Court name
High Court
Case name
S v Kasmia and Another
Media neutral citation
[2007] NAHC 158




















CASE
NO.: CR 54/07






IN
THE HIGH COURT OF NAMIBIA



In the matter
between:



THE STATE






versus






1. SHIMBWALE
KASMIA


2. NAURE
TJIPITO






(HIGH
COURT REVIEW CASE NO.: 419/05)







CORAM: VAN
NIEKERK, J
et
SILUNGWE, AJ



Delivered on:
2007-03-29



REVIEW
JUDGMENT
:


VAN
NIEKERK, J
:





[1] The
two accused were convicted by the Magistrate, Opuwo on a charge of
housebreaking with intent to steal and theft of cash and goods to the
value of ±N$4 220 stolen from a shop, most of which were not
recovered. I am satisfied that the conviction is in order.



2







[2] The magistrate
sentenced the accused to 8 years imprisonment of which 3 years were
suspended for 5 years on the usual condition. The sentence clearly
exceeds the ordinary penalty jurisdiction of a magistrate's court in
a case
like
this, which is, in the case of imprisonment, a maximum period of 5
years imprisonment. The sentences can therefore not stand.










[3] The
personal circumstances of the accused as stated by themselves are
that accused no. 1, who was about 28 years old, has a girl friend and
four children. He volunteered information that he was serving a
number of sentences totaling seven years for various crimes, but no
previous convictions were proved. Before he went to prison he had
10-11 goats. Accused no. 2, who was about 27 years old of age, had a
girlfriend and two children. He was unemployed, had no money for a
fine and no live stock.





The
loss sustained by the complainant is considerable. The evidence also
shows that a window, a door and burglar bars were broken in order to
gain access to the shop, thereby adding to his damages.









3






[4] I
agree with the trial magistrate that an appropriate sentence in the
circumstances of this case would be a substantial period of
imprisonment of which part is suspended.





[5] In
the result the following order is made:






1. The convictions
of both accused are confirmed.





2. The
sentences of both accused are set aside and substituted by the
following sentence:






4 (four) years
imprisonment of which (one) year is suspended for 5 (five) years on
condition that the accused is not convicted of housebreaking with
intent to steal and theft committed within period of suspension.












______________________________



VAN NIEKERK, J






4







I agree










_______________________________



SILUNGWE, AJ