He
was sentenced as follows-
“Eighteen
months imprisonment which is wholly suspended for five years on condition that
accused does not within that period commit any offence involving possession of
gold for which when convicted will be sentenced to imprisonment without the
option of a fine.”
I
raised a query with the learned trial magistrate regarding the sentence.
In
his response, he stated that he was of the view that good character, and his
own value judgment, amounted to special circumstances. In reference to the
value judgment, he held the view that the fact that the accused stated that he
was holding the gold for and on behalf of a relative, as he did not know
whether it was copper, gold, or any other material, and, as such, he wanted to
investigate the authenticity of the material on behalf of the said relative. He
further stated that the “owner” of the material was not willing to come and
testify.
This
is the explanation from the accused which the court accepted, and concluded
that it amounted to special circumstances.
It
is inconceivable, in my view, to accept that an accused person who is found in
possession of gold, states that it belonged to someone else, but, is not
willing to call the said “owner” to come and testify.
Had
the court applied its mind to the case before it, it would have found no
special circumstances, thereby imposing the mandatory sentence.
I
find that there is a serious misdirection in this matter as there are no
special circumstances.
The
following order is therefore made -
“Order
(1)
The conviction is confirmed, but the sentence is set aside; and
(2) The matter is referred back to the same
magistrate in order for him to impose the mandatory sentence.”
