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HB81-09 - THE STATE vs MACFARLANE MPALA

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Procedural Law-viz review re review judgment.

Banking Law-viz banking violations re printing of fake bank notes.
Sentencing-viz banking offences re printing of fake bank notes.
Banking Law-viz banking violations re counterfeit bank notes.
Procedural Law-viz charge re accused charged under a non-existent section.
Sentencing-viz accused convicted and sentenced under a non-existent section.
Sentencing-viz banking violations re counterfeit bank notes.
Sentencing-viz penalty provision of a statute re mandatory sentence.

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This is a review judgment.

The accused was charged with contravening section 42(2)(a) of the Reserve Bank of Zimbabwe Act [Chapter 22:10] (wrongly cited as Chapter 22:15) (Chapter 22 only ends with 22:13].

The accused, who is aged twenty-two years of age, and a student at the National University of Science and Technology (NUST), is studying Industrial Engineering. On the 10th day of May, 2009, the police, acting on information, proceeded to his residence and searched it, and recovered a scanner, memory stick, and twenty-two US$1 notes. The notes were fake-as they were being unlawfully printed by the accused. In addition, the accused had stored all the American dollars in the memory stick ready for printing.

The accused was arrested and was arraigned before the court. He pleaded guilty to the charge.

Sentencing re: Banking Violations

He was duly convicted and sentenced as follows -

“Twenty-four months imprisonment. Three months is suspended for three years on condition that the accused person does not within that period commit any offence involving the violation of the Reserve Bank Act, upon conviction will be sentenced to imprisonment without the option of a fine.

(a) Twenty-one months is suspended on condition that the accused person completes seven hundred and thirty-five hours of community service at Baines Junior, Northend, Bulawayo. Community service shall begin on 1 June 2009, and shall be performed during weekends, and shall be completed within twenty-one weeks.

(b) The counterfeit rules are forfeited to the State for destruction.

(c) The scanner and the memory stick are also forfeited to the State.”

The second issue in this matter is that the penalty for the said offence is covered by section 14(1)(i) of the Reserve Bank of Zimbabwe Act [Chapter 22:10].

It is, therefore, clear that the accused was charged under a wrong section, and, as a result of this error, a wrong sentence was imposed.

Under section 14(1)(i) of the Reserve Bank of Zimbabwe Act [Chapter 22:10] there is no option of a fine. There has, therefore, been a serious miscarriage of justice in this matter.

The following order is therefore made -

“It is ordered that:-

(1) The conviction and sentence imposed by the court a quo..., be and is hereby set aside.

(2) The matter is referred back for trial de novo before a different magistrate.”

Indictment or Charge re: Charge Sheet, Framing of Charges, Essential Elements, Causation, Intention & Competent Verdict

There are two issues in this matter.

Firstly, there is no section 42(2)(a) in the Reserve Bank of Zimbabwe Act [Chapter 22:10], as it ends with section 30. Therefore, the accused has been charged with the non-existent section.

The accused should have been charged with contravening section 14(1)(a) as read with section 14(1)(a) (i) of the Reserve Bank of Zimbabwe Act [Chapter 22:10] which reads -

“14. Offences relating to Bank Notes

(1) Any person who -

(a) Without the authority of the Bank, engraves, or makes upon any material whatsoever, any words, figures, letters, marks, lines, or devices, the print of which resembles in whole, or in part, any words, figures, letters, marks, lines or devices, peculiar to and used in, or upon, any note; or

(b) Uses for an unlawful purpose, or knowing that it is to be used for an unlawful purpose, has in his possession any material whatsoever upon which has been engraved, or made, any words, figures, letters, marks, lines, or devices as are mentioned in paragraph (a); or

(c) Willfully defaces, soils, or damages, any note, or writes, or places any drawing thereon, or attaches thereto anything in the nature of an advertisement;

shall be guilty of an offence and liable -

(i) In the case of an offence referred to in paragraph (a) or (b) to imprisonment for a period not exceeding seven years.”

CHEDA J:     This is a review judgment.  Accused was charged with contravening section 42 (2)a of the Reserve Bank of Zimbabwe Act [Chapter 22:10] (wrongly cited as chapter 22:15) (Chapter 22 only ends with 22:13.)

The accused who is aged 22 years of age and a student at National University of Science and Technology (NUST) is studying Industrial Engineering.  On the 10th day of May 2009, the Police acting on information proceeded to his residence and searched it and recovered a scanner, memory stick and 22 x US$1.00 notes.  The notes were fake as they were being unlawfully printed by the accused.  In addition, accused had stored all the American notes in the memory stick, ready for printing.

Accused was arrested and was arraigned before the court.  He pleaded guilty to the charge, was duly convicted and was sentenced as follows:

“24 months imprisonment.  3 months is suspended for 3 years on condition that the accused person does not within that period commit any offence involving the violation of the Reserve Bank of Zimbabwe Act, upon conviction will be sentenced to imprisonment without the option of a fine.

(a)    21 months is suspended on condition that the accused person completes 735 hours of community service at Baines Junior, Northend, Bulawayo.  Community service shall begin on 1 June 2009 and shall be performed during weekends and shall be completed within 21 weeks.

(b)   The counterfeit rules are forfeited to the State for destruction.

(c)    The scanner and the memory stick are also forfeited to the State.”

 

There are two issues in this matter.  Firstly, there is no section 42(2)(a) in the Reserve Bank of Zimbabwe Act as it ends with section 30.  Therefore accused has been charged with the non-existent section.  The accused should have been charged with contravening section 14 (1)(a) as read with (i) which reads:-

“14 offences relating to bank notes.

 

(1)               Any person who—

(a)                without the authority of the Bank, engraves or makes upon any material whatsoever any words, figures, letters, marks, lines or devices, the print of which resembles in whole or in part any words, figures, letters, marks, lines or devices peculiar to and used in or upon any note; or

(b)               uses for an unlawful purpose or, knowing that it is to be used for an unlawful purpose, has in his possession any material whatsoever upon which has been engraved or made any such words, figures, letters, marks, lines or devices as are mentioned in paragraph (a); or

(c)                willfully defaces, soils or damages any note or writes or places any drawing thereon or attaches thereto anything in the nature of an advertisement;

shall be guilty of an offence and liable—

(i)                 in the case of an offence referred to in paragraph (a) or (b), to imprisonment for a period not exceeding seven years.”

 

Secondly, the penalty for the said offence is covered by section 14(1) (i).  It is therefore, clear that the accused was charged under a wrong section and as a result of this error a wrong sentence was imposed.

Under the said section, there is no option of a fine.  There is, therefore been a serious miscarriage of justice in this matter.  The following order is therefore made:-

“It is ordered that:-

(1)   The conviction and sentence imposed by the Court a quo on the 28th may 2009, be and is hereby set aside.

(2)   The matter is referred back for a trial de novo before a different magistrate.”

 

 

Cheda J………………………………………………….

 

 

Ndou J concurs…………………………………………..
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