S v Agostinho (CRIMINAL 3 of 2011) [2011] NAHC 7 (26 January 2011)

CASE NO.: CR 3/2011 IN THE HIGH COURT OF NAMIBIA In the matter between: THE STATE and ANTONIO AGOSTINHO (HIGH COURT REVIEW CASE NO.: 91/2011) CORAM: MULLER, J et SIMPSON, AJ Delivered on: 26 January 2011 REVIEW JUDGMENT SIMPSON, AJ.: [1] The accused appeared in the Ondangwa District Court on one count of assault by threat and one count on assault read with S 21 of Act 4/03, and pleaded guilty to both counts. [2] On count 1 the Magistrate applied S 112 (1)(b) of the CPA and on count 2, S 112 (1)(a) was applied. On count 1 the accused was sentenced to four (4) months imprisonment, whereby on count 2, the accused was sentenced to two (2) months imprisonment in toto suspended on the usual conditions. [3] The issue that arises here concerns the jurisdiction of a court where S 112 (1)(a) of the CPA apply. When this section is applied, the court must impose sentence with an option of a fine. A sentence of imprisonment without an option of a fine and in toto suspended, cannot be imposed where the court applied S 112 (1)(a) of the CPA. [4] The conviction by the Magistrate of Ondangwa, is therefore confirmed but the sentence on count 2 is set aside and replaced with the following: Two hundred Namibian Dollars (N$200.00) or two (2) months imprisonment in toto suspended for three (3) years on condition that accused is not convicted of assault, read with S 21 of Act 4/03 committed during the period of suspension. _______________ SIMPSON, AJ I agree ____________ MULLER, J 3