Case Title:

 The State v Ambambi Iipinge

Case No.: CR 07/2023

Outapi: 86/2020

Division of Court:

Northern Local Division

 Heard before:

 Honourable Mr Justice Munsu AJ et

 Honourable Mr Justice Kesslau AJ

Delivered on:

23 February 2023

Neutral citation: S v Iipinge  (CR 07/2023) [2023] NAHCNLD 15 (23 February 2023)

It is hereby ordered that:

1. The order putting into operation the suspended sentence is confirmed however the sentence is amended to reflect a fine of N$ 3 000 or 6 (six) months imprisonment.

2. This order to be served on the Divundu Correctional Facility.

Reasons for the order:

 KESSLAU AJ  (MUNSU AJ concurring):

[1]        During March 2020 the accused pleaded guilty to a charge of contravening section 33 read with sections 1, 38(2) and 39 of Act 7 of 1996: Possession of ammunition. He was sentenced to: ‘a fine of N$3000 or 12 months imprisonment which is wholly suspended for a period of 3 years on condition:

1. That accused is not convicted of a similar offence during a period of suspension;
2. That accused undertakes to do 420 hours of community service under the assignment personnel Peter Kashimvulika at Outapi Magistrate Court . . .’

[2]        The matter was thereafter forwarded for automatic review in terms of Section 302 of the Criminal Procedure Act 51 of 1977, as amended (the CPA). The reviewing Judge, unsatisfied with the formulation of the sentence, confirmed the conviction however amended the sentence to:  ‘Accused is sentenced to N$3 000 or 6 months imprisonment wholly suspended for 3 years on condition that accused completes 200 hours of community service at Outapi magistrate’s office under the supervision of Peter Kashimvulika between the hours 08h00 to 17h00 excluding week-ends and public holidays with effect from 25 June 2020 and that the accused is not convicted of contravening section 33 read with sections 38 and 39 of Act 7 of 1996, Possession of ammunition, committed during the period of suspension’.[1] (Emphasis added)

[3]        The accused failed to attend to the community service and the State successfully applied for the suspended sentence to be put into operation. The application was heard before a different Magistrate who, unconvinced by the explanation of the accused, put into operation the sentence. Apparently unaware of the amended sentence, ordered that the accused serve the original sentence of N$ 3 000 or 12 months imprisonment.

[4]        The matter has been dealt with on review previously and is not reviewable in the current circumstances.[2] However considering that a misdirection has now come to the attention of this court it needs to be dealt with. The sentence imposed is incompetent as it was amended on review and this court will thus interfere.

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

1. The order putting into operation the suspended sentence is confirmed however the sentence is amended to reflect a fine of N$ 3 000 or 6 (six) months imprisonment.
2. This order to be served on the Divundu Correctional Facility.

Judge(s) signature

Comments: 

KESSLAU AJ:

None

MUNSU AJ:

None