He
was sentenced to eighty-four months imprisonment of which twenty-four months
were suspended for five years on condition that he does not within that period
commit any offence involving cultivation, possession or selling of dagga.
On
addressing the court in mitigation of sentence, the accused said that he is
thirty-eight years old and married with four children. He is not employed. He
owns two goats and one heifer. He was asked what he wanted to do with the dagga
and he said that he wanted to sell it to raise money for school fees and for
grinding mill charges. The record of proceedings then shows that the accused
was thereafter asked if there were any special circumstances that led him to be
involved in dealing in dagga. In reply he said that he was facing difficulties
in life and did not have money for his children's upkeep.
In
his reasons for sentence, the learned trial magistrate stated, inter alia, that
the accused's explanation that he wanted to raise money for his family's upkeep
“is not a special circumstance that can persuade a court from passing a stiffer
penalty.” ...,. Section 156 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] provides -
“(1)
A person who unlawfully -
(a)
...,.
(b)
Cultivates, produces or manufactures a dangerous drug for the purpose of
dealing in it; or
(c)
...,.
(d)
...,.
(e)
...,.
shall
be guilty of unlawful dealing in a
dangerous drug and liable -
(i)
If the crime was committed in any of the aggravating circumstances described in
subs (2) and there are no special circumstances in the particular case, as
provided in subs (3), to imprisonment for a period of not less than fifteen
years or more than twenty years and a fine not below level fourteen, or, in
default of payment, imprisonment for an additional period of not less than five
years or more than ten years; or
(ii)
In any other case, to a fine up to or exceeding level fourteen or imprisonment
for a period not exceeding fifteen years or both.” ...,.
Section
156 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides
in subsequent subsections -
“(2)
For the purposes of subparagraph (1) of subs (1), the crime of unlawful dealing in a dangerous drug
is committed in aggravating circumstances if the dangerous drug in question was
a dangerous drug other than cannabis and the convicted person –
(a)
Was a member of a group of persons organized within or outside Zimbabwe for the
purpose of committing the crime; or
(b)
Employed weapons or engaged in violence in the course of committing the crime;
or
(c)
Held a public office which he or she abused to facilitate the commission of the
crime; or
(d)
Being over the age of eighteen years, incited any minor to consume or deal in a
dangerous drug; or
(e)
Was previously convicted, whether within or outside Zimbabwe, of a crime
constituted by any of the acts specified in any of the paragraphs (a) to (e) of
subs (1).
(3)
If a person convicted of unlawful dealing in a dangerous drug in aggravating
circumstances satisfies the court that there are special circumstances in the
particular case, which circumstances shall be recorded by the court, why a
penalty provided under subpara (i) of subs (1) should not be imposed, the
convicted person shall be liable to the penalty provided under subpara (ii) of
subs (1).”
Section
155 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] defines
“cannabis” as follows -
“means
any plant of the genus cannabis also known as 'Indian hemp', bhang, camba,
dagga, mbanje or intsangu.”
It
thus appears clear that in terms of section 156(2) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] the offence cannot be said to have
been committed in aggravating circumstances if the dangerous drug is dagga as
dagga falls within the definition of cannabis. In the circumstances, the
existence or otherwise of special circumstances is irrelevant, and it was thus
not proper for the court a quo to purport to inquire into whether or not the
accused could advance any special circumstances to avoid any stipulated
sentence. The offence having involved dagga the court a quo ought to have been
guided by section 156(1)(ii) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] which provides that in any other case the accused shall be
liable to a fine up to or exceeding level fourteen or imprisonment for a period
not exceeding fifteen years or both.
In
S v Ncube HB114-94 a seventy-one year old first offender cultivated forty-four
dagga plants with an average height of 2,2 metres. He was sentenced to two
years imprisonment of which six months were conditionally suspended. He
appealed against the sentence. The Attorney General conceded that the sentence
was unduly severe in light of the accused's age and previous clean record. At
p2 of the..., judgment, BLACKIE J stated –
“A
general review of sentences imposed for cultivation of dagga shows that for 1
or 2 plants of dagga cultivated an accused will usually receive a fine.
However, cultivation of more plants than that normally results in
imprisonment.”
Because
of his age, primarily, the accused's sentence was set aside. The court stated
that a short period of imprisonment was all that was necessary. It thus
substituted the lower court's sentence with one of two years imprisonment of
which eighteen months was suspended on appropriate conditions.
In
S v Zimondi HB27-83 a forty-five year old first offender pleaded guilty to
cultivation and possession of dagga. He was accordingly convicted. The matter
was referred to the High Court for sentence. He was married to two wives and
had ten children. The police found a dagga plantation to the west of his
houses. They went to the plantation and found the accused in a small grass hut
which he used as a guard room at night to keep away people from stealing his
dagga. The accused's two wives were engaged in picking and packing some
prepared dagga into ten litre tins. The plants were in different sizes. One
portion of the garden had Indian hemp seeds which were ready for germination.
The other portion had plants which were estimated to be the height of a man.
DUMBUTSHENA AJP..., said that although this did not, in fact, mean anything,
the plants must have been tall. The rest of the plants were at various stages
of growth. The police uprooted 150,000 plants and said it was difficult to
count them all. The accused had prepared his garden properly and had applied
fertilizer so that the plants could grow well. He used compound “D” fertilizer.
The extent of the plantation was a quarter of an acre. The police loaded the
plants in a five-ton lorry which was put on a weighbridge together with the
plants. After subtracting the weight of the lorry, it was found that the dagga
weighed 800kg. It was stated that this was the largest quantity to come before
the courts. The accused had cultivated 150,000 plants and possessed 6kg of dagga.
The Acting Judge President found that the only inference to be drawn from the
immensity of the operations carried out by the accused was that he was a big
supplier of dagga. He stated that this was an exceptional and extremely serious
case and the appropriate sentence for it was imprisonment. He sentenced the
accused to ten years imprisonment.
In
S v Sithole HH436-86 the accused cultivated 150 plants of dagga. He was
convicted on his own plea of guilty. He was a sixty-three year old first
offender. He was sentenced to two years imprisonment and appealed against the
sentence. At p2 of the..., judgment SANDURA JP..., said –
“Bearing
in mind the appellant's age and the fact that he is a first offender we feel
that the magistrate should have suspended a substantial portion of the prison
sentence. We are, of course, aware that the appellant committed a very serious
offence. The height of the 150 plants ranged from 12cm to one metre. This was,
therefore, a commercial practice. In the circumstances, the sentence is altered
to read as follows:
'2
years imprisonment with imprisonment..., of which 1 year imprisonment..., is
suspended for 5 years.'”
In
S v Petersen SC105-84 the accused pleaded guilty to cultivating 273 plants of
dagga. He was convicted and the matter was referred to the High Court for
sentence. A sentence of four years imprisonment of which two years was
conditionally suspended for five years on appropriate conditions was imposed.
An appeal was noted. The plants, which were grown on the back verandah of a
flat in a number of gallon tins, were 5cm in height and were in a healthy
condition. There were between 3 to 4 months old and were being watered
regularly. They were 273 in number. The appeal was dismissed.
In
S v Kaseke HH103-92, for cultivating 22 plants of dagga of a height of two and
a half metres in his garden, a fifty-four year old tribesman was sentenced by
the trial court to three years imprisonment with no portion suspended. The
accused was a married first offender with heavy family responsibilities. His
seven children were still at school. On appeal, the appeal court said that the
sentence was so severe as to induce a sense of shock and that there was no
reason given by the trial court for not suspending a portion of the sentence as
the accused was a first offender. CHINENGUNDU J stated..., –
“It is conceded in this case that the accused
deserves an effective prison term but not as heavy as three years imprisonment
effective. This is so because of the large number of plants cultivated.”
He
set aside the sentence of the lower court and substituted it with one of twelve
months imprisonment of which six months was suspended for five years on
condition that during that period the accused does not commit any offence
involving cultivation, possession or supply of dagga. The effective term of
imprisonment was therefore six months.
In
S v Dhlamini HB213-86, a sentence of two years imprisonment of which one and a
half years were conditionally suspended for five years for a fifty-one year old
accused who possessed 2,9 kg of dagga was considered to be too lenient by the
reviewing judge. He declined to certify that real and substantial justice had
been achieved in the case.
In
S v Mucheriwa GS94-80 the accused cultivated 200 plants of Indian hemp and
possessed 6,820 grams. He was twenty-eight years old and he pleaded guilty to
both counts and was convicted. He was sentenced to five years imprisonment on
the first count and four years imprisonment of which one year was suspended on
the second count. The total effective sentence was thus eight years
imprisonment. The plants were nine feet high. The accused agreed that he had
not only used dagga himself but had also supplied it to other persons for
financial gain. After the verdict, a representative of the Police Drug Section
informed the court that this was the largest haul of dagga found by the police
since the formation of the Drug Section. In addition, the accused admitted to
previous convictions for possessing dagga. On appeal, the sentence of the lower
court was set aside and substituted with one of five years imprisonment for the
first count and four years imprisonment for the second count. It was ordered
that two years of the sentence on the second count were to run concurrently with
the sentence on the first count. Of the remaining total sentence of seven
years, two years were suspended for five years on appropriate conditions. The
total effective sentence was therefore five years.
In
R v Semba GS55-80, a fifty year old first offender who had, on his own plea of
guilty, been convicted of cultivating 200 plants of dagga was referred to the
High Court for sentence. At p1 of the..., judgment, WADDINGTON J said –
“Because
of the unusually high number of plants involved I requested Mr. Turner, the
prosecutor, to provide me with a list of cases indicating the types of
sentences which have been imposed upon offenders convicted of this particular
offence in past years..,. None of the cases..., and there are 22 in number...,
involved such large numbers of plants as the accused grew in this case. The
most notable of these cases was Anna Zhou v S (R AD127-74) in which the accused
was convicted of cultivating 95 plants. The sentence imposed and upheld on
appeal was 24 months imprisonment..., of which six months was suspended.”
The
court imposed a sentence of four years of which two years was suspended for
five years on appropriate conditions.
On
a view of the sentences imposed in the above-cited cases, the sentence of
eighty-four months (7 years) imprisonment of which twenty-four months (2 years)
was suspended that was imposed in this matter is unduly harsh and is out of
line with the general trend of sentences imposed for similar offences. For that
reason, this court is at large to interfere with the sentence. The sentence is
set aside and substituted with the following –
“4
years imprisonment of which 2 years is suspended for 5 years on condition
during that period the accused does not commit an offence unlawful dealing in
dangerous drugs for which upon conviction he is sentenced to a term of
imprisonment without the option of a fine.”
The trial magistrate is hereby directed to bring
the above alteration to the accused's sentence to the attention of the accused
and the relevant authorities.
