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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION WINDHOEK
REVIEW JUDGMENT
Case Title: The State v Sydney Gauaseb | Case No: CR 77/2023 |
High Court MD Review No: 191/2023 | Division of Court: Main Division |
Heard before: Hon Judge Shivute et Hon Judge Claasen | Delivered on: 18 July 2023 |
Neutral citation: S v Gauaseb (CR 77/2023) [2023] NAHCMD 409 (18 July 2023) | |
The order 1. The convictions are confirmed. 2. The sentence is set aside and it is substituted with the following sentence: The counts are taken together for sentencing and the accused is sentenced to pay a fine of N$2000 or six months’ imprisonment fully suspended for one year on the conditions that:
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Reasons for order: | |
CLAASEN J (concurring SHIVUTE J)
[1] The case appeared before me on automatic review. The accused, who was not legally represented was convicted of one count of assault with the intent to do grievous bodily harm and one count of assault by threat. The counts were taken together for sentencing and he was given a fully suspended sentence on certain conditions. [2] The reviewing court directed a query to the magistrate wherein it was pointed out that although a suspended sentence was imposed, it had no period of suspension. [3] The court a quo conceded that it was an oversight and asked the review court to make the period of suspension five months. [4] The convictions are in order and they will be confirmed. However, a suspended sentence without a period of suspension is incomplete and defective. The period of suspension is provided for in s 297(1)(b) of the Criminal Procedure Act 51 of 1977 as amended. In the headnote of State v Marungu1, it is stated that the period of suspension must be recorded as it forms an integral part of any suspended sentence. [5] Thus the sentence cannot be allowed to stand and it will be set aside. The fivemonth term proposed by the court a quo had almost elapsed by the time the query was returned to the high court. I also find it too short to have a meaningful deterrent effect on the accused’s behaviour. As such I regard a longer period of suspension as more suitable. [6] In the result the following order is made: 1. The convictions are confirmed. 2. The sentence is set aside and it is substituted with the following sentence: The counts are taken together for sentencing and the accused is sentenced to pay a fine of N$2000 or six months imprisonment fully suspended for one year on the conditions that:
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C M CLAASEN JUDGE | N N SHIVUTE JUDGE |
1 State v Marungu (CR 43/2013) [NAHCMD 230) (31 July 2013).