The State v Christine Chambati

### Preamble
1
HH 479-25
HCHCR 4618-25
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THE STATE

v

CHRISTINE CHAMBATI

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE; 21 AUGUST 2025

CRIMINAL REVIEW

MUREMBA J: The accused, a 39-year-old single mother of four children residing in Highfields, Harare, was charged with unlawful possession of dangerous drugs, namely 962.6 grammes of dagga, in contravention of section 157(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The following is the factual background. On 2 June 2025, acting on a tip-off, the police apprehended the accused at Madokero Mall in Harare. A search revealed a black satchel in her possession contained 962.6 grammes of dagga with an estimated street value of USD 96.20. In the Magistrates Court the accused admitted to the charge of unlawful possession and was duly convicted. Accordingly, I confirm the conviction.

The accused was sentenced to 24 months’ imprisonment, of which 12 months were suspended for five years on condition of future good behaviour. The remaining 12 months were suspended on condition that she performs 420 hours of community service at Western Triangle Satellite Clinic, Highfield.

I am, however, unable to confirm the sentence imposed as being in accordance with real and substantial justice.

The statutory penalty for unlawful possession of dangerous drugs is an up to level 10 fine, or imprisonment for up to five years, or both. In addition, the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (S.I. 146 of 2023), prescribe a presumptive penalty of three years’ imprisonment where aggravating factors are present. The guidelines identify three such aggravating factors: possession of large quantities of drugs, possession in a public place, and attempts to conceal evidence. Conversely, where mitigating factors exist, the presumptive penalty is a level five fine. The listed mitigating factors include possession of a small quantity of drugs and possession for medicinal use. It is important to note that the aggravating and mitigating factors outlined in the guidelines are not exhaustive. Courts retain discretion to consider additional factors as either aggravating or mitigating for the purposes of arriving at the appropriate presumptive penalty.

Section 5(2) of the Sentencing Guidelines stipulates:

“Where these guidelines have provided for a presumptive penalty, the guidelines shall apply to the exclusion of any other law in terms of which the sentencing of offenders may be prescribed.”

This provision mandates that the sentencing guidelines take precedence over other laws when a presumptive penalty is specified. A departure from the presumptive penalty must be accompanied by a clear and well-reasoned justification.

In his sentencing remarks, the trial magistrate noted that the offence carries a presumptive penalty of three years’ imprisonment. However, he proceeded to observe that the quantity of dagga involved was minimal. This reflects a misapplication of the sentencing guidelines. Where the quantity of drugs is small, the appropriate presumptive penalty is not three years’ imprisonment, but rather a level five fine. This apparent misunderstanding suggests that the magistrate may not have fully grasped the distinctions set out in the sentencing guidelines regarding the application of presumptive penalties in cases of unlawful possession of drugs. A clearer appreciation of the aggravating and mitigating factors outlined in the guidelines is essential to ensure consistency and fairness in sentencing.

The magistrate took into account several mitigating factors, including the accused’s guilty plea, her expression of remorse, and her personal circumstances as a single mother of three children, although the sentencing inquiry indicates that she is, in fact, a mother of four. The magistrate also acknowledged aggravating factors, such as the broader societal harm posed by drug-related offences, including risks to public health and the role of drugs in facilitating serious crimes. He further observed that drug abuse has become a global concern and underscored the importance of deterrent sentencing. Nonetheless, the magistrate ultimately concluded that the presumptive penalty of three years’ imprisonment would be unduly severe, particularly given that the quantity of dagga involved was “under a kilogram.” On this basis, he imposed a suspended custodial sentence, contingent upon future good behaviour and the performance of community service.

This reasoning is flawed because the sentencing guidelines clearly state that possession of a small quantity is a mitigating factor, which attracts a level five fine, not imprisonment. By invoking the harsher presumptive penalty and then dismissing it as “too harsh,” the magistrate demonstrated a misunderstanding of how the guidelines distinguish between aggravating and mitigating factors. As a result, the sentence imposed was not only inconsistent with the regulatory framework but also failed to reflect the structured approach intended to promote fairness, proportionality, and consistency in sentencing.

Other than misapplying the guidelines, the magistrate erred in characterizing the quantity of 962.6 grammes of dagga as “small.” This is a clear misdirection. Judicial precedent has consistently held that quantities well below this threshold constitute substantial amounts:

In S v Macheke HH 326-24, 700 grammes of dagga were deemed substantial, and community service was found to be too lenient. It was held that effective imprisonment was called for.

In Loveness Chibhangu v State HMA 12-25, the court upheld a custodial sentence of 12 months’ imprisonment of which 2 months was suspended on condition of future good behaviour for 1.2 kg of dagga, emphasizing the societal harm caused by drug abuse.

In S v Gwenzi HH 194/88, possession of 592 grammes was held to warrant a custodial sentence of 14 months’ imprisonment with half suspended.

In S v Mugugu HH 386/13, possession of 1.2 kg led to a sentence of 12 months imprisonment, with 6 months suspended. The remainder was effective.

In Chingwaru HB 106/93, possession of 1.4 kgs resulted in a 24-month sentence, with 6 months suspended. The remainder was effective.

These case authorities demonstrate that 962.6 grammes of dagga is substantial.

Had the magistrate properly considered relevant judicial precedent, he would not have arrived at the erroneous conclusion that the quantity of dagga involved, 962.6 grammes, was insubstantial. This mischaracterization of the quantity was a critical misdirection, as it directly influenced his decision to depart from the prescribed sentencing framework. Specifically, it led to the erroneous conclusion that the presumptive penalty of three years’ imprisonment, was too harsh for the quantity of 962,6 grammes.

Another critical aspect that the magistrate appears to have overlooked is the location in which the offence was committed. The accused was found in possession of dagga at Madokero Mall, a public place frequented by members of the community. Possession of dangerous drugs in a public setting, on its own, is expressly listed as an aggravating factor in the sentencing guidelines. It being an aggravating factor, the offence attracts the presumptive penalty of three years’ imprisonment.

Moreover, the fact that the police were tipped off by a member of the public suggests that the accused’s possession of the drugs was not discreet but rather visible or known to others. This factor heightens the seriousness of the offence, as it increases the potential for public exposure, and harm.  This further reinforces the need for a sentencing response that reflects the heightened risk and societal impact associated with drug possession in communal spaces. The magistrate’s failure to consider this aggravating factor resulted in a sentence that did not fully account for the broader implications of the accused’s conduct.

Had the magistrate correctly classified the dagga as a substantial quantity possessed in a public place to the knowledge of members of the public, he would have been compelled to begin his sentencing analysis from the presumptive benchmark of three years’ imprisonment. This would have ensured that the sentence imposed was proportionate to the gravity of the offence and aligned with both statutory expectations and public interest considerations.

While many of the case authorities cited above were decided prior to the promulgation of the 2023 Sentencing Guidelines, they remain instructive in demonstrating judicial consensus on what constitutes a substantial quantity of dagga. The introduction of the Sentencing Guidelines has since elevated the sentencing threshold, requiring courts to impose stiffer penalties, typically in the region of three years’ imprisonment, for offences involving significant quantities of dangerous drugs and or possession of such drugs in public places.

This shift in sentencing philosophy is particularly critical in the current climate, where this country is grappling with a surge in drug abuse and its associated social harms. The courts must respond to this crisis with sentences that reflect the seriousness of the offence and serve as a deterrent to would-be offenders. In this context, lenient sentences such as community service for possession of nearly a kilogram of dagga fall short of the justice system’s duty to protect society and uphold the rule of law. The prevalence of drug abuse in this country has reached deeply concerning levels, posing a significant threat to public health, social stability, and national development.

Recent reports and institutional data point to a troubling escalation in drug abuse across the country, particularly among the youth. Although comprehensive national statistics remain limited, available evidence paints a stark picture. Harare Central Psychiatric Hospital, for instance, recorded a dramatic rise in drug-related admissions from just 150 cases in 2019 to over 825 in 2020. By 2021, the Zimbabwe Civil Liberties and Drug Network estimated that drug abuse was responsible for approximately 60% of all psychiatric hospital admissions, with young people aged between 16 and 25 accounting for nearly 80% of these cases. The Ministry of Health and Child Care also acknowledged the strain on the public health system, attributing a substantial portion of recent mental health hospitalisations directly to substance abuse. See Zimbabweans say drug and substance abuse is rampant, see it as a society wide challenge: Afrobarometer Dispatch No. 939 https://www.afrobarometer.org/wp-content/uploads/2025/01/AD939-Zimb. Accessed on 18 August 2025.

In 2024, His Excellency President Emmerson Mnangagwa launched the Multi-Sectoral Drug and Substance Abuse Plan (2024–2030), which prioritises the strengthening of law enforcement, disruption of drug supply chains, and expansion of rehabilitation services. The Cabinet further endorsed the principles of a Drug and Substance Agency Bill, aimed at establishing a specialised institution to combat drug-related offences. See Zimbabweans say drug and substance abuse is rampant, see it as a society wide challenge: Afrobarometer Dispatch No. 939 https://www.afrobarometer.org/wp-content/uploads/2025/01/AD939-Zimb. Accessed on 18 August 2025.

Public sentiment strongly supports a punitive approach to drug crimes. According to the Afrobarometer Round 10 survey, a large majority of Zimbabweans report that drug abuse is widespread in their communities and advocate for severe penalties against offenders, alongside public education and intensified anti-trafficking efforts. Community leaders, including traditional authorities, have actively addressed the issue, and national campaigns have called upon youth to take leadership in resisting drug abuse. See Zimbabweans say drug and substance abuse is rampant, see it as a society – wide challenge: Afrobarometer Dispatch No. 939 https://www.afrobarometer.org/wp-content/uploads/2025/01/AD939-Zimb. Accessed on 18 August 2025.

The above developments underscore a clear and unified stance from both the government and the broader public: drug-related offences pose a significant threat to societal well-being and must be addressed through firm and principled judicial responses. The conduct of the accused of being found in possession of nearly a kilogram of dagga in a public space must be regarded as a serious affront to public health and safety. Her actions are not only prejudicial to the community but also undermine ongoing efforts to combat the scourge of substance abuse, which continues to devastate families and communities, particularly among the youth. The explanation offered by the accused for her possession of the dagga was unconvincing and lacked credibility. She claimed to have received the drugs for safekeeping from an unnamed individual, yet failed to provide any further details or justification. Such a vague and unsupported account does little to mitigate the seriousness of the offence and suggests a lack of genuine remorse or accountability.

Moreover, it is troubling that the accused, who resides in Highfields, was found in possession of the drugs at Madokero Mall, a location significantly distant from her home. This raises legitimate concerns about the nature and intent of her activities, and whether her presence at the mall was part of a broader pattern of drug distribution or engagement with illicit networks.

In light of the national policy direction, which prioritizes the fight against drug abuse, and given the public’s legitimate expectation for the courts to play a meaningful role in deterring such conduct, the need for a robust sentencing approach cannot be overstated. Drug abuse has far-reaching consequences, particularly for young people, and the judiciary must respond in a manner that both denounces the offence and deters future violations. Regrettably, the sentence imposed by the trial magistrate in this case falls short of these objectives and does not adequately reflect the gravity of the offence or the broader societal interests at stake.

While the accused’s guilty plea, expression of remorse, and personal circumstances that include her status as a single mother of four children and her gender are valid mitigating factors deserving of judicial consideration, they do not outweigh the seriousness of the offence committed. The possession of nearly a kilogram of dagga in a public space is not a trivial infraction. The guidelines prescribe a presumptive penalty of three years’ imprisonment in such cases. The public nature of the offence, committed at Madokero Mall, heightens its impact. It exposes members of the community, including vulnerable groups, to the dangers of drug circulation and undermines public safety. Moreover, the accused’s explanation for her possession of the dagga was vague and unsubstantiated, suggesting a lack of accountability.

In S v Dube Sixpence HH 77-03, the court stated emphatically that possession of substantial quantities of dagga warrants a custodial sentence, even in the absence of direct evidence of intent to supply. The court emphasized that the larger the quantity, the stronger the inference of commercial intent, noting that the temptation to distribute is inherently present when an individual is found in possession of large amounts of a mind-altering and habit-forming substance such as dagga. The court underscored the importance of discouraging drug use, particularly given its harmful impact on youth and the broader community.

In Attorney-General v Sibanda and Others HH 594/99, the court emphasized that even first-time female offenders with children are not immune from custodial sentences when found in possession of large quantities of drugs intended for resale. The court held that a sentence of 2½ years imprisonment with half suspended would have been appropriate for possession of 5.05 kgs to 10 kgs of dagga meant for resale, underscoring the seriousness of such offences. Notably, the respondents in that case were female, unemployed, first offenders with children, yet the court still found the original sentences appealed against by the Attorney General too lenient. The court drew a clear distinction between trivial possession and serious cases involving large quantities or intent to supply, stating that in such aggravated circumstances, courts have not hesitated to impose substantial custodial sentences, even on first offenders.

While in the Sibanda case it was held that a sentence of 2½ years’ imprisonment with half suspended would have been appropriate for possession of between 5.05 kgs and 10 kgs of dagga, it is important to recognize that sentencing standards have since evolved. With the enactment of the 2023 Sentencing Guidelines under Statutory Instrument 146 of 2023, the penalties for drug-related offences have become significantly more stringent. For possession of large quantities of dangerous drugs, the guidelines now prescribe a presumptive penalty of three years’ imprisonment, reflecting a firmer judicial stance on drug-related crime.

Accordingly, where the quantity of drugs is deemed substantial, the starting point for sentencing is three years’ imprisonment. Any departure from the presumptive penalty must be clearly articulated and well justified in the sentencing judgment. This ensures consistency, transparency, and alignment with the national policy objective of combating drug abuse.

The question is what counts as a “large quantity”? The guidelines under Statutory Instrument 146 of 2023 do not give a fixed numerical definition of “large quantity” for every drug. Instead, they leave it to judicial interpretation which should be based on context, precedent, and proportionality. In S v Macheke HH 326-24 (a case done after the promulgation of the sentencing guidelines) possession of 700g of dagga was deemed a “substantial quantity,” and the court referenced the presumptive penalty of 3 years’ imprisonment for large quantities.

A question can be asked: does the presumptive penalty imply that an individual found in possession of 1kg of dagga is liable to the same sentence as someone found with 5kgs? Under the guidelines, both 1kg and 5kgs of dagga could fall under the “large quantity” category. That means the starting point for sentencing is the same—3 years’ imprisonment. But it is pertinent to note that the presumptive penalty is not a fixed sentence. It is a guideline. Courts can increase or reduce the sentence based on aggravating or mitigating factors. A person with 5kgs may face a harsher sentence than someone with 1kg if the court finds the quantity significantly more aggravating, especially if there are other factors like intent to distribute, prior convictions, or concealment. The bottom line is yes, both 1kg and 5kgs can trigger the same presumptive penalty, but the final sentence may differ depending on the full circumstances. The court must justify any departure from the 3-year benchmark in its sentencing judgment.

In light of both the precedent set in cases cited elsewhere above and the sentencing guidelines, the present case involving a female first offender found with nearly a kilogram of dagga in a public space clearly falls within the category of serious offences. In sentencing the accused, the magistrate ought to have commenced his analysis by acknowledging that the offence falls squarely within the category of possession of a substantial quantity of a prohibited drug, as contemplated by the Sentencing Guidelines. This classification triggers a presumptive penalty of three years’ imprisonment, which should have served as the starting point for the sentencing inquiry. The magistrate should also have referred to precedent to see the established sentencing trends.

The magistrate should then have considered the aggravating factors present, most notably, the public nature of the offence, given that the dagga was found at a shopping mall, a location frequented by families and children, thereby heightening the potential social harm. However, while the quantity was substantial, the magistrate ought to have carefully contextualized it: 962.6g, though well beyond personal use thresholds, does not approach the extreme volumes. The magistrate should then have weighed the mitigating factors, including the accused’s guilty plea, her status as a single mother of four, and any genuine expression of remorse. These considerations, if properly substantiated, could justify a downward adjustment from the presumptive sentence. Any departure from the three-year benchmark would require clear and reasoned justification, demonstrating that the final sentence remains proportionate to the offence and consistent with the public interest in deterring drug-related crimes. By anchoring the analysis in the guidelines and transparently balancing aggravating and mitigating factors, the magistrate would have ensured a principled and legally sound sentencing outcome.

While the accused’s personal circumstances and her status as a first offender were properly considered as mitigating factors, they did not outweigh the seriousness of the offence. The presumptive penalty of three years’ imprisonment reflects the gravity with which such offences are now treated, and rightly so, given their corrosive impact on public health and safety. In this context, an effective custodial sentence was not only warranted but necessary to serve the dual objectives of deterrence and denunciation. A suspended custodial sentence on condition of future good behaviour and performance of community service, as imposed by the trial magistrate, failed to meet these objectives and did not adequately reflect the seriousness of the offence or the expectations of the law and society.

The Sibanda case supra affirms that even first-time female offenders with dependents are not exempt from custodial sentences when the offence is of a serious nature. While gender and parental responsibilities are acknowledged as mitigating factors, they do not insulate an offender from imprisonment where the gravity of the offence and the public interest in deterrence demand a firm judicial response. The courts have a duty to balance compassion with deterrence, and in cases involving aggravated drug possession, the need to send a clear message against such conduct is paramount. An effective custodial sentence would have served both deterrent and denunciatory purposes, reinforcing the seriousness with which society views drug-related offences and aligning judicial outcomes with public interest and statutory expectations.

Given the magistrate’s misapplication of the sentencing guidelines and the erroneous characterization of the quantity of dagga as insubstantial, it is difficult to conclude that the sentencing outcome was legally sound. Consequently, the sentence imposed falls short of meeting the requirements of real and substantial justice.

Accordingly, the conviction of the accused is confirmed. However, I withhold my certificate in respect of the sentence.

MUREMBA J ……….