Judgment No. HB 37/2002

                                                                                    Case No. HCA 190/2001

                                                                                    CRB  REG 685/2001

 

JEAN CLAUDE ALLEGRUCCI

 

and

 

THE STATE

 

IN THE HIGH COURT OF ZIMBABWE

SIBANDA  & CHEDA JJ

BULAWAYO 20 JUNE 2002

 

R M Fitchesfor the appellant

Mrs M Moya-Matshanga for the respondent

 

Criminal Appeal

 

            SIBANDA J:This is an appeal from the Regional Magistrates’ court in which

 

the state has conceded that “the sentence does shock the conscience, and that a fine

 

would meet the justice of the case.”

 

            In view of the state concession we decided not to hear submissions on merits,

 

but invited both counsel to make submissions on the quantum of the fine to be

 

imposed.

 

            On 24 September 2001 the appellant, a South African citizen was arraigned

 

before a Regional Magistrate on a charge of fraud.  He was convicted on his own plea

 

of guilty and sentenced to 3 years imprisonment with labour of which one year

 

imprisonment with labour was suspended for 5 years on the usual conditions of good

 

behaviour.  He now appeals against sentence only.

 

            The appellant owned a Mazda (twin cab) registration number 726-226H.  The

 

said vehicle was under an insurance cover with Eagle Insurance Company.  He

 

fraudulently misrepresented to the insurance company that the said vehicle was stolen

 

in South Africa.  On that basis he claimed and was paid an indemnity cover in the sum

 

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of $1 560 000,00 for the vehicle.  He defrauded the company in order to raise funds

 

for the operation of his business in particular to set up a new business in Zimbabwe.

 

            The insurance company after paying the said amounts conducted its own

 

investigations of the alleged theft.  It discovered that the alleged theft was false but

 

that the appellant had in fact sold the vehicle.  When approached, the appellant

 

admitted the fraud, co-operated with the insurer and voluntarily on his own initiative

 

and accord made full restitution including the costs of investigations plus interest at

 

the rate of 45% per annum which rate was 23% per annum above the then prevailing

 

rate of 22% per annum.  He paid in restitution the sum of $2 300 000,00.

 

            The appeal is against sentence only on the grounds that the court a quo

 

misdirected itself in that it failed to have due regard and accord due consideration to

 

all the mitigating factors, in particular, that the appellant had made full restitution in

 

an amount far in excess of the amount defrauded.

 

            It appears to me that this case falls within the ambit of the case of Richard

 

Muguji Mambov The State SC 14/95 (not reported) cyclostyled judgment at page 5

 

in which the learned judge of appeal, McNALLY JA stated, “it seems to me that

 

it is also in the Zimbabwean tradition that compensation, restitution and restoration

 

are at the heart of criminal justice, rather than mere punishment which benefits the

 

victim not at all.”

 

See also R v Zindoga 1980 RLR 86 AD at 88F

            S v Mpofu 1985(1)ZLR 285 (HC) at 294 et seg

            S v Hapaguti 142/87 (not reported) at 3

            S v Marimba S 58/90 (not reported)

            S v Mvula S 69/92 (not reported) at 8; and

            S v Malume 1998(2) ZLR 508 at 512g

 

 

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            The instant case is distinguishable from the general line of cases cited supra,

 

in that while they mainly deal with the issue of the desirability to induce an accused to

 

pay restitution by suspending part of the sentence on those conditions whereas in the

 

present case the appellant has already made full restitution without inducement and

 

indeed on his own initiative prior to conviction and sentence.

 

            The state has in my view, on these facts, properly conceded that the sentence

 

does induce a sense of shock and that a fitting punishment should have been to give

 

the appellant the option of a fine.

 

            I am in agreement with state counsel that the sentence is rather on the punitive

 

side.  It has not, given credit to appellant’s payment of restitution far in excess of the

 

amount he defrauded the complainant.  Further he brought into this country     

 

US$480 000,00 for investment.  He invested into mining at Turk Mine where he

 

employs 80 people.  In addition he employs 37 people in the construction industry and

 

further he is building a lodge between Bulawayo and Victoria Falls which upon

 

completion will employ about 35 people.  He is, therefore, an employer and potential

 

employer of 152 people most likely with families.  Thus the appellant has a direct

 

responsibility of providing means for subsistance to approximately 500 people

 

assuming of course that each of the 152 employees has a family of between 2 to 3

 

members apart from himself.

 

            Yes, the court a quo is correct when it states that the amount involved in this

 

case is substantial even if inflation is taken into account.  It was for that reason, that,

 

even though appellant had paid restitution in full and was sorry, the magistrate still

 

felt that a “certain term of imprisonment would meet the justice of the case.”

 

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            This reasoning creates an unmistakable impression that only accused

 

convicted of theft of lesser amounts may be given the option of a fine and not those

 

in the category of the appellant.  That approach, to me, would constitute an untenable

 

situation that would amount to pre-judging such cases of theft involving substantial

 

amounts of money or goods of substantial value.

 

            Such notion or view, in my respectful opinion can only be based upon a false

 

perception that all accused convicted of theft of substantial amounts or goods of

 

substantial value are incapable of  contrition repentence and indeed reformation.

 

            The difference between them may be accounted for in respect of courage,

 

ability and opportunity that avail itself or indeed created.  But the fact remains the

 

same that they are all dishonest members of society.  Thus each case must be

 

considered on its own merits.  I would neither subscribe to the notion nor view, that in

 

all cases of accused convicted of theft of substantial amounts of money or goods of

 

substantial value, for that matter, who have on their own initiative and accord prior to

 

conviction and sentence made good their damage by paying full restitution and in

 

circumstances that clearly indicate that the said accused is contrite, repentent and

 

certainly reformed, should not be given the benefits of the option of a fine in

 

punishment.

 

            In my respectful view, what should be of paramount consideration and

 

importance is the individual accused and the facts of the case in respect of his

 

conduct.  The question in my submission ought to be, does his conduct subsequent to

 

the commission of the offence, signify that of a contrite, repentent and reformed

 

individual.  If all the relevant factors consistent with the above factors are found to be

 

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present then the individual ought to be rewarded by a none custodial punishment.

 

            In the instant case, appellant paid restitution on his own initiative and accord

 

prior to conviction and sentence.  He defrauded the complainant of the sum of         

 

$1 560 000,00.  He repaid to the complainant a total amount of $2 300 000,00.  The

 

appellant paid an amount of $740 000 in excess of the amount he defrauded his

 

insurer, which amount is said to include unspecified expenses paid by the insurer in

 

respect of investigations and interest at the rate of 45% per annum which was 23% per

 

annum above the prevailing rate of 22% per annum interest at the time.  Further, the

 

court found as a fact that the appellant was sorry.

 

            It is my respectful opinion that the extent of the restitution elevates the instant

 

case to a level of its own which is none comparable to any of the decided cases that I

 

have had occasion to study.  In addition the appellant is and has been out on bail since

 

his conviction and sentence.  In these circumstances it is my respectful view that to

 

send the appelant to prison would amount to punitive punishment without purpose and

 

objective.  I am of the view therefore, that the appellant deserves credit for his conduct

 

and the same to be expressed by affording the appellant the option of a fine.

 

            The appeal is against sentence only.  I would, therefore confirm the conviction. 

 

I would give the appellant the option of a fine, coupled with a wholly suspended term

 

of imprisonment.

 

            Counsel for the appellant with the concurrence of the state counsel, submitted

 

that a fine in the region of $100 000,00 would meet the justice of the case.  This

 

submission is based on the fact that appellant apart from payment in restitution of the

 

actual sum defrauded, has in addition paid a total sum of $740 000,00.  That a fine of

 

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$100 000,00 would bring the cost of the crime to appellant to $840 000,00.  Thus, it is

 

submitted that, that amount should constitute adequate punishment of the appellant.

 

            I am in agreement with that submission.  Had the appellant not paid in addition

 

to the restitution, the sum of $740 000,00 I would have found nothing amiss in

 

sentencing the apellant to a fine in the region about $500 000.  Indeed, to a business

 

person in the mould of the appellant, the cost of his fraudulent conduct in the total

 

sum of $840 000,00 must have conveyed a solitary lesson to him.  That, in my view,

 

ought to constitute a just reward for appellant’s misadventure into the realm of

 

dishonest.  Most certainly, he must have learnt his lesson that crime does not pay.  For

 

these reasons, I am of the respectful view, that in these circumstances punitive

 

punishment is not called for as it would serve no useful purpose.

 

            Accordingly, the sentence is quashed and set aside, and the following

 

substituted.  Accused is to pay a fine in the sum of $100 000,00 or in default of

 

payment 3 years imprisonment with labour.  In addition the accused is sentenced to 3

 

years imprisonment with labour wholly suspended for 5 years on condition the

 

accused is not, during that period, convicted of a crime in which dishonest is an

 

element and that upon conviction is sentenced to imprisonment without the option of a

 

fine.

 

           

 

                                                            Cheda J:    I agree

 

 

Webb, Low & Barryappellant’s legal practitioners

Criminal Dvision of the Attorney-General’s Office respondent’s legal practioner