THE decision by Sparendaam Magistrate, Mr Alex Moore to grant a suspended sentence to cocaine trafficker Leonard Bacchus was, among other things, considered after the constitutional rights of the father of three were violated.

According to some legal minds, who have been following the case, the accused virtually threw himself at the mercy of the Court when he changed his plea from ‘not guilty’ to ‘guilty’ after the entire trial had started from scratch for a second time. The magistrate who was initially hearing the matter demitted office, and the man was, among other things, forced to also pay all over again for legal representation.

Bacchus had a trial which went 90% of the way at the Vigilance Magistrate’s Court but after the magistrate at that court demitted office the matter was then sent to Sparendaam before Magistrate Alex Moore.

The switch caused the accused some amount of distress according to the legal minds who spoke with this newspaper collectively, on condition of anonymity. The re-start of the trial took a toll on the financial standing of the father of three who resides at Block 20 Enmore/Haslington New Scheme, ECD, and his family coupled with several delays which were occasioned solely by the state.

The prosecutor who was first assigned to the case attended a training course, then proceeded on leave followed by his transfer out of the chambers of the DPP. During the months of delay that this caused, the office of the DPP sent no replacement until long after the prosecutor had been transferred.

The hearing of the matter was further delayed by the repeated absence of the replacement prosecutor without excuse, coupled with a period of uncertainty as to whether the original prosecutor would return to complete the case. When the issue was decided, the new prosecutor then requested a further extension of time to familiarize himself with the case as well as having commitments in other courts.

These developments began to push the accused to frustration. Through counsel he submitted that the situation was causing him and his family to run financially and emotionally ragged, even necessitating the closing of a business he operated at the time of his arrest. He was then called upon to lead a defence, which would have seen the trial further extended.
Bacchus took a decision then to make a plea bargain pursuant to the Plea Bargaining Act and offered to change his plea from not guilty to guilty.
He then admitted that his job was to sand and spray paint the religious kunds (Hindu religious urns) containing the cocaine to conceal the welds attaching the false bottoms. This he did in exchange for his son to be discharged while he would be given a non-custodial sentence.
He expressed a willingness to pay a fine, but submitted that in his current financial situation he was only able to realistically offer $2.5M, with the assistance of family members and friends overseas.
He said that he only had $300,000 and requested until next June to acquire the rest. The defendant submitted that he was throwing himself at the mercy of the court. At this point the magistrate sought inputs from the prosecutor who agreed to have Mr. Bacchus’ son discharged but insisted that Mr. Bacchus be given a 3-5 year custodial sentence as required under the Narcotic Drugs and Psychotropic Substances Control Act.
While agreeing that the circumstances of this case were ripe for a custodial sentence if the matter had been completed within a reasonable time, the magistrate pointed out that the time that the state took to try this case was anything but reasonable and amounted to a breach of the defendant’s constitutional right to a fair trial within a reasonable time.
The prosecutor disagreed and submitted that the magistrate had no jurisdiction to consider constitutional rights. He agreed that constitutional motions were made before the High Court but opined that he could not conceptualize a situation where a magistrate declined to be guided by the supreme law of the land without absurd or unjust results.

When the guilty plea was accepted, the magistrate then discharged his son John Bacchus and outlined the unfolding of the trial as a guide to his final decision and ruling. Once a guilty plea was entered, the continuation of the trial was not necessary.

FROM PROSECUTION TO PERSECUTION

The court opined that the restarting of the man’s trial, absence of the prosecutor and other unfortunate developments all contributed to a case of delayed justice which amounts to justice denied. He considered it unconscionable to imprison Bacchus after three years and two trials which had caused the defendant to lose so much. To do so, the magistrate opined, would be oppressive and see a shift “from prosecution to persecution”.
Accordingly he imposed the fine requested together with the maximum sentence of five years in prison but suspended it on condition that it will be activated if Bacchus is convicted of a like offence during the next three years. He imposed a similar two-year sentence for the ammunition charge and ordered that if both sentences were activated, they would run consecutively.
In departing from the custodial sentence prescribed by the act, the magistrate relied on the wide discretion given to him by the Summary Jurisdiction (Procedure) Act which governs all proceedings in Magistrate’s Courts. Section 39 empowers a magistrate to substitute a prescribed penalty with any other penalty within his power which he deems just in the circumstances.

On Tuesday, Magistrate Moore sent a very strong message to the businessman that the only reason he was not being sent to prison was because the unfortunate developments during his trial were tantamount to ‘a case of justice delayed is justice denied’, just as the legal minds had indicated to us, and hence the decision to rule a suspended sentence.
He sent an even stronger message to the prosecution that they were not exempt from the duty of all who labour to enforce the law to respect the rights of the citizens of this country who are charged with offences.
Persons present in the courtroom on the day the magistrate made his ruling were seen nodding their heads in approval as the magistrate gave his reasons for the ruling which today has become the subject of discussion in some quarters.

Bacchus was arrested along with his son and wife in 2011 when the police raided their home following a tip off that the family were in possession of cocaine for the purpose of trafficking. However this publication was told that the man was not the person who was planning to export the cocaine which was concealed in religious Kunds but rather the dealer is a businessman.

That businessman was arrested shortly after the arrests of Bacchus and his family but a lack of sufficient evidence saw the man who was fingered as the person who was to ship the items out of Guyana being released by the police even as Bacchus, his son and wife were charged in connection with the find.

A ruling was made that there was insufficient evidence against the man’s wife and that she had no case to answer.

(By Leroy Smith)