Court name
High Court
Case name
S v Muthila
Media neutral citation
[2007] NAHC 74



1



CASE NO.: CR 139/07


        



IN THE HIGH COURT OF NAMIBIA


In the matter between:         
        






THE STATE





versus



JASON MUTHILA



[HIGH COURT REVIEW CASE NO.: 1307/07]




CORAM:  
MAINGA, J
et    
J

Delivered on:   
2007 September 25



_________________________________________________________


REVIEW JUDGMENT




PARKER, J.:

[1]     
The accused was charged before the Otjiwarongo Magistrate’s Court with contravening s. 44 (a) of the Casinos and Gambling Houses Act, 1994 (Act No. 32 of 1994) (the Act), as amended, in that he operated a gambling machine without a licence. At the commencement of the trial, the accused pleaded not guilty, but before the State closed its case, he changed his plea to that of guilty. After the learned Magistrate had followed the required procedures, she changed the plea to one of guilty, and convicted the accused. The accused was sentenced accordingly as follows:





Fine of N$5,000.00 (Five Thousand Namibian Dollars) or 18 (eighteen) months imprisonment and the Court suspends N$2,500.00 (Two Thousand Five Hundred Namibian Dollars) or 9 (nine) months thereof for a period of 3 (three) years on condition that you are not convicted of offence of contravening Sec 44 (a) of Act 32 of 1994 as amended being operating a gambling machine without a licence during period of suspension.



[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. A condition of suspension should not be formulated in such a way as to include both the commission of the offence and the conviction of the accused in the period of suspension 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 fine or imprisonment cannot be put into operation if the accused is not convicted of the offence 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 is made:



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




on condition that the accused is not convicted of contravening s. 44 (a) of the Act, as amended (i.e. operating a gambling machine without a licence), committed during the period of suspension.”





_____________________________

Parker, J



I agree.



_______________________________

Mainga, J