Court name
High Court Main Division
Case number
CRIMINAL 57 of 2013
Case name
S v Namwandi
Media neutral citation
[2013] NAHCMD 271
Judge
Hoff J
Smuts J













NOT REPORTABLE







REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK







JUDGMENT



Case no: CR: 57/2013











In the matter between:











THE STATE



and



MELINEKELO NAMWANDI
............................................................................ACCUSED







(HIGH COURT MAIN DIVISION
REVIEW REF NO. 609/2013











Neutral citation:
State v Namwandi
(CR 57/2013) [2013] NAHCMD 271 (04 October 2013)











Coram: HOFF J and
SMUTS J







Delivered: 04
October 2013

























ORDER





(a) The conviction is
confirmed.







(b) The sentence is set
aside and substituted with the following sentence:







12 months imprisonment of
which six months imprisonment are suspended for a period of three
years on condition that the accused is not convicted of the crime of
assault by threat or of the crime of assault with intent to do
grievous bodily harm committed during the period of suspension.









JUDGMENT









HOFF J (SMUTS J
concurring):







[1] The accused was
convicted of the crime of assault by threat and sentenced to 12
months imprisonment. The accused was a first offender.







[2] I requested reasons
for sentence from the presiding magistrate. The magistrate in his
reply stated that he took into account the personal circumstances of
the accused and the fact that she was a first offender. The
magistrate further stated that he imposed the sentence because the
accused had manifested an intention to injure the complainant. The
magistrate further stated that he regarded the conduct of the accused
in a serious light even though she was never hurt stating further
that there is no ‘general rule that a first offender is
entitled to a fine or a wholly suspended sentence’.







[3] In my view the
magistrate correctly referred to some of the factors normally taken
into account when an appropriate sentence is being considered namely,
the personal circumstances of the accused person, the seriousness of
the offence and the previous convictions or the lack thereof. In my
view it is the application of these factors which may become
problematic. The magistrate further stated correctly so that a first
offender is not as a general rule entitled to a wholly suspended
sentence.







[4] The testimony of the
complainant was that on the day in question the accused was in
possession of a knife and had on more than one occasion threatened to
kill the complainant. The reason why this threat was made was
apparently because the complainant had in the past at once stage
according to the accused had asked the accused whether she (ie
accused) knew that a certain Simon she (ie accused) was allegedly
sleeping with had an unspecified illness. The complainant denied that
she had ever said something to that effect to the accused person. The
accused person chose not to testify.







[5] The accused was a
first offender, was unemployed, unmarried but the mother of two
minors aged seven years and ten years respectively who were cared by
the parents of the accused.







[6] The offence the
accused had been convicted of is a serious offence in view of the
particular circumstances of this case but in my view having regard to
the personal circumstances of the accused a direct term of
imprisonment of 12 months is an unduly harsh sentence.







[7] In view of especially
the fact that the accused is a first offender part of the sentence
imposed should have been suspended.







[8] In the result the
following orders are made:







(a) The conviction is
confirmed.







(b) The sentence is set
aside and substituted with the following sentence:







12 months imprisonment of
which six months imprisonment are suspended for a period of three
years on condition that the accused is not convicted of the crime of
assault by threat or of the crime of assault with intent to do
grievous bodily harm committed during the period of suspension.































----------------------------------



E P B HOFF



Judge



























----------------------------------



D SMUTS



Judge