Court name
High Court
Case name
S v Garoeb
Media neutral citation
[2007] NAHC 195











CASE NO.: CR163/2007







IN THE HIGH COURT OF NAMIBIA



In the matter between:







THE STATE







Versus







RAFAEL GAROEB






[HIGH COURT REVIEW CASE NO.: 1558/07]







CORAM: , J et PARKER, J


Delivered
on: 2007 November 28



_________________________________________________________________________



REVIEW JUDGMENT



PARKER, J.:



[1] The accused was charged before the Windhoek Magistrate’s Court
on six counts namely, malicious damage to property (count 1), assault
G.B.H. (count 2), assault (threat) (count 3), attempted murder (count
4), contravention of s.82(1) of Act 22 of 1999 (reckless or negligent
driving) (count 5), and attempted murder (count 6). Before the trial
commenced, counts 1, 2, 3 and 5 were withdrawn. The accused pleaded
guilty to two counts of attempted murder, and was convicted on his
plea as follows: “18 months’
imprisonment, wholly suspended for three years on condition accused
is not convicted of murder, attempted murder and assault with the
intent to do grievous bodily harm (both counts taken together)”.





[2] I have
perused the record, and I am satisfied that the proceedings are in
accordance with justice. However, the formulation of the sentence is
wrong inasmuch as it omits the words “committed” in the condition
attached to the suspension of a part of the sentence.





[3] The
purpose of a suspended sentence is to discourage the accused from
committing a similar offence during the period of suspension: if the
accused commits a similar offence within the period of suspension,
the suspended sentence may be brought into operation even though the
accused is only convicted of the offence after the period of
suspension. In the present case, the suspension is subjected to the
condition that both the commission of the offence and the accused’s
conviction be within the suspended period of three years. This is
wrong because for all manner of reasons, it can happen that the
conviction only follows after the period of suspension has expired.
Thus, in the manner in which the condition of suspension is framed by
the trial court in the present case, the suspended imprisonment
cannot be put into operation if the accused is not convicted of the
named offences within the period of suspension. That being the case,
the condition of suspension as framed by the trial court cannot
stand.





[4] In the
result, the following order:



The conviction and sentence are confirmed, but the condition of
suspension is amended to read:






“on
condition that the accused is not convicted of murder, attempted
murder and assault with intent to do grievous bodily harm, committed
during the period of suspension.”












________________


PARKER, J





I agree.





________________


MAINGA, J