CASE NO.: CR 11/2009
IN THE HIGH COURT OF NAMIBIA
HELD IN OSHAKATI
In the matter between
THE STATE
and
MARTHA NTAAGONA
(High
court review no: 83/2009)
CORAM: LIEBENBERG,
AJ et
SHIVUTE, AJ
Delivered on: 02 April 2009
REVIEW
JUDGMENT:
SHIVUTE, AJ.:
[1] The accused appeared before Ondangwa Magistrate’s Court and
pleaded guilty to a charge of assault with intent to do grievous
bodily harm. She was sentenced as follows:
“N$1000.00
(one thousand N$ fine) or 12 (twelve) months imprisonment of which
N$400.00 or 6 (six) months is suspected
for
5 (five) years on condition that the accused is not convicted of any
offence of which violence on a person is an element, committed the
period of suspension”.
[2] I did not find it necessary to
raise a query with the magistrate.
[3] In formulating the sentence. The
magistrate states, “6
(six) months is suspected
for 5 (five) years…”
This does not make sense at all. Had the magistrate proof read the
record she was going to pick it up. It is very important for the
magistrate to proof read the record before it is send for review.
Again in formulating the condition of the suspension of the sentence,
the magistrate omitted to state that the prohibited conduct should
not be committed “during”
the period of suspension. It is trite law that the condition of the
suspension of the sentence should provide that the prohibited conduct
should not be committed during the period of suspension.
[4] Thus the sentence imposed cannot
be allowed to stand.
[5] In the result, the following
order is made:
The conviction is confirmed.
The sentence is amended to read:
N$1000.00 or 12 months imprisonment,
of which N$400.00 or 6 months is suspended
for 5 (five) years on
condition that the accused is not convicted of any offence of which
violence on a person is an element, committed during
the period of suspension.
__________________________
SHIVUTE, AJ
I Concur
_________________________
LIEBENBERG, AJ
S v Ntaagona (CR 11/2009) [2009] NAHC 40 (02 April 2009);