S v Immanuel (CR 80/2013) [2013] NAHCMD 352 (22 November 2013);

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Full judgment

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

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