CASE NO.: CR 08/2009
IN THE HIGH COURT OF NAMIBIA
HELD IN OSHAKATI
In the matter between
THE STATE
and
ARON ANGULA
(High
court review no: 92/2009)
CORAM: LIEBENBERG,
AJ et
SHIVUTE, AJ
Delivered on: 31 March 2009
REVIEW JUDGMENT
LIEBENBERG, AJ.:
[1] In this matter the accused appeared before a Magistrate at
Ondangwa on a charge of Housebreaking with intent to steal and theft.
[2] He pleaded guilty and was upon
his conviction sentenced to:
“Eighteen
(18) months imprisonment of which 8 (eight) months is suspended for a
Period
of 5 (five) years on condition that accused is not convicted of
Housebreaking
or Theft within period of suspension”. (sic)
[3] The conviction is in order and
will be confirmed. The problem with the sentence is two fold.
Firstly, there is no such crime as “housebreaking” and secondly,
the word “committed” has been omitted from the suspended
sentence.
[4] Week after week review judgments
are delivered by this Court in which the conditions of suspended
sentences imposed by the same
magistrate have to be
amended as they are incorrectly framed like in the present matter.
See: The State
vs. Simon Kambonde Case No:
CR 07/2009 (unreported) delivered 20 March 2009, The
State vs. Ziggy Speedo,
Case No: CR 06/2009 (unreported) delivered 17 March 2009. The State
vs. Lazarus Amakali, Case
No: CR 05/2009 (unreported) delivered 13 March 2009.
[5] These mistakes are elementary and
because proper care is not taken, judges are obliged to repeat
themselves in review judgments. The benefit of these judgments is
that magistrates, by reading the judgments, can learn from the
mistakes they and others make. I therefore urge all magistrates to
read the judgments delivered in review (and appeal) matters.
[6] As stated in The Simon
Kambonde matter (supra)
“housebreaking” in itself is not a crime. It constitutes a crime
only when the offender commits housebreaking
with a specific intent viz.
to steal; to assault; to rape etc. If the offender in the process of
entering damages the property of the complainant, then he is guilty
of the offence of malicious damage to property and not of
“housebreaking”.
[7] Furthermore, the conditions of
suspension must be clear and specific as the accused must understand
them and know how to behave himself in compliance thereof.
[8] The conditions of suspension of
the sentence imposed in this case do not meet the requirements set
out above and the sentence has to be amended.
[9] In the result the following orders
are made:
The conviction is confirmed.
The sentence is altered to read:
“18 months imprisonment of which 8
months imprisonment is suspended for a period of 5 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 Angula (CR 08/2009) [2009] NAHC 36 (31 March 2009);