A FORMER till operator convicted of defrauding her employer has escaped an effective prison sentence after the High Court overturned two of her three fraud convictions.
Magret Chagwiza had been convicted and jailed after a contested trial on three counts of fraud as the State accused her of processing transactions as successful despite point-of-sale (POS) payments having been declined before generating invoices that enabled customers to collect goods.
However, High Court judges Justice Philda Muzofa and Catherine Bachi-Mzawazi upheld Chagwiza’s conviction on one count of fraud, but substituted her 36-month effective prison term with a wholly suspended sentence on condition she does not commit another offence involving dishonesty and performs community service.
The judges found the evidence overwhelming on the third count, describing it as a case of the appellant being caught with her hand in the cookie jar.
According to the judges, the appellant served a customer and she indicated that the transaction was successful.
However, when her supervisor asked for the receipt, he found that the payment was declined, but an invoice for goods had already been generated by the appellant.
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The court noted that although the receipt bearing the word declined was never produced as an exhibit, the evidence established that no payment had been made.
“The ‘declined’ receipt was not produced, but it was not disputed that the transaction was not honoured. Simbarashe (supervisor) blocked the release of goods,” the court heard.
“To err on the side of caution, he even sent the security guard with the customer to verify with CBZ if the transaction was honoured. It was not.”
However, the High Court found that the first two fraud convictions, which were based on an internal audit, could not stand because the State failed to eliminate reasonable doubt over the company’s banking records.
“The concessions by the auditor raises a doubt on whether enough was done to locate the transactions. During cross-examination, the auditor conceded that the report had four transactions, yet only three were reported.
“There was no further evidence to discredit the whole audit report, particularly as regards the three transactions forming the basis of the charges.
“The audit report exposed massive fraud by employees at the complainant company. Throughout the cross-examination of State witnesses, the defence bemoaned why the appellant was singled out among other employees.”
The court concluded: “The document was critical to establish the precise branch/account the appellant’s POS machine remitted the money.
“In the absence of evidence of where the money was supposed to be remitted, the State case remained inconclusive.
“With that doubt, the matter should be resolved in the appellant’s favour.”
On sentence, the judges held that imprisonment was inappropriate given Chagwiza’s circumstances.
“There was potential prejudice of US$1 451, which means the employer did not suffer actual prejudice,” the court said.
While acknowledging that Chagwiza had breached the trust placed in her as an employee and that there was evidence of premeditation, the court said these factors had to be weighed against mitigating circumstances.
“The appellant was a female first offender who had a young pregnancy at the time,” the judges said.
“Female offenders are usually spared the rigorous custodial sentences unless there are highly aggravating circumstances.
“A rehabilitative sentence must be imposed in this case, instead of a retributive one.”