CHEDA J: This is an
appeal against sentence only.
Appellant was charged with two counts of contravening section 131(2) of
the Criminal Law (Codification and Reform) Act [Chapter 9:23], which is
commonly referred to as “housebreaking and theft.”
He was jointly charged with one Albert Dzingai. He pleaded guilty to the charge, was
convicted and sentenced as follows:
“Count 1 – 7 years
imprisonment
Count 2 – 8 years
imprisonment
Total 15 years
imprisonment 3 years imprisonment is suspended for 5 years on condition each
accused does not within that period commit any offence involving unlawful entry
or dishonesty and for which he is sentenced to imprisonment without the option
of a fine .”
The facts which are common cause are that between January and February
2009 the accused together with his accomplice broke into Major Meats Butchery,
Bulawayo and stole meat the value of which totals R31 700-00 of which R17430
was recovered.
Of the total of 15 years imprisonment 3 years imprisonment was suspended
on condition of good behaviour. He now
appeals against sentence only.
Appellant's contention is that the 8 years imprisonment imposed on the
second count should have been ordered to run concurrently with the 7 years
imprisonment imposed in count one.
Respondent made a concession in this matter.
It is now an established principle in our law that
(1) where a person is convicted of
multiple counts, the court should either take all counts
as one for the purposes of
sentence, or
(2) impose an appropriate sentence for each
count.
The rationale of this approach is
that courts should come up with sentences which should be fair and just to both
the offender and the offended. Courts
should guard against the common error of imposing sentences which are so
excessive to an extent of leaving an accused with nothing to look forward to
upon release. The courts should at all
times bear in mind that whatever sentence it imposes on an accused, should at
least leave him with some residue of dignity as opposed to relegating him to
self-pity, see S v Sifuya 2002 (2) 437(H). Courts are, therefore, encouraged to allow
sentences to run concurrently where there is a need to do so, see S v Chirwa HH 79/94. To buttress this reasoning which is aimed at bringing
in some normalcy in sentencing, our courts now distinguish sentences for crimes
of a violent nature from those involving non-violence, see S v Nyahuna and another HH 135/03.
It is for the above reasons that I
am of the view that the sentence imposed indeed induces a sense of shock especially
if it is taken in totality and as such invites intervention on the basis of a
misdirection by the court a quo.
The following order is therefore
made:
(1) The
sentence imposed by the court a quo on the 17th March
2009 be and is hereby set aside and is substituted by the following;
(2) Each accused is sentenced to:
Count 1: 7
years imprisonment of which 1 year imprisonment is suspended for 5 years on
condition accused does not commit any offence which involves unlawful entry
and/or dishonesty for which upon conviction he is sentenced to imprisonment
without the option of a fine.
Count
2: 6 years imprisonment. The sentence in count 2 shall run
concurrently with the sentence in count 1.
Effective:
6 years imprisonment.
Mathonsi
J agrees.......................................................
R.
Ndlovu and Company, appellant's legal practitioners
Criminal Division, Attorney
General's Office, respondent's legal practitioners
