The State v Sizala Nyamowa

The accused, a fairly old woman, widow with 6 children, was convicted of contravening section 3(1) as read with section 3(b) of the Harmful Liquids Act [Chapter 9:10]. She pleaded guilty to unlawfully manufacturing and supplying 200 litres of sikokiana (an illegal traditional brew). She was a first offender. The trial magistrate sentenced her to 12 months imprisonment with 9 months suspended for 5 years on conditions of good behaviour. The Regional Magistrate, on scrutiny of the record, found the sentence unduly harsh and referred the matter for review.

• Whether the sentence of imprisonment was appropriate where the statute provides for both a fine and imprisonment
• Whether the magistrate properly considered alternative sentencing options as required by statute
• Whether the sentence imposed was unduly harsh given the circumstances of the convicted person
• What is the appropriate sentence for a first offender convicted under section 3 of the Harmful Liquids Act

The sentence imposed by the magistrate was set aside and substituted with: "$300,000 in default of payment 3 months imprisonment. In addition 3 months imprisonment wholly suspended for 5 years on condition the convicted person does not within that period commit any offence involving the manufacturing, storage and or supply of harmful liquids as defined in the Harmful Liquids Act [Chapter 9:10] for which she will be sentenced to imprisonment without the option of a fine. The 200 litres of sikokiana and the three blue containers are forfeited to the State." Given that the convicted person had already served three months imprisonment, she was not required to pay the fine of $300,000.

Where a statute prescribes both a monetary penalty and a period of imprisonment as sentencing options, the court must give consideration first to the imposition of a fine and will normally reserve imprisonment for bad cases. In applying section 3(6) of the Harmful Liquids Act (as amended), which provides for a fine not exceeding level 7 or imprisonment not exceeding two years or both, a court must first consider whether a fine is appropriate before imposing a custodial sentence. The personal circumstances of the offender, including being a first offender, age, family responsibilities, and whether they pleaded guilty, are relevant factors in determining whether a case is sufficiently serious to warrant imprisonment rather than a fine.

The court observed that the magistrate should have considered other sentencing options before imposing imprisonment. The court also provided guidance on the interpretation of statutory fine levels, noting that under Statutory Instrument 192 of 2003, level 7 fine was $400,000 (maximum) and level 6 was $200,000, creating a range of $200,000 to $400,000 for offences under section 3 of the Harmful Liquids Act. The court commented that the fine imposed should be such as to deter the convicted person from re-offending. The court also made a pragmatic observation that since the convicted person had already served the effective sentence of 3 months imprisonment by the time of the review, she should not be required to pay the substituted fine, effectively giving her credit for time served.

This case is significant in Zimbabwean criminal law sentencing jurisprudence as it reinforces the principle that where legislation provides for both a fine and imprisonment, courts must give primary consideration to imposing a fine first, reserving imprisonment only for serious cases. The judgment provides guidance on the proper interpretation and application of section 3(6) of the Harmful Liquids Act and demonstrates the court's supervisory role in correcting unduly harsh sentences on review. It emphasizes that sentencing courts must consider the personal circumstances of offenders, particularly first offenders, and explore alternative sentencing options before resorting to custodial sentences. The case also illustrates the court's pragmatic approach in giving credit for time already served when substituting sentences on review.