The wages of fraud: 15 years in prison

THE WAGES OF FRAUD: 15 YEARS IN PRISON  

“White collar criminals who commit offences of a certain magnitude must not be permitted a soft landing” (extract from judgment below)  

The recent “J Arthur Brown” judgment by the Supreme Court of Appeal (SCA) has received a lot of media attention, and victims of serious crime will take heart from the Court’s robust approach. Mr. Brown had been sentenced by the High Court to fines and suspended sentences after pleading guilty to two counts of fraud involving “tens of millions of Rand”.

Sentencing – no soft landings

The SCA drastically increased those sentences to an effective total of 15 years’ imprisonment, in the process illustrating several important principles in our criminal law -  

• Power to increase sentences on appeal:  The State can appeal against a sentence imposed by a lower court where it results from a “material misdirection” by the trial court or where it “can properly be described as ‘shocking’, ‘startling’, or ‘disturbingly inappropriate’.”
• Minimum sentences:  Where minimum sentences are provided for by statute, courts can only impose a lesser sentence if there are “substantial and compelling circumstances” to justify doing so.
• Imprisonment for fraud:  In cases of fraud involving more than R500,000 the prescribed minimum sentence is 15 years’ imprisonment, even where only “potential” rather than “actual” prejudice to victims is proved.
• Equal justice:  Our courts will “guard against creating the impression that there are two streams of justice; one for the rich and one for the poor”.
• Criminal intention:  The fact that an offender’s level of criminal intention was that of dolus eventualis* rather than “direct intention” does not in itself justify any deviation from the minimum sentence provisions - it is just one factor to be taken into account.  (*Dolus eventualis is a form of “legal intention” where a criminal proceeds with his/her criminal action/s despite foreseeing the possibility of resultant harm).

Victims of crime –fight back!

1. Report it!  Our courts have yet again shown that they will not easily allow criminals – including white collar criminals - “a soft landing”.
2. If you think that the sentence handed down is unfairly lenient, push for an appeal to have it increased.

Bisset Boehmke McBlain Attorneys

January 2015