KAMOCHA J: The
accused was charged with contravening section 3(1) of the Gold Trade Act,
[Chapter 21:03] in that on 19 May 2010 he was found in possession of 0.62 grams
of gold valued at $20,62. He was
arrested and appeared in the magistrate court in Shurugwi where he pleaded
guilty and was found guilty as pleaded.
The conviction appears to be proper and nothing turns on it.
The sentence, however, is a cause
for concern. Section 3(3)(a) of the Act
provides that any person convicted of contravening section 3(1) shall be liable
to imprisonment for a period of not less than five years or more than ten years
unless the court finds special circumstances why the mandatory sentence should
not be imposed.
When the accused was invited to
advance any special circumstances if he had any, he told the court that his
wife was in hospital and was going to undergo a surgical operation. He claimed that he committed the offence
because he wanted to raise hospital fees and money for the surgical operation.
The court accepted the accused's
story and considered it to amount to special circumstances. In its consideration the court reasoned that
the accused needed money urgently to save his wife's life. There was need to save life. The court went on to state that the
circumstances that the accused found himself in, were beyond his control as he
needed to act fast to save life.
These are not the special circumstances
envisaged by the Act. What the accused
told the court happens quite often. It
does not mean that when one is in such a situation he has to resort to crime. The accused sought a wrong and illegal
solution to his problem which turned out to be no remedy at all as his gold was
valued at only $20. That could not pay
hospital fees and a surgeon's fees. He,
therefore, put his wife into more pain and danger. He was irresponsible by resorting to
crime. His behavior does not amount to
special circumstances. There is, in the
result, no reason why the mandatory sentence should not have been imposed as
required by law.
The trial court had sentenced him to
undergo 24 months imprisonment of which 18 months was suspended for 5 years on
the customary conditions of future good behavior. The remaining 6 months was suspended on
condition that he performed community service.
That sentence cannot be allowed to stand and must be set aside.
In the result, it is hereby ordered
that the sentence imposed by the trial court be and is hereby set aside. The matter is remitted to the trial court for
it to recall the accused to appear before it in order to impose the mandatory
sentence as required by the law.
In doing so the court should take
into account the 6 months imprisonment which he served as community service.
Ndou J
………………………………………….. I agree
