5. What are some aggravating factors and mitigating factors that would lead to adjustment from the starting point derived from the sentencing guidelines?
The Court may adjust the sentence upward if there is/are one or more of the following aggravating factors:
- S.56A expressly provides that the Court may impose a more severe sentence if there is information proving that the offence involves a minor (i.e. a child below the age of 18). Lack of knowledge of the age of the minor is not a reason not to enhance the sentence;
- Previous similar convictions;
- Offences with an international/cross-border element (e.g. importation and exportation);
- The defendant being an asylum seeker;
- Use of minor to traffic in dangerous drugs; and
- Use of social media, such as: Instagram, for distribution.
The Court of Appeal has repeatedly emphasised that personal circumstances generally count for very little as a mitigating factor. However, the Court would still consider all the mitigating factors in arriving in an overall discount given to a defendant in sentencing, including:
- Part of the dangerous drugs were for self-consumption;
- The defendant genuinely believed he was trafficking in a less potent dangerous drugs, not the one he actually trafficked;
- Extreme youth;
- Useful assistance to the authority (It used to be considered that a discount will only be given if the assistance provides tangible results such as successful prosecution of other perpetrators or the recovery of a large portion of the proceeds; however, in 2016, the Court of Appealhas extended the sentencing discount to defendants who provide information which could potentially assist or had actually assisted the authorities); and
- Participating in the Father Wotherspoon’s programme to discourage Tanzanians from drug trafficking (Subject to the absolute discretion of the sentencing judge, a discount of no more than 3 months is warranted for this mitigating factor).
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