S v Shilongo (CR 145/2023) [2023] NAHCMD 793 (5 December 2023)

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:

1. The conviction is confirmed.

2. 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.

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