The
accused was sentenced to 5 years imprisonment….,.
In
mitigation, the accused said she is a widow with six children and had
intended to use the money for the traditional ceremony for the
commemoration of her late husband….,.
The
reasons for sentence are no more than a tiresome rehash that
invariably stands as an opening paragraph in most Magistrate Court
judgements when it comes to reasons for sentence. Although noting
that she was a first offender and had also saved the courts time by
pleading guilty, it is not clear from the record how this was taken
into account in arriving at the actual sentence imposed. If the
magistrate would have imposed a higher sentence but for the
mitigatory factors, then it is not immediately clear what that
sentence would have been. In aggravation was said to be the fact that
the offence is prevalent. The quantity was also taken as an
aggravating factor since the dagga was clearly for commercial
purposes.
The
five year sentence imposed had no part of it suspended.
In
S v Mahove & Ors
HH83-09
it was re-emphasised by CHITAKUNYE J, following a line of cases, that
the sentence must be individualised to the particular offender. See
S
v Dube
1995
(2) ZLR 321; S
v Mayberry
1985 (1) ZLR 192; S
v Mugwene & Anor
1991 (2) ZLR 66.
As
he observed in that case, although it is not a rule that first
offenders who are being imprisoned are entitled to have a portion of
their sentence suspended failure to consider or to give reasons for
not suspending portions of the sentence on suitable conditions is a
misdirection especially where sentences are not long. He also stated
that a first offender should be accorded a chance at reformation by
having a portion of their sentence suspended so that they serve only
that which is absolutely necessary.
Granted,
a prison term in the accused's case was inevitable given the large
quantity of dagga in her possession. See
S
v Kangande
HH399-13
which captures a range of cases on possession of dagga.
Her
personal circumstances were that she is a widow with six children.
The record does not show that the magistrate sought any further
detail relating to the accused and her children, a necessary process
to arrive at a properly individualised sentence. Their ages are not
articulated nor are any details provided that show the likely social
costs to the children of having their mother, an only parent, sent to
jail for five years.
In
my view, there was a misdirection in not thoroughly engaging her
lived reality when it came to mitigation and in not suspending a
portion of the sentence.
Accordingly,
the sentence is altered as follows:
“Five
years imprisonment of which 2 years is suspended for five years on
condition that the accused does not during that time commit any
offence involving possession, smoking, dealing in, or cultivation of
dagga for which upon conviction she is sentenced to imprisonment
without the option of a fine. The dagga is forfeited to the State for
destruction.”
The
magistrate should bring the altered sentence to the attention of the
relevant authorities.
