IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER:	A252/2010
DATE:	5 NOVEMBER 2010
In the matter between: 

and

JUDGMENT

The appellant was a police inspector attached to the Parow Police Station in the Western Cape. He had been in employed for almost 17 years in the services of the South African Police Service. On 21 October 2008 he was charged in the Regional Court with a range of offences, including:

1. Defeating the administration of justice in that he unlawfully released suspects who were found in possession of stolen goods.

3. Corruption, in that he contravened the act (The Combating and Corrupt Activities Act), in that he offered to accept R50 000,00 from Sido Amaudo Adamo with the intended purpose that the appellant should not arrest Adamo for unlawfully bringing an amount of US Dollars 16 000,000 into South Africa.
4. Corruption in that he contravened certain provisions of the act, in thai he gave a colleague an amount of R25 000,00 so that the colleague should not say anything about the incident relating to Adamo.
5. Fraud or theft by false pretences, in that he took the $16 000,00 from Adamo and pretended that he would keep it at the police station for future evidence, whereas he intended to keep it for his own benefit.
6. Defeating  the  ends  of justice  in  that  he  unlawfully released Adamo.

He pleaded guilty to all six counts and was convicted in terms of the plea and senlence as follows: Count 1, six months imprisonment. Count 2, 12 months imprisonment. Count 3, three years imprisonment. Count 4, two years imprisonment. Count 5, three years imprisonment. Count 6, six months imprisonment. In terms of section 280(2) of the Criminal Procedure Act 51 of 1977, the magistrate ordered that the sentences in respect of counts 1, 2, 3 and 6 should run concurrently with those imposed in terms of counts 4 and 5. As a result appellant was imprisoned for an effective five years. He now appeals against the sentence had been imposed.

In summary Mr Yodaiken concluded as follows:

"This crime, therefore, needs to be seen from a psychological point of view as a complex sequence of causality commencing with the vulnerabilities engendered in Mr Mzamo by his background experiences; the stabilisation of his life, in terms of his relationship with the South African Police Service; his relationship with his wife and the enormity of the impact on his personality and shift in meaning of his relationship with his superiors, resulting from the rejection of his deployment, all of which must be seen in the light of his emotional response when confronted by the opportunity to earn some money illicitly. It is unlikely, given Mr Mzamo's personality structure, that he would have masterminded the crime.   In fact according to him it was the sergeant who was on duty with him ... who suggested that they should take the money. While it is impossible to test the veracity of the submission, it would certainly be in keeping with Mr Mzamo's deferential personality to be influenced under the processes enumerated above by a subordinate."

Mr Yodaiken then made the following recommendation:

"A personality such as Mr Mzamo's, is unlikely to benefit from a custodial sentence. It is likely that he will become deferential to the prison and prison authorities and is likely to comply with any authority figure irrespective. Consequently he is unlikely to experience rehabilitation in prison and may, in fact, identify with a group of people likely to give him the most affirmation which in prison are the prisoners."

Ms Jaylene Germane, a social worker, came to a similar conclusion in a pre-sentence report which has been prepared for the benefit of the Court. Even though she had conceded in her report:

"It needs to be mentioned that the crime committed is serious and the government and community would expect from the Court to execute a harsher sentence to the alleged perpetrators. The accused is a first offender and realised he musl use his power as a police officer official to his own benefit."

The   offender  however  is  only  one  aspect  which   requires
consideration in assessing sentence. Were the offender to be the only consideration to be taken into account by the Court, the argument employed by Mr Yodaiken to the effect that prison will have a detrimental affect on the offender, could all too often be employed to justify that no term of imprisonment should be imposed.

There are other factors which need to be considered in the imposition of sentence. In my view, these factors were considered in the magistrate's decision to sentence the appellant to a direct term of imprisonment. These include the nature of the crime, the interests of society and, where relevant, the interests of the victim. The so-called triad, which is generally employed, does not always encapsulate all the considerations regarding the optimal sentence because it omits the victim from consideration. Very often it is the victim's interests that need to be taken into account with considerable care. That may be less the case here, but the interests of society and the nature of the offence are factors which weighed heavily with the magistrate and rightly so.

"I   remain   aware   that   a   non-custodial   sentence   of correctional supervision, in terms of section 276(1)(a) is an appreciable, even a severe sentence...   In assessing an appropriate sentence, it is necessary to have regard, not only to the main purposes of punishment,  namely deterrence, prevention, reformation and retribution, but also to the individual concerned, the circumstances, the crime committed and society's interest, whilst at the same time blending sentence with a measure of mercy. No court of appeal can alter a sentence simply because it might have imposed a different sentence.    In order to intervene, it must be found that the sentencing official failed to exercise his/her discretion properly through a misdirection or irregularity relating to all the facts or, alternatively,  imposed  a sentence so different to that which the court of appeal would have imposed, that it can be said that is disturbingly inappropriate or that a sense of shock is caused.   Taking these principles and all the relevant circumstances into account, I am not persuaded that the sentence imposed by the magistrate, although substantial,   is  disturbingly  inappropriate  or  evokes  a sense of shock.'

In my view the facts of GJ_ were far more appropriate, than is this case for the imposition of a non-custodial approach, given the devastating effect of a prison sentence on young children who, on the evidence, had bonded with their father and were now in a position where they would have no parent to look after them due to the lengthy prison sentence which had been imposed.

I should, however, go further to say the following regarding the nature of the offence    Corruption is a blight on society.    It distorts   the   allocation   of   precious   public   resources.      It subverts   delivery   of  essential   services   to   the   public,   in particular to those most in need and, within the South African context generally, to those who are not merely historically but presently disadvantaged.    It undermines key components of the State which are essential to the transformation of society. Viewed accordingly, acts of corruption by a public official, particularly a police officer, subverts the rule of law and thus imperils constitutional democracy.   A corrupt police force guts the   heart  of  the  constitutional   promise   of  democracy   as enshrined within the Constitution.

These offences, not one, but six, must therefore be read in the most serious light. Given the nature of these crimes, it cannot, on any plausible basis, in my view, be said that the magistrate misdirected himself in preferring the custodial option to the recommendations of Mr Yodaiken and Ms Germane. In my view, therefore, the appeal should be dismissed and the sentence should be confirmed.

CLOETE, AJ