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Banda v The State (Criminal Appeal No 3 of 201) [2001] BWCA 17 (5 July 2001)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO 3 OF 2001
HIGH COURT CRIMINAL TRIAL NO FS4 OF 1999
IN THE MATTER BETWEEN:
JOSEPH BANDA     APPELLANT
VS
THE STATE        RESPONDENT
APPELLANT IN PERSON MHANDU FOR THE RESPONDENT
JUDGMENT
CORAM: P.H. TEBBUTT Ag. P
SIR JOHN BLOFELD JA F.H. GROSSKOPF JA
TEBBUTT Ag. P
The appellant was arrested on 20th December 1998 for being in possession of
4.2 kg dagga. On the 12th January 1999 he pleaded guilty before the Chief
Magistrate at Maun to contravening Section 16 (1) (b) as read with Section 16
(3) of Drugs and Related Substances Act No 18 of 1992. Section 16 (1) (b)
prohibits the possession of dagga.
Section 16 (3) reads as follows:
"(3) Any person who contravenes the provisions of subsection (1) (b), shall be guilty of an offence and, except in connection with an offence relating to the possession of less than 60 grams of cannabis, shall be liable to

2
imprisonment for not less than one year or more than five years, and to a fine of not less than PI 500 or more than P5000, or in default of payment thereof to imprisonment for not less than one year or more than five years:"
The magistrate sentenced the appellant, who is 28 years old and a first offender, to 4 years imprisonment and, in addition, to a fine of P2500 or in default of payment to 2 years imprisonment to run consecutively to the 4 years imprisonment.
The appellant appealed unsuccessfully to the High Court against the sentence.
He now comes on appeal with the leave of the High Court to this Court. Mr.
Mhandu for the Attorney General this .norning told this court that he could not
support the sentence. Although the amount of dagga viz 4.2 kg is undoubtedly
large, the sentence, so Mr. Mhandu conceded, was disproportionate to the
gravity of the offence and was excessive, which is, of course, one of the grounds
upon which a Court of Appeal can interfere with the sentence of an inferior
court. I agree with Mr. Mhandu. The magistrate's sentence is close to the
maximum provided for in Section 16 (3). As stated by Dendy Young JA in
Mahomed v. The State 1984 BLR 78 CA at p 82 C - D
"The maximum penalty is normally reserved for the most serious cases, "
One must also have regard to the totality of the punishment. Additional to the
4 years imprisonment a P2500 fine or in default 2 years imprisonment seems to
me to be excessive even taking into account that 4.2 kg is a large amount of

dagga. The magistrate seems to have been influenced by the fact that appellant,
a Zambia citizen, is a foreigner. In sentencing appellant he said the following:

"The illegal importation of dagga into Botswana by foreigners, particularly people from neighbouring countries, is a cause for great concern."
The magistrate was of course quite entitled to express the concerns he had but in
imposing what was close to the maximum penalty provided by the legislature, his
sentence was in my view excessive and cannot stand.
In the circumstances the conviction is confirmed but the sentence of the magistrate is set aside and substituted with the following sentence:
2 years imprisonment plus a fine of P2000 or in default of payment 18 months imprisonment to run consecutively to the 2 years imprisonment which is backdated to 20* December 1998.
DELIVERED IN OPEN COURT THIS 5TH DAY OF JULY 2001.
to
P.H. TEBBUTT ACTING PRESIDENT

I AGREE:                  -/-/
SIR JOHN BtOFELD JUDGE OF APPEAL
P>
IAGREE:  jfaMse*^
F.H. GROSSKOPF JUDGE OF APPEAL

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