IN
THE HIGH COURT OF SWAZILAND
In
the matter between: REVIEW CASE NO. 223/86
THE
KING
VS
BOY
PHIRI
MATSEBULA
MAMBA & PARTNERS
ATTORNEYS
COMMISSIONERS
OF OATHS
SWERN
APPRAISERS
ADMINISTRATORS
OF ESTATES
2ND
FLOOR DHLANU'BEKA HOUSE
P.O
BOX 657
MBABANE
CORAM: HANNAH,
C.J.
FOR
THE CROWN: MR. HASELDON
FOR
DEFENCE: ACCUSED IN PERSON
JUDGEMENT
ON REVIEW
(Delivered
on 19. 11. 86)
HANNAH,
C.J.
On
15th October, 1986, the accused was sentenced by the Pigg's Peak
Magistrate to a fine of E300 or three hundred days in default for the
unlawful possession of 14.85 kilograms of dagga. Two thirds of the
sentence was suspended on the usual conditions and the accused
therefore escaped with an effective fine of E100 for what, on any
view, was a serious offence under the Opium and Habit Forming Drugs
Act 1922. The case has been set down for review to consider whether
the sentence should be increased.
Unlawful
possession of dagga falls to be punished under Section 8(1) of the
Opium and Habit Forming Drugs Act. That section provides that a
person who contravenes, inter alia, section 7 of the Act shall be
guilty of an offence and shall be liable on conviction:
"to
a fine not exceeding two thousand Emalangeni or, in default of
payment thereof, imprisonment
2
not
exceeding five years or such imprisonment without the option of a
fine, or both such fine and imprisonment."
By
virtue of Section 8(2) any Magistrate's Court of the First Class is
empowered to impose the maximum sentence regardless of any limitation
of jurisdiction imposed by the Magistrate's Court Act.
Prior
to the King's Oder - in - Council No.2 of 1976 the maximum fine for
unlawful possession of dagga was E500 and the maximum sentence of
imprisonment three years and it is clear from the increase in these
limits that the unlawful possession of dagga and other drugs is
regarded by the Legislature in a very serious light. However,
assessing the culpability of the individual offender is no easy task.
From the dagga cases which come before this Court on automatic review
it is clear that there is little uniformity in sentencing policy and
that generally the Magistrate's Courts take a far too lenient view of
the offence. The present case is a prime example.
The
circumstances in which an offender may be found to be in possession
of dagga will vary enormously from case to case and the proper
sentence to be passed will vary accordingly. Without attempting to be
exhaustive the following are the more obvious factors which should be
considered:
a) Dagga
for personal consumption only. This can normally be inferred from the
amount possessed. If only a small quantity of dagga is involved being
for personal consumption and the offender
3
has
no previous record of unlawful possession of drugs a fine will
normally be an appropriate sentence.
b) Dagga
for supply. Again this can normally be inferred from the amount
involved though the circumstances of possession may also have an
important bearing. For example, possession of a small bag of dagga on
a homestead may indicate that it is merely for personal consumption
whereas possession of a similar quantity in a number of containers
may indicate otherwise. If the court is satisfied that the dagga in
question was being cultivated or possessed for the purpose of supply,
it should then decide which category of supplier the offender belongs
to.
c) The
wholesale supplier. This offender should be regarded as standing at
the top end of the sentencing scale. He is the person who is
cultivating or in possession for the purpose of widespread
distribution to a number of retail outlets. Where the court is
satisfied that this is the purpose and the operation is being
conducted on a large scale, the sentence should be at or near the
maximum even in the case of a first offender.
d) The
wholesaler's distribution network. Inevitably the wholesaler requires
a number of couriers who play a vital role in his distribution
network. These persons are motivated purely by financial gain and,
not infrequently, will include persons whose background
4
it
is thought will lead to leniency on the part of the courts. Thus one
will find youths or elderly women being used as couriers. Those who
engage in dagga trafficking should not expect to be dealt with
leniently. Normally they should be dealt with by way of a substantial
custodial sentence.
e) The
retail supplier. This offender is as vital to the distribution
network as the courier and for him the profits to be made are
probably greater. He also should normally be dealt with by a
substantial custodial sentence.
f) The
isolated transaction. A distinction should normally be drawn between
the offender who is engaged in an isolated transaction and one who is
part of a continuing enterprise. Depending on the scale of the
transaction the sentence in such a case should be somewhat less and a
partly suspended sentence may be considered.
g) The
social supplier. This is the offender who supplies but has no motive
of financial gain. An example is the person who hands out "reefers"
or "joints" at a party. Depending on the circumstances a
non-custodial sentence may be justified.
h) The
reason for the offence. There is, of course, a distinction to be
drawn between a wealthy farmer who is cultivating dagga as a
profitable sideline and a poor family which is supplementing
subsistence farming by illegal cultivation. However, the courts
5
should
not fall into the trap of thinking that because cultivation of dagga
represents the sole means of livelihood of a rural family it must be
unduly lenient. Cultivation and possession of dagga is a criminal
offence and Parliament clearly regards it as the cause of social
evil. Those who choose to make it their means of livelihood, even
though the alternatives may not be great or attractive, must
recognise that they face sentences of imprisonment.
i) he
circumstances of the offender. As with any other crime the
circumstances of the offender must be put in the balance though the
weight to be attached may, as I have pointed out, depend on the
general circumstances of the offence.
j) The
public interest. Under this head the court should consider the extent
of dagga abuse and the prevalence of the offence. I have been
informed by the officer in charge of the Piggs Peak drug squad that
currently the cultivation and supply of dagga in that area is rife
and that on the black market dagga is sold for fifty cents for a
small box or packet containing 10 grammes and for E400 for a sack.
The dagga in the present case has a black market value of E700 and it
would realise substantially more In the Republic of South Africa. The
officer has also said, and I accept his evidence, that the extent of
the abuse is such that even school children smoke dagga leading to
anti-social behaviour both at school and at home.
6
I
now turn to the facts of the present case. The accused was spotted by
a police officer together with two other men carrying a bag in the
Nkamazi area at Piggs Peak. The three dropped the bag and ran off but
when the police officer shouted the accused returned. He was
questioned by the police officer but again ran off and as the police
officer was acting as escort to some women he was unable to give
chase. He was later arrested. In fact two bags were abandoned by the
accused and his accomplices and it was discovered at the police
station that they contained 14.85 Kilograms of dagga.
In
mitigation the accused, who is responsible for various members of his
family, said that he had been unemployed since 1984 and committed the
offence because he had no money. It was, he said,the first time he
had committed such offence and the prosecution confirmed that he had
no previous convictions.
It
is clear both from the quantity of dagga involved and from what the
accused said in mitigation that he was concerned in the distribution
of dagga for financial gain. On the scanty information available it
cannot be decided what his precise role was. He says that he expected
to receive E160 upon selling the dagga but he gave no more detail. In
view of the fact that the dagga in his possession was worth
approximately E700, it is clear that he was either a retailer or a
courier in a network where considerable profits were at stake. It is
a case where the only
7
appropriate
sentence was an immediate custodial sentence. A financial penalty
alone was, in my view, not only wrong in principle but was glaringly
inadequate. In these circumstances, this Court is not only empowered
but has a duty to increase the sentence.
In
view of the fact that the accused, initially at any rate, behaved
responsibly by responding correctly to the police officer's call for
him to stop and that by pleading guilty he showed remorse it is
possible to suspend part of the sentence. I therefore order that for
the sentence passed by the learned Magistrate there be substituted a
sentence of three years imprisonment of which eighteen months will be
suspended for three years on condition that the accused is not
convicted of any offence contrary to section 7 of the Opium and Habit
Forming Drugs Act 1922 or Section 12 of the Pharmacy Act (as amended)
committed during the period of suspension. The fine of E100, if paid,
must be refunded.
N.R.
HANNAH
CHIEF
JUSTICE
