S v Antonio (CR 20 of 2022) [2022] NAHCNLD 42 (19 April 2022)

REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION HELD AT OSHAKATI REVIEW JUDGEMENT Case Title: CR No.: 20/2022 The State v Domingos Antonio Case No.: Outapi B350/2021 Division of Court: Northern Local Division Heard before: Delivered on: 19 April 2022 SALIONGA J et MUNSU AJ Neutral citation: S v Antonio (CR 20/2022) [2022] NAHCNLD 42 (19 April 2022) The order: 1. The conviction is confirmed 2. The sentence is amended to read as follows: A fine of N$ 2000.00 or 6 months imprisonment of which N$ 1000.00 or 3 months is suspended for a period of five years on condition that the accused is not convicted of contravening section 34(3) of the Immigration Control Act 7 of 1993: Failure to present himself to an immigration officer, committed during the period of suspension. Reasons for the order MUNSU, AJ (SALIONGA J concurring): [1] This matter came before me on automatic review in terms of section 302 of the Criminal Procedure Act 51 of 1977 (CPA). [2] The accused was arraigned on a charge of contravening section 34(3) read with sections 1 and 34 (1) of the Immigration Control Act 7 of 1993. [3] He pleaded guilty to the charge and was questioned in terms of section 112 (1) (b) of the CPA. I am satisfied that the accused admitted all the allegations and essential elements of the offence and was correctly convicted. [4] The following sentence was imposed: ‘N$ 2000.00 or 6 months of which 1000.00 or 3 months is to be suspended for a period of five years on condition accused is not convicted of the offence of failure to present themselves to an immigration officer during the period of suspension.’ [5] The accused was convicted for contravening a statutory provision. It follows that the provision creating the offence must appear in the sentence. Furthermore, the period of suspension must relate to the commission of the crime during a specified period of time, hence the word ‘committed’ should form part of the sentence.1 The sentence imposed in this matter should be amended. [6] In the result, it is ordered as follows: 1. The conviction is confirmed. 2. The sentence is amended to read as follows: A fine of N$ 2000.00 or 6 months imprisonment of which N$ 1000.00 or 3 months is suspended for a period of five years on condition that the accused is not convicted of contravening section 34(3) of the Immigration Control Act 7 of 1993: Failure to present himself to an immigration officer, committed during the period of suspension. Judge(s) signature MUNSU AJ Comments: NONE 1 Terblanche SS, 2007 Guide to Sentencing in South Africa, 2nd ed Lexis Nexis, Durban, p 362. SALIONGA J NONE 3