STATE v. JOHN HAUFIKU
NO. CA 36/99
J et Mainga, A.J.
– claimed disparity of sentences – approach on appeal.
- Knowingly tendering forged bank notes – serious nature of the
offence discussed – imprisonment appropriate in circumstances
NO. CA 36/99
HIGH COURT OF NAMIBIA
J. et MAINGA, A.J.
J.: The appellant was convicted in the magistrate’s court,
Swakopmund of unlawfully tendering forged banknotes as payment to
three different vendors well knowing that they had been forged: on
two occasions he tendered forged R200.00 notes in contravention of
section 2(c) of the Prevention of Counterfeiting of Currency Act,
1965 (counts one and two) and on one occasion he tendered a forged
N$100.00 note in contravention of section 27(1)(b) of the Bank of
Namibia Act, 1990 (count three). On counts one and two, which were
taken together for purposes of sentence, he was sentenced to three
years imprisonment. On count three, he was fined N$10 000.00 or
sentenced to five years imprisonment. It was furthermore directed
that the sentences of imprisonment should be served concurrently.
appellant, claiming that his sentence was discriminatory and unfair,
applied that his sentence be reviewed on appeal. To that end he
obtained a judges’ certificate under section 306 of the Criminal
Procedure Act, 1977.
appellant relies for his contentions of discriminatory and unfair
treatment on a comparison between his sentence and that of five years
imprisonment (of which two years were conditionally suspended)
imposed in the Magistrate’s Court, Tsumeb upon one J.H. Potgieter.
According to the appellant Mr Potgieter was apprehended in the
process of printing forged N$100 notes. According to the appellant he
had about 661 forged notes already in his possession as well as
enough quality paper to produce a further 3 million notes.
as a general rule, disparity of sentences should be avoided whenever
possible, the peculiarity of each case, the diverging interests of
the particular society within which the offence has been committed
and the individuality of each offender do not allow for a
mathematical uniformity of sentences by the application of some magic
formula. The weight to be given to sentences for comparative
offences has, in my view, been paced in to correct perspective by
Botha, JA in S v Reddy, 1975 (3) SA 757 (AD) at 759 H:
would not... be improper for a judicial officer to have regard, in
addition to all the other relevant circumstances in the case, to the
sentence imposed upon another accused in respect of the same offence,
or to sentences generally imposed in respect of offences similar to
the offences dealt with by him, or in respect of offences of a
kindred nature, but to follow such sentences for the sake of
uniformity without proper regard to the relevant circumstances in the
case, may not only constitute an irregularity but may result in
ineffective or inappropriate sentences."
is pre-eminently a matter in the discretion of the judicial officer
presiding at the trial of the accused. Such a sentence will not be
interfered with on appeal only by reason of the fact that it is not
in conformity with the sentences imposed by other courts for similar
offences unless, of course, the disparity is so striking that it
warrants the conclusion that the presiding officer has exercised his
or her discretion in an arbitrary manner (See: S v Jackson,
1976 (1) SA 437 (A) at 439A – B) – and even if the latter is
found to be the case, the court of appeal will not correct the
sentence appealed against by equating the sentence with others, but
rather by imposing a sentence which is appropriate in the
circumstances of the case under consideration (S v Giannoulis,
1975 (4) SA 867 (A) at 871A - 873H).
There is a
compelling need to protect currencies, commerce and the community
against criminals who unlawfully enrich themselves at the expense of
others and the economy by issuing or tendering forged bank notes.
The person who was fraudulently induced to deliver goods or render
services, without receiving true value in the exchange, feels the
most immediate effect when counterfeits are being used in a
transaction. He is that much the poorer. On that level the effect
of such an act does not appear to me to be dissimilar to that of
theft by fraudulent misrepresentation.
different level though, the result of such conduct impacts on the
economy, both on the micro and macro sense of the word. Businesses
will eventually be constrained to take protective measures against
unacceptable losses caused by the acceptance of counterfeits. Such
measures may not only manifest itself in the refusal or reluctance to
accept larger denominations of the currency, but also in the
acquisition of expensive equipment and the introduction of
inconvenient procedures to detect forged notes. On a macro level,
the Bank of Namibia will have to take expensive measures to ensure
that the public can trust the authenticity of the notes in
circulation by introducing new or enhancing existing security
features or, under certain circumstances, go to the expense of
issuing new notes of a particular denomination to replace the ones
already in circulation.
It is not
difficult to appreciate that, when counterfeiting takes on larger
dimensions, this will result in an erosion of the public’s
confidence in our currency. In such circumstances the public may be
tempted to rely increasingly on an alternative currency in their
transactions with a resultant decrease in the demand for our domestic
currency; a loss of revenue to the Government and complications in
controlling money supply and interest rates in the national economy.
measures introduced by the Legislature by section 27 of the Bank of
Namibia Act, 1990 to protect the public and the integrity of our own
currency. The need to also protect the public against the unlawful
use of forged foreign currencies and, I suspect, reasons of comity
and commerce on an international level, necessitated the promulgation
of similar proscriptions in section 2 of the Prevention of
Counterfeiting of Currency Act, 1965.
Legislature understandably authorised the imposition of heavy
penalties for the contravention of those sections: A person who
contravenes section 27 of the Bank of Namibia Act, 1990 is liable on
conviction to a fine not exceeding N$100 000 or to imprisonment not
exceeding 15 years (or both). The Prevention of Counterfeiting of
Currency Act, 1965 provides for a similar term of imprisonment in the
event of a conviction following on a contravention of section 2(c)
thereof – it does not even allow for the imposition of a fine.
credit, Ms Hamutenja, who appeared amicus curiae on behalf of
the appellant, did not content that the offences of which the
appellant had been convicted were not serious. She did not labour
the appellant’s submission regarding the claimed disparity of
sentences but nevertheless submitted that part of his sentence should
have been suspended.
appearing on behalf of the respondent, argued that the magistrate did
not misdirect herself on the facts or on the law; did not commit an
irregularity and did not impose a sentence that is disturbingly
inappropriate in the circumstances – and I have to agree.
has a previous conviction for an offence involving dishonesty. He
picked his victims and sought to commit the offences under
circumstances that would reduce the possibility of immediate
detection. He committed the offences on a number of occasions. When
confronted he faked ignorance and surprise only to appease his
victims and create an opportunity for escape. He did not take the
court into his confidence, showed no remorse and did not compensate
his victims for their losses.
magistrate considered his personal circumstances and the fact that he
had been awaiting trial in prison for a period of 7 months. In
relation to counts one and two she considered their proximity in time
and took them together for purposes of sentencing. She gave due
weight to the more immediate concerns relating to the counterfeiting
of our own currency by imposing a heavier sentence for the
contravention of section 27 of the Bank of Namibia Act, 1990, yet,
appreciating the similarity between the Legislative objective of that
Act and that of the Prevention of Counterfeiting of Currency Act,
1965, directed that the sentences should run concurrently. The
sentence of effective imprisonment imposed by her is, as far as I was
able to ascertain, in line with sentences imposed for similar
offences elsewhere (Compare e.g. S v Modisakeng, 1998(1) SACR
278 (T) and S v Van Der Westhuizen, 1995(1) SACR 601 (A)).
result the appeal is dismissed.