Appeal court rules man not in breach of conditions

An appeal court yesterday ruled that a person who committed a crime during the operative term of a suspended sentence was not guilty of a crime but, rather, in breach of the conditions imposed by a court in sentencing.

Mr Justice Vincent DeGaetano, in the Court of Criminal Appeal, ruled that a court faced with deciding whether a person had, in fact, committed a crime within the specific period of a suspended sentence should not convict or acquit but simply declare whether, as a fact, there was a breach of the conditions.

The judge then moved to find Mahmud Abudumehdn Tarek, 26, not in breach of the conditions imposed by a court in handing down a suspended jail term.

Tarek had been given a suspended sentence by a court on April 5, 2000. Subsequently he was arraigned and charged with the possession of cannabis with intent to sell, assaulting police and committing the crimes within the operative term of the suspended sentence handed down in 2000.

On June 21, 2001, the Magistrates' Court had found him guilty of the crimes but declared him not guilty of committing them during the operative term of the suspended sentence on lack of evidence.

Mr Justice DeGaetano yesterday agreed with the conclusion of the Magistrates' Court that there was no proof that the Tarek who had been given a suspended jail term on April 5, 2000, was the same Tarek who had been sentenced to 18 months in jail and fined Lm300 on June 21, 2001.

Mr Justice DeGaetano acknowledged that for the breach of conditions to be proven, the court had to hear evidence to the effect that the person who had committed the breach was the same person who was convicted of the crime for which the suspended jail term was given.

The state of affairs in this case, the judge said, was was made doubly complicated by the fact that Tarek's date of birth differed in the two files.

Mr Justice DeGaetano said he could understand why the first court had felt that the facts were not proven but the court should not have acquitted Tarek of committing the crimes during the operative term of a suspended sentence but simply abstained from taking cognisance of the claim that there was a breach of conditions.

This would enable the prosecution to present the facts again before another court with more evidence and obtain a declaration of a breach of conditions.

In Tarek's case, Mr Justice DeGaetano ruled that the suspended sentence was not to be rendered executable because the facts had not been sufficiently proven.