REPUBLIC
OF NAMIBIA
HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case
no: CR 80/2013
DATE:
22 NOVEMBER 2013
In
the matter between:
THE
STATE
And
ERASTUS
IMMANUEL..................................................
ACCUSED
(HIGH
COURT MAIN DIVISION REVIEW REF NO.: 1375/2013)
Neutral
citation: State v Immanuel (CR 80-2013) [2013] NAHCMD 352 (22
November 2013)
Coram: HOFF
J and UNENGU AJ
Delivered:
22 November 2013
ORDER
In
the result, the following order is made:
1.
The conviction is in order and confirmed.
2.
The sentence of ‘36 months imprisonment of which 12 months is
suspended for period of 5 years on condition that accused does not
commit crime of robbery during period of suspension’, imposed
by the magistrate, is set aside and substituted with the following
sentence:
’36
months imprisonment of which 12 months is suspended for a period of
five (5) years on condition that the accused is not convicted of the
offence of Robbery committed within the period of suspension’.
JUDGMENT
UNENGU
AJ (HOFF J concurring):
[1]
The accused in the matter was charged with and convicted of a crime
of Robbery with aggravating circumstances, and sentenced by the
learned magistrate as follows:
’36
months imprisonment of which 12 months is suspended for period of 5
years on condition that accused does not commit crime of robbery
during period of suspension’.
[2]
The formulation of the condition of suspension that accused does not
commit crime of robbery during period of suspension, is wrong and as
a reason therefore, I queried the learned magistrate.
[3]
Meanwhile, the magistrate in her response to the query, had conceded
that the formulation of the suspended sentence was incorrectly
phrased and proposed that it should read as follows:
’36
months imprisonment of which 12 months is suspended for a period of
five (5) years on condition that the accused is not convicted of the
offence of Robbery committed within the period of suspension’.
[4]
The proposal by the learned magistrate is in order and the condition
of the suspended sentence will be phrased accordingly.
[5]
In the result, the following order is made:
1.
The conviction is in order and confirmed.
2.
The sentence of ‘36 months imprisonment of which 12 months is
suspended for period of 5 years on condition that accused does not
commit crime of robbery during period of suspension’, imposed
by the magistrate, is set aside and substituted with the following
sentence:
’36
months imprisonment of which 12 months is suspended for a period of
five (5) years on condition that the accused is not convicted of the
offence of Robbery committed within the period of suspension’.
PE
Unengu
Acting
E
Hoff
Judge
S v Immanuel (CR 80/2013) [2013] NAHCMD 352 (22 November 2013);