THE State V Solomon Mtisi

### Preamble
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HMA 28-17
CRB CH 493/17
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THE STATE

versus

SOLOMON MTISI

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 12 June 2017

Criminal Review

MAFUSIRE J: The court a quo seemed to have conducted the proceedings in this matter without regard to the relevant provisions of the Code [The Criminal Law (Codification and Reform) Act, [Cap 9:23]. As a result, both the offence with which the accused was charged, and the sentence meted out, were manifestly inappropriate, particularly given the agreed facts and the accused’s own explanation.

The facts were these. The accused pleaded guilty to a contravention of s 157[1][a] of the Code. In terms of this provision, any person who inter alia acquires or possesses a dangerous drug shall be guilty of unlawfully possessing or using a dangerous drug. Dangerous drugs include prepared cannabis, whose many other names include mbanje or dagga. The prescribed penalty is a fine not exceeding level 10 [$700], or imprisonment for a period not exceeding 5 years.

What happened was that, following a tip-off, police detectives intercepted a commuter omnibus in which the accused was a passenger. He had two bags with him. When searched, the police recovered 7 packets of loose mbanje. It weighed 9.937 kilograms. In court, on being asked what he needed all that mbanje for, the accused said he wanted to sell it to raise money for school fees for his children. In mitigation, he said he was trying to raise money to look after himself and his siblings.

The accused was 33 years old. He was a divorcee. He was a first offender. The court noted that dagga is a dangerous drug with several side effects. Relying on cases such as S v Nyambo; S v Chitaka and Attorney General v Sibanda & Ors which called for stiffer prison sentences, the court a quo sentenced the accused to 6 years imprisonment of which 1 year imprisonment was suspended for 5 years on the usual condition of good behaviour. The effective sentence was 5 years.

The one mistake by the court a quo was that the sentence was above the prescribed maximum. As stated above, unlawful possession or use of a dangerous drug, in contravention of s 157[1][a] of the Code, attracts a fine not exceeding $700, or imprisonment for a period not exceeding 5 years, or both.

The second mistake by the court a quo was that the circumstances of the case disclosed the more serious offence of unlawfully dealing in dangerous drugs, in contravention of s 156[1] of the Code, yet the proceedings continued under s 157[1]. In terms of s 156[1], unlawfully dealing in dangerous drugs takes several forms. The two closest to the circumstances of this case are those set out in paragraphs [a] and [c].

Under paragraph [a], a person commits the offence if he unlawfully, inter alia, sells, distributes, delivers, transports or otherwise deals in dangerous drugs. By his own admission, the accused did intend to sell the drug to raise money for himself, his children and his siblings. Undoubtedly, it could only have been for that purpose that he was transporting so much dagga.

Under paragraph [c], a person commits the offence if he unlawfully, inter alia, possess a dangerous drug for the purpose of dealing in it. “To deal” in dangerous drug is defined to include selling or performing any act, whether as principal, agent, carrier, messenger or otherwise, in connection with, inter alia, the supply, procurement or transmission of such drug.

The prescribed penalty for unlawfully dealing in dangerous drugs, in contravention of s 156[1], is much harsher than that for unlawful possession or use under s 157[1]. Under s 156[1] the penalty is a fine up to or exceeding level 14 [$5 000], or imprisonment for a period not exceeding 15 years, or both. If the offence was committed in aggravating circumstances, and there are no special circumstances, then the penalty is even more severe. It is imprisonment for a period of not less than 15 years or more than 20 years, and a fine not below level 14, or in default of payment, imprisonment for an additional period of not less than 5 years or more than 10 years.

In casu, the offence was not committed in aggravating circumstances.

S v Chitaka above, one of the authorities relied upon by the court a quo, is more relevant for the directive given therein to prosecutors and magistrates, that where the circumstances of the case disclose a contravention of the more serious offence under s 156[1] of the Code, then the accused should be charged with that. NDOU J said:

“The legislature, in its wisdom, has created different penalty regimes for possession and dealing in dangerous drugs. What is evident is that for dealing, the penalties are materially harsher than possession. ………… It is important that magistrates and public prosecutors appreciate this fundamental distinction in the offences of possession … … or of dealing in dangerous drugs.”

In that case the accused was convicted in the magistrates’ court for possession of 1.6 kilogrammes of dagga. The drug had been found concealed inside a radio box in the accused’s bedroom. He was charged under s 157[1][a] of the Code. However, on review the learned judge said as the accused had actually been selling the dagga, he should have been charged under s 156[1]. He refused to certify the proceedings as being in accordance with real and substantial justice.

The rationale for the creation of the more serious offence of dealing in dangerous is the need to combat the evil that dealing in drugs is. The learned judge said:

“The task of the police to combat the evil is a formidable one and the legislature has indicated the seriousness with which it regards the unlawful sale or supply of dagga by the creation of a more serious offence for such conduct in section 156[1] supra which is now a separate and distinct offence from one of possession or cultivation under section 157[1] supra …”

The third mistake by the court a quo was that in assessing the appropriate sentence, it applied, almost mechanically, precedents that were manifestly inapposite, given the changes brought in at the consolidation of the criminal law in 2004. The crimes of possession, use and dealing in dangerous drugs were excised from the Dangerous Drugs Act, Cap 15:02, and planted in the Code, but with some subtle changes. The court should have been more circumspect in its reliance on such cases as S v Nyambo and Attorney-General v Sibanda & Ors above, because of the changes in, among other things, the definition of mbanje, and the prescribed penalties for its abuse.

In casu, because the offence was not committed in aggravating circumstances, if the accused had been properly charged under s 156[1][a] or [c] of the Code, he would have been liable to a fine of up to $5 000 or more, or imprisonment for a period not exceeding 15 years, or to both the fine and the imprisonment. However, given the large quantity of the drug involved; given the widespread abuse of mbanje and other drugs in this country; the dangerous complications that are associated with drug abuse, including the mind-altering and habit-forming effects [see S v Sixpence]; and following the sentencing trends by this court, the term of 6 years imprisonment with 1 year suspended which the court a quo imposed, but for the wrong charge, would have been appropriate. As noted already, the penalty was inappropriate only because the accused was charged with a lesser offence for which the prescribed maximum is less than 6 years.

In the circumstances, the sentence of the court a quo is set aside and substituted with 5 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition that, within that period, the accused shall not commit an offence that involves possession, use or dealing in dangerous drugs for which, upon conviction, there will be no option of a fine.

The court a quo is directed to recall the accused and advise him accordingly.

12 June 2017

Hon Mafusire J

Hon Mawadze J		I agree	______________________