REGINA v COLLEY 1980 ZLR 89 (A)

Author: Trodat Zimbabwe

REGINA v COLLEY 1980 ZLR 89 (A)

Flynote

Sentence — exporting dagga in contravention of section 19 (1) (a) of Dangerous Drugs Act [Chapter 319] — seriousness of offence — G influence of quantity of dagga on sentence.

Headnote

Our courts must take a very serious view of drug smuggling into a country in which the unlawful supply of dangerous drugs is prevalent and where the courts impose heavy penalties for the importation of such drugs. The quantity of drugs involved in an offence has a bearing on sentence, _H particularly in cases of large­scale drug smuggling.

The appellant, a young woman of 28, had been sentenced to three years’ imprisonment of which half was suspended for attempting to smuggle five and a quarter kilos (eleven and a half pounds) of dagga into Britain in contravention of section 19 (1) (a) of the Dangerous Drugs Act [Chapter 319]. She had

Held that though the sentence was a severe one, there were no grounds for holding it to be manifestly excessive. _A

Cases cited

Ismail v S AD 85/71 (unreported)?

Clarke v R AD 15/80 (unreported)?

R v Hancock and Holdgate, 1978 Criminal Law Review, pages 1705? _B

R v Faulkner and Thomas (1976) 63 Cr. App. R  295?

R v Baldock, 1977 Criminal Law Review, page 47?

R  v Mehagian and Fenwick (1973) 57 Cr. App. R  488?

S  v Mutize, 1978 RLR 148 (AD)? 1978 (2) SA 911 (RAD)

Case information

A P de Bourbon, for the appellant, cited R v Harvey, 1967 RLR 203 (AD),  _C in addition to the cases cited in the judgment.

J H C Friedman, for the respondent, cited the following cases, in addition to those cited in the judgment: Zengenene v S, AD 122/79 (unreported)? Ketero v S, AD 53/78 (unreported)? S v Maja, G­S­141­79 _D (unreported)? S v Nyawasha, G­S­140­79 (unreported)? S v Nicholas, G­S­83­78 (unreported)? R v Rees, 1978 Criminal Law Review, page 298.

Judgment

Lewis JP: The appellant in this case was convicted in the Regional _E Court of the crime of attempting to export from Rhodesia five and a quarter kilos of prepared Indian hemp, otherwise known as dagga, in contravention of section 8, as read with section 19 (1) (a) of the Dangerous Drugs Act [Chapter 319]. She was sentenced to three years’ imprisonment with labour, 18 months of which were conditionally _F suspended for five years. She is a first offender. She has appealed to this Court against the sentence imposed upon her.

The appellant pleaded guilty and the case proceeded on the basis of an agreed statement of facts.

That statement reads as follows: _G

“At the beginning of February, 1980, the accused was approached by a friend and asked if she would transport a quantity of dagga for him to the United Kingdom. The accused, planning to return to London during the latter part of February, 1980, agreed to do this

On the 3rd or 4th of February the accused handed a cardboard box to her friend, which contained a quantity of crockery and a soapstone carving.

On the 3rd or 4th of February the accused handed a cardboard box to her H friend, which contained a quantity of crockery and a soapstone carving.

On the 7th February, the cardboard box, packed with the crockery and soapstone carving, as well as a quantity of dagga, was returned to the accused. She knew that the box contained dagga.

1980 ZLR p91

Lewis JP

The accused in turn handed this box to a third party who was to arrange for the box to travel by air to the United Kingdom, believing the box only to contain personal effects. The plan was for the accused to collect the box in due A course when she arrived in the United Kingdom. She would then contact the owner of the dagga in Rhodesia, and receive instructions as to its disposal.

The plan was thwarted when the party responsible for arranging for the box to travel to the United Kingdom earned out a routine security inspection and discovered the true contents.

The B accused was arrested in Johannesburg on the 11/2/80, and agreed to return to Rhodesia that same day, where on her arrival she was detained.

The accused has been co­operative with the Investigating Officer and has been responsible for the identification and arrest of the owner of the dagga, who has also been arrested.?’ C

That last sentence, to the effect that the appellant had been co­operative with the Investigating Officer and had been responsible for the identification and arrest of the owner of the dagga, was not correct. We are now informed, and Counsel so admits, that she has not been prepared _D to give evidence incriminating the alleged owner of the dagga. She has in fact given evidence against another male person who played a minor part in assisting in the packing up of the dagga in the cardboard box.

Having convicted her, the Regional Magistrate very properly asked her _E a number of questions relating to her personal circumstances and as to the reason why she became involved in this serious crime, before deciding on the sentence. The appellant is a young woman of 28 years of age who is divorced with no children. Although she was unaware of the exact amount of the dagga involved, she admitted that she was aware that it _F was intended for sale when it reached England and the amount would, therefore, be considerable. She thought it would be about eight pounds in weight ­ in fact it was 117 pounds. She was to receive instructions as to the place where she was to deliver the dagga in England when she arrived there. She said she was not told before she left Rhodesia in case G she was caught and revealed to the authorities the destination of the dagga in England. All the circumstances suggest, therefore, that she was involving herself in a well ­ organized drug smuggling ring.

When asked why she became involved, she replied: “I just did it. I did _H think it was wrong, but I went ahead with it, and realized the enormity of it.” She said the owner of the dagga was someone she had met at a party at the beginning of last year, who was merely an acquaintance. She was not promised any money but thought she might receive a reward of “a few hundred pounds”. It is difficult to understand why she was

1980 ZLR p92

Lewis JP prepared to involve herself in what she knew to be a very serious offence in the circumstances stated by her, and these answers lead one to suspect that she was not candid with the Court, particularly in the light of her _A refusal to co­operate with the police in bringing to justice the principal offender mentioned by her as the owner of the dagga. This reflects seriously on the genuineness of her contrition.

There is no doubt in this case that an effective prison sentence was _B called for, notwithstanding that the appellant is a woman and is a first offender. In the case of Ismail v The Sate, Appellate Division Judgment No. 85/71 (not reported), one of the counts on which the appellant was convicted was conspiring to export 35 ounces ­ that is about 21/4 pounds ­ of dagga, to London. In the course of the judgment on appeal the _C following appears:

“I need hardly say that the offence of conspiring to export dagga to a foreign country is an extremely serious one. It is extremely serious not only because it involves the supply of dagga, but also because it could seriously damage the reputation of this country abroad. Clearly, it would be highly D prejudicial to Rhodesia if Rhodesia came to be regarded as a source of supply of drugs to the International market and any offence of supplying the International market with drugs should, in my view, always be treated as being extremely serious.”

This view of the matter was reiterated in the recent case of Clarke v _E Reginam, Appellate Division Judgment No. 15/80 (unreported), dated the 5th February last.

There it was stated:

“Although this Court is unaware of the degree of seriousness with which the possession or sale of dagga is viewed in Britain, it remains an offence in that country to deal in dagga, and there can be little doubt that in the circumstances F the exploit of dagga from this country to Britain would clearly tend to damage seriously the reputation of this country abroad, and, as pointed out in Ismail’s case (supra,), it would be highly prejudicial if this country came to be regarded as a source of supply to the international market.” This view receives support from the Act itself, when one has regard to _G section 19 (1) (d) of the Act which reads as follows:

“Subject to the provisions of this section, any person ­

.......................................................................................................................

   (d)     who in Rhodesia aids, abets, counsels or procures the commission in H a place outside Rhodesia of an

offence punishable under the provisions of a corresponding law in force in that place, or does an act preparatory to or in furtherance of an act which, if committed in Rhodesia, would constitute an offence against this Act? shall be guilty of an offence . . .”

1980 ZLR p93

Lewis JP

This clearly shows that the Legislature is concerned with combating the traffic in dangerous drugs in other countries as well as our own, since the _A problem of drug smuggling is one of international concern. Since Clarke’s case, this Court has now been informed of the seriousness with which the courts in Britain regard the peddling of dangerous drugs. The Court of Criminal Appeal in Britain has upheld sentences of between three and five years’ imprisonment, even on first offenders, depending on the _B extent of their involvement and quantities of cannabis or dagga being dealt with. See, for example, R v Hancock & Holdgate. referred to in 1978 Criminal Law Review at pages 174 to 175, R v Thomas, referred to in 1977 CLR page 47 ^*, R v Baldock, 1977 CLR page 47, and R v Mehagian & Fenwick (1973) 57 Cr. App. R  488. In the case of Thomas, _C the appellant was a young woman of 24 and a first offender whose prison sentence of four years was upheld for importing cannabis on a large scale into Denmark. She was apparently convicted and sentenced in terms of a statutory provision similar to our section 19 (1) (d) referred to above. In Baldock’s case, the appellant’s sentence of three years was upheld, as _D a first offender, for importing 20 pounds of cannabis into Britain as a mere courier. Mehagian & Fenwick’s case involved two young women who similarly acted as couriers in the import on a large scale of cannabis resin, the amount being 512 pounds weight, and there a two­year sentence was upheld. It was said by the Court of Appeal to be below the usual _E line of sentences imposed for that sort of offence.

There can be no doubt that drug smuggling is far more prevalent in Britain. Our courts are not bound to apply the same standard of severity, and in any event smuggling is not so prevalent in this country. Nevertheless, for reasons already referred to, the courts are bound to take a _F very serious view of drug smuggling into a country in which the unlawful supply of dangerous drugs is prevalent and where the courts of that country impose heavy penalties for the importation of such drugs.

It has been argued by Mr de Bourbon that by comparison with _G Clarke’s case, the sentence in this case was manifestly excessive. Clarke was sentenced to three years’ imprisonment with labour, with one suspended, that is an effective two years, for attempting to export 1 929 grams of dagga, that is to say, considerably less than in the instant case. This Court altered the sentence on appeal by suspending two years _H instead of one, leaving an effective sentence of one year. Although admittedly he was the originator of his own scheme to export this dagga to London for sale, there were special circumstances in his case which

1980 ZLR p94

Lewis JP

induced this Court to reduce the period of the effective sentence. Briefly, the facts in Clarke’s case were that when he was in England, he was planing to emigrate to Australia where he had hopes of obtaining employment” _A in his particular field. He had been in touch with the Australian Embassy in London and was expecting to arrange through them for an interview and for arrangements to be made for this employment to be offered to him in Australia. While over in England he received news that his mother in Rhodesia was very seriously ill, which obliged him to abandon _B on his plans and to come out here in order to be with her. In doing so, he had to pay for his air fare, and it exhausted to some extent the funds which he had been saving up for the Australian enterprise. He then received notification while in this country that he was required for the interview at the Australian Embassy in London, which made it imperative for him _C to return to London for that purpose. He needed funds to tide him over in London while he was waiting, for the result of his interview there, and to pay for half his air fare from London to Australia, so he devised this scheme of taking this quantity of dagga with him for sale in London to provide the necessary finance. That was a case, therefore, where there _D were special circumstances. Had he not been summoned back to Rhodesia through the unexpected illness of his mother, he would not have become involved at all in drug smuggling.

In this case, however, the reason why the appellant involved herself _E in drug smuggling is not readily apparent. As I say, she has not been can did with the Court and certainly no question of need on her part seems to have arisen in this case. Apart from that, in this case the quantity was far in excess of that involved in Clarke’s case, and although it was said in S v Mutize, 1978 RLR 14$ (AD) at 153C? 1978 (2) SA 911 (RAD) _F at page 914D that too much importance should not be attached to quantity, it does have a bearing on sentence, particularly when one gets into large­scale drug smuggling: the larger the quantities involved, the greater will be the numbers of young people who will be exposed to the dangers of drug addiction. It is pertinent to note that the _G English Courts apparently do attach importance to the quantity involved in drug smuggling. In a commentary on some of the English cases to which I have referred, it is said at page 175 of the 1978 Criminal Law Review: _H

“In the majority of cases of importing cannabis which have been before the court in recent years, the court has upheld sentences within the bracket of three to five years, inside that bracket the sentence upheld depends on the quantity of cannabis Imported, the degree of sophistication and organization involved in the attempt, and the role of the individual offender.”

1980 ZLR p95

Lewis JP

There is the factor, too, that Clarke made a clean breast of the whole thing and showed contrition, whereas in the instant case, as I have already _A mentioned, the aspect of contrition is largely negatived by her attitude now in her failing to co­operate with the police.

Finally, and most important, one has here the very serious aggravating factor that on the agreed statement of facts, the appellant involved an _B entirely innocent person in this smuggling. She handed this box containing what was supposed to be her personal effects but which in addition contained this large quantity of dagga, to the innocent third party, who was to take it over for her. Luckily for him he took the precaution of checking the contents as a security measure before taking them with him, _C and on discovering that the contents contained dagga he reported the matter to the police. But for that, there would have been a very serious risk of his being arrested in possession of the dagga on arrival in England, and he would have found it very difficult to explain away his possession of this dagga and to convince the authorities there of his _D innocence. The circumstantial evidence against him would have been very strong. She was, therefore, responsible for exposing him to prosecution, conviction and a severe sentence, which was a wicked thing to do. _E

The sentence is a severe one, but it was one which was within the competence of the magistrate and was within his discretion. Although I would not have quarrelled with a slightly lesser sentence, there are no grounds on which this Court would be justified in holding that the magistrate’s sentence was manifestly excessive. _F

In the result, the appeal must be dismissed.

Macdonald CJ: I agree.

Davies JA: I agree. _G