Case No.: CR
56/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between

THE STATE

versus

FELIX ERIKE

STEPHANUS KHOISEB

[HIGH COURT REVIEW CASE NO.:470/2008]

CORAM: PARKER, J et NDAUENDAPO, J

Delivered on: 2008 June 2

__________________________________________________________________

REVIEW
JUDGMENT:

PARKER,
J.:

[1] The
accused were convicted of theft of one cow, which took into account
the Stock Theft Act, 1990 (Act No. 12 of 1990), as amended. They
were each sentenced to a fine of N$2,000.00 or two years’
imprisonment.

[2] I
directed the following to the learned Magistrate:

I see that when the accused were arrested they were
young – accused No. 1 was 16, and accused No. 2 was 18; and at the
time of their sentence, Accused No. 1 was barely 20 years old, and
accused No. 2 was just 22 years old.

Didn’t the
learned Magistrate consider suspending part of the sentence, taking
into account the youthfulness of the accused persons when they
committed the offence?

[3] In his
response the learned Magistrate agrees that he ought to have taken
into account the youthfulness of the accused in sentencing them. The
learned Magistrate also agrees that for that reason a part of the
sentence could have been suspended. He added that the accused had
already served eight months of the term of imprisonment. I think in
the circumstances of this case, suspending a part of the sentence
would be appropriate.

[4] In the
result I make the following order:

1. 
   The conviction of each accused is confirmed.

   
   

2. 
   The sentence in respect of each accused is set aside
   and the following is put in its place in respect of each accused:

   
   

A fine of N$2,000 or two year’s imprisonment; N$1,000
or one year suspended for five years on condition that the accused is
not convicted of theft, which takes into account ss 1, 2, 11 and 14
of Act No. 12 of 1990, as amended, committed within the period of
suspension.

________________________

PARKER, J

I agree.

________________________

NDAUENDAPO, J