MAVANGIRA J: The appellant was arraigned before the Magistrates' Court
sitting at Harare on the following charges. Firstly, 66 counts of theft as
defined in s 113(2)(c) of the Criminal Law (Codification and Reform) Act, [Cap
9:23] alternatively theft as defined in s 113(2)(d) of the same Act.
Secondly, 73 counts of fraud. He was convicted after a lengthy trial of 66
counts of theft and of 70 counts of fraud. He was found not guilty and
acquitted on the alternative charge of theft. He was sentenced as follows. All
the theft counts were taken as one for purposes of sentence and he was
sentenced to 2 years imprisonment. All the fraud counts were taken as one for
purposes of sentence and he was sentenced to 7 years imprisonment. Of the
combined total of 4 years imprisonment, 2 years imprisonment was suspended for
5 years on condition of future good conduct. A further 1 ½ years imprisonment
was suspended on condition of payment of restitution. The resultant effective
term of imprisonment was thus for a period of 6 months.
The
appellant has now appealed to this court against both conviction and sentence.
In heads
of argument filed on behalf of the respondent it is submitted that it is an
essential element of the offence of fraud that actual or potential prejudice on
the part of some person ensues as a result of the misrepresentation and that in
casu, it remains unclear how the complainant company was prejudiced.
It is submitted that for that reason it was unsafe for the court a quo
to convict the appellant of fraud under the circumstances. It is further
submitted that in light of this concession this court should, in addition to
setting aside the conviction, also set aside the sentence in respect of the
conviction for fraud.
On a
consideration of the evidence on record the concession by the respondent's
counsel is in my view, properly made. The conviction and sentence in respect of
the fraud charge will consequently both be set aside.
The
respondent's counsel has also submitted both in heads of argument and in oral
submissions before the court, that the conviction in respect of the theft
charge was proper and does not warrant interference by this court. Furthermore,
that while a short sharp custodial sentence was proper in the circumstances the
theft involved breach of trust on the part of the appellant, nevertheless the
quantum of restitution will have to be adjusted in view of the concession
relating to the fraud charges.
The
appellant was employed by Aviation Ground Services as head of Finance and
Administration. He was entrusted as the custodian of the company's petty cash
and was to ensure that the petty cash was used for authorised company expenses
and authorised staff loans only. The appellant engaged in a series of unauthorised
money advancements for himself. Most of the monies that he borrowed were for
personal use including but not limited to issues like DSTV payments, kitchen
refurbishments, medical fees, fuel. The appellant accessed these monies from
the petty cash float without authorisation. The Managing Director's evidence
was that he did not authorise these borrowings by the accused. It is not
necessary to regurgitate his evidence relating to the respective borrowings by
the appellant, suffice to say that his evidence reads well and was believed by
the trial court. The appellant's conduct falls within that conduct criminalised
in s 113(2)(c) of the Criminal Law (Codification and Reform) Act [Cap 9:23].
The appellant's claim that he reimbursed part of the money borrowed does not
absolve him from criminal liability.
The
appellant was aware that any money taken from the petty cash float had to be
authorised. Furthermore, that for any borrowings by him such authorisation was
to be from the Managing Director. Regardless of this he proceeded and without
such authorisation, accessed the cash on the 66 occasion forming the basis of
this charge. Section 113(2)(c) of the Act provides as follows:-
“(2) Subject to subs (3) a person shall also be guilty of theft if he or she
holds trust property and in breach of the terms under which it is so held, he
intentionally
(a) ……
(b) ……
(c) Uses the property or part of it for a purpose other
than the purpose for which he or she is obliged to use it.
(d) …..”.
On a perusal of the record of proceedings the
learned trial magistrate was
justified in convicting the appellant, as he did, of theft as defined in s
113(2)(c) of the Act. The conviction warrants no interference by this court.
As stated
earlier the conviction and sentence of 2 years imprisonment imposed in respect
of the 73 counts of fraud cannot stand. The conviction is set aside. The
sentence is also set aside.
On the
conviction for the 66 counts of theft for which the appellant was properly
convicted, he was sentenced to 2 years imprisonment. The trial court had
however, proceeded to deal with the sentence for these counts as well as the
sentence that he had imposed for the fraud counts. Of the combined total of 4
years imprisonment the trial court had proceeded to suspend 2 years
imprisonment on condition of future good conduct. A further 11/2
years was suspended on condition of restitution in the amount of $18 388. The
effective sentence was a term of 6 months imprisonment.
From a
perusal of the record the 66 counts of theft totalled US$15 701 whilst the 70
fraud counts totalled US$10 950. From the total of US$26 651 an amount of US$8
263 was recovered. If the $10 950 for the fraud counts is deducted from the
US$18 388 that he had been ordered to restitute, the total outstanding amount
will be US$7 438-00. The sentence that this court will substitute for the lower
court's will thus reflect this calculation that has been necessitated by the
setting aside of both the conviction and the sentence on the fraud counts.
The
appellant is a 52 year old first offender. In his reasons for sentence the
learned trial magistrate rightly stated that the appropriate punishment in the
circumstances of this matter can safely be scaled down to the minimum
necessary, serving the interests of the accused, society and justice. The
reasons for the sentence that he imposed are well set out in the record of
proceedings. What has now changed for purposes of this appeal is the fact that
the conviction for the fraud charges has been set aside and is no longer of
relevance in the determination of a proper sentence. The trial magistrate had
properly and justifiably suspended a substantial portion of the combined
custodial sentence on condition of good behaviour. A greater portion of the
remaining term was also suspended on condition of restitution and the learned
trial magistrate thereby achieved the aim of scaling down to the minimum
necessary the effective custodial term that the appellant was to serve. That
minimum necessary, in the circumstances facing the trial magistrate was an
effective 6 months imprisonment. With the setting aside of the fraud conviction
and sentence the said effective term of imprisonment cannot stand. It appears
however, that suspension of the whole of the remainder on condition of
restitution would not only encourage the appellant to restitute the complainant
but would also act as a personal deterrent on the 52 year old appellant who is
a first offender and who, from the record of proceedings suffers from
hypertension which has apparently been worsened by stress and the criminal
charges for which he has been convicted.
In the
result the sentence of the court a quo is hereby set aside and
substituted with the following:-
“All counts of theft taken as one for purposes of sentence – 2 years
imprisonment, of which 1 ½ years is suspended for 5 years on condition
that during that period the accused does not commit an offence involving
dishonesty or breach of trust, for which upon conviction he is sentenced to
imprisonment without the option of a fine. The remaining 6 months imprisonment
is suspended on condition the accused restitutes US$7 438 to the complainant
company, (Aviation Ground Services) through the clerk of Court, Harare by 4 pm
on 31 May 2013”.
HUNGWE
J: agrees
