S v Antonio (CR 20 of 2022) [2022] NAHCNLD 42 (19 April 2022)

Case Title:

The State v Domingos Antonio

CR No.: 20/2022

Case No.: Outapi B350/2021

Division of Court:

Northern Local Division

Heard before:

SALIONGA J et MUNSU AJ

Delivered on: 19 April 2022

Neutral citation: S v Antonio (CR 20/2022) [2022] NAHCNLD 42 (19 April 2022)

The order:

1. The conviction is confirmed

2. The sentence is amended to read as follows:

A fine of N$ 2000.00 or 6 months imprisonment of which N$ 1000.00 or 3 months is suspended for a period of five years on condition that the accused is not convicted of contravening section 34(3) of the Immigration Control Act 7 of 1993: Failure to present himself to an immigration officer, committed during the period of suspension.

Reasons for the order

MUNSU, AJ (SALIONGA J concurring):

[1] This matter came before me on automatic review in terms of section 302 of the Criminal Procedure Act 51 of 1977 (CPA).

[2] The accused was arraigned on a charge of contravening section 34(3) read with sections 1 and 34 (1) of the Immigration Control Act 7 of 1993.

[3] He pleaded guilty to the charge and was questioned in terms of section 112 (1) (b) of the CPA. I am satisfied that the accused admitted all the allegations and essential elements of the offence and was correctly convicted.

[4] The following sentence was imposed:

‘N$ 2000.00 or 6 months of which 1000.00 or 3 months is to be suspended for a period of five years on condition accused is not convicted of the offence of failure to present themselves to an immigration officer during the period of suspension.’

[5] The accused was convicted for contravening a statutory provision. It follows that the provision creating the offence must appear in the sentence. Furthermore, the period of suspension must relate to the commission of the crime during a specified period of time, hence the word ‘committed’ should form part of the sentence.¹ The sentence imposed in this matter should be amended.

[6] In the result, it is ordered as follows:

1. The conviction is confirmed.

2. The sentence is amended to read as follows:

A fine of N$ 2000.00 or 6 months imprisonment of which N$ 1000.00 or 3 months is suspended for a period of five years on condition that the accused is not convicted of contravening section 34(3) of the Immigration Control Act 7 of 1993: Failure to present himself to an immigration officer, committed during the period of suspension.

Judge(s) signature

Comments:

MUNSU AJ

NONE

SALIONGA J

NONE