Loveness Chibhangu V State [2025] ZWMSVHC 8 (4 April 2025)

HMSCR 1289- HMA 12-25 LOVENESS CHIBHAGU Versus STATE HIGH COURT OF ZIMBABWE CHAREWA J & ZISENGWE J MASVINGO 26 FEBRUARY 2025 Full appeal judgment provided on 04 April 2025 Criminal Appeal Ms. I. Moyo, for the appellant Mr. E. Mbavarira, for the respondent CHAREWA J: On 26 February 2025 we delivered an ex-tempore judgment dismissing the appeal against the sentence imposed by the Magistrates Court sitting at Masvingo (“the court a quo”) on 11 September 2024. We now provide the “full appeal judgment” at the behest of the appellant who made a formal request for the same. The background facts Appellant was convicted, on her own plea, on a charge of unlawful dealing in dangerous drugs as defined in Section 156 (l) of the Criminal Law (Codification and Reform) Act [Chapterg:23). The quantity of dagga was 1.2 kilograms. She was sentenced to l2 months' imprisonment 2 months of which were suspended for 5 years on condition that Appellant does not, within that period, commit an offence involving dangerous drugs. The Appellant is currently serving an effective l0 months' imprisonment term. The Judgment of the court a quo In its judgment, the court a quo particularly noted that in deciding the appropriate sentence the court considered the mitigating factors, primarily that, offender pleaded guilty to the charge and is a first-time offender. In that regard, the court a quo correctly noted that an offender who pleads guilty must be rewarded for not wasting the court’s time and it also shows contrition. Further, the court a quo noted that the appellant was a first-time offender who ought to be treated with leniency as it is her first brush with the law and must be given an opportunity to reform. Other mitigatory factors which the court a quo considered were that the offender is a mother of 4 whose personal circumstances must be taken into account. In aggravation, the court a quo correctly noted that the quantity of dagga involved was substantial and dealing is a serious offence. It also correctly noted that the presumptive penalty for the offence is 15 years imprisonment. The court a quo considered the mitigating factors and decided to opt for a lesser sentence. It correctly noted that where a court considers passing a sentence which is 24 months and below it must consider community service. However, after considering that drug abuse is rife and is promoted and facilitated by dealers such as the appellant, the court a quo found that community service would be inappropriate in this case. It HMSCR 1289- HMA 12-25 correctly stated that dagga is a mind bending and bad habit-forming drug which the court must discourage its use. For these reasons the court a quo correctly found that a non-custodial sentence is inappropriate. Disgruntled by that outcome the appellant mounted the current appeal. Her grounds of appeal are couched in the following terms: Grounds of appeal Against conviction 1. The Court a quo fell into error when it convicted on a charge of unlawful dealing in dangerous drugs in that; 1.1. There was nothing in the state outline justifying a finding that the appellant was dealing in dangerous drugs. On the contrary the state merely alleged that the appellant was found in possession of dangerous drugs. 1.2. There is no explanation why the court a quo made a finding that the appellant dealt, as opposed to possessed, dagga on the day in question. The court a quo thus fell into error when it convicted the Appellant of the more serious offence of dealing in dangerous drugs when the evidence placed before it suggested mere possession. Against sentence 1. The court a quo erred when it imposed a custodial sentence on a first female offender (sic) who had pleaded guilty to the charge. The court a quo patently paid lip-service to the many mitigatory factors which justified the imposition of a more lenient sentence. 2. The court a quo erred when it failed to consider community service as a possible sentencing alternative regardless of the fact that it had imposed a sentence within the 24 months, threshold. 3. The court a quo fell into error when it failed to give cogent reasons why community service was not tenable in the circumstances. Appellant therefore sought an order setting aside the decision of the court a quo and substituting it with the following: “WHEREFORE Appellant prays that the appeal against conviction succeeds and that the conviction for dealing be quashed. In the event that a finding is made that the conviction is unassailable, the Appellant prays that the appeal against sentence be upheld and that the following order be made: 1. The Appeal against Sentence be and is hereby upheld 2. The Sentence imposed by the court a quo be and is hereby set aside and substituted with the following: a) Appellant is sentenced to l2 months’ imprisonment of which 3 months are suspended for 5 years on condition that Appellant does not, within that period, commit an offence involving dangerous drugs b) The remaining l0 months are further suspended on condition that Appellant performs 350 hours of community service at an institution to be determined by the court a quo' c) The matter be and is hereby remitted to the court a quo for the enforcement of paragraph b) and the assessment into the suitability of the Appellant to perform community service.” HMSCR 1289- HMA 12-25 The notice and grounds of appeal were palpably invalid: the preamble does not state what appellant was convicted of and what he was sentenced to, ground of appeal 1 against conviction and ground 1 on sentence are argumentative, grounds 2 and 3 on sentence are essentially one ground and are therefore repetitive. However, the state did not raise any points in limine in this regard. We therefore decided to hear the matter on the merits. During the hearing, counsel for the appellant abandoned the appeal against conviction but persisted with the appeal against sentence and the respondent was not opposed. We find the abandonment and concession proper and accordingly the appeal against conviction was dismissed. On sentence, counsel for the appellant submitted that by and large they were abiding by the papers filed of record. In motivating their grounds of appeal in their heads of argument, counsel for the appellant submitted that it is a settled principle of our law that where first offenders can be kept out of prison without bringing the justice system into disrepute, then the trial court should seriously consider imposing a non-custodial sentence to spare a first offender the proverbial rigors of jail. The position is more pronounced where the first offender concerned is a female. In the case of S v Mandombo HMA 24/17, his Lordship Mawadze J (as he then was) indicated that: “Whilst Section 56 of the Constitution provides equality and non-discrimination before the law, it is trite at our law that female first offenders are treated more leniently than males. In that regard, what can be termed as ‘positive discrimination is in order.” We find the provided case law authorities to be of no value as the facts in those cases were distinguishable from those in the present case. Counsel for the appellant conceded that they did not find any case law authority where the facts are similar to the present case where a non-custodial sentence was imposed. On failure to consider community service, counsel for the applicant submitted that, in the case of S v Mabhena 1996 (1) ZLR the Court reiterated that it is the duty of the Court to consider imposing community service where a Court decides that a sentence of less than 24 months is appropriate. It is clear that in this case, when it imposed a sentence of 12 months, the court a quo was duty bound to consider the suitability or otherwise of community service. S v. Matakura HH-39-02. Again, the case law authority was of no use as the circumstances in the provided case law was different from those in the present case. In any event, the duty of the court is not to impose community service every time a sentence falls below the 24 months threshold. The duty of the court is to “consider the propriety of a non-custodial sentence in the circumstances of each case and make a decision whether to impose community service or not, as appropriate”. In casu, the magistrate was very much alive to the fact that he passed a sentence of less than 24 months and must consider community service, which he went on to do but discarded it as inappropriate given the far-reaching consequences of drug abuse facilitated by appellant and others like her. As already stated, the respondent opposed the appeal against sentence. By and large, it abided by its heads of argument filed of record. The respondent reiterated that it would be difficult for any tribunal to interfere with the sentence imposed by the court a quo as 1.2 kilograms of dagga is quite a substantial amount. It therefore prayed for the dismissal of the appeal. Unlike the appellant, the respondent was able to find case law authority that is S v HMSCR 1289- HMA 12-25 Macheke HH326-24 wherein a quantity of 700 grams of dagga was held to be substantial and performance of community service was found to be too lenient as the offence called for an effective imprisonment term. We fully associated ourselves with the finding of the court in this case. From the foregoing, we found as follows: 1. The complaint that the court a quo neglected to consider the appellant’s personal circumstances in that she is a female first offender, or that mitigatory factors were not adequately considered is not justified if regard is had to the sentencing guidelines and the fact because of these factors the court a quo imposed a sentence of only 12 months as against a presumptive sentence of 15 years. 2. The appellant has been unable to provide any case law authority with facts similar to the ones in the present case where community service was imposed. To the contrary, the respondent was able to provide precedent that a custodial sentence is appropriate for the possession of 700 grams of dagga. 3. The quantity of dagga in this case, being 1.2 kilograms, is so substantial that the sentence imposed is neither excessive nor does it induce a sense of shock justifying interference by this court. In the circumstances, we were not convinced that the court a quo did not exercise its sentencing discretion properly or that it erred, in its conclusion that a custodial sentence was appropriate in the circumstances, so greatly as to warrant interference by this court. DISPOSITION Accordingly, “IT IS ORDERED THAT: 1. The appeal be and is hereby dismissed for lack of merit. 2. The appellant's bail be and is hereby cancelled and the bail money be and is hereby estreated to the State. 3. The accused is to start serving her sentence forthwith.” ZISENGWE J….......................................... I agree. Mutendi, Shumba, Mudisi, appellant’s legal practitioners. National Prosecuting Authority, respondent’s legal practitioners. 4