IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

and

The appellant, Graham Maddock, is appealing the decision of the Bellville Regional Court, refusing to reconsider the sentence imposed on Mr Maddock by the magistrate, Mr Shabalal.

The application was brought in terms of section 276A(3)(a) of Act 51 of 1977 ("the Act"). The appellant applied for leave to appeal against this decision, but it was refused. Leave was subsequently granted to the appellant on petition to the Judge
President.

A plea and sentence agreement in terms of section 105(A) of the Act was entered into. In terms of the plea agreement, the appellant pleaded guilty to all the counts save for one. He pleaded guilty to the crimes of fraud, theft, money laundering and contravention of section 4 of the Prevention of Organised Crime Act 121 of 1998, recklessly or fraudulently conducting the business of a company in contravention with section 423 read with 421 and 441D of the Companies Act of 1973. Pursuant to the plea and sentence agreement, the appellant was convicted of the charges and sentenced to an effective term of imprisonment of seven years. This sentence was imposed on 1 February 2008.

These circumstances were the following. At the time the appellant was 53 years old. He was married with two children. He had agreed to repay the benefits which had accrued to him in the amount of R6.3 million. Further there is the consequential hardship to his family pursuant to him being committed to prison, as well as the financial hardships as a result of these crimes.

It is common cause that at the time the application for the conversion of sentence was made to the Regional Court in terms of section 276A(3)(a) of the Act, the appellant had one and a half years of his sentence left to serve. His release date, as determined by the prison's parole board, is 31 July 2011, and accordingly the appellant, presently, still has to serve approximately seven months of his sentence. In the application the department recommended that the remaining sentence be converted into house arrest in terms of section 276(1)(h) of the Act.

I turn now to the statutory provisions. Section 276A(3)(a) provides:

"Where a person has been sentenced by a Court to imprisonment for a period:

The magistrate's reasoning with reference to the application can best be dealt by quoting fairly extensively from his judgment. I proceed to do so:

proceedings in terms of 105A, is to either accept
•
that the proposed sentence is fair and just, in which

case the Court convicts the accused and sentences him accordingly, or finds that such sentence is not just and then rejects the proposed sentence and the plea.
So the fact that in this matter the accused pleaded and was convicted in terms of 105A, means that the Court was required to consider the proposed sentence and then to accept or reject it. The Court, having accepted the proposed sentence, it means that in fact it was so done at the time that the Court considered all of the relevant facts placed before the Court by way of section 105A agreement and from the perusal of the section 105A agreement, it is apparent that the following factors were taken into account in the process. The accused has shown remorse and that he was a first offender. He had co-operated with the State in their investigation, where he personally was involved, also where other entities were involved. The Court considered at the time that there had been agreement to make repayment in an amount of R6.3 million and the Court at the present time, has not been informed as to whether or not that R6.3 million has been recovered by the curators of the insolvent estate.

Be that as it may, in considering the facts relevant to this case, I conclude that this application is successful. The operation of the remaining portion of the appellant's imprisonment is converted to 12 months correctional supervision in terms of section 276(1)(h) of the Criminal Procedure Act 51 of 1977. The sentence shall comprise the following programmes and measures:
(a) House arrest at a place, and during the times determined by the commissioner of Correctional Services, for the full duration of the correctional supervision, provided that the commissioner has the power to suspend or extend any period of house arrest on such conditions as it deems fit, or thereafter for as long an on such conditions as it deems fit, reintroduce such house arrest.
(b) Community service for a total period of 16 hours per month. The nature of the community service, the place where and the times during which such services could be performed, will be determined by the commissioner of Correctional Services, provided that the commissioner is empowered to add additional community service in order to promote the fulfilment of the sentence if merited, to suspend a part of the period of community service, on such conditions as he deems fit or thereafter for as long and under such conditions as he deems fit to reintroduce such community service.
(c)	
(d)	Submission to monitoring by the commissioner of Correctional Services in order to realise the objectives of his sentence.
(e)	The appellant may not leave the magisterial district in which he resides without the permission of the correctional office official.
(f)	The appellant shall, during the full duration of his sentence, refrain from using alcohol or the abuse of drugs,   other   than   those   prescribed   by   a   medical practitioner, comply with any original instructions given by the commissioner of Correctional Services regarding the administration and compliance with the sentence, and notify the commissioner of Correctional Services forthwith in writing of any change of residential or work address.

STEYN.J