The State v Ashley Kudzai Makoni

On 8 October 2021, the accused was arrested at a home in Nharira, Norton, while in unlawful possession of two plastic sachets of dagga weighing a combined 95 grams. On 9 October 2021, he was charged and pleaded guilty to unlawfully possessing dagga. The accused had a relevant previous conviction for a similar offence and had a suspended twelve months imprisonment term hanging over his head from case number NTN 541/20 dated 16 October 2020. The trial magistrate sentenced him to a fine of RTGS 5,000 (in default 2 months imprisonment), plus 4 months imprisonment, and activated the previously suspended 12 months imprisonment, totaling 16 months imprisonment. The trial magistrate then referred the record for review, believing she had imposed an irregular double sentence.

• Whether the trial magistrate imposed an irregular 'double sentence' by imposing both a fine and a term of imprisonment
• Whether section 157(1)(a) of the Criminal Law (Codification & Reform) Act permits the imposition of both a fine and imprisonment
• Whether the sentence required rectification or merely grammatical recasting

The proceedings were confirmed. The sentence was recast grammatically 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, the proceedings were confirmed.

Where a statutory sentencing provision provides for alternative penalties using the formulation "a fine...or imprisonment...or both," the word "both" expressly empowers the court to impose both a fine and a term of imprisonment concurrently. Such a sentence does not constitute an irregular double sentence but is a lawful exercise of judicial discretion within the statutory framework. Under section 157(1)(a) of the Criminal Law (Codification & Reform) Act, a court may impose both a fine and imprisonment for unlawful possession of dangerous drugs.

The court implicitly commented on the importance of precise drafting of sentences and the value of magistrates seeking review when uncertain about the legality of their sentences. While the trial magistrate's concerns about the sentence being irregular were unfounded, her transparency in referring the matter for review demonstrated appropriate judicial caution and was not criticized by the reviewing judge.

This case clarifies the sentencing discretion available to magistrates under section 157(1)(a) of the Criminal Law (Codification & Reform) Act in Zimbabwe. It confirms that the provision permitting a sentence of fine "or" imprisonment "or both" expressly authorizes courts to impose both a fine and a custodial sentence concurrently for unlawful possession of dangerous drugs. The case is significant for dispelling any misconception that imposing both penalties constitutes an irregular 'double sentence.' It provides guidance to judicial officers on the proper interpretation and application of sentencing provisions that use the phrase "or both."