This is an appeal against conviction and sentence.The appellants
were charged with contravening section 3(1) of the Gold Trade Act
[Chapter 21:03] (the Act) “Possession of gold without a licence or
permit.”It was alleged, that, on the 26th day of June 2013, at
around 23:00 hours, and at Mukombe Complex, ...
This is an appeal against conviction and sentence.
The appellants
were charged with contravening section 3(1) of the Gold Trade Act
[Chapter 21:03] (the Act) “Possession of gold without a licence or
permit.”
It was alleged, that, on the 26th day of June 2013, at
around 23:00 hours, and at Mukombe Complex, Tsholotsho Business Centre
the two were unlawfully found in possession of gold without a licence or
permit contrary to the Gold Trade Act.
The facts are that the
two appellants were at Mukombe Business Centre when the first appellant
was searched and found in possession of a gold nugget which he intended
to sell.
The first appellant was arrested and he implicated the second appellant as the owner of the gold.
The second appellant was arrested and admitted ownership of the gold.
The gold was assayed and found with gold concentrate of 0.0291g valued at $1=11.
Both appellants pleaded guilty and were found guilty as charged.
No special circumstances were found and they were sentenced to the mandatory five years imprisonment.
Aggrieved,
the appellants appealed against both conviction and sentence. In their
notice of appeal, they indicated the following to be grounds of appeal.
“Ad conviction: 2nd appellant
(1)The learned magistrate erred in finding the 2nd appellant guilty of the crime of possession of gold when 2nd appellant was in fact not in possession thereof and when a claim of ownership thereof did not and does not amount to possession.
(2)The learned magistrate erred in holding that there was common purpose in a crime of possession stricto.
Ad sentence 1st and 2nd appellant (sic)
(3)
The learned magistrate erred in holding that there were no special
circumstances to warrant imposing (sic) a lesser sentence than the
statutory 5 years in that:
3.1 The value involved being that of US$1 ought to have been considered as a special circumstance.
3.2 The 1st appellant was clearly a youthful offender and this element of youthfulness being a special circumstance.
3.3 The appellants stated that they were looking for money for food, a clear sign that, albeit, working they were not being paid, and, if they were paid, they were not being paid enough to sustain themselves. The appellants committed the crime out of starvation and necessity to sustain their lives and produced it to buy food with it.
3.4
The cumulative effect of the mitigating factors amounts to a special
circumstance sufficient to influence the court not to impose the
mandatory minimum penalty.
(4) The learned magistrate erred,
further, in failing to ask the appellants why they committed the offence
and the circumstances surrounding the commission of the offence as this
would have armed the court with enough knowledge to whether special
circumstances did exist or not, or, alternatively, understood whether or
not there were compelling reasons not to impose a minimum mandatory
sentence.
(5) The learned magistrate erred in failing to enquire,
after he summoned the appellant's employer to court, specifically to
find out if there were any special reasons or not, if the employer was
paying the appellants their salaries or not.
Wherefore, the appellants pray that:
(a) The conviction in respect of 2nd appellant be set aside. In the event that it is sustained;
(b)
That the court finds that there were special circumstances in this case
sufficient to warrant the setting aside of the sentence of 5 years and
substituting it with that of a wholly suspended 5 year sentence, or,
alternatively, community service or the payment of a fine.”…,.
Both appellants appealed against sentence.
The first criticism is that the value of the gold, being $1, is negligible and should have amounted to special circumstances.
In S v Gumbo HB48-89 the accused was in possession of an uncut emerald worth $3. He was a hotelier who had been given the stone as a keepsake by a guest many years ago. The cumulative effect of the following factors constituted special circumstances:
(i) The negligible value of the stone;
(ii) That it was acquired as a gift before the Act provided for the minimum penalty;
(iii) That it had been kept for ten years; and
(iv) That there was no question of financial gain for the accused.
In casu, while it is accepted that the value is negligible, this factor, standing alone, cannot amount to special reasons.
The appellants were looking for a buyer and they were ignorant of the value of the gold. Obviously, they were not going to sell it for less than US$1. The gold had been stolen from their employer in Bulawayo and they believed it was valuable.
For these reasons, this ground is dismissed.
Secondly, it was argued, that, the first appellant is a youthful offender aged 22 years at the time of the offence.
It is our law that the age of an accused is a relevant factor when assessing an appropriate sentence.
However, for purposes of a finding of special circumstances, youthfulness, on its own, especially where the accused is above the age of 18 years, cannot amount to special reasons: see S v Mutowo HH458-88 where an 18 year old, in Form One, who found an automatic pistol while visiting Mozambique and intended using it for shooting birds, escaped the mandatory penalty after the court found that his age coupled with the purpose of possession of the gun amount to special reasons.
In casu, although the accused was 22 years old at the time the offence was committed, he is married with two children and employed at Hope Fountain. He also admitted that he had been a gold panner for many years and that was “his way of life.” He was fully aware of the consequences of possessing gold without a licence.
I do not find any evidence of immaturity in his conduct.
Consequently, this ground is also dismissed.
Thirdly, it was contended, that, the applicants acted out of necessity in that they were not being paid their salaries by their employer or that if they were ever paid it was insufficient to sustain themselves.
Therefore, so that argument went, they acted out of starvation and necessity.
In my view, the defence of necessity must be confined within the strictest and narrowest limits because of the danger attendant upon allowing a plea of necessity to excuse criminal conduct.
In S v Beaule 1984 (2) ZLR 146 (S) it was held that for an act to be justified on the ground of necessity;
(a) A legal interest of the accused must have been endangered;
(b) By a threat which had commenced or was imminent but which was -
(c) Not caused by the accused's fault; and, in addition, it must have been -
(d) Necessary for the accused to avert the danger; and
(e) The means used for this purpose must have been reasonable in the circumstances.
In the present case, the appellants had other means open to them which they should have pursued before resorting to the final drastic step of stealing from their employer and possessing gold without a licence or permit.
They should have sued the employer for non-payment of wages.
I should point out, that, necessity has not been established on the facts of this case in that it has not been explained by the appellants why and how they travelled a distance in excess of one hundred kilometers i.e. Bulawayo to Tsholotsho. If they found themselves without food in Tsholotsho was this not their fault? What were they doing in Tsholotsho when they were employed in Bulawayo?
The magistrate was also criticized for not asking the reason why they committed the offence.
However, this criticism is unwarranted and unjustified in that the record shows that they gave a full explanation, namely, that they wanted to buy food.
There is therefore no merit in this argument.
The final ground of appeal is that the magistrate should have asked the appellants employer whether or not he had paid their salaries.
As I pointed out above, assuming the question had been put and the answer was in the negative this would not have amounted to special circumstances in this case. The reason is simply, that, other lawful options exist for remedying such non-payment of wages.
In any case the appellants failed to put this question to their employer when he was in the witness stand despite earlier on having raised that issue.
For these reasons, I would dismiss the appeal in its entirety.
