S v Michael (6) (CRIMINAL 3 of 2020) [2020] NAHCNLD 3 (15 January 2020)

Case Title:

The State v Nailenge Thomas Michael

CR No.: 03/2020

Case No.: 445/2019

Division of Court:

Northern Local Division

Heard before:

Honourable Mr. Justice January J et

Honourable Ms. Justice Salionga J

Delivered on:

15 January 2020

Neutral citation: S v Michael (CR 03/2020) [2020] NAHCNLD 03 (15 January 2020)

The order:

1. The conviction of theft by false pretences is confirmed.

2. The sentence of a fine of N$2000 or 18 months’ imprisonment wholly suspended for a period of four (4) years on condition that accused is not convicted of a similar offence is corrected to read; A fine of N$2000 or 18 months imprisonment wholly suspended for a period of four (4) years on condition that accused is not convicted of theft by false pretences or theft committed within the period of suspension.

Reasons for order:

JANUARY J (SALIONGA AJ concurring):

[1] This court has in numerous cases disapproved and pronounced itself that magistrates should not suspend sentences on condition that an accused should not commit ‘a similar or similar offences.’

[2] The condition of suspension is too wide and is bound to lead to uncertainty and misinterpretation. (See: S v Simon 1991 NR 104 (HC); Hiemstra’s Criminal Procedure, Issue 2 at 28-79 to 28-80). Conditions must be clear: Commentary on section 297 of the Criminal Procedure Act).

[3] The conditions must be clear and must refer to one or more specific offences, not to a group of offences. (See: Hiemstra’s Criminal Procedure, Issue 2 at 28-79: Commentary on section 297 of the Criminal Procedure Act).

H C JANUARY

JUDGE

J T SALIONGA

JUDGE