CHEDA J: This matter
was forwarded to me for review. Upon
perusal I formed an opinion that the sentenced imposed by the trial court was
on the lenient side.
The facts of the matter as presented by the state are herein stated
below.
The accused is a male adult residing at Magama Village, Chief Chizungu
in Mberengwa and is unemployed. Police
acting on information searched his house and found 4 dagga plants measuring
1.5m each in the house.
Accused was arrested. He was
brought to court where he pleaded guilty, was convicted and sentenced as
follows:-
“4 months
imprisonment wholly suspended for 3 years on condition the accused does not
within that period commit any offence involving unlawful use, possession or
dealing in dangerous drugs and for which upon conviction he is sentenced to
imprisonment without the option of a fine.
In addition the 4 plants of dagga are forfeited to the State.”
Upon raising the query the trial magistrate responded by stating that
the accused did not cultivate the dagga but obtained it from a friend and he
wanted to smoke it. To him that reason
was plausible enough to justify the imposition of a 4 months wholly suspended
sentence.
It is obvious that the learned trial
magistrate did not seek wise counsel from case authorities with regards to
these type of offences which authorities are in abundance at his disposal.
Possession of such a large quantity
of dagga can not be said to have been for personal consumption. It is clear that it was for commercial
purposes. The court found it easy to
believe the accused's story that he obtained it from a friend. With all due respect to the learned trial
magistrate, there is absolutely no legal basis for him to have believed such an
explanation as the quantity of the dagga does not support such an excuse.
Possession of dangerous drugs is
a very serious offence and the courts
have for time without number often explained the need for deterrent sentences
to be passed; see S v Aseneta HH
2/90; S v Ndou GB 34/75 and S v Chademoyo AD 218/76.
The social and health hazards of
engaging in dangerous drugs are well known by all literate persons. In S v
Sixpence HH 77/03, Hungwe J remarked that “dagga is a mind-bending and
habit forming drug,” therefore, the courts must be seen to impose sentences
which emphasize that point as opposed to sentences which are so lenient, so as
to trivialise the offence. This case is
one of those cases which has been left yawning for justice.
The learned trial magistrate has
gone further in his reasoning, that accused did not cultivate the dagga because
it was found inside the house. Again
with all due respect to him, I fail to see where the dagga would have been
placed after harvest. This reason again
is neither logical nor legal.
To impose a non-custodial sentence
in the circumstances is a misdirection on the part of the magistrate.
The sentence imposed is too lenient
and I accordingly withhold my certificate.
