NO.: CR 54/07
THE HIGH COURT OF NAMIBIA
In the matter
COURT REVIEW CASE NO.: 419/05)
NIEKERK, J et
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.
 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.
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.
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.
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.
the result the following order is made:
1. The convictions
of both accused are confirmed.
sentences of both accused are set aside and substituted by the
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