stolen  and  claim  an  amount  of
R180 000 from the vehicle’s insurers.  The appellants thereafter arranged to
sell the vehicle for R6 000 to someone who unbeknown to them was a police
informer.
[4] 
Count 6 related to the theft of a motor car.  During June 1997 the
appellants were asked by the owner of a BMW 325 motor car to give a
quotation for the repair of the vehicle’s computer.   While it was in their
possession the appellants decided to sell the vehicle for R80 000.   They
negotiated a price with the same police informer and eventually sold the
vehicle to her for R6 000.

[5] 
Count 7 was similarly one of theft.  On 3 July 1997 a person,
who was unidentified,  delivered a Ford Telstar motor car to the first appellant
and informed him that the vehicle had been stolen  the previous night.  The
first appellant met with the second appellant and together they removed the
vehicle to a place of safe-keeping where it remained for two weeks.
Thereafter they sold it to the same police informer for R3 000.
[6] 
Counts 8 and 9 were both counts of fraud and related to the
second appellant only.  With regard to count 8, the second appellant on 17
October 1996, acting in collusion with the owner of a diesel delivery vehicle,
removed it from the owner’s possession and disposed of it so that the owner
could institute a fraudulent claim against the vehicle’s insurers for R60 797.
In the case of count 9, the fraud followed the same pattern.   On 3 June 1996
the second appellant removed a Mercedes Benz truck and trailer from the

owner’s possession so that the latter could fraudulently claim R250 000 from
the vehicles’ insurers.
[7] 
On counts 5, 6 and 7 each appellant was sentenced respectively
to 7, 3 and 5 years imprisonment.  On counts 8 and 9 the second appellant
was sentenced respectively to 3 and 9 years imprisonment.  None of the
sentences were ordered to run concurrently so that in the result the first
appellant, as I have said, was sentenced to an effective period of 15 years
imprisonment and the second appellant to 27 years imprisonment.
[8] 
Both appellants were in their late twenties when the crimes were
committed.  Neither had previous convictions.   According to the social
worker who gave evidence on their behalf, both came from relatively stable
backgrounds and there was no reason for them to have embarked on such
criminal conduct.  Both were married and each had a young child.  The State,
in turn, adduced evidence as to the prevalence of motor vehicle theft and

fraud of the kind committed by the appellants.  It is clear from the evidence so
presented,   and indeed from the statement made by the appellants themselves,
that they had made a business of  motor vehicle theft and fraud, that in so
doing they had involved others and encouraged them to engage in criminal
conduct and that by their conduct they had served to create a market for stolen
vehicles.
[9] 
In this Court counsel for the appellant referred  to certain
passages in the judgment of the Regional Magistrate which he submitted
amounted to misdirections.   It is unnecessary to consider these in view of
counsel’s principal submission that the trial Court had failed to have proper
regard to the cumulative effect of the sentences imposed on the various
counts.
[10] The seriousness of motor vehicle theft and fraud of the kind
committed in the present case has been repeatedly emphasised both by this

Court and the Courts of the various Provincial Divisions.    There is no need
to repeat what has already been said time without measure.  The offences
were without doubt deserving of  long term imprisonment.  Nonetheless,
when regard is had to the cumulative effect of the sentences imposed on both
appellants, the result strikes me as so excessive as to justify interference by
this Court.   Indeed, counsel for the respondent very fairly conceded this to be
the case.
[11] In my judgment a total period of 10 years imprisonment in the
case of the first appellant and 15 years in the case of the second appellant
would have been appropriate in all the circumstances.
[12] In the result the appeal succeeds.  The sentences imposed by the
Regional Magistrate are set aside and the following are substituted –
“(1) (i)
Accused 1 is sentenced on the second alternative to count 5 to 7
years imprisonment, on count 6 to 3 years imprisonment, and on
count 7 to 5 years imprisonment.

(ii)
It is ordered that the sentence on count 7 is to run concurrently
with the sentence on the second alternative to count 5.

(2)     (i)
Accused 2 is sentenced on the second alternative to count 5 to 7
years imprisonment, on count 6 to 3 years imprisonment, on
count 7 to 5 years imprisonment, on count 8 to 3 years
imprisonment, and on count 9 to 9 years imprisonment.

(ii)
It is ordered that the sentences on counts 8 and 9 are to run
concurrently with the sentence on the second alternative to count
5 and on count  7.

D  G  SCOTT

JUDGE OF APPEAL

CONCUR:

VIVIER
ADCJ
MARAIS
JA