CASE NO.: CR 55/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

ERASTUS ANDREW Accused no. 1

IMMANUEL GAESEB Accused no. 2

(HIGH COURT REF NO. 873/09) CORAM: HOFF, J et VAN NIEKERK, J

Delivered: 30 September 2010

REVIEW JUDGMENT

VAN NIEKERK, J: [1] The accused were convicted by the magistrate at Karibib on a charge of robbery with aggravating circumstances. The conviction is in order. The sentence imposed is one of N$2000 or 12 months imprisonment of which half is suspended for 3 years on condition that the accused are not convicted of robbery with aggravating circumstances or any offence of which assault is an element.

[2] On review I directed a query to the magistrate to explain which offences she had in mind when she referred to "any offence of which assault is an element". She responded that the condition of suspension should only refer to robbery with aggravating circumstances and asked that the sentence be amended as the original formulation is too broad.

[3] I agree that the condition is too broad. It is also vague, especially for an unrepresented accused, who probably would not know what offences have assault as an element.

[4] The result is that the convictions of both accused are confirmed. The sentence is amended to read:

"Each accused is sentenced to N$2000 (Two Thousand Namibia Dollars) or 12 (Twelve) months imprisonment of which N$1000 (One Thousand Namibia Dollars) or 6 (six) months imprisonment is suspended for 3 (Three) years on condition that the accused is not convicted of robbery with aggravating circumstances committed during the period of suspension."

VAN NIEKERK, J

I agree.

HOFF, J