CRB B 182/15
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 30 APRIL, 2015
MUTEMA J: Section 157 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that any person who unlawfully acquires or possesses a dangerous drug shall be guilty of unlawfully possessing a dangerous drug and liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.
In casu the accused person pleaded guilty to unlawful possession of nine twists and six plastic paper bags of dagga weighing a total of 10,22 kilogrammes. He was duly convicted as charged. Nothing turns on that conviction. He was sentenced to 14 months imprisonment 6 months of which were suspended for 5 years on the usual condition of future good conduct while the balance of 8 months was suspended on condition the accused completed 280 hours of community service at Lutumba Primary School in Beitbridge.
When the record of proceedings landed on my desk on automatic review I raised a query with the learned trial magistrate asking him if he was able to justify the leniency of the sentence he imposed given the quantity of the dagga the accused possessed. The response I was furnished with is couched as follows:
“… Its (sic) correct that the quantity of dagga accused possessed was substantial, however as I mentioned in my reasons for sentence, I was of the view that the manner in which the accused got into possession of the said dagga is a special circumstance that reduces his moral blameworthy (sic). He stated that “the dagga had been left to (sic) me by Ray Muleya so that I will hand it over to Samson Mbedzi but the police pounced on me before Samson came to collect them (sic),” this was not challenged by the state. I thought therefore that in those circumstances a custodial sentence may be too harsh on the accused.”
This accused is 38 years old, married with three children, a first offender who relies on piece jobs to eke out a living realising about $50 per month.
It is pertinent to note that the gravamen of the offence here is that it is not only the supply of dagga which constitutes an offence, unlawful possession, for any purpose, is sufficient and the legislature does not permit exceptions although the severity of the sentence may vary according to the intention behind the possession of the dagga. The term “possession” has to be accorded its ordinary grammatical legal meaning and there is nothing like a special circumstance surrounding accused’s possession of the 10,22kg of the dagga warranting reduction in his moral blameworthiness. He very well knew what he possessed was dagga and that his possession of it was unlawful. With that knowledge he agreed to act as a conduit. The quantity was substantial and he must have appreciated that it must have been destined for supply once Samson Mbedzi collected it. Had the learned trial magistrate bothered to think outside the box he would have been justified had he taken judicial notice of the notorious fact that Beitbridge town is a border urban setting where the trafficking of dagga is a rampant activity. The lame assertion that the state did not challenge the accused’s explanation for the possession of the dagga was no warrant for the inordinately lenient sentence imposed.
I am aware that the invocation of a tariff system in sentencing in possession of dagga cases should be eschewed. However, a comparison with sentences imposed in similar cases does provide a useful guide to the sentencer in striving, by way of inferential judicious reasoning, to arrive at a condign sentence in a given matter. One cannot ignore quantity of the possessed dagga in the determination of an appropriate sentence.
In S v Paidamoyo Chitaka HB-37-07, for possession of 1,6kg of dagga, a sentence of community service was held disturbingly inappropriate. In AG v Sibanda & Ors SC-94-88 women first offenders were sentenced as follows:
- 4 years imprisonment with 1 ½ years suspended for possession of 10kg of dagga.
- 3 years imprisonment with 1 year suspended for possession of 8kg of dagga
- 3 years imprisonment with half suspended for possession of 7,5kg of dagga
In S v Mashonga 1998 (2) ZLR 377 (HC) for possession of 2 kg of dagga by a female first offender, a sentence of 24 months with 10 suspended was held appropriate.
And in S v Nyambo 1997 (2) ZLR 333 H a 22 year old first offender was sentenced to 7 years imprisonment of which 2 years were suspended for possession of 12,49kg of dagga.
In view of the foregoing cited cases the sentence imposed by the learned trial magistrate in casu, taking into account the substantial quantity of the dagga involved, is clearly disturbingly lenient. This constitutes a serious misdirection on his part. An appropriate sentence should have been at least one of 3 years imprisonment of which 1 – 1 ½ years imprisonment is suspended on condition of good behaviour.
In the result I am not able to certify that the proceedings in casu are in accordance with real and substantial justice and I accordingly withhold my certificate.