CASE NO
CASE NO.: CR 33/2009
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE
vs
EDWIN JONKERS
(HIGH COURT REVIEW CASE NO.:
535/2009)
CORAM: VAN
NIEKERK, J et
SILUNGWE, AJ
Delivered on: 2009 April 17
REVIEW JUDGMENT
SILUNGWE, AJ [1] The
accused appeared before the Rehoboth Magistrate’s Court charged
with theft of one sheep (valued at N$450-00) in contravention of
sections 11(i)(a), 1, 14 and 17 of the Stock Theft Act, Act 12 of
1990 as amended by Act 19 of 2004 (the Act). After pleading guilty to
the charge, he was convicted accordingly and sentenced to two years’
imprisonment eighteen months of which were suspended on the usual
conditions.
[2] The presiding Magistrate
has now sent this matter for review on the basis that he
inadvertently omitted to explain to the offender, prior to the
imposition of the sentence, the provisions of section 14(2) of the
Act, namely, whether substantial and compelling circumstances were
present to justify the passing of a lesser sentence than the
prescribed minimum sentence. The trial court has acted properly by
sending this matter for review as the observance of section 14(2) of
the Act is peremptory.
[3] Accordingly, the following
order is made:
1. the conviction is confirmed.
2. the sentence is, however,
set aside for the reasons already given, and the matter is remitted
to the court a quo
with a directive to comply with the provisions of section 14(2) of
the Act and to sentence the offender a fresh.
3. the sentencer may exercise
his discretion by suspending part of the sentence imposed.
______________________
SILUNGWE, AJ
I agree.
_______________________
VAN NIEKERK, J
S v Jonkers (CR 33/2009) [2009] NAHC 50 (17 April 2009);