S v Kasamia (Case No. CR. 108/2008 ) [2008] NAHC 101 (06 October 2008);

Group

Full judgment


CASE NO. CR. 108/2008

IN THE HIGH COURT OF NAMIBIA



In the matter between:



THE STATE



and



SHIMBWALE KASAMIA



HIGH COURT REVIEW CASE NO.: 1666/2002



CORAM: HOFF, J et SILUNGWE, AJ



Delivered on: 2008.10.06



REVIEW JUDGMENT:



HOFF, J:

[1] The accused person, Shimbwale Kasamia, was convicted of the crime of theft and sentenced to a direct term of imprisonment of 5 years. Prior to sentence the accused admitted ten previous convictions of which some included housebreaking with intent to steal and theft as well as theft. The conviction and sentence of the accused was confirmed on review on 2 November 2002.


[2] This matter was again sent to the Registrar of the High Court by the divisional magistrate at Oshakati during June 2008. He made the following observations:

1. the sentence which appears on the review covering sheet is a completely different sentence as is apparent from the court record of the court proceedings;

2. the sentence in respect of this case has just been implemented but the convict is “resisting it for the reason that the sentence on the review covering sheet and in the typed J15 is suspended in toto”.


[3] The sentence which appears on the review cover sheet reads as follows: “Five thousand Namibian Dollars or 5 years imprisonment wholly suspended for 5 years on condition that accused is not convicted of possession of fire-arm without a licence”.


[4] The sentence which appears on the record of the court proceedings is a direct term of 5 years imprisonment.


[5] It is that the sentence reflected on the review cover sheet was entered in error since the accused was never charged nor convicted of the unlawful possession of a fire-arm.


[6] It is furthermore my experience that it often occurs that the sentence on the review cover sheet does not correctly reflect the sentence imposed as reflected in the record of the proceedings.


[7] The reason for this unacceptable situation, in my view, is the fact that some magistrates do not read the record and compare such record with the information appearing on the review cover sheet but they simply sign the review documents with their eyes closed, figuratively speaking.

What other explanation could there be for such discrepancy in casu between the sentence imposed and the sentence which appears on the review cover sheet ?


[8] I am further of the view that some magistrates prepare review matters in a lackluster manner which result in unnecessary delays in finalizing those review matters


[9] Unquestionably, the sentence which the accused should serve is the sentence which appears in the record of the court proceedings and not the one which appears on the review cover sheet.


[10] Since the sentence of 5 years imposed by the magistrate was not a wrong sentence passed (see the provisions of section 298 of the Criminal Procedure Act 51 of 1977), I do not deem it necessary to make any order in this regard other than to confirm it. Accordingly, the sentence is confirmed.



____________

HOFF, J



I agree



________________

SILUNGWE, AJ



Download