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S v Davids (Case No.: CR 01/2008) [2008] NAHC 25 (21 January 2008)

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CASE NO.: CR 01/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

STOFFEL DAVIDS

(HIGH COURT REVIEW CASE NO.: 1872/2007)

CORAM: MULLER, J et PARKER, J

Delivered on: 21 January 2008

REVIEW JUDGMENT

MULLER, J.:

[1] The accused was convicted on two charges of contraventions of the Abuse of Dependence-producing Substances and Rehabilitation Centre Act No 41 of 1971. He was sentenced as follows in respect of these two convictions:

“Count 1: Six Thousand Dollars (N$6000.00) fine or twelve (12) months imprisonment.

Count 2: Two (2) years imprisonment wholly suspended for five (5) ears on condition accused is not convicted of an offence of contravening section 2 (a), (b), (c) or (d) of Act 41 of 1971 committed within the period of suspension.”

[2] I queried the magistrate with regard to the formulation of the sentence on the second conviction.

“1. The manner that the sentence in respect of count 2 is formulated renders it confusing and ineffective. The condition for suspension is that the accused is not convicted of an offence contravening section 2 (a), (b), (c) and (d) of the Act. That means that the condition only becomes operative if there are convictions on all 4 subsections of s 2 of the Act. It should have read …”contravening section 2 (a), (b), (c) or (d) of Act…”

There were also further queries which are not relevant here.

[3] The magistrate agreed that the wording of the condition in respect of the second sentence was wrong and must be amended.

[4] In the result:

a) the two convictions are confirmed as well as the sentence in respect of the first conviction.

b) the sentence in respect of the second conviction is amended and now reads as follows:

“Two (2) years imprisonment wholly suspended for five (5) years on condition that the accused is not convicted of an offence of contravening sections 2(a), (b), (c) or (d) of Act No 41 of 1971, committed within the period of suspension.”

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MULLER, J

I agree

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PARKER, J