S v Magwenzi (HB 79 of 2017; HCA 27 of 2016) [2017] ZWBHC 79 (30 March 2017)

Citation: S v Magwenzi (HB 79 of 2017; HCA 27 of 2016) [2017] ZWBHC 79 (30 March 2017)
Media Neutral Citation: [2017] ZWBHC 79
Court: Bulawayo High Court
Case number: HB 79 of 2017 ; HCA 27 of 2016
Judges: Takuva J, Makonese J
Judgment date: 30 March 2017
Language: English
Type: Judgment
Other documents: Download PDF (373.2 KB)

HB 79/17

HCA 27/16

RICHARD MAGWENZI

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE & TAKUVA JJ

BULAWAYO 27 & 30 MARCH 2017

Criminal Appeal

D. Dube for the applicant

Ms S. Ndlovu for the respondent

MAKONESE J: The 34 year old vendor appeared before a magistrate sitting at Western Commonage facing one count of contravening section 157 (1) (a) of the Criminal Law Codification and Reform Act (Chapter 9:23), “possession of dagga and a further count of contravening section 29 (1) (a) of the Medicines Allied Substance Control Act (Chapter 15:03), “possession of unregistered drugs”. The appellant was convicted and sentenced to 15 months imprisonment. He now appeals against sentence.

On 30^th January 2016 police officers received information that appellant was in possession of dagga at his residence at Mzilikazi in Bulawayo. A search was conducted at appellant’s premises in his presence. A substantial quantity of dagga weighing 3.92kg with a street value of US$3 925 was recovered. During the search police officers also recovered seven bottles of 100ml of bronco clear cough syrup an unregistered drug in this country. The appellant explained to the trial magistrate that he was trying to fend for his family.

The appellant filed one single ground of appeal in his notice of appeal. He contends that the court erred in by sentencing the appellant to fifteen months imprisonment when a fine would have met the justice of the case. In his heads of argument the appellant dwells to a large extent on the need to keep first offenders out of prison by handing down non-custodial sentences. The appellant makes no reference to the facts. He makes no mention of the quantity of dagga recovered from him. There is no attempt to suggest that the 3.92kg of dagga recovered from the appellant could have been for any other purpose other than for commercial purposes. It is not a coincidence that the appellant was also found in possession of bronco clear cough syrup a banned substance associated with substance abuse.

The appellant suggested that community service would have been an appropriate sentence without citing one single decided case to support that proposition.

It does not assist this court for an appellant to simply restate the principles of sentencing without addressing the circumstances surrounding the commission of the offence. Heads of argument are of little value to the court where the court is not guided by reference to similar decided cases which tend to support the appellant’s case.

It is my view that the sentence imposed by the court is in line with similar decided cases. The quantity of dagga involved in this case called for nothing less than a prison sentence. The dagga was not for personal use but intended for trafficking and re-sale. The offence is evidently serious. There was no misdirection on the part of the court in its assessment of sentence. This court may only interfere with the sentence imposed by the lower court where it is established that there was a mis-direction.

Severe penalties have in the past been imposed for possession of dagga clearly meant for re-sale. In recent times there has been an upsurge of cases involving drug and substance abuse. The task of the police to combat this crime is indeed formidable. The offence is not easy to detect and in most cases the police have to rely on tip-offs.

In the case of S v Sixpence HH-77-03, HUNGWE J correctly held that dagga is a mind-bending and habit forming drug which he court has to be seen to be discouraging its use with all its dangerous consequences to youth and the community at large. In the case of S v Paidamoyo Chitaka HB-37-07 where the accused was sentenced to perform community service for being found in possession of 1.6kg of dagga it was held on review that the sentence was disturbingly inappropriate. The court indicated that a custodial sentence would have met the justice of the case. In the present matter the appellant was found in possession of a large quantity of dagga and a fine would be clearly inappropriate. In the case of S v Oly Sibanda HB-128-10, where the accused had been found in possession of 157 dagga plants, the court held that to sentence an accused who was found in possession of such a large quantity of dagga to community service defeats the spirit and purpose of community service. The learned judge went on to state that such an approach is a serious and brazen abuse of the court’s jurisdiction.

In Attorney General v Sibanda & Ors S-94-88 unemployed women first offenders with children, had each been convicted of possessing large quantities of dagga, varying from 5.05kilograms to 10 kilograms which they intended to sell to maintain their families. On appeal it was held, inter alia, that the following sentences should have been imposed.

2 ½ years imprisonment with half suspended in respect of the offender who possessed 5.05kg of dagga.
3 years imprisonment with half suspended, in respect of an offender who possessed 7.5kg of dagga.
3 years imprisonment of which one year is suspended for offenders who possessed between 8 and 8.5kg of dagga.
4 years imprisonment with 18 months suspended for offenders who possessed 10kg of dagga.

There is a plethora of cases that show the court’s views on drug related offences. I suspect that the reason the appellant’s counsel has refrained from making reference to such decided cases is that none of them support the imposition of a non-custodial sentence for the quantity of dagga recovered from the appellant.