Wise Clever Tyanda v The State

### Preamble
1
HCC13/24
KAR 1604/23
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WISE CLEVER TYANDA

Versus

THE STATE

HIGH COURT OF ZIMBABWE
MUZOFA & BACHI MZAWAZI JJ
CHINHOYI, 16 February 2024

Criminal Appeal

BT Ncube for the appellant

R Nikisi for the respondent

MUZOFA J

Introduction

Possession of 6,5kg of dagga invariably attracts a sentence in the range of 36 months imprisonment with a portion suspended on the usual conditions where the accused is a first offender. In this case the appellant admitted possession of the dagga. He produced a paper trail of documents that showed that he was taking the dagga to South Africa to an identified company for testing and research. This was not disproved by the State. Where an accused presents the reason for possession, it is incumbent upon the trial Court to take that explanation into consideration in sentencing the accused. In this case after hearing the appeal against sentence, the Court partially allowed the appeal for the reasons that follow.

Backgrounds facts

The appellant appeared before a Magistrate on a charge of unlawful possession of 6,5 kgs of dagga in contravention of s157 (1) (a) of the Criminal Law Codification and Reform Act [Chapter 9:23]. He pleaded guilty and was sentenced to 36 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions of good behaviour.

Appellant is Malawian and an authorised farmer of dagga in Malawi. He is a member of a cooperative known as Vukani Farming Cooperative licenced to cultivate and sell cannabis sativa in Malawi.

On the 4th of September 2023, the appellant entered the country through Chirundu Border post with the 6.5kg of dagga. When he was in Zimbabwe at Total Service Station Chirundu, he was arrested by members of the Criminal Investigating Department who had received a tip off.

As already stated he was charged and he pleaded guilty. In passing sentence, the court took into account the appellant’s personal circumstances. It also considered that he was a first offender who pleaded guilty to the charges. It also took into account that the appellant who was in transit to South Africa did not know that he required a permit to pass through Zimbabwe with the dagga.

Having said that, the court then relied on the often cited case in such cases on the harmful effects of dagga, S-v-Sixpence HH 77/03 that dagga is a mind-bending drug. It then cited cases and correctly so where accused persons found in possession of dagga with quantities around 6kg to 7 kg were sentenced to 36 months imprisonment. It then sentenced the appellant as indicated.

The grounds of appeal

Dissatisfied by the sentence, the appellant appealed raising one ground only that the sentence induces a sense of shock regard being to the circumstances of the case that the appellant was en route to South Africa.

We were urged to set aside the sentence and substitute it with a sentence of 12 months imprisonment with 6 months suspended or a fine coupled with a wholly suspended sentence.

In our view a fine would be inappropriate in a case of possession of 6.5kg of dagga.

The submissions

Mr. Ncube for the appellant addressed the court on the highly mitigatory circumstances. His emphasis was that the appellant was in transit and had a permit to farm in Malawi. He also had all the paper work showing where he was taking the dagga to. The trial Court and the State misdirected on relying on the cases where the possessor had no explanation for such possession. In this case the appellant’s culpability was the failure to obtain a transit permit.

The State opposed the appeal. It argued that the sentence was in sync with a line of cases where accused persons were found in possession with large quantities of dagga. The State referred to a number of cases to demonstrate its point.

After some engagement with the Court, it seems the State was ready to make concession that the trial court must have taken into account the purpose for possession.

The law

The only question on appeal is whether the sentence imposed by the trial court was shockingly severe and therefore inappropriate. We have to determine whether the trial court improperly exercised its judicial discretion in sentencing the appellant.

An appeal court can interfere with a trial court’s discretion where the trial court has committed a misdirection of a significant proportion to amount to a miscarriage of justice.  In the case of Muhomba v S SC 241/12, Malaba DCJ (as he then was) had this to say on p 9 of the cyclostyled judgment:

“The position in our law is that in sentencing a convicted person, the sentencing court has discretion in assessing an appropriate sentence.  That discretion must be exercised judiciously having regard to both the factors in mitigation and aggravation.  For an appellate tribunal to interfere with the discretion, there should be a misdirection.  See S v Chiweshe 1996(1) ZLR 425H at 429; S v Ramushu and Others S 25/93.”

It is trite that sentencing is within the discretion of the trial court. An appeal court can interfere with such discretion where the discretion has been exercised injudiciously. Bearing in mind the penalty section, a trial court must be guided by the acceptable principle to consider the triad that is the accused’s personal circumstances, the offence and the interests of justice.

The Act provides for a sentence of a fine of up to level ten or imprisonment for a period not exceeding five years or both. Sentences for possession of dagga for quantities between 6 and 7kg attract a sentence of more than 24 months imprisonment. The State and indeed the trial court referred to some of the cases.

Application of the law to the facts

The appellant was convicted of a fairly serious offence. Dagga is classified as a dangerous drug. Research has shown that such drugs are highly addictive with dire consequences on the addict. Drugs often destroy the addicted to a human wreck. The effects thereof are also felt by the addict’s immediate family and the society at large.

The quantity was on the higher side. A non-custodial sentence, a fine or even community service would be in appropriate. See S-v-Muura HH1781, S-v-Sibanda HB 128/10.

Notwithstanding the good judgment by the trial court, it would appear it paid lip service to the highly mitigatory circumstances surrounding the commission of the offence.

In mitigation the appellant indicated that it was his first year in the dagga farming business. He was looking for a market. Unfortunately, he was unaware that he needed a permit to be in Zimbabwe with the dagga.

In aggravation, the State highlighted that since the appellant was looking for a market, nothing would have stopped him from scouting for a market even here in Zimbabwe. The inference in our view was not supported by facts. It seems though that the submission swayed the trial court to an extent that it failed to scrutinise the facts before it that were accepted by the State.

There was no evidence how the appellant passed through the border without any problems. However, the appellant produced documents that confirmed his explanation;

A letter from Vukani Farming Cooperative addressed “to whom it may concern”. It was more of an authorisation letter for appellant, one of their members to travel to South Africa and submit to Agriculture, Land Reform and Rural Development the dagga for sampling. The letter was dated 5 August 2023.

A certificate of registration for Vukani Farming Cooperative in Malawi.

A licence to cultivate and sell industrial Hemp (A-11) for Vukani Farming Cooperative. The licence showed that it expired on 31 November 2022.

A letter from the Director General Cannabis Regulatory Authority of Malawi dated 31 July 2023 addressed “to whom it may concern”.

I reproduce what is crucial and important to this case from that letter,

“This is to confirm that Vukani Farming Cooperative has permission from the Cannabis Regulatory authority (CRA) to carry hemp samples to South Africa for analysis and research purposes. Details of the recipient are as follows:

Name of Company:	Vital Veggis Gardens (Pty) Ltd…

Contact person:	Micheal Brooks Tel/ Mobile …

A full description of samples is as follows;

I would therefore like to request all whom it may concern to allow Vukani Farming Cooperative export the samples as specified above.’

The author’s contact details were then provided.

The State did not lead any evidence to controvert the contents of the letter. The low hanging fruit was to confirm if what was set out in the letter as the description of samples was indeed what the appellant had in possession. The principle that what is not denied is admitted applies. In essence the State admitted that the appellant was in possession of the dagga as stated in the letter.

If the State admitted the contents of the letter, then it defies logic that the State would submit that the appellant could possibly look for a market in Zimbabwe.

The dates on the letters were written in July and August respectively and the appellant’s subsequent arrest on 4 September knit up to confirm the appellant’s explanation that he was enroute to South Africa. In our view, the failure to obtain a transit permit is not of the appellant’s doing alone. The Vukani Farming Cooperative executive must have ensured that he had the transit permit. Indeed, as a cooperative in this business they were required to be intentional about seeking information on how to transport the dagga to South Africa.They were negligent. Nothing much turns on their negligence since the offence requires intention.

The circumstances of the case, coupled with the plea of guilty must have swayed the court to impose a less onerous sentence. The appellant’s blameworthiness is really on his failure to obtain a transit permit. The offence is possession, the explanation for the possession is an important consideration in sentencing in this case. It was proved a short custodial sentence would be appropriate in the circumstances.

Accordingly, the sentence imposed by the court a quo is set aside and substituted by the following;

“18 months imprisonment of which 9 months imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving unlawful possession or dealing with dangerous drugs and of which upon conviction he is sentenced to imprisonment without the option of a fine. Effective 9 months imprisonment.’

In addition the dagga is forfeited to the State. The dagga to be destroyed by fire.

Bachi-Mzawazi J agrees