S v Makoni (47 of 2022) [2022] ZWHHC 47 (24 January 2022)

1 HH 47-2022 CRB NO. NTN 614/21 THE STATE versus ASHLEY KUDZAI MAKONI HIGH COURT OF ZIMBABWE CHITAPI J HARARE, 24 January, 2022 Review Judgment CHITAPI J: The accused was on 9 October 2021 charged with and convicted of unlawfully possession of two plastic satchets of dagga which weighed a combined 95 grammes. It was alleged that on 8 October 2021, at a home in Nharira, Norton, the accused was arrested while in unlawful possession of the two satchets of dagga. The accused pleaded guilty and was properly convicted. The accused had a relevant previous conviction for a similar offence and had a suspended twelve months imprisonment term hanging over his head. The accused was sentenced as follows: “The accused to pay a fine of RTGS5 000.00 in default 2 months imprisonment. In addition 4 months imprisonment is effective. Further the 12 months imprisonment suspended on NTN 541/20 dated 16/10/20 is hereby brought into effect. Total 16 months imprisonment.” The trial magistrate has referred the record to a judge of the court to correct what she believes is an irregular sentence which the imposed. She commented as follows: “State v Ashley Kudzai Makoni CRB NTN 614/2021. The above matter refers. May you please place the record of proceedings before any Honourable Judge. The trial magistrate acknowledges her fault in giving a double sentence and humbly asks the Honourable Judge to rectify the sentence as he or she deems fit.” The accused was charged with contravening s 157 (1) (a) of the Criminal Law (Codification & Reform) Act, [Chapter 9:23.] The provisions of the section read as follows – “157 Unlawful possession or use of dangerous drugs (1) Any person who unlawfully – (a) acquires or possess a dangerous; or (b) ingests, smokes or otherwise consumes a dangerous drug; or (c) cultivates, produces or manufactures a dangerous drug for his or her own consumption; shall be guilty of unlawfully possessing or using a dangerous drug and, subject to subsection (2), liable to a fine not exceeding level ten or imprisonment for a period not exceeding five years or both.” HH 47-2022 CRB NO. NTN 614/21 The above sentencing provision provides for the imposition of a fine of up to level ten or the imposition of a prison term not exceeding five years or to both. (own underlining) The word both refers to the propriety of the imposition of one or both alternatives of a fine or imprisonment. The trial Magistrate had a discretion to impose a fine or both a fine and a term of imprisonment. She imposed a fine of 5 000RTGS and in addition imprisonment of four months. The sentence was therefore regular and does not require rectification. See S v Mereki HH 90-15. The sentence however requires recasting in terms of grammar. It is accordingly corrected in its wording and not substance as follows: “The accused is sentenced to pay a fine of RTGS 5000.00, in default two months imprisonment. In addition the accused is sentenced to 4 months imprisonment. Further the suspended sentence of 12 months imprisonment imposed on the accused on 16 October 2020 under case number NTN 541/20 is brought into effect.” Save for the grammar correction as set out above, the proceedings are confirmed. CHITAPI J……………………….