REPUBLIC OF NAMIBIA
CASE NO.: CR 17/09
CASE NO.: CR 18/09
IN THE HIGH COURT OF NAMIBIA
In the matter between:
THE STATE versus SELMA THOMAS
(HIGH COURT REVIEW CASE NO.: 131/09)
THE STATE versus MERVIN SWARTZ
(HIGH COURT REVIEW CASE NO.: 325/09)
CORAM:
VAN NIEKERK, J et MARCUS, AJ
Delivered:
2009-03-17
_______________________________________________________________________
REVIEW JUDGMENT:
VAN NIEKERK, J:
[1]
These two cases present the same problem
in regard to sentence and are therefore dealt with together.
[2]
In the Thomas case the Magistrate, Ondangwa, convicted the
accused on a charge of theft and sentenced her to a fine, alternatively
imprisonment, suspended on condition of good behaviour.
The
conviction is in order, but the formulation of the condition of suspension
2
is not. It reads “N$1000-00 or 12 (twelve) months imprisonment wholly
suspended for 5 years on condition not convicted of theft within period of
suspension.”
[3]
In the Swartz case the conviction by the Magistrate, Mariental, on
a count of assault with intent to do grievous bodily harm is also in order.
The sentence reads: “Three years wholly suspended for a period of 5
years on condition accused is not convicted of offence of assault during
the period of suspension.”
[4]
Over some time it has been stated repeatedly by this Court that the
condition should be formulated to specify that the offence which accused
should not repeat must not be "committed" within the period of
suspension.
In the recent judgment in S v Elifas Novengi Vegeruapi
(unrep. Case No. CR1/09 del. 27/1/2009) this Court said about the
same issue:
“The conviction is in order, but the formulation of the suspended
sentence is not.
It states that the accused should pay a fine of
N$2000.00 or serve 2 years imprisonment which is wholly suspended for
3 years on condition that “accused is not convicted of assault with intent
to do grievous bodily harm within the suspension period.”
It does not
specify anything about the commission of the offence. The purpose of
the sentence is to attempt to encourage the accused not to commit the
stated offence for three years. By specifying that the conviction should
not occur within three years the effectiveness of the sentence is
3
diminished because, although the accused might commit the offence
within the suspension period, the conviction may, for various reasons,
only occur after the suspension period has already passed. The word
“committed” must therefore be inserted before the word “within”.
[5]
In order to make the point even clearer, it is useful to have regard
to what is stated about this topic in Hiemstra’s Criminal Procedure (loose
leaf edition by Albert Kruger at 28-81):
“The essence of a suspended sentence is that the accused must for a
determined period behave in a certain manner. In the case of a positive
condition the accused must do something within that period, for instance
pay an amount of compensation, and it is simple enough to determine
whether the accused completed the “task” properly and timeously. In the
case of a negative condition, for instance the general condition
prohibiting the commission of the particular offence, there should also
not be a problem, yet there is sometimes confusion.
aimed
at
restraining
the
accused,
by
means
of
The condition is
the
threat
of
implementation of the suspended punishment, from committing certain
acts during the particular period. It is conduct during the period which
is important, not the ultimate finding that the individual committed the
prohibited act. For that reason conditions of suspension are worded in
such a manner that it is the commission of the particular offence that
can precipitate implementation, not a conviction for that offence within
the period. The date of the conviction is, of course, unpredictable and
outside the control of the accused.
Therefore the condition is usually
worded as follows: ‘that the accused is not convicted of [the named
offence], committed during the period of suspension.΄”
[6]
It is therefore necessary to insert the word “committed” in each of
these sentences in an appropriate place.
4
[7]
There is another matter which arises from the condition of
suspension in the Swartz case. Although the accused was convicted of
assault with intent to do grievous bodily harm, the suspensive condition
relates to the “offence of assault”.
This means that the suspended
sentence may be brought into operation if he commits common assault,
but not if he commits assault with intent to do grievous bodily harm.
While it would not have been wrong to require the accused to refrain
from committing assault, as the offence of assault obviously has a
connection with the offence of which the accused was convicted, it would
have been appropriate to require of the accused also to refrain from
committing the very offence of which he has already been convicted. In
other words, to have suspended the sentence on condition accused does
not commit assault or assault with intent to do grievous bodily harm.
This follows naturally from the deterrent purpose of a suspended
sentence, which is to afford the accused the opportunity to evade the full
effect of the punishment by abstaining from conducting himself in the
same manner he did before and presumably learning something for the
better from his conviction and sentence.
[8]
Having said this, it is not open to this Court to change the
condition of suspension to include a reference to assault with intent to
do grievous bodily harm.
Doing this would, in my view, amount to
imposing a more onerous suspensive condition and this Court does not
5
have the power to increase a sentence on review (except in certain
circumstances which are not relevant here) (cf. sec 304(2)(c)(ii); S v
Arebeb 1997 NR 1 (HC). However, the learned magistrate in this case
should take note of what has been stated above when formulating
conditions of suspension in future.
[9]
The result is then as follows:
(a)
In the Thomas case the –
(i)
The conviction is confirmed.
(ii)
The sentence is reformulated to read:
“N$1000-00
(one thousand Namibian Dollars) or 12 (twelve) month
imprisonment wholly
suspended for 5 (five) years on
condition that the accused is not
convicted of theft
committed during the period of suspension”.
(b)
In the Swartz case the –
(i)
The conviction is confirmed.
(ii)
The sentence is reformulated to read: “3 (three) years
imprisonment wholly suspended for a period of 5 (five)
6
years on condition accused is not convicted of the
offence of assault committed during the period of
suspension.”
______________________________
VAN NIEKERK, J
I agree.
_____________________________
MARCUS, AJ