TSANGA J: The accused, a
sixty five year old offender was charged and convicted of contravening s 157
(1) (c) of the Criminal Law Codification and Reform Act [Cap 9:23] relating to unlawful possession or use of dangerous drugs.
Section 157 (1) (c) in particular under which he was convicted, criminalises the
cultivation production or manufacturing of dangerous drug for one's own consumption.
He was convicted of having planted 135 plants of “dagga” which he said he wanted
to smoke.
The relevant section permits
a fine up to level 10 (i.e. US$700.00) or imprisonment not exceeding five years
or both. The accused was sentenced to 36 months imprisonment of which 12 months
was suspended on the usual conditions. In sentencing him the magistrate alluded
to the harmful effects of the drug and the large quantity that he had grown. He
was also mindful of the need not to trivialise he offence by granting a fine or
community service in lieu of incarceration.
Whilst
the conviction is proper the sentence in my view is unduly harsh for reasons
hereby elaborated. The criminal justice system as a general principle is non-discriminatory
in holding criminal violators to account for their actions regardless of
factors such as age, sex, social class or race to mention a few. However, in
meting out punishment it is a fact that positive biases often emerge towards certain
groups such as the elderly because of their increased physical vulnerability that
often comes with age which may make a lengthy prison term unduly harsh in the case
of relatively less serious crimes. Another group sometimes treated differently
are women offenders given the often less dangerous nature of the criminality or
the consequences of their gendered roles as care takers. Yet another group very
youthful criminal offenders given their perceived lack of maturity to make proper
judgment at the time of commission of offences.
Thus while elderly
offenders who commit crimes can expect to be held accountable for their actions
and to be punished in accordance with the gravity of their crime , the severity
of the sentence especially where incarceration is deemed necessary, should in
my view take into account whether such elderly person is being convicted of a
violent or non-violent crime. Prison is harsh. It is a known fact that our prisons
are overcrowded and that the relevant authorities who run prisons do so on a shoe
string budget. Media reports of prisoners going hungry are not unknown. Magistrates
should therefore be alive to the real consequences of taking an overly punitive
approach that subjects non-violent offenders to lengthy prison terms especially
those who are already vulnerable.
This is not to
unwittingly foster a soft approach to crime but to encourage the adoption of a critical
approach to sentencing that is equally alive to the seriousness of the offence committed
as it is to the environmental circumstances leading to the commission of the crime
as well as other personal factors that pertain to the accused.
A three year imprisonment
term with one year suspended, and even taking into account reduction in sentence
that may result from good behaviour, still takes away a considerable portion of
his life which he will have to spend in extremely harsh prison conditions for a
non-violent crime. An approach to sentencing for such crimes which combines the
legal position with lived realities is more likely to result in a balanced sentence
than one which seeks to mechanically apply precedence on dagga sentencing in
such matters. Happily case law suggests that in such matters involving cultivation
of dagga by an elderly offender, age is a factor to be taken into account in
meting out an appropriate sentence. For
example, in S v Sithole HH 436/86, a 63 year
old offender was convicted of and sentenced to 2 years. He appealed his sentence.
On appeal the sentence was reduced to 1 year effective with the other year suspended
for five years on the usual conditions.
In my view a similar sentence
in this matter would more than meet the justice of the case. Magistrates should
not unwittingly contribute to a human rights catastrophe of overcrowded prisons
by granting overly punitive sentences for non-violent crimes. This puts tremendous
strain on a system already struggling to cope with meeting basic humane standards
for prisoners.
Accordingly
the accused's sentence is altered as follows:
“24
months imprisonment of which 12 months is suspended for 5 years on condition accused
does not during that period commit any offence involving the unlawful
cultivation, possession, sale and supply of dagga and for which upon conviction
he is sentenced to imprisonment without the option of fine. The dagga in question
is hereby forfeited to the State”.
MWAYERA J agrees …………………
