Nyasha Sikoti v The State

### Preamble
1
HH 283-11
CA 377/10
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NYASHA SIKOTI

versus

THE STATE

HIGH COURT OF ZIMBABWE

BHUNU & ZIMBA-DUBE JJ

HARARE, 27 October 2011 and 25 January 2012

Criminal Appeal

V  Chivhinya, for appellant

E Nyazamba, for respondent

DUBE J: The appellant appeared before a Harare Magistrate facing a charge of contravening s 157 (1) (A) of the Criminal Law (Codification and Reform) Act [Cap 9:23], (hereinafter referred to as the Code). The appellant was found in possession of dagga weighing 2 kgs hidden in a maize field. He pleaded guilty to the charge and was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended for 5 years on condition that he does not during that period commit any offence involving unlawful possession or use of dangerous drugs for which he is sentenced to imprisonment without the option of a fine. He appeals against sentence only.

The appellant attacks the sentence on the basis that the sentence is harsh and induces a sense of shock and that the trial magistrate failed to place sufficient weight on the fact that he pleaded guilty to the offence. The appellant’s counsel submitted that the appellant intended to use the dagga for medicinal purposes and that the trial court erred by drawing the inference that the dagga was meant for sale as s 157 of the code does not make  provision for a court to  presume or infer that the dagga possessed was meant for either sale or supply. That as the sentence imposed was below 24 months imprisonment, the court ought to have imposed community service. In addition, the appellant urged this court, in assessing the appropriate sentence, to consider imposing a sentence requiring the appellant to undergo treatment or rehabilitation for addiction to dagga in terms of s 157(2) of the code.

The respondent’s counsel supported the sentence imposed. Mr Nyazamba submitted that the trial court did not err when it sentenced the appellant to a custodial sentence. He drew the court’s attention to the case of State v George Dube Sixpence HH77-03 where HUNGWE J refused to confirm a sentence of a fine of $50 000-00 or in default of payment 6 months imprisonment for possession of dagga involving 2,6 kgs. The learned judge said the following;

“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.”

Counsel also referred the court to the cases of State v Chingwaru HB106/93 and State v Phiri HB 76/90 where offenders were sentenced to custodial sentences for possession of 1.4kgs and 3.39 kgs respectively.

In assessing the appropriate sentence, the court considered the following mitigating features advanced on behalf of the appellant:

That he is a first offender who is aged 32 years;

Unemployed and married with one child;

Who pleaded guilty to the offence; and

Has savings of US$200-00 and has no assets.

The trial court also considered that the appellant has a previous conviction involving dealing in dagga weighing 501 grammes. That the fine imposed in that case did not reform him and that he is unrepentant.  The appellant was convicted in 2003 of contravening s 4 of the Dangerous Drugs Regulations and was fined Z$40000-00. The trial court rejected his explanation in mitigation that he uses the dagga to put in his tea for relief of his asthmatic condition. The magistrate was concerned with the quantities involved and found that his moral blameworthiness was very high as the offence was premeditated and that this was evidenced by the fact that the dagga was found hidden in a maize field. The magistrate also considered that the offence is very serious and has serious effects on one’s health. The trial court considered imposing community service and decided against it and found that that would amount to trivializing the offence.

Looking at the approach the trial court adopted in arriving at the sentence imposed, the court cannot be faulted for arriving at the sentence it imposed. This court finds no basis for interfering with the sentence imposed.

An appellate court may only interfere with the sentencing discretion of a trial court where there is a misdirection, irregularity or where the resulting sentence is shockingly excessive. As clearly enunciated in S v Ramushu & Ors SC 25/93:

“But in every appeal against sentence, save where it is vitiated by irregularity or misdirection ,the guiding principle to be applied is that sentence is pre-eminently a matter for the discretion of the trial court, and that an appeal court should be careful not to erode such discretion. The propriety of a sentence, attacked on the general ground of being excessive should only be altered if it is viewed as being disturbingly inappropriate”

This sentence is in line with other sentences imposed in similar cases. In S v Chizunza HC B 2\87 a sentence of 2 years imprisonment with 6 months suspended was upheld on appeal for possession of 1.7kgs of dagga. Another case in point is S v Dorcas Chingwena HH 251-89 where a sentence of 2 years imprisonment with 9 months suspended for possession of 1.275kgs of dagga was upheld on appeal.

In S v Chingwaru HB B106/93, a sentence of 24 months imprisonment with 6 months suspended for possession of 1,4 kgs was confirmed on appeal. In Nesbert Zuze SC 153/92 the accused possessed one kilogramme of dagga and was sentenced to 24 months imprisonment with 6 months suspended on conditions. The appeal court held that the sentence was neither excessive nor out of line with sentences for possession of this quantity of dagga for a first offender.

This is not a case of simple possession where an offender is found in possession of a small amount of dagga or a twist or two for his personal consumption, in which case a fine would be justified. As found in S v Sixpence George Dube (supra) imposing a fine in a case such as this would amount to trivializing the offence. Whilst the legislature did distinguish offences of possession and dealing by creating two different offences this does not necessarily make the offence of possession more trivial than dealing deserving in every case a fine or community service. Each case has to be determined on its own circumstances. The appellant was found in possession of 2 kgs of dagga which is a substantial amount. He is a repeat offender.

Although the appellant was not charged with the offence of dealing or supplying dagga the offence still remains serious in view of the quantities involved. The offence was premeditated  and the court cannot loose sight of the fact that the appellant was likely to supply or sell it to other users thereby influencing others to commit offences. Motive is relevant to sentencing.  It is permissible for the court, at the sentencing stage to infer that the dagga was not for personal use on the basis of possession of large quantities involved. In S v George Dube Sixpence (supra) HUNGWE J commented that the fact that further justifies a custodial sentence in possession cases where there is no evidence that it was intended for supply to other persons is the quantity involved. The onus is on the appellant on appeal against sentence, to displace the inference that the large quantity of dagga was not for supply or sale. The appellant’s previous conviction in dealing in dagga further supports the inference that the dagga possessed in this case was meant for resale or supply. The appellant has failed to displace that onus. See S v Celestine Odu SC 165/89 where p 4 of the judgment, KORSAH J (as he then was),  said the following of inferences that can be drawn where large quantities are involved:

“… the quantity of dagga he was found in  possession of being considerable, the presumption  arises that it was possessed not for his personal use, but for sale. That being so, his possession of the dagga is to be viewed as posing a more serious threat to society. considering the prevalence  of trafficking in this type of drug, the courts have persistently imposed sentences of a deterrent nature, even on first offenders who  are found in possession of such quantities of dagga.”

The appellant’s argument that the court cannot draw the inference that the dagga was for resale or supply, does not find favour with this court.

It is incompetent for a court to impose a sentence of counseling or rehabilitation in terms of s 57(2) of the code in the absence of evidence of medical proof of addiction or other cogent reasons. There is no evidence showing that appellant has an addiction to dagga. A previous conviction in dealing in dagga is no justification for a rehabilitation order.

In the result, the appeal against sentence is hereby dismissed.

BHUNU J: agrees ………………………..

Muchineripi & Associates, appellant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners