THE State V Olsen Sibanda

### Preamble
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HB 22920
HCAR 1724/20
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THE STATE

Versus

OLSEN SIBANDA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 14 OCTOBER 2020

Criminal Review

MAKONESE J:	The possession of cocaine is a serious offence.  Invariably, an accused convicted of the possession of cocaine must be handed a custodial sentence.  The quantity of the cocaine is a critical factor to consider, however even where small amounts are involved, due to the harmful consequences of this drug, a sentence of imprisonment is deemed appropriate.  Whilst there is a catena of case law on the range of sentenced impose in the possession of dagga in this jurisdiction, there are not that many cases dealing with appropriate sentenced involving the possession of cocaine.

The accused was arraigned before a Provincial magistrate sitting at Bulawayo facing a charge of contravening section 157 (1) (a) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), that is to say being found in possession of a dangerous drug, in particular 2.208grams of cocaine.  Accused was convicted on his own plea of guilt and sentenced to 12 months imprisonment of which 6 months was suspended on the usual conditions of future good conduct.  The remaining 6 months was suspended on condition accused performed 210 hours of community service.

The scrutinizing Regional Magistrate raised a query with regard to the sentence imposed against the accused.  In his view the sentence was lenient and inappropriate.  The trial magistrate conceded that on reflection, the sentence was indeed lenient.

The brief facts of the matter are that the accused is a 31 year old male adult.  On 2nd July 2020 the police received information to the effect that accused was in possession of dangerous drugs.  Armed with that information, the police conducted a search at accused’s residence.  Police details recovered 5 sachets containing white powder in a refrigerator.  Accused admitted that he was in possession of the sachets containing 2.208grams of cocaine with a street value of ZW$2 400.

On the facts, the accused was convicted on his own plea and escaped a custodial sentence.  In assessing an appropriate sentence the trial magistrate took a very casual approach in his reasons for sentence.  The record is scanty and by all accounts the learned trial magistrate did not adequately apply his mind to the seriousness of the offence.  The trial magistrate simply made reference to the age of the accused.  He pointed out that the illegal possession of drugs cannot be trivialized.  This narration does not reflect in the sentence imposed.

It must be noted that cocaine is a highly addictive drug that increases the level of energy, alertness and sometimes aggression in an individual.  In some instances cocaine is referred to a stimulant.  The drug mostly comes in the form of white powder.  Its users suffer from depression and anxiety and the addictive properties of the drug make it one of the most dangerous drugs across the globe.  In some jurisdictions the possession of cocaine is sanctioned by the death penalty.  The short and long term effects of this drug are extremely harmful.  To this extent convicted offenders must expect custodial sentence.

In S v Schole HH-234-17, where the learned judge was dealing with an application for bail pending appeal, she opined that for the possession of 1.7 grams of cocaine, a sentence of 8 months imprisonment, with 2 months suspended for 3 years on the usual conditions was appropriate.

In Bacar v The State, the appellant, a 20 year old woman was found in possession of 10 grams of cocaine.  She claimed that the substance belonged to her and that she used it to lubricate her vagina.  The cocaine had been mixed with a creamy substance.  She was sentenced to 36 months imprisonment of which 12 months was suspended for 5 years on the usual conditions.  The cocaine was forfeited to the state and she was to be deported to Mocambique.  In an appeal, it was held that the sentence was appropriate.  Her appeal against sentence was dismissed.

In this matter the accused was in possession of 2.208 grams of cocaine packed in 5 sachets.  In mitigation, accused indicated that he had given in to peer pressure from friends and that he was in the habit of sniffing the cocaine.

It is my view that a clear message must be sent to would be offenders that the possession of dangerous drugs particularly cocaine, will attract custodial sentences.  I agree with the scrutinizing magistrate’s sentiments that the sentence is inappropriate and disturbingly lenient.

In the result and accordingly, I am unable to certify the proceedings as being in accordance with real and substantial justice.  I would therefore withhold my certificate.