State v Samuel (CRIMINAL 12 of 2020) [2020] NAHCNLD 22 (10 February 2020)

Case Title:

The State v Nahenda Samuel

CR No.: 12/2020

Case No.: 452/2017

Division of Court:

Northern Local Division

Heard before:

Honourable Mr Justice January J et

Honourable Mrs Justice Salionga J

Delivered on:

10 February 2020

Neutral citation: S v Samuel (CR 12/2020) [2020] NAHCNLD 22 (10 February 2020)

The order:

1. The conviction of negligent discharge in contravention of section 38(1) (l) read with sections 1, 38 and 39 of Act 7 of 1996 as amended is confirmed;

2. The conviction of possession of a fire arm without a license in contravention of section 2 read with sections 1, 38 and 39 is confirmed;

3. The sentence of N$3000 or 12 months imprisonment of which N$1500 or six months imprisonment is suspended for five years is confirmed but amended to read in addition on condition that the accused is not convicted for a contravention of section 38(1) (l) of Act 6 of 1997 committed during the period of suspension;

4. The sentence of N$2000 or ten months imprisonment of which N$1000 or five months imprisonment is suspended for a period of five years is confirmed but amended in addition to read on condition that accused is not convicted for a contravention of section 2 of Act 6 of 1997 committed during the period of suspension.

Reasons for the order:

JANUARY J (SALIONGA J concurring):

[1] The sentences imposed in both counts were suspended without any conditions attached.

[2] This court has on numerous occasions in the past directed that it is imperative that the words ‘committed during the period of suspension’ must be included when sentences are suspended.¹

‘The oversight by the magistrate on the formulation of one of the conditions of suspension is elementary and should have been guarded against; more so where this court in the past has delivered a number of similar judgments in cases where the same mistake has repeatedly been made.’

H C JANUARY

JUDGE

J T SALIONGA

JUDGE