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REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
REVIEW JUDGMENT
PRACTICE DIRECTIVE 61
Case Title: The State v Elias Shilongo and 2 others | Case No: CR 145/2023 | |
High Court MD Review No: 1384/2023 | Division of Court: High Court, Main Division | |
Coram: Shivute J et Christiaan AJ | Delivered on: 5 December 2023 | |
Neutral citation: S v Shilongo (CR 145/2023) [2023] NAHCMD 793 ( 5 December 2023) | ||
ORDER:
(a) Accused 1 and 2 are each sentenced to 12 months’ direct imprisonment. (b) Accused 3 is sentenced to 6 months’ imprisonment, wholly suspended for a period of 3 (three) years on the following conditions: (i) Accused 3 is not found guilty of the offence of robbery committed during the period of suspension. (ii) That accused 3 completes life skills programme as per court order. (iii) That accused 3 completes community service as per court order. | ||
REASONS FOR ORDERS: | ||
SHIVUTE J (CHRISTIAAN AJ concurring): [1] This is a review matter which came before me in terms of section 302(1) of the Criminal Procedure Act 51 of 1977. [2] The three accused persons appeared in the Magistrate’s Court for the district of Windhoek, held at Katutura on a charge of robbery. All three accused pleaded not guilty and at the end of the trial, the court found them guilty as charged. [3] The court proceeded to sentence the accused persons as follows: ‘Accused 1 and 2: Direct imprisonment of a period of 12 (twelve) months; Accused 3: Direct imprisonment of a period of 6 (six) months is suspended for a period of 3 (three) years on the following conditions: 1. The accused not found guilty of offence of robbery. 2. That accused completes life skills programme as per court order. 3. That accused completes community service as per court order.’ [4] The accused persons were properly convicted. However, the sentence with regard to accused 1 and 2, as well as the first condition of suspension of sentence with regard to accused 3, is vague. Accordingly, I enquired from the magistrate what he meant with the sentence in respect of accused 1 and 2. I also enquired from him on whether the first condition of suspension of sentence is not too vague. The magistrate’s response was: ‘. . . I believe the correct wording in respect of point 2 of the court’s query should read that the accused is sentenced to a “custodial sentence of imprisonment without the option of a fine” for the said period, and in respect of point 4, that the accused is not found guilty of the “offence” of robbery . . . . alternatively the court may correct me on the preferred wording.’ [5] The magistrate’s response does not address the queries. [6] In regard to the sentence imposed on accused 1 and 2, it is not clear whether or not the 12 months’ imprisonment imposed is in respect of each of the 2 accused persons. In regard to the first condition of suspension of sentence imposed on accused 3, it must be clear to accused 3 the period during which another conviction on robbery would or might bring the suspended sentence into operation. [7] As a result, the conviction and sentences are confirmed, however, considering the above and to remove any cause of confusion, misinterpretation or uncertainty, the sentences are altered as follows: (a) Accused 1 and 2 are each sentenced to 12 months’ direct imprisonment. (b) Accused 3 is sentenced to 6 months’ imprisonment, wholly suspended for a period of 3 (three) years on the following conditions: (i) Accused 3 is not found guilty of the offence of robbery committed during the period of suspension. (ii) That accused 3 completes life skills programme as per court order. (iii) That accused 3 completes community service as per court order. | ||
N N SHIVUTE JUDGE | P CHRISTIAAN ACTING JUDGE |