S v Erike (CR 56/2008) [2008] NAHC 136 (02 June 2008);

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Full judgment




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.


  1. 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






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