Cosmas Kagande v The State

### Preamble
1
HH 399-13
CA 471/13
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COSMAS KAGANDE

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU, MUREMBA JJ

HARARE, 29 October 2013 & 07 November 2013

Criminal Appeal

B. Chidenga, for appellant

E. Makoto, for the State

MUREMBA J: The appellant was on his own plea of guilty convicted of contravening s 156(1)(c) of the Criminal Law (Codification and Reform) Act, [Cap 9:23], unlawful dealing in dangerous drugs. He was sentenced to 48 months imprisonment of which 12 months imprisonment was suspended on condition of good behaviour.

The facts are that after receiving information the police went to the appellant’s place of residence where they searched his bedroom and recovered a small khaki hat with 13 satchets of prepared cannabis, 3 satchets of prepared cannabis in socks and 71 satchets in a black plastic paper bag. The total was 87 sachets with a total weight of 0,466kg.

During the course of the court proceedings the appellant admitted that he possessed the dagga for the purpose of selling it to members of the public.

The appellant’s appeal before this court is against the sentence imposed upon him by the court a quo. He appeals on the following grounds: Firstly, that the learned magistrate erred in imposing a custodial sentence when other forms of punishment would have met the justice of the case. Secondly, that the learned magistrate erred in failing to give due weight to the plea of guilty in assessing the appropriate sentence.  Thirdly, that the learned magistrate erred in dismissing the option of community service as the sentence ought to have been reformative rather than purely punitive and deterrent. The fourth ground of appeal is that the learned magistrate erred in finding that 466 grams of dagga is a large quantity necessitating a lengthy prison term thereby resulting in the imposition of a shocking and disturbing sentence. The fifth ground of appeal is that the learned magistrate erred in sentencing the appellant on the paltry information before her and that she was not adequately informed to properly consider “the triad consisting of the crime, the offender and the interests of society”.  The appellant prays for the setting aside of the sentence imposed by the court a quo and the substitution thereof with a sentence of community service.

In S v Narker & Anor 1975(1) SA583 it was stated that “in every appeal against sentence the question is whether it can be said that the trial court exercised its judicial discretion properly".

In casu the applicable penal provision provides for punishment of a fine of up to or exceeding level fourteen or imprisonment for a period not exceeding 15 years or both such fine and such imprisonment.

In S v George Dube Sixpence HH 77/03 cited in the respondent’s heads of argument, it was stated:

“It must always be borne in mind that dagga is a mind bending and habit forming drug. The courts must be seen to be discouraging the use of this drug with all its dangerous consequences to the youth and the community at large”.

It was held therein that bad cases of possession or supply of dangerous drugs deserve imposition of heavy custodial sentences even on first offenders.

In casu, the court a quo properly took into account that the appellant is a first offender who pleaded guilty and that he is married and has three children to sustain. The court a quo also accepted that the appellant committed the offence in order to make ends meet but properly found that this does not condone his conduct. It properly found that the offence is a very serious offence, dagga being a mind bending, habit forming and mood altering drug which often has devastating consequences on the community in general and the youth in particular. It opined that a fine or community service would trivialise the offence and that a lengthy custodial term would meet the justice of the case in light of the quantity of the drug involved as well as the effects of the dangerous drug on the community.

In S v Paidamoyo Chitaka HB 37/07 also cited in respondent’s heads of argument, the accused therein was found in possession of 1,6 kg of loose dagga concealed inside a radio box in his bedroom. The trial court sentenced the accused to 15 months imprisonment, 3 months of which were suspended on condition of future good conduct and the remaining 15 months imprisonment suspended on condition of performance of community service. The appeal court held inter alia, that in offences of this type an appropriate sentence would be in the region of 3 to 4 years imprisonment albeit with a portion suspended.

In S v Sibanda HB 41/94 it was held that supplying of dagga usually attracts a custodial sentence. In S v Chingwaru HB 106/93, for possession of 1,4kg of dagga the appeal court confirmed a sentence of 24 months imprisonment with 6 months suspended on the usual and appropriate condition. In S v Chizarira HB 2/87, for possession of 1,7 kg of dagga the appeal court upheld a sentence of 2 years imprisonment with 6 months suspended.  In S v  Sharawakanda 1981 ZLR 239, for possession of 1 333 grams of prepared dagga the trial court sentenced the accused to 18 months imprisonment of which 9 months imprisonment was conditionally suspended. The appeal court found that the trial court was wrong in rejecting the appellant’s explanation that the dagga was for his own use. Although it set aside the trial court’s sentence it nevertheless substituted it with one of 8 months imprisonment of which 6 months imprisonment was suspended on condition of good behaviour.

In casu, on a consideration of the amount of dagga possessed and in light of sentences passed in other cases of a similar nature, a few of which have been referred to, it appears that the length of the sentence imposed by the trial court, is so severe as to induce a sense of shock. For that reason this court is at large on sentence. On the basis of the cited authorities, whilst a custodial term is unavoidable, it is the length of it that has caused disquiet. The trial court’s sentence is hereby set aside and substituted with the following:-

“12 months imprisonment of which 5 months imprisonment is suspended for 5 years on condition the accused does not within that period commit any offence involving possession, smoking, dealing in or cultivation of dagga for which upon conviction he is sentenced to imprisonment without the option of a fine. The dagga is forfeited to the State for destruction by fire”.

James Makiya Legal Practitioners, appellant’s legal practitioners

E. Makoto, Counsel for respondent

TAGU J: agrees …………………………