R NOT REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: CR 77/2013
In the matter between:
THE STATE
and
AGGIES GOWASEB
(HIGH COURT MAIN DIVISION REVIEW REF NO.: 1703/2013)
Neutral citation: S v Gowaseb (CR 77/2013)[2013]NAHCMD345(20 November 2013)
Coram: MILLER AJ et SMUTS J
Delivered: 19 November 2013
ORDER
I will set aside the sentence imposed and substitute it with the following sentence:
‘Fined N$3000.00 (three thousand Namibian dollars) or 2 (two) years imprisonment of which N$1500.00 (one thousand five hundred Namibian dollars) or 1 (one) year imprisonment suspended for a period of 2 (two) years on condition that the accused is not convicted of the crime of assault with intent to cause grievous bodily harm committed within the period of suspension.’
JUDGMENT
MILLER AJ :
[1] In this matter the accused was convicted of the crime of assault with the intent to do grievous bodily harm.
[2] The conviction is in order and must be confirmed.
[3] The learned presiding magistrate imposed the following sentence:
‘N$3000.00 (Three thousand Namibian dollars) or 2 years direct on condition accused is not convicted of assault with intend (sic) to do grievous bodily harm during period of suspension, of which N$1500.00 (One thousand five hundred Namibian dollars) or 1 year direct imprisonment is suspended for period of 2 years.’
[4] With all due respect to the learned magistrate, the sentence imposed is confusing to say the least of it.
[5] What the magistrate had in mind appears from a passage in the record which reads as follows:
‘COURT: So he has to pay One Thousand Five Hundred Namibian dollars (N$1500.00) in capital or one (1) year. If he does not pay One Thousand Five Hundred Namibian dollars (N$1500.00) it does mean he will be put away for one (1) year.’
[6] As matters turned out though her intention did not translate itself in the words used to express it.
[7] I will set aside the sentence imposed and substitute it with the following sentence:
‘Fined N$3000.00 (three thousand Namibian dollars) or 2 (two) years imprisonment of which N$1500.00 (one thousand five hundred Namibian dollars) or 1 (one) year imprisonment suspended for a period of 2 (two) years on condition that the accused is not convicted of the crime of assault with intent to cause grievous bodily harm committed within the period of suspension.’
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P J MILLER
Judge
I agree
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D SMUTS
Judge