CASE NO.: CR 07/09
IN THE HIGH COURT OF NAMIBIA HELD
IN OSHAKATI
In the matter between:
THE STATE
and
SIMON KAMBONDE
(HIGH COURT REVIEW CASE NO.: 36/2009)
CORAM: LIEBENBERG, AJ et
SHIVUTE, AJ
Delivered on: 20 March 2009
REVIEW JUDGMENT
LIEBENBERG, AJ.: [1] The accused in this
matter was charged with the offence of Housebreaking with intent to
steal and theft. He pleaded guilty and was subsequently convicted and
sentenced:
“18 (Eighteen) months
imprisonment- of which 8 (eight) months is suspended for a period of
5 (five) years on condition:
1. Accused not convicted of
any offence of which Housebreaking or theft is an element committed
within the period of suspension”.
[2] A query was directed to the magistrate regarding the framing of
the conditions of suspension as it would include offences like
housebreaking with the intent to assault /rape/ or to commit an
offence unknown, and whether that was intended.
[3] The magistrate in her reply proposed an amendment to the sentence
in the following terms:
“18 (Eighteen) month’s
imprisonment – of which 8 (eight) months is suspended for a period
of 5 (five) years on condition:
Accused is not convicted of
any offence of which Housebreaking with intent to steal,
and or theft
is an element committed within the period of suspension”.(
Emphasis provided.)
[4] The essence of a
suspended sentence is that the accused must for a determined period
behave in a certain manner which is set out in the sentence and is
generally referred to as a condition of sentence. It then seems
obvious that in order for the accused to behave in compliance with
the conditions of the suspended sentence imposed; that these
conditions must be clear and precisely formulated. The accused must
understand what he or she has to do or avoid in order to ensure that
the suspended sentence is not put into operation.
[5] Another reason why the conditions of suspension must be clear, is
so that the court which later has to consider the possible putting
into operation, must be able to determine the ambit of the condition.
[6] It is trite that the offences mentioned in the condition must be
connected to the offence for which sentence was imposed and if other
offences are specified which the accused may not commit without being
disposed to the putting into operation of the suspended sentence,
then there has to be a measure of kinship betweens such offences and
the one the accused is convicted of.
[7] In the present case the offences specified by the magistrate are
those “of which
Housebreaking or theft is an
element”. From
the manner it is framed it would appear that
housebreaking constitutes an offence which it does not. It
requires from the offender to have a specific intent to commit
an offence at the stage of breaking in otherwise it would only
constitute the offence of malicious damage to property.
Furthermore, without clearly specifying the offences from which the
accused had to steer clear, he is at risk of having the suspended
sentence put into operation for having committed a crime unrelated to
what he was convicted of i.e. housebreaking with the intent to
assault. Obviously, that is not what the learned magistrate had in
mind.
[8] The proposed amendment by the magistrate is proper except for the
word “and” as
it creates ambiguity. The suspended sentence should be put into
operation upon a conviction of either housebreaking with the
intent to steal or theft, not both.
[9] In the result:
The conviction is confirmed.
The sentence is amended to read:
18 (Eighteen) months imprisonment of which 8 (eight) months
imprisonment is suspended for a period of 5 (five) years on condition
that the accused is not convicted of Housebreaking with intent to
steal or Theft, committed during the period of suspension.
_________________________
LIEBENBERG, AJ
I Concur
__________________________
SHIVUTE, AJ
S v Kambonde (CR 07/09) [2009] NAHC 35 (20 March 2009);