Chancemore Mugugu v The State

### Preamble
1
HH 386-13
CA 723/13
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CHANCEMORE  MUGUGU

versus

THE STATE

HIGH COURT OF ZIMBABWE

MAVANGIRA J, TAGU J and MUREMBA J

HARARE, 29 OCTOBER 2013

Criminal appeal

R. Chikware, for appellant

E. Mavuto, for respondent

MUREMBA J: This is an appeal against sentence.  The appellant was charged with possession of 1.2 kg of dagga as defined in s 157 (1) (a) of the Criminal Law (Codification and Reform) Act [Cap 9:23].  He was convicted on his own plea of guilty by the magistrate sitting at Harare.  He was duly convicted and the conviction is hereby confirmed.

He was sentenced to 12 months imprisonment of which 6 months imprisonment were suspended for 5 years on condition of good behaviour.  He was left with an effective 6 months imprisonment.  It is against this sentence that the appellant is appealing.  The grounds of appeal are as follows:

"1)	The court a quo erred and misdirected itself by imposing  upon appellant a sentence that is so severe in the circumstances as to induce a sense of shock.

2) 	The court a quo erred and misdirected itself in failing to accord due weight to the fact that the appellant is a first offender who pleaded guilty to the charge.

3) 	The court a quo erred and misdirected itself by imposing upon appellant such a severe sentence in light of the compelling mitigatory factors operating in accused’s favour.

4) 	The court a quo erred and misdirected itself by failing to consider community service or a fine as a suitable form of punishment for the accused especially in view of the fact that the overall sentence imposed is 12 months imprisonment.

5)	The court a quo erred in finding that 1.2 kg of dagga is a substantial quantity   warranting   a custodial sentence.

6)	The court a quo erred in failing to note that the dagga found in possession of the accused is of a minimal value to such an extent that a non-custodial sentence was warranted.”

In the heads of argument the appellant’s lawyer argued that:

-	the court a quo merely paid lip service to the guilty plea which was tendered by the appellant.

- 	1.2 kg of dagga is not a substantial quantity justifying the imposition of a custodial sentence.  The value of the dagga is only US$ 120 which is quite a minimal value.

-	the court a quo failed to realise that the appellant did not go out to commit the offence but it was the police details who trapped the appellant into committing the offence.

-	 there was no evidence to suggest that the appellant was selling dagga.

- 	since the sentence that was imposed was less than 24 months imprisonment, community service should have been considered, more so,  in view of the fact that the appellant is a family man and a first offender who pleaded guilty.

The appellant prayed for the effective sentence of 6 months imprisonment to be suspended on condition he performs community service.

The respondent’s lawyer opposed the appeal on the grounds that the trial magistrate’s findings that the quantity of the dagga was quite substantial and that it was for resale was correct.  The respondent further argued that the sentence imposed by the trial magistrate is in line with sentences that are imposed for possession of large quantities of dagga.

For an appeal against sentence to succeed it has to be shown that the sentencing court did not exercise its discretion judicially.  The sentence can only be vitiated by irregularity, misdirection on the part of the sentencing court or if the sentence induces a sense of shock such that no reasonable court could have imposed it.  See S v Mundowa 1998 (2) ZLR 392 (H).

Imprisonment is a rigorous form of punishment which should obviously be reserved for the extreme situations.  Even in situations where imprisonment is considered appropriate, the suitability of community service must always be considered first in cases where the accused is going to be imprisoned for an effective period of 24 months or less. However, this applies to non-serious offences. Ordinarily cases of possession of dagga can warrant a non-custodial sentence such as a fine or community service. The penalty under section s 157 (1) (a) of the Criminal Law (Codification and Reform) Act is a fine not exceeding level 10 or imprisonment for a period not exceeding five years or both. However, with bad cases of possession or supply of dagga, caution should be exercised even if the effective sentence is less than 24 months imprisonment lest wrong signals are given to the society at large. In such cases effective custodial sentences should be imposed even on first offenders. In fact this has always been the principle by our courts. The rationale behind this is the need to discourage the use of dagga and its harmful effects or consequences to the youths in particular and the society at large. See S v Sixpence HH 77/03.

In this particular case the trial magistrate justified the custodial sentence that he imposed  by stating that 1.2 kg of dagga is quite substantial and that it is a habit forming drug, moreover the appellant was selling  it. The respondent’s lawyer agreed with the trial magistrate that 1.2 kg of dagga is quite substantial irrespective of its minimal value. I share the same sentiments. In S v Chingwaru HB 106/93 the appellant was found in possession of 1.4 kg of dagga.  The sentence of 24 months imprisonment with six months suspended on condition of good behaviour was confirmed. This shows that the quantity was viewed as large. That quantity is slightly larger than the quantity in the present case.

It is not correct for the appellant to say that he was not in the business of selling dagga.  When the police officers trapped him, one of them approached him at his house in plain clothes and posed as a buyer.  The appellant did not realise that it was a   trap and sold to him two sachets for $2-00.  The police details immediately searched his house and recovered the rest of the dagga. The facts indicate that the police had set this trap after a tip off that the appellant was selling dagga at his house in Chitungwiza. Surely with this, it is futile for the appellant to submit that he was not in the business of selling dagga.   The appellant sold two sachets to a police officer, a person he did not know at all.  This shows that he was selling a dangerous drug to members of the public.  As correctly stated by the trial magistrate, dagga is a habit forming drug.  It can have devastating consequences on the community.   As such the offence which was committed by the appellant cannot be regarded   as a non-serious one.  In fact, a reading of the Criminal Law (Codification and Reform)  Act shows that the appellant ought to have been charged with unlawful dealing in dangerous drugs as defined in s156 (1)(a)which says,

“a person who  unlawfully imports, exports, sells, offers or advertises for sale, distributes, delivers, transports  or otherwise deals in a dangerous drug shall be guilty of unlawful dealing in a dangerous drug”.

It is obvious that the appellant was dealing in drugs. Since the appellant was dealing in cannabis he would have been sentenced to a fine up to or exceeding level 14 or imprisonment up to 15 years or both in terms of s 156(1)(a)(ii). The penalty under s 157(1) (a) is less stiff than the penalty under s 156(1) (a) (ii). Fortunately for the appellant, the State charged him with a less serious offence.  The trial magistrate never tried to ascertain from the State why they were charging the appellant under s 157 (1) (a) instead of under s 156(1) (a).  Be that as it may, the appellant was properly convicted under s 157 (1) (a).

The offence that the appellant stands convicted of, being a serious one, attracts an effective custodial sentence despite the appellant being a family man and a first offender who pleaded guilty to the charge.

In S v Sixpence supra HUNGWE J declined to confirm the sentence of a fine of $50 000 or 6 months imprisonment  which was coupled with a wholly suspended prison term of 4 months for possession of 2.6 kg of dagga on the grounds that the sentence was manifestly lenient. In casu it cannot therefore be said that the trial magistrate misdirected himself when he imposed an effective custodial sentence.  Looking at the sentences that have been imposed in other decided cases, for instance in the Chingwaru case supra, it can be said that the trial magistrate was rather lenient with the appellant.  In S v Gwenzi HH194-88 the accused possessed 592g of dagga. On review it was held that the sentence of 14 months imprisonment with half suspended could have been appropriate.  In S v Mushonga 1988 (2) ZLR 239 the accused possessed 2 kg of dagga. On appeal the sentence of 24 months imprisonment with 10 months suspended on condition of good behaviour was upheld.  In S v Paidamoyo Chitaka HB 37/07 the accused possessed 1.6 kgs of dagga.  He was sentenced to 15 months imprisonment of which three months imprisonment was suspended on condition of good behaviour.  The remaining 12 months imprisonment was suspended on condition he performed 420 hours of community service.  On review the sentence was held to be disturbingly inappropriate. NDOU J stated that punishment should not trivialise such a criminal conduct.  He refused to confirm the proceedings as being in accordance with true and substantial justice.  He said a sentence in the region of 3 to 4 years with a part suspended was called for.

In view of the above reasons and cited cases, it cannot be said that the sentence imposed by the trial magistrate induces a sense of shock. Moreover, there was no misdirection on the part of the trial magistrate.

The appeal is therefore dismissed.

MAVANGIRA J:  agrees ………………………………

TAGU J: agrees…………………………………….