- November 3, 2022
- |Concise Law Reports (CLR), Criminal Law And Procedure
CRIMINAL PROCEDURE – AUTOMATIC REVIEW – FRAMING OF COMMUNITY SENTENCE ORDERS, SUSPENDED SENTENCES AND CONDITIONS THEREOF
The accused in both matters were charged with the crime of theft. The matters appeared before the same magistrate sitting in Eenhana and Ohangwena Magistrate’s Courts respectively. It is worth mentioning that the conditions of suspension of sentence are similar in form in the aforesaid matters, a reason why one judgment is prepared.
The convictions in both matters were in order and were confirmed. However, the framing of the second conditions of the suspended sentences in both cases posed a challenge. Adding to that is a sentence of N$10000 (SIC) or 5 months reflected on the review cover sheets in High Court ref. no. 209/2022 which was totally different from the sentence in the original record and J15.
Queries were directed to the learned Magistrate to clarify why the condition of suspension in High Court review no. 208/2022 was framed as follows; ‘Accused was sentenced to N$1000 (One thousand Namibia dollars) or 3 (three) month’s imprisonment wholly suspended for a period of 5 (five) years on condition stated therein. However, one of the conditions is that he was to carry out 150 hours or 30 days of community service. Clarity is sought how the sentence is going to be carried out in case of the breach of conditions if the accused is already sentenced to 3 months imprisonment wholly suspended.’ Also, in respect of High Court Ref no 209/2022 why an original record and J15 reflect a sentence of N$1000 or 5 months imprisonment which is totally different from the one on the review cover sheets.
The reviewing Judge received responses from the Divisional Magistrate for Oshakati division stating that magistrate Kalla Shaatuna has since resigned. He expressed his dismay on the delays in submitting records to the High court for review. He shared the same sentiments with the remarks pointed out in the queries with regard to a wrong sentence on the review coversheets and the framing of hours/periods of community services. He assured this court that in the meantime the wrong sentence on the review cover sheets is rectified. With regard to the framing of conditions he opined that the court may correct the conditions of suspended sentences by striking down the 30 and 40 days stipulated along with the hours of community service in the aforesaid matters which opinion in my view was correctly expressed.
Per SALIONGA J (KESSLAU AJ concurring):
‘[7] The conditions of suspension must be framed in no ambiguous terms. It must be clear for the accused to be certain of what he is expected or prohibited to do and how he is to comply with the sentence imposed. The difficulties in these conditions are that it is not clear whether the accused is expected to clock the hours as per the order or render the days of community service given. Doing what the magistrate in the present case did, poses a challenge on how the sentence is going to be put into operation in case of a breach.
[8] I find the condition of suspension that accused should carry out 150 hours or 30 days and 200 or 40 days of community service vague, unclear and impermissible. They have to be struck down. With regard to a wrong sentence reflected on the review cover sheets, though rectified in the meantime the rectified cover sheets were not signed or authenticated. Magistrates are once again reminded of the importance of proof-reading the record before submitting cases to the High Court on review.
[9] Accused in both instant matters were sentenced in February 2022 and might have fully complied with the conditions of community service or might have served their sentences, rendering this exercise an academic one.’
Accordingly, the High Court confirmed the conviction in both matters and corrected the sentences in accordance with justice.
S v Inotila.S v Martha (CR 622022) [2022] NAHCNLD 120 (03 November 2022)