S v Rhode (CA 23 of 1994) [1994] NAHC 11 (21 October 1994)

CASE NO. CA 23/94 IN THE HIGH COURT OF NAMIBIA In the matter between TREVOR JAMES RHODE versus THE STATE CORAM: STRYDOM, JP. et MULLER AJ. Heard on: 1994.10.21 Delivered on: 1994.10.21 JUDGMENT MULLER, AJ.; The appellant was convicted of fraud and sentenced to 3 years imprisonment of which 1 year was conditionally suspended. The appellant appeals against the sentence only. When the matter was first heard, Mr Heathcote advanced an argument which was not contained in the grounds of appeal namely, that the magistrate misdirected herself in finding that the State was in fact defrauded in the full amount of $76 326.72. Because the magistrate didn't have the opportunity to deal with this new ground in her reasons, the appeal was postponed to enable the appellant to amend his grounds of appeal and to serve same on the magistrate. This was done but the magistrate's attitude was that she stuck to her original reasons. In the light thereof that no objection was raised by Mr Walters on behalf of the State to the notice of motion containing the amended grounds of appeal, the amendment is accepted and the late filing thereof is condoned. The new ground of appeal reads as follows: "That the learned magistrate erred on the facts in that she held that the appellant defrauded (and/or stole from) the Ministry of Local Government and Housing and/or the Peri-Urban Board, in the full and actual amount of N$76 326.72 despite the fact that: (a) The appellant at all relevant times was employed as a Senior Work Inspector; and (b) He rendered the services as quid pro quo of a Senior Work Inspector; and (c) He rendered such services to the satisfaction of the appellant's employers." The appellant conceded that he was correctly convicted of fraud on 25 January 1994 by mis-representing to the Ministry of Local Government and Housing that he had passed certain subjects in obtaining a NTC3 certificate while he knew such representation was false and that his conduct caused the said Ministry to act to its potential prejudice at least. The appellant was, as a result of the misrepresentation, employed as a Senior Works Inspector but has since been promoted to Principal or Chief Works Inspector. It is clear from the evidence that the appellant is a good worker and able to fulfil the responsibilities required for this position and the former position he held as a Senior Works Inspector. It is also clear that he did obtain certain qualifications both in South Africa and in Germany although he didn't acquire the qualifications that he presented to the Ministry before his appointment. The Deputy Mayor of Luderitz, who testified for the appellant in mitigation, confirmed her Council's satisfaction with the appellant's work and that he properly performed all his duties without even an assistant and with a skeleton staff. They never had any problems with him and the Town Council regarded his qualifications as good enough for the job. She also appealed to the court a quo to sentence the appellant in such a way that he could continue with his work because they needed his services. From the evidence of the State witnesses De Beer and Voges it is not clear to me what the exact position was that the appellant was in fact appointed in. Voges said that there's a "discrepancy" about the exact position namely, whether he was appointed as a Work Inspector or Senior Work Inspector. De Beer from the personnel office, who was not involved in the appointment of the appellant, handed in an application form signed by the appellant in which he applied for a position which appears from that document to be that of a "Works Inspector" or in Afrikaans as it appears on the document, a "werke inspekteur." In his evidence-in-chief De Beer however testified on page 16 of the record "he was employed as a Senior Works Inspector" and on page 18, in respect of the required qualifications and the appellants employment, his evidence is the following: "Your Worship, here is a statement as it was advertised and the qualifications needed is as follows: Suitable National Certificate for Technicians, or an equivalent diploma. Appropriate N3 or equivalent qualification plus a completed apprenticeship, or a pass of an industrial test, plus 4 years appropriate experience, or an appropriate Nl, or equivalent qualifications plus completed apprenticeship or a pass of Industrial plus 6 years appropriate experience. Your Worship, that is all." De Beer, however, testified that if the appellant didn't have the qualifications he would have received a total remuneration for the whole period of N$34 381,12 being the salary of a Technical Assistant which De Beer testified would have been the highest position that he would have qualified for. De Beer denied statements on behalf of the defence that the appellant was appointed as a Works and not as a Senior Works Inspector but admitted that there was a problem with his position relating to "a mistake in the typing". De Beer never worked with the appellant and testified from documentation in files. Nobody who was involved in the appointment of the appellant at the time testified. As mentioned, Voges was also not certain about the exact position that the appellant was appointed in. Voges could also not confirm whether the appellant's German qualification had been considered and whether that would have made him eligible for that post. On page 49 of the record he testified as follows: "Your Honour, I'm not aware of the fact that qualification did make him eligible for that post." The appellants reply in evidence to whether he regarded himself as qualified for the position he was appointed in, was the following, which appears on page 56 of the record: "As far as I'm concerned Your Honour, I still believe I'm fully qualified for the position and' that is my scale. I've gone up I was promoted and my salary scale was adjusted accordingly because of my competence. I can do the work, I'm running the civil and building department on my own at the present moment. As far as I'm concerned I'm fully qualified and that money that was paid out to me, I deserve that money." It is clear from the magistrate's judgment on sentence that she regarded the appellant as having stolen N$76 326.72 from the State and that the State consequently suffered a loss in that amount. This was already the magistrates contention during the evidence of the first State witness De Beer. On page 2 0 of the record, at the time when EXHIBIT F was being dealt with to establish what the appellants salary should have been and what he in fact received, the magistrate asked the witness; "So in fact the actual loss was then the N$76 326.72." The answer was in the affirmative. In her judgment the magistrate, when dealing with the factors to be considered in respect of sentencing, said the following on page 95: "He applied for a post, they trust and appointed him in the vacancy. Thereafter it came to the light that the accused were not in fact in possession of the qualifications which he mentioned on his document. In fact he defrauded the Ministry or the then Peri-Urban Board in the amount of N$76 326.72. The offence was stopped after this investigation was conducted and the case ended up before the Court. In fact the accused stole the money from the government and the interest of the tax payers. In other words the society is very important. The tax payers in our country are entitled to know that their heavy deserved money is spent in their interest and not needlessly increased because of deficiencies caused by civil servants. Civil servants who are supposed to serve the government and society and not to defraud them." There can be no doubt that the magistrate made a serious misdirection in finding that the State suffered an actual loss in exact monetary terms namely, the full amount of N$76 326.72. This was based on EXHIBIT F which contains two columns covering the whole period of the appellants employment, in respect of salary, bonuses, pension, deductions, etc. of what he did receive as a Senior Works Inspector against what a Technical Assistant would have earned. According to this document the appellant in fact received a total amount of N$110 444.81, while a Technical Assistant would only have earned N$34 118.90. The difference between the two, namely N$76 236.72 was then regarded as "stolen" through the fraudulent conduct of the appellant. As indicated earlier, there is no clarity on the evidence that the appellant would have been appointed as a Technical Assistant or whether his German qualifications would have entitled him to a higher position. The comparison between the salary scales of a Senior Works Inspector and that of a Technical Assistant on the evidence, or lack of evidence, before the Court seems to me not to be based on sound grounds. I have already referred to the "discrepancies" in the name of the position in which the appellant was appointed, but it can be accepted that he was in fact appointed as a Senior Works Inspector at the salary scale for that position and was eventually promoted to Chief Principal Works Inspector and that he performed the functions of Senior Works Inspector to the satisfaction of his employers. The State didn't suffer a monetary loss in this regard. If there existed any actual loss, as Mr Walters submitted, that loss could in my opinion not be proved in monetary terms and definitely not to the extent as the magistrate has found namely, N$76 326.72 stolen or taken from the State. In accepting that the State suffered an actual monetary loss in the full amount of N$76 326.72 and in the process of considering what an appropriate sentence for the appellant would be, to compare that situation with other cases where the State or other employers were defrauded to there actual monetary loss, the magistrate in my opinion committed a serious misdirection which entitles this Court to interfere. I do not consider that there is any merit in the other submissions by Mr Heathcote and in the light of my decision in respect of this new ground of appeal, it is not necessary to deal with any of these arguments. Taking all the evidence in respect of mitigation into consideration and having regard to the well known triad relevant in the consideration of a proper sentence, I'm of the opinion that this is not an instance where direct imprisonment for a first offender rendering valuable service to his community should be imposed. In the result the appeal against sentence should succeed in my opinion and the sentence imposed by the magistrate has to be set aside. This Court is in a position with all the relevant material before it to consider and impose an appropriate sentence. In all the circumstances of this case, I regard the following sentence as an appropriate punishment for the appellant for the offence committed by him and he is sentenced as follows: "N$2 000 or 1 year imprisonment plus a further 2 years imprisonment suspended for 5 years on condition that the appellant is not convicted of the offence of fraud committed within the period of suspension. " MULLER, ACTING JUDGE I agree STRYDOM, JUDGE PRESIDENT