Court name
High Court Main Division
Case number
CRIMINAL 85 of 2013
Title

S v Gaeses (CRIMINAL 85 of 2013) [2014] NAHCMD 3 (16 January 2014);

Media neutral citation
[2014] NAHCMD 3
Coram
Hoff J
Ueitele J










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: CR: 85/2013





DATE:
16 JANUARY 2014





NOT
REPORTABLE








In
the matter between:





THE
STATE





And





KATRINA
GAESES........................................................ACCUSED








(HIGH
COURT MAIN DIVISION REVIEW REF NO. 1670/2013 Neutral citation; S 1/
Gaeses (CR 85/2013) [2014] NAHCMD 3 (16 January 2014)





Coram:
HOFF J and UEITELE J





Delivered:
16 January 2014





(a) The
convictions are confirmed.


(b) The
sentence is set aside and amended to read as follows:





The
two counts are taken together for purpose of sentence and the accused
is sentenced as follows: 24 months imprisonment of which six months
imprisonment are suspended for a period of three years on condition
the accused is not convicted of the crime of kidnapping or the crime
of assault with intent to do grievous bodily harm committed during
the period of suspension.





JUDGMENT





HOFF
J (UEITELE J concurring):





[1]
The accused was convicted of the crimes of kidnapping and assault
with intent to do grievous bodily harm. These two counts were taken
together for purpose of sentence and the following sentence was
imposed:





Twenty
four (24) months imprisonment of which six (6) months imprisonment is
suspended for three (3) years on condition that the accused is not
convicted of the crimes


(1)
Kidnapping and (2) Assault with intent to do grievous bodily harm
committed during the period of suspension.’


(Emphasis
provided).





[2]
I directed a query to the presiding magistrate wanting to know
whether his intention in formulating the suspended sentence was that
only in the instance where the accused is convicted of the crime of
kidnapping as well as the crime of assault with intent to do
grievous bodily harm would there be non-compliance with the condition
of sentence.





[3]
The magistrate replied that his intention was that there would be
non- compliance with the condition of suspension when either the
crime of kidnapping or the crime of assault with intent to do
grievous bodily harm had been committed and proposed that the
sentence be reformulated accordingly and in addition to include ‘any
violent act against another person’.





[4]
I agree that the sentence be reformulated but not to the extent that
the addition suggested should be included, since to do so would bring
an element of vagueness into the sentence, which may for example
include the crime of rape.





[5]
In the result the following orders made:





(a)
The convictions are confirmed.


(b)
The sentence is set aside and amended to read as follows:





The
two counts are taken together for purpose of sentence and the accused
is sentenced as follows:





24
months imprisonment of which six months imprisonment are suspended
for a period of three years on condition the accused is not convicted
of the crime of kidnapping or the crime of assault with intent to do
grievous bodily harm committed during the period of suspension.





E
P B HOFF





Judge








S
UEITELE





Judge