THE State V Shingirayi Chinamonya

### Preamble
1
HH 625-18
CRB NY 149/18
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THE STATE

versus

SHINGIRAYI CHINAMONYA

HIGH COURT OF ZIMBABWE

CHITAPI & MUZENDA JJ

HARARE, 4 October 2018

Review Judgment

CHITAPI J: The accused a 48 year old first offender and family man pleaded guilty to a charge of “unlawful possession or use of Dangerous Drugs” as defined in s 157 (1) (a) of the Criminal Law Codification & Reform Act, [Chapter 9:23]. The facts of the case were that on 2 March 2018, the accused was found in possession of 1.630 kilograms of loose dagga at Msasa Beerhall Ruwange Growth Point, Nyanga. The dagga was found in the accused’s bag following a search of the bag.

The magistrate sentenced the accused to 4 years imprisonment. 12 months of the sentence was suspended for 5 years on condition that the accused is not convicted of any offence involving possession or use of dangerous drug for which he would be sentenced to imprisonment without the option of a fine.

In mitigation the accused said that he was unemployed, was married with 4 children and had no assets of value nor savings. He stated that he wanted to sell the dagga to raise school fees.

In assessing sentence, the magistrate took into account that the accused was a first offender who pleaded guilty; thus showing contrition and had not wasted the court’s time. The magistrate however took a serious view of the fact that the accused intended to sell the dagga to earn a living. The accused did not of course say that he lived on selling dagga but that he intended to sell the dagga to raise school fees. A person who earns a living through engagement in an activity means that the person lives on or relies on that activity to raise money for such person’s sustenance. In casu, the accused indicated that he intended to raise school fees for the children. The magistrate was in my view influenced by her perception that the accused was dealing in dagga which charge would have appropriately been brought under s 156 of the same enactment.

The penalty provision for a contravention of s 157 provides for a fine not exceeding level ten or imprisonment not exceeding 5 years or both. The magistrate did not consider the imposition of a fine and discount it as an appropriate sentence for reasons which should then have been recorded. In this regard, the magistrate committed a misdirection because a court faced with a penalty provision which provides for alternative forms of punishment is required to interrogate the suitability or otherwise of the alternatives and determine for reasons given why the chosen alternative is deemed most appropriate. It is the accepted position taken by the courts that imprisonment is a rigorous form of punishment which should be resorted to as a last resort and in cases where the interests of justice and society will be served by the removal of the accused from society and where no other form of punishment can attain the objectives sought to be realized by the law giver. See S v Mugwenhe & Anor 1991 (2) ZLR 66 in which EBHRAIM JA discussed the effects of imprisonment and the need to avoid its imposition where this can be done without defeating the legislative intents.

In casu, the magistrate reasoned that a custodial sentence would be the just sentence because of the seriousness and prevalence of the offence coupled with the fact that “the drug has long health effect on the consumers”. Whilst one would not seriously quarrel with the magistrates reasoning, it cannot escape the reviewing judge’s attention that the magistrate imposed a disturbingly long sentence of 4 years before suspending 1 year when the maximum sentence which may be imposed for the offence is 5 years. One of the determinants which would inform a justification to impose a lengthy custodial sentence is the amount of dagga involved. In casu the accused was in possession of 1,630 kg dagga whose value was not determined.

A consideration of decided cases shows that lesser sentences have been imposed for possession of more or less similar amounts of dagga. In S v Chingwaru HB 106/93, a sentence of 24 months with 6 months suspended was confirmed where the accused was found in possession of 1.4kg of dagga. In S v Mugugu HH 386/13, a sentence of 12 months with 6 months suspended was imposed for possession of 1.2kg of dagga. The prevalence of the offence should not have been given undue weight and whilst it can be accepted that because the magistrate concerned is a provincial magistrate who can take judicial notice of the prevalence of the offence within her area of jurisdiction, in practice, facts showing prevalence ought to be placed before the court because it is upon a consideration of such facts that the prevalence factor can be better and fully appreciated. Another case which is comparable to the present case is Richard Magwenzi v State HB 79/17. The accused in that case was a 34 year vendor who was convicted of possession of dagga as defined in s 157 (1) (a) of the Criminal Law Codification and Reform Act. He was in possession of 3.92 kg of dagga with a street value of $3925.00 all of which was recovered and forfeited to the State for destruction. He was also found in possession of seven 100ml bottled of broncleer in contravention of the Medicines Allied Substances Control Act, [Chapter 15:03]. He pleaded guilty and explained his possession as that he wanted to fend for his family. He was sentenced to 15 months imprisonment and on appeal against sentence Makonese and Takuva JJ upheld the sentence and dismissed the appeal.

In the light of my findings as above set out. I am of the view that the sentence imposed in this case does not accord with the notion of real and substantial justice on account of its severity given the full circumstances of the case. Whilst it is trite that sentence is the province of the trial court to exercise in its discretion and that such discretion will not lightly be interfered with, where there is a misdirection by the sentencing court as in this case, the sentence can be disturbed on review or appeal. Further, the sentence will also be disturbed where it is so severe that the disparity between what the review judge would have imposed and what the trial court imposed is so gaping as to warrant interference on the basis that to leave the sentence standing would offend the reviewing court’s notion of justice.

In all the circumstances therefore, a reduction in sentence is merited in this case. Such reduction is competent in terms of s 29 (2) (b) (ii) of the High Court Act, [Chapter7:06]. The following order is therefore made.

The conviction of the accused is in order and is hereby confirmed.

The sentence imposed on the accused is set aside and substituted with the following sentence

“12 months imprisonment of which 6 months imprisonment is suspended for 5 years on conditions that the accused is not within that period convicted of any offence involving a contravention of s 157 of the Criminal Law Codification and Reform Act, [Chapter 9:23] for which upon conviction the accused is sentenced to imprisonment without the option of a fine”.

MUZENDA J agrees…………………….