S v Magama (CRB G 151 of 2015) [2015] ZWHHC 311 (25 March 2015)

1 HH 311-15 CRB G 151/15 THE STATE versus WASHINGTON MAGAMA HIGH COURT OF ZIMBABWE MWAYERA & TSANGA JJ HARARE, 26 March 2015 Criminal Review TSANGA J: The accused was convicted of unlawful possession or use of dangerous drugs as defined in s 157 (1) (a) of the Criminal Law Codification and Reform Act [Chapter 9:23]. This section deals with a person who unlawfully ‘acquires or possesses a dangerous drug’. He received the following sentence: “24 months imprisonment of which 6 months is suspended for 5 years on condition accused does not within that period commit any offence involving the possession cultivation, use and or dealing in dangerous drugs for he will be sentenced to imprisonment without the option of a fine. The 40 grams is hereby forfeited to the State.” The brief facts were that on 23 February police detectives who were on patrol received information that the 29 year old accused was in possession of dagga. He was approached at Muzenderi general Dealer at Matizha Business centre in Gutu and found in possession of nine twists of dagga in his trouser pocket. He was then arrested. Whilst nothing turns on the conviction the sentence is manifestly excessive for a first offender. The magistrate justified his sentence on account that 40g is a substantial quantity suggestive of the intention to deal. He also stated that a lighter sentence would trivialise the offence. The sentence induces a sense of shock. In S v Mugugu HH 386/13 the accused who was charged under the same provision and subsection, had been in possession of 1.2 kg and was sentenced to 12 months imprisonment of which 6 months was suspended. He had appealed against sentence. In his case the sentence was deemed appropriate and his appeal was dismissed. In S v Gwenzi HH 194/88 the accused possessed 592 grams of dagga. On review it was held that a sentence of 14 months imprisonment with half suspended would HH 311-15 CRB G 151/15 have been appropriate. In Chingwaru HB 106/93 a sentence of 24 months imprisonment of which 6 months was suspended on the usual conditions for possession of 1.4 kgs of dagga was confirmed. Furthermore in S v Sibanda 2006 (2) ZLR (H) the court held that whilst prevalence of an offence is a relevant factor in sentencing, it is not the overriding factor. In casu the 24 months sentence imposed, with 6 months suspended on usual conditions for 40 grams of dagga is definitely harsh in light of sentences passed in cases of a more serious nature. A fine would have sufficed as there is nothing to suggest conclusively that the small quantity involved was for sale as opposed to personal consumption. The accused has already served a month in prison. In my view this more than meets the justice of the case in light of the quantity of dagga involved. The accused is entitled to his release. A warrant of liberation is accordingly issued. MWAYERA J agrees…………………………