The State v Shimhanda (CR 29/2020) [2020] NAHCMD 149 (07 May 2020);

Group

Full judgment

“ANNEXURE 11”

 

Case Title:

The State v Paulus Shimhanda

Case No:

CR 29/2020

High Court MD Review No:

2368/2019

Magistrate Court Review No:

111/2019

Division of Court:

Main Division

Heard before:

Liebenberg J et

Claasen J

Delivered on:

7 May 2020

Neutral citation: S v Shimhanda (CR 29/2020) [2020] NAHCMD 151 (7 May 2020).

The order:

 

(a)      The conviction is confirmed.

 

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

 

‘N$20 000 or 48 months’ imprisonment of which N$5 000 or 12 months’ imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of theft, committed during the period of suspension.’

 

Reasons for order:

 

Claasen J (concurring Liebenberg J):

 

1.   The accused pleaded guilty to a charge of theft from his employer of 2400 kg of chicken to the value of N$50 000. The court questioned the accused in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977, as amended, (‘the CPA’) and after being satisfied that all the elements were admitted, convicted the accused accordingly.

2.   The court imposed a sentence phrased in the following terms:

‘N$20 000 (twenty thousand Namibian Dollars of which N$5 000 (five thousand Namibian Dollars) is suspended for a period of 5 years on the following conditions:

On condition that the accused is not convicted of theft committed during the period of suspension or 48 (forty eight) months imprisonment.’

3.   When the matter came before me on review, I directed a query to the magistrate about the unclear and cumbersome sentence. A reading of the record shows that the court intended imposing a partly suspended sentence, but suspended only part of the fine imposed and not the alternative imprisonment of 48 months.

4.   The magistrate in her reply explained that the aim of the sentence was deterrence in the form of a suspended sentence, but at the same time she did not want to lessen the term of imprisonment.

5.   Section 287(1) of the CPA provides that where a fine is imposed upon an accused, it may be coupled with imprisonment as an alternative sentence.

6.   Furthermore section 297(1)(b) of the CPA confers upon a court the discretion to suspend an imposed sentence on certain specified conditions. It is thus permissible to suspend the imposed sentence partially or wholly.

7.   Once a sentencing court decides to incorporate suspension of a sentence of a fine coupled with an alternative of imprisonment, the suspension applies to both the fine and the alternative of imprisonment and not just to one side thereof.[1]

8.   The decision by the magistrate to partially suspend the fine and not apply the same formula to the alternative of imprisonment, amounts to an irregularity which stands to be corrected.

9.   In the result it is ordered that:

(a)      The conviction is confirmed.

(b)      The sentence is amended to read as follows: N$20 000 or 48 months’ imprisonment of which N$5 000 or 12 months’ imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of theft, committed during the period of suspension.

C CLAASEN

JUDGE

J C LIEBENBERG

JUDGE

 

 


[1] S v Moyi 1994 (2) SACR 408 (T).

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