S v George (CR 14/2009) [2009] NAHC 45 (09 April 2009);

Special interest

CASE NO.: CR 14/2009

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

SHAANIKA GEORGE

(HIGH COURT REVIEW NO: 64/2008)

CORAM: LIEBENBERG, A.J et SHIVUTE, A.J

Delivered on: 09 April 2009

REVIEW JUDGMENT:

LIEBENBERG, A.J.: [1] The accused appeared before the Magistrate’s court Ondangwa, on two charges of housebreaking with intent to steal and theft. He pleaded guilty on both counts and having taken them together for sentence, the magistrate sentenced the accused to 4 years imprisonment.

[2] The convictions and sentence are in order and will be confirmed.

[3] After sentencing the accused the court, upon application by the State also set into operation a suspended sentence of 1 year imprisonment imposed on the accused on 30 August 2004 in another case finalized at Ondangwa.

[4] The record of previous convictions (J14) which was handed in before sentence and which the accused admitted, states the following:

- On 30 August 2004 the accused was convicted in the magistrate’s court

Ondangwa on two charges of house breaking with intent to steal and

theft;

- He was given one sentence namely:

“3 years imprisonment (1) year suspended for 5 years accused not convicted of Housebreaking with intent to steal and Theft”. (sic)

[5] As the record does not state that the charges were taken together for sentence, it seems quite possible that the accused could have been convicted of only one count instead of both, as reflected on the record of previous convictions; a factor the magistrate took into account in sentencing.

In addition thereto, the manner in which the conditions of suspension is framed, is improper as it does not state that the crime mentioned should have been committed during the period of suspension.

[6] Due to the sentence imposed in that case, it had to be sent on review i.t.o section 302 of the Criminal Procedure Act, Act 51 of 1977 during which the discrepancies in the sentence pointed out above, ought to have been corrected; substituted with another sentence or even set aside.

[7] Because the magistrate did not have the original case record before him in which the suspended sentence was imposed, he limited himself only to what was recorded on the record of previous convictions, despite the glaring shortcomings apparent from the record.

[8] The fact that the record was certified by the Clerk of Court, Ondangwa to be a “true extract” in my view, makes no difference as the magistrate who is legally trained (unlike the Clerk of Court), could and should not have been satisfied with the sentence recorded on the record and was duty bound to verify it from the original case record which is kept at his office (Case No. A 328/2004).

[9] It is practice to consider the application for putting into operation the suspended sentence imposed on the same record in which the sentence was initially imposed if that record is available. In this instance the application should have been made on Case No. A 328/2004 and the magistrate then would have been in the position to note from the case record what exactly were the conditions of the suspension and whether the sentence was confirmed on review.

[10] In order to have the suspended sentence put into operation, it had to be proved that one or more of the conditions of suspension were breached and the State relied on the accused’s conviction in the present case to prove that he had breached such condition of suspension.

[11] However, at the stage when the application was made the accused’s conviction and sentence imposed in the latter case had not yet been confirmed on review which is a necessity, because the accused is then at risk of having a suspended sentence put into operation from a conviction which might be set aside on review.

[12] The application therefore should only be made after the proceedings of the second case have been confirmed on review, if the sentence imposed is subject to review. This was not the position when the magistrate ordered the suspended sentence to be put into operation. He was thus not in a position to exercise his discretion judicially, which amounts to an irregularity. The order has to be set aside.

[13] In the result the following orders are made:

i) The convictions and sentence are confirmed.

ii) The additional part of the sentence in which the suspended sentence of

1 year imprisonment imposed in Case No. A 328/2004 is set aside.

_________________________

LIEBENBERG, A.J.

I Concur

___________________________

SHIVUTE, A.J.