S v Sevelinu (CRIMINAL 10 of 2013) [2013] NAHCMD 43 (21 February 2013)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: CR 10/2013

In the matter between:

THE STATE

and

KAMBONDE SEVELINU

(HIGH COURT MAIN DIVISION REVIEW REF NO 872/2011)

Neutral citation:

S v Sevelinu (CR 10-2013) [2013] NAHCMD 43 (21 February 2013)

Coram: VAN NIEKERK, J and UEITELE, J

Delivered: 21 February 2013

Flynote: Criminal law – Sentence – C/section 2(c) of the Prevention of Counterfeiting of Currency Act, 1965 (Act 16 of 1965) – Section 2(i) provides for imprisonment not exceeding 15 years – Sentence imposed by magistrate of fine, alternatively imprisonment, not competent - Sentence set aside and substituted

ORDER

1. The conviction is confirmed.

2. The sentence is set aside and substituted with the following sentence:

“Two (2) years imprisonment of which one (1) year is suspended for three (3) years on condition that the accused is not convicted of the offence of a contravention of section 2(c) of the Prevention of Counterfeiting of Currency Act, 1965 (Act 16 of 1965), (Uttering, tendering or accepting counterfeit coins or forged or altered bank notes), committed within the period of suspension.”

REVIEW JUDGMENT

VAN NIEKERK, J (UEITELE, J concurring):

[1] The accused was convicted in the magistrate’s court of Karibib on a charge of contravening section 2(c) of the Prevention of Counterfeiting of Currency Act, 1965 (Act 16 of 1965), in that he uttered or tendered a forged or altered a R100 bank note, knowing it to be forged or altered. The accused was sentenced to a fine of N$10 000 or 4 years imprisonment of which half was suspended for 5 years on the usual condition of good behaviour.

[2] The conviction is in order, but the sentence is not competent. This is because the applicable sentence in terms of section 2(i) of Act 16 of 1965 is one of direct imprisonment not exceeding 15 years. There is no provision for the imposition of a fine. The sentence must therefore be set aside.

[3] At the time of the trial the accused was a first offender, aged 22, single, but in a fixed relationship and having two small children. He was unemployed and only did casual work as a driver. Although he stated at the time that he had no money to pay a fine, he succeeded in paying the fine of N$5 000 two days after he was sentenced.

[4] The offence is serious, as can be seen from the penalty provision. In my view a partly suspended sentence would be appropriate in the circumstances of this case. The effect of this judgment is that the fine paid by the accused must be re-paid and that he must be arrested to serve his sentence.

[5] The result therefore is:

1. The conviction is confirmed.

2. The sentence is set aside and substituted with the following sentence:

“Two (2) years imprisonment of which one (1) year is suspended for three (3) years on condition that the accused is not convicted of the offence of a contravention of section 2(c) of the Prevention of Counterfeiting of Currency Act, 1965 (Act 16 of 1965), (Uttering, tendering or accepting counterfeit coins or forged or altered bank notes), committed within the period of suspension.”

_______________

K van Niekerk

Judge

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S F I Ueitele

Judge