That the sentences may run concurrently is supported by the sentiments of BEADLE CJ in S v Pearce 1974 (2) SA 37 (R) at 38A-B where the learned CHIEF JUSTICE stated that –

“I draw attention to the fact that sentences on two separate counts each carrying a minimum sentence of imprisonment can, and often are, made to run concurrently with each other, and a portion of the sentence of imprisonment on a minor offence can, and often is, ordered to run concurrently with a minimum sentence of imprisonment imposed on a more serious offence.”

No doubt a trial magistrate has a wide discretion which, however, if exercised judiciously, the appeal or review court will not interfere. See S v Coetzee 1970 (4) SA (RA). In S v Davious Nyathi HB60-03...,. NDOU J ably stated -

“Where multiple counts are closely connected, or similar in point of time, nature, seriousness, or otherwise, it is a useful way of ensuring that the punishment imposed is not unnecessarily disputed, or its cumulative effect not too harsh on the accused. Nevertheless, the practice is undesirable and should only be adopted by lower courts in exceptional case –see S v Young 1977 (1) SA 602 (A); S v Van Zyl 1974 (1) SA 113 (T); and S v Van de Mewve 1974 (4) SA 523 (N).”

The accused was charged with a total of 13 counts, the first 12 of which related to offences under the Firearms Act [Chapter 10:09] while the 13^th count related to escaping from lawful custody in contravention of section 185(1)(a) of the Criminal Law Code [Chapter 9:23].

He pleaded guilty to all the charges and was duly convicted by the trial magistrate at Beitbridge Magistrates Court.

In count 1, the accused was convicted of unlawful possession of a firearm in breach of section 4(4)(b) of the Firearms Act [Chapter 10:09] and sentenced to 24 months imprisonment.

In counts 2 to 11, he was convicted of pointing a firearm in contravention of section 27(b) of the Firearms Act [Chapter 10:09] and the court a quo took the ten (10) counts as one for purposes of sentence and sentenced him to 24 months imprisonment.

In count 12 he was convicted of discharging a firearm in a public place in contravention of section 27(d) of the Firearms Act [Chapter 10:09] and sentenced to 24 months imprisonment…..,.

Having taken issue with the sentence in count 1, the apparent splitting of charges in counts 2 to 11 and the fact that none of the sentences were ordered to run concurrently, I gave  the Attorney General the opportunity to address me on those issues. The Attorney General has taken the view that there was nothing wrong with the sentence in count 1 because the penalty clause is to be found in section 4(2) of the Firearms Act [Chapter 10:09] which allows the trial magistrate to impose a fine not exceeding level 10 or imprisonment not exceeding 5 years or both.

Counsel for the State, while conceding that there was an unlawful splitting of charges in counts 2 to 11, submitted that the sentence in count 1 was proper. 

I do not agree….,. 

The facts of the matter are that on the 3^rd April 2010, the police received a tip off that the 21-year old accused was in possession of an unlicensed firearm at Baobab Spar in Beitbridge. They duly attended at the scene and took the accused and his three (3) brothers, who were driving a VW Golf Citi vehicle, to the police station. At the police station, they started searching the bags of the suspects and when they were about to rummage through the accused's bag, he suddenly grabbed the bag from where he pulled out a 9mm Short Unique Pistol.

The accused pointed the firearm at all those present, including his three (3) brothers, cocked the weapon and ordered them to lie down. Apparently there were ten (10) people present which then gave rise to the ten (10) charges of pointing a firearm.

The accused then took to his heels and before disappearing into the nearby bush he fired a shot from the firearm. The State had an option to charge the accused under section 4(1) of the Firearms Act [Chapter 10:09] which provides:

''(1) Subject to this Act, no person shall purchase, acquire or have in his possession any firearm or ammunition unless he holds a firearm certificate in respect thereof in force at the time.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level 10 or to imprisonment for a period not exceeding 5 years or to both such fine and such imprisonment.''

However, the accused was not charged under that section. Instead, in count 1, he was charged under section 4(4)(b) of the Firearms Act [Chapter 10:09]. That section provides:

''If any person has in his possession any firearm or ammunition otherwise than as authorised by a firearm certificate in respect thereof, in force at the time, he shall, subject to this Act, be guilty of an offence and liable to a fine not exceeding level 6 or to imprisonment for a period not exceeding 1 year or to both such fine and such imprisonment.''

The accused was charged under section 4(4)(b) of the Firearms Act [Chapter 10:09] and the penalty for contravening that section is a level 6 fine or imprisonment of not more than a year. The trial magistrate therefore erred in opting for a sentence of two (2) years imprisonment.

That sentence will be altered to one (1) year imprisonment.

In respect of count 13, that is escaping from lawful custody in breach of section 185(1)(a) of the Criminal Law Code [Chapter 9:23], he was sentenced to 5 years imprisonment.

This gave the accused an aggregate sentence of 11 years none of which was suspended and none of which was ordered to run concurrently with the other.

The next issue which arises is whether it was proper to charge the accused with ten (10) counts of pointing a firearm merely because there were ten (10) people present at the police station.

The accused pointed a firearm to induce fear in order to make good his escape. The process of pointing the firearm constituted one criminal transaction. R v Peter 1965 (3) SA19 (SR)…,; S v Mutawarira & Another 1973 (3) SA 902 (RAD)…,; and S v Rayiti 1984 (1) ZLR 269 (H)…,.

In casu, the accused should have been charged with one count of pointing a firearm. SMITH J was faced with a similar situation in S v Rayiti 1984 (1) ZLR 269 (H). At 272 D he stated:

''If the accused is convicted of only one count the question arises as to the proper sentence to be imposed. The magistrate had imposed a total of 15 months imprisonment with labour, six months for count 1 and nine months for count 3. In my view, the reduction in the number of counts must be reflected in a reduction in sentence, and I am of the opinion that nine months imprisonment with labour is a proper sentence for the offence committed.''

Although the magistrate treated the ten (10) counts as one for sentence he came up with a total of twenty-four (24) months for the ten (10) counts. In my view, those ten (10) counts should be amended to one count and the accused should benefit from the reduction. I am of the view that an appropriate sentence for the single count considering the 24 months for the 10 of them, should be 3 months imprisonment.

Accordingly I make the following order:

1. The conviction on count 1 is confirmed but the sentence is altered to 12 months imprisonment.

2. Count 2 is amended by the inclusion of all the individuals contained in counts 3 to 11.

3. The sentence of 24 months imposed on counts 2 to 11 is set aside and a sentence of 3 months imprisonment is substituted therefor.

4. The conviction and sentence on count 12 are confirmed.

5. The conviction and sentence on count 13 are confirmed.

6. The sentences of 3 months (count 2) and 24 months (count 12) are ordered to run concurrently with the sentence of 5 years imprisonment (count 13) leaving a total effective sentence in respect of all counts of 6 years imprisonment.

The appellant was convicted of five (5) charges by a Bulawayo Regional Magistrate. Counts 1, 2 and 3 were treated as one for the purpose of sentence and the appellant was sentenced to twenty (20) years imprisonment. Count 4 and 5 were treated as one and the appellant was sentenced to five (5) years imprisonment. Of the total sentence of twenty-five (25) years imprisonment, five (5) years were suspended on the customary conditions of good future behaviour. The offences for which the appellant was convicted are; count 1 unlawful entry into premises, count 2 robbery, count 3 rape, count 4 unlawful entry into premises and count 5 attempted rape in contravention of sections 131, 126, 65, 131, and 189, respectively, of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

That technical spliting of charges by the trial court does not vitiate the proceedings. It is accepted that this court, in order to minimise prejudice to the appellant, can use the device of treating all counts as one for the purposes of sentence. In S v Sawyer 199 (2) ZLR 390 (H)...., it was stated as follows -

“On the other hand, where the different counts are all closely related to one another in some way, then, it is not only permissible, but often preferable, to treat separate counts collectively for sentence. For instance, where different offences are committed together as part of the same criminal activity, or where identical or similar offences are committed individually over a period of time but as part of an ongoing cause of conduct or collective sentence will generally be appropriate.”

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 HH79-94. 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 HH135-03.

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 17^th 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.

All the counts were treated as one for the purposes of sentence and were each sentenced to 12 months imprisonment.

The learned scrutiny Regional Magistrate was not satisfied with the learned trial magistrate's sentence and referred the record to me. In my view, his dissatisfaction with this sentence was indeed justified in the circumstances.

The accused persons went on a housebreaking spree for three months in the low density suburbs and stole property valued at $1,150= and only $360= was recovered. The learned trial magistrate conceded that the sentences are lenient, but, he was persuaded by the fact that they had been in custody for over a year and that they are young offenders, therefore, there is, according to him, a need for restorative justice.

With all due respect to the learned trial magistrate, even if they had been in custody for over a year; that should have been taken into account by suspending part of the sentence after harsh sentences were imposed. He goes on to categorise them as young offenders. It boggles one's mind to define a 30 year old person as young, this is with respect to Accused 1….,.

In casu, it is not the value of the stolen property alone which matters, but, it is the number of break-ins. It should be borne in mind that when an accused breaks into someone's property his aim would be for the most valuable property; the fact that the stolen property turns out to be of a small value is nothing other than a misfortune on his part and not by design.

In my view, this is a matter where an effective sentence of between 2-3 years would have met the justice of this case….,.

In light of the above, I am in total agreement with the learned scrutiny Regional Magistrate that these proceedings are not in accordance with real and substantial justice.

This matter was initially reviewed by my brother NDOU J who has since left the Bench.

Prior to his departure, he had raised a query with regards to the sentencing approach by the magistrate.

The accused was charged with 3 counts of stock theft involving 3 heifers. He pleaded not guilty to all the 3 counts but nonetheless was convicted of the three counts. Having found no special circumstances he was sentenced as follows:

“Count 1 – 9 years imprisonment.

Count 2 – 9 years imprisonment.

Count 3 – 9 years imprisonment.

Sentences in counts 1 and 2 to run concurrently.”

The accused stole three heifers from his employer and sold them to two different people. He was arrested following a tip off.

NDOU J queried as to whether by making counts 1 and 2 run concurrently the court had not reduced the sentences to below 9 years per count.

The learned trial magistrate's view is that certain counts can run concurrently as they maybe burdensome if left as they are bearing in mind that the two counts are related. The learned magistrate has misdirected himself in this matter. The mandatory sentences cannot be interfered with in a manner that effectively reduces or removes the sting of a court in that manner. If the magistrate desired to reduce the net effect of the sentence he should have treated the two closely related counts as one and added the remaining count so as to give a harsher sentence. Left as it is, the accused has not been sentenced for counts 1 and 2.

In view of the misdirection the following is the order:-

Order

(1) The conviction is confirmed.

(2) The sentence is set aside.

(3) The matter is referred back to the trial magistrate for the re-assessment of a suitable sentence.

The appellant appeared in the Bulawayo Regional Court facing twelve charges of crimes which he and his colleague committed in three days. Six of the offences were allegedly committed on 24 October 2006, four on 25 October 2006 and two of them on 26 October 2006.

Count 1: On 24 October 2006, he and his colleague were alleged to have been unlawfully found in possession of a .38 special revolver without a valid firearms certificate in respect of it in contravention of section 4(1)(a) of the Firearms Act [Chapter 10:09].

Count 2: It was alleged that on 24 October 2006 they were also found to be in unlawful possession of 4 x 9mm live rounds of ammunition in contravention of section 4(4)(a) of the Firearms Act [Chapter 10:09].

In Count 3, he and his colleague were alleged to have robbed, on 24 October 2006, one Abel Ncube of his Dig Wheel Humber bicycle valued at $50,000= Zimbabwe dollars.

In Count 4, the allegation was that on 24 October 2006 in order to facilitate the robbery of Abel Ncube they tied him to a tree and stole his bicycle and then left him still tied to the tree thereby depriving him of his freedom of bodily movement in contravention of section 93(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Count 5 is another robbery which also took place on 24 October 2006. The appellant and his colleague were armed with a loaded revolver and an axe and robbed Khondo Ndlovu of a bag full of an assortment of items of grocery valued at $16,000= and his bicycle valued at $40,000=.

In Count 6, the accused and his colleague, like in Count 4, tied the complainant, Khondo Ndlovu, to a tree with a rope in order to facilitate the robbery. They left him tied to the tree thereby depriving him of his freedom of bodily movement in contravention of section 93(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The offence in Count 7 was committed on 25 October 2006 at Aleck Ndlovu's homestead, Tsheguta Village in the Malalume area. The accused persons, who were armed with a revolver and axe, and using the said weapons, attempted to rob Simelinkosi Ndebele of South African Rands.

Count 8 was attempted murder in that on 25 October 2006 at the same place when the complainant escaped through the window and fled the accused fired two shots towards her with the revolver but missed their target.

Count 9 was a charge of unlawful entry into the house of Handsome Ndlovu at Tsheguta Village, Malalume area of Plumtree on 25 October, 2006.

The tenth count is one of theft in that while they were inside the house they stole from there, property valued at $495,500= most of which was recovered except for property valued $500=.

Count 11 was yet another unlawful entry into the house of Handsome Ndlovu the following day - 26 October 2006.

While inside the house they stole from there, property valued at $1,947,000= of which property valued at $45,000= was recovered.

Both accused pleaded not guilty to all the counts but were convicted of all counts despite their protestations. They were then sentenced as follows:

Count 1 - 7 years imprisonment.

Count 2 - 1 year imprisonment.

Counts 3, 5 and 7 the robbery charges were treated as one for sentence: 8 years imprisonment.

Count 4 and 6 taken as one for sentence - 10 years imprisonment.

Count 8 - 10 years imprisonment.

Counts 9 and 11 the two counts of unlawful entry into a house - 2 years.

Counts 10 and 12 charges were treated as one for sentence - 6 years imprisonment.

Of the total of 44 years imprisonment 10 years imprisonment was suspended for a period of 5 years on the customary conditions of future good behaviour….,.

The appellant contended that the sentences meted against him were manifestly excessive and induced a sense of shock in him.

The State counsel made some concessions which, in my view, were proper. He conceded that the accused should have been charged with a single count in respect of Counts 1 and 2. They should have been charged with contravening section 4(4)(b) of the Firearms Act [Chapter 10:09] possessing the firearm and rounds of ammunition without a licence for which the sentence provided is a fine not exceeding level six or imprisonment not exceeding one year. Accordingly, Counts 1 and 2 are merged into one count. The original sentences of the court a quo are hereby set aside and substituted with a sentence of 1 year imprisonment.

Counts 3 to 6

In respect of these counts the accused robbed two different complainants at different times. In order to effectively and successfully rob their victims the accused tied each of them to a tree and thereafter robbed them of their respective property and left them still tied to the trees. They were charged with two counts of robbery and two counts of depriving them of their bodily movement in contravention of section 93(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The respondent's counsel properly conceded, in my view, that there was an impermissible splitting of charges. Instead of charging the appellant and his colleague with two counts of robbery and two counts of depriving their victims of bodily movement, they should have been charged with just two counts of robbery. 

I agree.

In the result, the convictions and sentence of 10 years imprisonment in respect of Counts 4 and 6 are hereby set aside.

The two robberies were committed in aggravated circumstances. In each case, the appellant and his colleague left their victims tied to trees and went away. Similarly, the attempted robbery in Count 7 was committed in aggravated circumstances in that they struck their victims with an axe handle and threatened to shoot her.

These three counts were treated as one for sentence and the appellant and his colleague were sentenced to 8 years imprisonment. There is no reason why this court should interfere with that sentence. It is hereby allowed to stand….,.

Nothing turns on the sentence imposed in respect of the last four counts. The sentences imposed are not out of step with the sentences normally meted for those offences. The appeal accordingly fails in respect of the sentences on those counts.

The sentences now stand as follows:

Count 1 - 1 year imprisonment.

Counts 3 and 5 the two robbery charges and Count 7 one attempted robbery are treated as one for sentence - 8 years imprisonment.

Count 8 one count of attempted murder - 10 years imprisonment.

Counts 9 and 11 the two counts of unlawful entry - 2 years imprisonment.

Counts 10 and 12 the two counts of theft - 6 years imprisonment.

The accused stole three (3) herds of cattle in the course of one act of theft. The magistrate seems to have multiplied the mandatory sentence of 9 years by the number of cattle. 

This is a clear misdirection.

The mandatory sentence for the offence is 9 years or up to 25 years. The magistrate did not explain in her reasons for sentence why she imposed a sentence of 27 years. In addition she suspended part of that sentence.

It cannot be ruled out that she multiplied the mandatory sentence of 9 years by the number of cattle. This would be a mis-direction since the number of cattle is not the number of counts. The offence is still one count. It is necessary to correct these proceedings as follows:

1. …,.

2. …,.

3. The sentence of 27 years and 3 years suspended is set aside.

4. In its stead a sentence of 9 years imprisonment is substituted.

Also, in terms of query 2(d)…, the trial magistrate did not indicate in respect of which count(s) each accused person's sentence related to.

In the result, the trial magistrate is directed to recall both accused persons and do the following:

(1) Explain to them the two amendments I have effected above, viz relating to the correct charge for all counts;

(2) Explain to both accused that the correct verdict is: each accused is found guilty as pleaded in respect of all the four counts;

(3) Explain to both accused that all the four counts were treated as one for sentence; and

(4) In respect of Accused One, an enquiry be made whether he is the person so alleged to have been previously convicted, and, if so, to show cause why the suspended sentence of 3 months imprisonment should not be brought into operation.

The learned trial Magistrate treated both counts as one for the purposes of sentence.

In his reasoning, he says he predominantly considered the closeness of time and space in the commission of the offences by the accused. Herein lies the problem. In the event that the court, on review or appeal, sets aside one of the two counts, the court is then forced to apply a value judgment and use its wide discretion to decide the appropriate sentence in respect of the count whose conviction is upheld on review or appeal. Whilst I agree that there is no rule forbidding the treating of closely connected offences as one for the purposes of sentence, ideally this is not advisable or desirable in respect of serious offences such as rape and robbery. Both offences usually attract lengthy prison sentences and as such the proper approach is to impose separate sentences for each count. In the instant case, both the State Outline and the complainant's own evidence on oath do not specifically reveal that any violence or threats of evidence preceding the taking of the cellphone. The evidence clearly shows that after the rape the accused stole the cellphone. The complainant asked for her sim-card back and the accused handed over the sim-card. With due respect to the learned magistrate, the approach he adopted in sentencing is usually correct where the offences are not serious. 

In the case of S v Banda 1984 (1) ZLR…, WADDINGTON J stated that before counts are treated as one for sentence, there should be some relationship between them. He went on to say that it is wrong to treat as one for sentence counts which are separated in time and place. It is also inappropriate to impose individual sentences on individual counts in order to arrive at an appropriate aggregate sentence. Each count should be treated separately on its own merits.

In casu, the rape count has to be treated separately on its own merits. The aggravating factors, especially the violence used in the perpetration of the unlawful sexual intercourse, and the fact that the complainant was visibily pregnant, have to be viewed separately from the taking of the cellphone.

Having found that the conviction on the count of rape is proper and that the accused should have been convicted of theft of the cellphone, instead of robbery, this court is at large on the issue of sentence. In the result, I make the following order:

(1) The conviction on the charge of rape is confirmed and the accused is sentenced to 12 years imprisonment with labour.

(2) The conviction on the case of robbery is set aside.

(3) The accused is convicted of theft of a cellphone and is sentenced to 6 months imprisonment with labour.

I must, however, mention that the court a quo adopted a tariff approach in sentencing the appellant which approach should be discouraged.

It is trite that these courts will invariably consider closely related offences as one for the purposes of sentence or closely related counts to run concurrently with each other. However, there is no fixed rule which compels a judicial officer to do so. This, in fact, has been the position in our legal system for a longtime. See R v Malela 1967 RLR 359 (A).

In R v Malela 1967 RLR 359 (A), BEADLE CJ…, stated;

“The ultimate test in every case in considering the propriety of the sentences imposed on a number of related counts, it (sic) is whether or not the aggregate sentence imposed on all is reasonable in relation to the culpability of the accused.”

Therefore, while, there is no mathematical formula for calculating sentences, courts will always take into serious consideration the seriousness and gravity of the offence together with the personal circumstances of the offender in order to arrive at an equitable sentence.

I am not persuaded to agree with the appellant that the sentence imposed on her is shocking in the circumstances to an extent of justifying interference by this court. The appellant's conduct left an indelible mark on the complainant. Therefore, this sentence is designed to curb the appellant's prurience.

The sentence imposed is clearly adequate. If anything, she should have been sentenced to an effective 30 years imprisonment.

Apart from the clear provision of the statute regulating mandatory minimum sentences in multiple counts, the cited case of S v Huni & Ors 2009 (2) ZLR 432 (H) clearly tackled the issue as well. 

That case held that respecting multiple counts, treating them as one for sentence is not competent; for the mandatory minimum sentence remains applicable on each count, although it is permissible to order the sentence on one count to run concurrently with the sentence on the other count or counts.

In the instant case, it was therefore incompetent for the trial magistrate to treat both counts as one for sentence and impose the globular sentence he imposed which he proceeded to truncate by suspending portions on various conditions with the net effect of resultantly leaving the accused with a sentence below the mandatory minimum in respect of each count. He ought to have sentenced the accused to the mandatory minimum nine years per each count and leave the sentence as is or order one to run concurrently with the other or to have sentenced the accused separately on each count to anything between nine years and twenty-five years imprisonment and then suspend the portion in excess of nine years wholly or partially on whatever condition he deemed appropriate.

In the result, the sentence imposed by the trial magistrate is hereby set aside, and, in its place, substituted with the following:

Count 1: 9 years imprisonment.

Count 2: 9 years imprisonment.

The penalty for the offence under section 184(e) of the Customs and Excise Act [Chapter 23:02] is a fine not exceeding level twelve, or three times the duty-paid value of the goods that are the subject of the offence, whichever is the greater, or imprisonment for a period not exceeding five years, or both such fine and such imprisonment.

The court a quo, without explanation, imposed one sentence for both Counts Two and Three, namely, the fine of $500= aforesaid, or, in default, ninety days.

That was manifestly irregular.

When I sought an explanation, the trial magistrate conceded the anomaly. But he was referring to Count Two [smuggling] and Count One [possession of copper] as the two that he had improperly combined for the purposes of sentence. But that had not been what I queried. What I had queried was his combining Count Two [smuggling] with Count Three [non-payment of excise duty or surtax] for the purpose of sentence.

The trial magistrate, mistakenly referring to Counts Two and One, felt that he had been justified in treating them as one for the purposes of sentence since, in his own words: “…, they had been committed concurrently …, with the same motive and intention…,.”

With respect, that explanation, whether for one or other of the Counts that had been combined, was not satisfactory. If any two could be combined, as the magistrate argued, then there was no logical reason why he did not combine all three. He only combined two, yet all three emanated from a single criminal enterprise.

The three Counts hung on different and separate, stand-alone, statutory offences; each with its own prescribed penalty. In all three, a fine is the first option. The trial court intended to, and did, impose fines.

Further, it is ordered that the 1 year imprisonment in Count 2 shall run concurrently with the 15 years imprisonment in Count 1.

This review judgment has been occasioned by my routine visit to Mutimurefu Prison in Masvingo on 13 May 2017.

During the normal interface with the prisoners, the accused/prisoner in both cases herein raised a complaint to the effect that prison authorities were improperly interpreting the sentences imposed upon the accused in both cases, being CRB CH 707/15 and CRB CHR 38/16. After I engaged the Officer in Charge of the Prison it dawned upon me that indeed there was a dispute as to the total sentence the accused was to serve. The prison authorities and the accused had different interpretations to the sentences imposed upon the accused in both matters.

While at the prison, I only had sight of the accused's two warrants of committal to prison in relation to both cases. In the circumstances, I was not able not to only fully appreciate the nature of the dispute but to also prescribe a solution. I decided, therefore, to invoke the powers vested in me in terms of section 29(4) of the High Court Act [Chapter 7:06] which provides as follows;

“29. Powers of review of criminal proceedings

(1) Not relevant.

(2) Not relevant.

(3) Not relevant.

(4) Subject to Rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal court are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or judge for review.”

I proceeded to direct the Registrar of the High Court to call for the records of proceedings in both matters from Chiredzi Magistrates Court and have them placed before me.

CRB CH 707/15

In this matter, the accused was arraigned before the magistrate sitting at Chiredzi facing four counts of stock theft as defined in the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused pleaded guilty to two of the counts but was convicted of all the four counts after a trial was held in respect of the other two counts which he denied.

The facts relevant to all the four counts are that the accused would proceed to the complainants' pens to steal goats or sheep at night. The accused would slaughter the goats or sheep. This happened from the period extending December 2014 in Count 1 to February 2015 in Count 4.

After being convicted in respect of all the four counts, the accused was sentenced on 8 October 2015. All the four counts were treated as one for purposes of sentence. The accused was sentenced to 24 months imprisonment of which 2 months imprisonment were suspended on the usual condition of good behaviour. A further 8 months imprisonment were suspended on condition accused paid restitution to the four complainants. The accused was to serve 14 months imprisonment.

These proceedings were confirmed on review by this court on 17 November 2015….,.

CRB CHR 38/16

The accused, in this case, appeared before the Senior Regional Magistrate sitting at Chiredzi facing 3 counts of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].   

The brief facts are that on 23 July 2015, the accused raped his step-daughter three times the same night at their residence, being Plot 142B, 25 Hectares in Chiredzi. The accused had chased away his wife who is the complainant's mother.

After a protracted trial, the accused was convicted of all 3 counts of rape. On 11 May 2016, all the 3 counts were treated as one for purposes of sentence and the accused was sentenced to 18 years imprisonment of which 3 years imprisonment were suspended for 5 years on the usual conditions of good behaviour leaving an effective sentence of 15 years imprisonment. In addition to that, the Senior Regional Magistrate ordered the sentence on CRB CH 707/15 to run concurrently with the sentence in this matter. For clarity purposes, the Senior Regional Magistrate's sentence is couched as follows;

“All counts as one for sentence.

18 years imprisonment for which 3 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving sexual conduct for which accused will be sentenced to imprisonment without option of a fine. The sentence on CH 707/15 will run concurrently with this sentence.”

The proceedings in CRB CHR 38/16 were also confirmed on review by this court on a date which is not clear from the record.

It is the order by the Senior Regional Magistrate, to the effect that the sentence on CRB CH 707/15 should run concurrently with the sentence on CRB CHR 38/16 which has caused the dispute between the accused and prison officials….,.

The Dispute

The accused's perception is that the Senior Regional Magistrate's sentence on CRB CHR 38/16 entails that the 14 months imprisonment on CRB CH 707/15 should now run concurrently with the 15 years imprisonment on CRB CHR 38/16. Further, the accused submitted, in his query, that he should now only serve 15 years imprisonment in both matters, and, most importantly, that the period he had spent in prison from 8 October 2015, when he was sentenced on CRB CH 707/15, to 11 May 2016, when he was sentenced on CRB CHR 38/16, should be considered by subtracting it from the 15 years imprisonment. In mathematical terms, the accused is saying he should now only serve a total of 14 years 5 months in respect of both matters.

The prison officials, on the other hand, disputed the accused's perception or interpretation but were unclear as to what they perceived to be the total sentence the accused should serve in both matters.

Disposition

The order by the Senior Regional Magistrate on CRB CHR 38/16 is in terms of section 343(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. It simply provides as follows;

“343. Cumulative or concurrent sentences

(1) Irrelevant

(2) When sentencing any person to punishments in terms of subsection (1), the court may direct the order in which the sentences shall be served or that such sentences shall run concurrently.”…,.

It is the manner in which the Senior Regional Magistrate couched the sentence which, in my view, is confusing.

At the time the accused appeared before the Senior Regional Magistrate, on 11 May 2016, on CRB CHR 38/16, he had already served 7 months imprisonment for the charges on CRB CH 707/15. The Senior Regional Magistrate seemed to have overlooked this fact. At that stage, on 11 May 2016, the sentence remaining on CRB CH 707/15 was only 7 months imprisonment out of the 14 months imprisonment. This means that what the Senior Regional Magistrate could only competently deal with were the remaining 7 months on CRB CH 707/15. It is these remaining 7 months imprisonment which the Senior Regional Magistrate should have ordered to run concurrently with the 15 years imprisonment on CRB CHR 38/16.

In my view, there is no prejudice to the accused or the State if that clarity is made. Accordingly, the sentence of the Senior Regional Magistrate is amended to read as follows;

“All counts as one for sentence.

18 years imprisonment for which 3 years imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving sexual conduct for which accused will be sentenced to imprisonment without the option of a fine. The remainder of 7 months imprisonment on CRB CH 707/15 shall run concurrently with the effective sentence of 15 years imprisonment.”…,.

The court sentenced the accused, individually, in respect of each count giving an aggregate sentence of 27 years imprisonment of which 5 years imprisonment was suspended for 5 years on condition of future good behavior. A further 1 year was suspended on condition he restitutes the complainants of the respective sums they were defrauded. 

That left an effective sentence of 21 years imprisonment; which sentence, by any standards, does not fit the offence neither does it fit the offender….,.

In arriving at that sentence, the magistrate reasoned as follows:

“In assessing the appropriate sentence for the accused person, the court took into account what the accused person said in his mitigation. He is a first offender. He pleaded guilty to most of the charges and did not waste the court's time.

In aggravation is the prevalence of the offences. The accused breached the complainants' trust. He planned the offences well and boldly executed them. He benefited highly from the commission of the offences since all of the money was not recovered. His moral blameworthiness is very high. The offences are serious. Accused used his prior knowledge of the complainants and trust to steal large sums of money from them. The aggravation far outweighs the mitigation and a custodial sentence will be just.”…,.

The sentences imposed induce a sense of shock.

Although the magistrate came to the conclusion that a custodial sentence is the appropriate one, she did not explain why it had to be such a lengthy term. She did not explain why some of the Counts were not treated as one for purposes of sentence when they related to kindred offences committed on the same day, using the same modus operandi. She appears to have adopted a “tariff” approach to sentencing which has its serious disadvantages especially as the determination of sentence is a matter for the discretion of the court. There was therefore a misdirection in the assessment of sentence which has resulted in an unduly lengthy term of imprisonment completely disproportionate to the offences….,.

The magistrate appears to have been intent on punishing the accused person separately in respect of each Count and was informed only by the value of the prejudice in arriving at sentences ranging from 6 months to 4 years imprisonment. That tariff approach led to a sentence of 27 years imprisonment.  Although 5 years was suspended on condition of future good behavior only 1 year was suspended to condition of restitution.

It has been said before that where the sentencing court considers it necessary to suspend a portion of the sentence on condition of restitution, it must make it possible for the accused person to fulfill the condition in order to benefit.

An accused person serving 21 years imprisonment will have no motivation whatsoever to restitute the complainants only to benefit one year reduction of sentence. It is just a drop in the ocean and therefore a useless exercise of discretion as clearly the accused person will not take up the offer. At the same time, the complainants will not be served by such a sentence because they will not be compensated.

See S v Mukura and Others 2003 (1) ZLR 596 (H)…, where HUNGWE J said:

“Where a court considers suspending part of the sentence, subject to the stated conditions, it must not ask the impossible of the person in whose favour the suspension is granted, just as one must not, when imposing a fine, impose a fine of such severity that it cannot be paid. In such circumstances, the condition is unrealistic and bears no relation to any desire by the offender to comply with it. The condition must be reasonably capable of fulfillment. If it is not, then it is not the kind which should be made a condition of suspension: See R v Lamb 1969 (2) RLR 193 (A).”

See also S v Zulu HB174-11.

In my view, the accused person is indeed a pathological fraudster who deserves to be severely punished for his transgressions. He fleeced seventeen different people of large sums of money. However, the sentence of 27 years imprisonment is patently excessive, unreasonable, and induces a sense of shock.  This is a matter in which the complainants dealt with an illegal money changer, and, in a way, voluntarily assumed the risk attendant to such activity. These were kindred offences in which the same modus operandi was employed and the first five offences were committed on the same day, 18 December 2015.  The next eight offences were also committed on the same date, 19 December 2015 with Count 15 falling on 6 December 2015 and Counts 16 and 17 coming on 23 July 2015.

I take the view that an appropriate sentence would been achieved by grouping Counts 1, 2, 3, 4, and 5 as one for purposes of sentence. Counts 6, 7, 8, 9, 10, 11, 12 and 13 should be treated as one. Counts 14, 16, 17, and, for convenience only, 15, as one.

In the result, it is ordered that:

(a)…,.

(b) The sentences are hereby set aside and in their place substituted the following sentences:

“1. Counts 1, 2, 3, 4, and 5 are treated as one for sentence and the accused is sentenced to 8 years imprisonment of which 2 years is suspended on condition he restitutes the complainants in those counts in the sums of R367,000=; R121,200=; $9,800=; R400,000= and R100,000= respectively.

2. Counts 6, 7, 8, 9, 10, 11, 12 and 13 are treated as one for sentence and the accused is sentenced to 4 years imprisonment of which 1 year imprisonment is suspended on condition that he restitutes the complainants in those counts in the sums of $8,000=; $3,700=; $4,000=; $3,500=; $4,140=; $1,100=; R7,760= and $3,000= respectively.

(c) Counts 14, 15, 16 and 17 are treated as one for sentence and the accused is sentenced to 7 years imprisonment of which 1 and a half years imprisonment is suspended on condition he restitutes the complainants in those counts in the sums of $10,000=; $5,000=; $12,400= and $35,000= respectively.

Of the remaining 14 and a half years imprisonment, 5 and a half years imprisonment is suspended for 5 years on condition the accused does not, within that period commit any offence of which dishonesty is an element for which, upon conviction, he is sentenced to imprisonment without the option of a fine.

I am of the view that this is indeed one of those cases where multiple counts are involved that are closely connected in nature to justify treating them together for sentencing as a way of ensuring that the cumulative effect is not too harsh.

Although the general practice is to sentence each count separately with the option of some sentences running concurrently, where there is justification, the counts can be treated together. See S v Nyathi HB60-03.

Sentence: Murder: Life imprisonment.

Rape: Counts 1-3: 10 years;

Counts 4-6: 10 years; effective sentence 20 years imprisonment.

The total effective sentence to run concurrently with the life sentence.

The accused was charged with a combined thirty counts of contravening section 131(1) and 2 (unlawful entry) and section 65 (rape) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Of the total 30 counts, 13 were counts of rape whereby after entering 10 domestic premises the accused committed the rapes. He was however convicted of 21 of the 30 counts as the complainants and witnesses in the other nine counts had moved or were out of the county.

For the 21 counts for which he was convicted, he received a total sentence of 290 years. Of these, 60 years was suspended for five years on condition he did not commit a crime involving unlawful entry, violence on the person of another, or an offence of a sexual nature.

The Regional Magistrate who handled the case referred the case, after sentencing, for review and consideration of whether the charges had been split unnecessarily.

In arriving at the cumulative sentence, each count of unlawful entry was sentenced separately from the crime of rape that had been committed by the accused at the relevant premises and for which he had been convicted. To put the cumulative sentence into perspective, he was sentenced as follows:

Count 1;   10 years (unlawful entry)
Count 2;   20 years (rape)
Count 5;   10 years (unlawful entry)
Count 7;   10 years (unlawful entry)
Count 8;   10 years (unlawful entry)
Count 9;    20 years (rape)
Count 10;  10 years (unlawful entry)
Count 11;   20 years (rape)
Count 13;  10 years (unlawful entry)

Count 14;  20 years (rape)
Count 15;  10 years (unlawful entry)
Count 16;  20 years (rape)
Count 19;  10 years (unlawful entry)
Count 20;  10 years (unlawful entry)
Count 21;  10 years(rape)
Count 22;  10 years (unlawful entry)
Count 23;  10 years (unlawful entry)
Count 24;  20 years (rape)
Count 25;  20 years (rape)
Count 26;  20 years (rape)
Count 30;  10 years (unlawful entry)

Total 290 years

The indications of the crime in brackets are for ease of reference as to what the count related to.

To put the 21 counts for which he was convicted into further perspective, 14 of the counts included seven for unlawful entry under aggravated circumstances and another seven for rape in respect to each of those unlawful entries. In one of these cases of unlawful entry the accused had committed three counts of rape against the victim. There were therefore five counts related to unlawful entry under aggravated circumstances that excluded rape.

The counts that included unlawful entry and rape against seven different complainants were the following:

Counts 1 & 2 (unlawful entry with rape)
Counts 8 & 9 (unlawful entry with rape)
Counts 10 & 11 (unlawful entry with rape)
Counts 13 & 14 (unlawful entry with rape)
Counts 15 & 16 (unlawful entry with rape)
Counts 21 & 21 (unlawful entry with rape)

Counts 23, 24, 25 and 26 which involved unlawful entry and three counts of rape against the same complaint.

The counts which involved unlawful entry under aggravated circumstances where property was stolen were as follows:

Count 5
Count 7
Count 19
Count 22
Count 30

The offences took place between September 2011 and October 2012. The accused would basically break into domestic premises at night either through toilet or kitchen windows or the roof. He would be armed with items such as a knife and/or hammer; a cell phone with a torch. Once in the room, he would wake up his victim, threaten them with death and would demand money, cell phones, and laptops. Coupled with unlawful entry and theft, sexual violence was a tool used by the accused to exercise power and control over the victims in selected cases. It essentially became an adventure to his repertoire.

His luck ran out when he returned to the premises of one complainant where he had previously been. No doubt traumatised by her previous experience, upon hearing noises she had immediately managed to make contact with a relative in the police force using her cellphone. The response had been swift and the accused had been apprehended whilst inside the house. Thereafter, some of the complainants had identified him at an identification parade. The accused had also taken the police to other premises where he had committed the crimes and had given indications of how he had committed the offences at the relevant premises.

The convictions, in my view, are proper but the sentence induces more than a sense of shock to the point of being ridiculous given that no one lives to 290 years - and none of it runs concurrently.

As such, much of it serves no purpose other than being of shock value.

As stated in S v Mukome 2008 (2) ZLR 83 (H) the competing interests of society and the accused persons must be balanced in arriving at a desirable sentence. While deterrence is a valid consideration, the view expressed in S v Nemakuru 2009 (2) ZLR 179 (H) that in sentencing, judicial officers must avoid giving the impression that a sentence is a tag which society must read for it to be deterred seems apt in this instance.

In casu, increasing public sentiment, especially from women's groups, against perceived leniency in meting out sentences to rapists, given the prevalence of sexual offences against women and girls appear to have influenced the sentence. Although Regional Magistrates generally impose fairly stiff sentences for rape, often in the range for 15 to 20 years for a count of rape, some such sentences involving multiple counts are often reduced on review perhaps feeding into perceptions of the “permissive court”.

For instance, S v Ndlovu 2012 (1) ZLR 393, the view was expressed, on review, that ordinarily the sentence for rape should not exceed the sentence for murder or culpable homicide. In that case, a 43 year old accused had been charged with five counts of raping his biological daughters aged between seven and four years. The four year olds were twins. He was sentenced to 20 years in respect of each count giving him a total period of 100 years in prison. The sentence in one count was made to run concurrently with another involving the same complainant. A further 20 years was suspended on good behaviour. The total effective sentence was accordingly 40 years.

In reviewing the sentence, KAMOCHA J emphasized that life imprisonment is indeed the maximum sentence permissible for rape under the Criminal Code and that this should be reserved for the worst examples of the crime. He reasoned that the worst crime under crimes against the person is the crime of murder, and, in the past, unless there were no extenuating circumstances, the sentence would be death. He further reasoned that in those cases where the death penalty was not warranted the sentence imposed is generally between 14 and 20 years. He also noted that in cases of attempted murder the penalty rarely exceeds 10 years. Although acknowledging its traumatizing effects, in his view, a sentence of 20 years for a single count of rape was excessive. As he put it:

“It seems to me that a sentence of 20 years on a single count of rape is completely out of steps with sentences imposed in respect of other crimes against a person as outlined above. It seems to me that rape should also attract a sentence from 5 to 10 years. Only the very bad cases of rape should attract a sentence beyond ten years and the worst ones should attract imprisonment for life.

Since the court was initially dealing with five counts of rape it should have borne in mind the cumulative effect of the sentences on the five counts and imposed a sentence which is not so excessive as to induce a sense of shock.”

He accordingly reduced the sentences on the three counts for which he found him to have been rightly convicted to six years per count, giving a total of 18 years.

Also, in S v Nyathi 2003 (1) ZLR 587 a 30 year sentence had been imposed on a father for 30 counts of rape on his 16 year old daughter. The 30 year sentence was deemed excessive and reduced to 18 years.

The yardstick by KAMOCHA J is somewhat useful in so far as it purports to give a benchmark figure of what should constitute a starting point when sentencing multiple counts of rape. However, akin to comparing oranges to apples as fruits in the same basket, it seems to me to skirt the point of the vast implications of sexual violence for the enjoyment of a range of fundamental rights for women and girls. In my opinion, an informed assessment of the sentence to be imposed in cases such as this cannot be reached without utilising an engendered approach to this area of Criminal Law, as well as engaging a Constitutional and human rights perspective.

The enjoyment of rights, such as bodily and psychological integrity, freedom from violence, inherent dignity take on their specific meaning in the lives of men and women when real life experiences are examined with gender lenses. For women and girls the fear of violence is generally that which arises from the actions of non-State actors. Rape is a particularly serious form of gender violence against women and girls which impacts on their ability to enjoy certain guaranteed rights as contained in international instruments that we have signed as well as articulated in our Constitution.

Freedom from violence is guaranteed in our Constitution [Amendment Act (No.20) Act 2013], under section 52 of the Constitution which states that:

“Every person has the right to bodily and psychological integrity which includes the right -

(a) To freedom from all forms of violence from both public and private sources….,.

(b)…,.

(c)…,.”

Article 51 is also useful in providing protection from violence in that it protects the right to human dignity. It is couched as follows:

“Every person has inherent dignity in their private and public life and the right to have that dignity respected and protected.”

There is no doubt that the accused's actions clearly trampled on these fundamental rights.

It is not only the right to personal security that is at stake when women experience forms of gender-based violence, as exemplified by rape, but, it is also rights such as freedom from cruel and degrading treatment and the right to equality and non-discrimination. (See Articles 53 and 56 of the Constitution). It is the pervasive nature of sexual violence and the reality that women and girls have to live in constant fear of it from childhood to old age that continues to hamper true equality between men and women. The bottom line is that it is the responsibility of the State not just to protect women against any such violations which encroach on their fundamental rights, but to also prosecute and punish appropriately as part of its exercise of due diligence. The courts cannot adopt an overly “softly, softly” approach under the guise of comparative sentencing, completely oblivious of the reality that we are dealing with a problem of gender based violence so pervasive in our society and largely indicative of its treatment of women and girls as sexual objects, such as to impact on their right to enjoy fundamental freedoms. Even when society's interests are balanced against those of the individual, sight should not be lost of the fact that sexual violence is a deeply engrained societal problem and the approach to sentencing should acknowledge rather than skirt this reality.

The provisions discussed above in our Constitution are examples of concerted efforts to tailor local legislation to meet global norms. Of relevance, for instance, are Article 9 of the International Covenant on Civil and Political Rights which deals with the rights to security of the persons and Article 7 which prohibits cruel and degrading treatment. The Convention on All Forms of Discrimination against Women is also significant in that its provisions have been interpreted by the CEDAW Committee, in Recommendation No.19, to specifically cover gender-based violence against women as a form of sex discrimination. It is regarded as discrimination because of the distinct effects it has on the lives of women which prevents them from enjoying equality as envisaged by Article 1 of the Convention. Equally significant are provisions to the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa whereby Article 3, for example, guarantees the right to dignity for women and the protection of their human and legal rights. Article 4, in particular, addresses violence against women including the punishment of perpetrators (Article 4(2)(e)). Women also have a right to live in a positive cultural context in terms Article 17. Rape is a form of gender based violence that emanates from cultural attitudes towards women that permit the use of sex as an instrument of power and control.

In my view, whilst there was no misdirection in the splitting of charges for unlawful entry and those of rape, the misdirection was in sentencing each count of unlawful entry separately from rape given the cumulative effect of the sentence.

Also, the sentence for each count was excessive and the sentences could have been made to run concurrently given their similarity in nature and proximity in time in the commission of some of the offences. There is, however, no doubt that the court was faced with a serial rapist and an un-relenting one for that matter for whom a stiff sentence was called for. Having said that, the 290 year sentence with 60 years suspended makes no sense and certainly arises from sentencing the counts separately without any of them running concurrently.

In dealing with multiple counts and deciding whether to apply a globular sentence it was stated, in S v Chayisva 2004 ZLR (1) 80 (H), that the factors to be taken into account include;

(i) Whether the offence is the same or similar nature;

(ii) Whether the offences are closely linked in time; and

(iii) Whether the offences arise out of the same transaction.

I do not think that this is a case for a globular sentence as the offences did arise from the same transaction. They were distinct in time and nature and should be approached as such. In S v Muyambo HH52-94 it was stated that there are two permissible approaches to sentence where multiple counts are involved:

(a) Sentencing as one those similar in nature; or

(b) Where counts are individually sentenced, ordering the sentences to run concurrently.

It is the 'concurrent' approach which, in my view, would be partly appropriate in this case in terms of rationalising the sentence.

The sentence is accordingly altered as follows for the counts involving unlawful entry under aggravated circumstances and rape;

Counts 1 & 2:  10 years imprisonment
Counts 8 & 9:  10 years imprisonment
Counts 10 & 11: 10 years imprisonment
Counts 13 & 14: 10 years imprisonment
Counts 15 & 16: 10 years imprisonment
Counts 21 & 21: 8 years imprisonment
Counts 23, 24, 25 & 26: 15 years imprisonment

For the above counts, the accused is accordingly sentenced to a total of 73 years of which 18 years is suspended for five years on condition the accused does not commit a crime involving unlawful entry, violence on the person of another or an offence of a sexual nature.

For the following counts involving unlawful entry under aggravated circumstances without rape the accused is sentenced as follows;

Count 5:  3 years (unlawful entry)
Count 7:  3 years (unlawful entry)
Count 19: 3 years (unlawful entry)
Count 22: 3 years (unlawful entry)
Count 30: 3 years (unlawful entry)

The cumulative sentence of 15 years for these counts to run concurrently with the effective sentence of 55 years.

It was also urged on us to take into account that the accused was already serving a seven year prison term in respect of the conviction of attempted murder….,.

Defence counsel appreciated that a lengthy prison sentence was called for. He suggested fifteen years would be appropriate but that these should be made to run concurrently with the seven years imprisonment that the accused was already serving for the conviction of attempted murder….,.

In this case…, instead of ordering that any period of imprisonment that we may finally impose should run concurrently with the sentence in the previous conviction, which would be irregular for a number of reasons, we have, instead, taken the previous sentence as an aspect of mitigation.

The accused was charged with two counts of physical abuse as defined in section 4(1)(a) as read with section 3(1)(a) of the Domestic Violence Act [Chapter 5:16]....,.

The accused was..., sentenced to 10 months imprisonment of which four months imprisonment was suspended for five years on condition of future good behaviour. The remainder of six months was suspended on condition of performance of community service. In addition to the sentence the trial magistrate said:-

“The one month imprisonment on G12/12 is not brought into effect.”

The record was referred to the Regional Magistrate for scrutiny. The Regional Magistrate raised three queries and then sent it to this court for review.

(i) The first query was that it was not clear from the sentence that was imposed on the accused whether it was for both counts or for one of the counts.

In response, the trial magistrate stated that the sentence was for the two counts as he had treated them as one for the purposes of sentence.

As correctly stated by the Regional Magistrate, in sentencing the accused the court should, for the avoidance of doubt, always make it clear that the sentence relates to both counts if that is the position. If the sentence relates to one of the counts, that should also be made clear. This should be reflected on the charge sheet and on the review cover. A pronouncement to this effect should also be made to the accused as the sentence is pronounced to him.

The appeal was against both conviction and sentence in Count One and against sentence only in Count Two. The facts were these.

The appellant, thirty eight [38] years of age at the time of his arrest, was a father of six children from two customary law wives. On 15 February 2017 he was convicted of the two counts by the Provincial Magistrate's Court sitting at Mberengwa in the Midlands Province.

Count One was indecent assault, in contravention of section 67(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] [“the Criminal Code”]. The appellant was alleged to have indecently assaulted his own biological daughter, Anesuishe Baloyi [“Anesu”]. She was seventeen [17] years old at the time. The incident happened at the family's village homestead in rural Mberengwa. The appellant allegedly smeared and applied some foul smelling and bitter tasting herbs onto her breasts and privates. This allegedly followed advice from a traditional healer, or n'anga, who had supplied the herbs. The whole gory business was so that the appellant could amass untold wealth.

Count Two was physical abuse, in contravention of section (3)(1)(1)](a), as read with section 4 of the Domestic Violence Act [Chapter 5:16]. The appellant was alleged to have assaulted his first wife, Susan Sibanda [“Susan”] so severely that she fell unconscious. She was pregnant at the time. He beat her all over the body with clenched fists, booted feet, and a switch. The reason for the assault was said to be her adamant refusal to share their matrimonial home with the appellant's new wife....,.

The offence in Count One occurred on the evening of 29 November 2015. The one in Count Two occurred on 6 January 2017. Both offences were reported to the police either on 6 January 2017 or so soon thereafter. Thus, for Count One, the report was being made fourteen months after the event....,.

The appellant pleaded not guilty to both counts. But, after a full trial, he was convicted of both. In Count One he was sentenced to thirty six [36] months imprisonment. In Count Two he was sentenced to six [6] months imprisonment. Thus, the total period of imprisonment was forty-two [42] months. Nothing was suspended. No periods of imprisonment were ordered to run concurrently….,.

Only the appeal against sentence made sense. But, surprisingly, in the court below, it seems neither the parties nor the court itself paid attention to the prescribed sentences….,.

In Count One, the sentence passed was incompetent…,. As the State correctly concedes now, the penalty provision for indecent assault in the Criminal Code, namely, section 67(1)(a)(i), prescribes a sentence of a fine not exceeding level seven [i.e. $400=], or imprisonment for a period not exceeding two years, or both. The court imposed thirty six months imprisonment. This was a manifest misdirection. As such, this court can interfere.

In Count Two...., the penalty provision in the Domestic Violence Act, namely, section 4, prescribes a sentence of a fine not exceeding level fourteen [$5,000=], or imprisonment for a period not exceeding ten years, or both.

Since the court a quo did not treat the two counts as one for the purposes of sentence, it ought to have considered such sentences as would have been appropriate for each individual count.

It seems the court's paltry six months imprisonment for Count Two was influenced by the relatively staggering thirty-six months imprisonment for Count One. Apparently, the court did not appreciate that, from the perspective of the prescribed sentences, Count Two was the more serious offence of the two....,.

We consider that the appropriate sentence for Count One should have been twenty-four months imprisonment of which four months could have been suspended on condition of good behaviour.

In Count Two, the appropriate sentence also ought to have been twenty four months imprisonment, four of them also being suspended on condition of good behaviour.

Both counts could have been made to run concurrently, leaving an effective twenty months imprisonment.

The trial court has conceded that it could have suspended a portion of the sentence on the usual condition of good behaviour, in line with normal sentencing practice.

The accused was charged with two counts of domestic violence in contravention of section 3(1)(a) as read with section 4(1) of the Domestic Violence Act [Chapter 5:16]; and one count of assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] [“the Code”].

He pleaded guilty to the two counts of domestic violence, which were Counts 1 and 3; but not guilty to the one of assault, which was Count 2. A trial ensued in respect of the count on assault. At the end, he was convicted of all three counts.

He was sentenced as follows:

(a) Count 1 [domestic violence] - 1 month imprisonment;

(b) Count 2 [assault] - 6 months imprisonment; and

(c) Count 3 [domestic violence] – 3 and a half years imprisonment.

No portion of the sentence was suspended - even for good behaviour or for restitution. Count 3 had a quantifiable loss. None of the sentences were ordered to run concurrently either.

When I queried why no portion of the sentence was suspended, the trial court had this to say:

“I apologize for not suspending a portion of the sentence as usual. I was of the opinion that the accused acted like a hardened criminal. I then concluded that giving him a suspended sentence was academic. My Lord, I however stand guided by you. Such will not be repeated.”

The trial magistrate's attitude is understandable. By all accounts, the accused behaved like a maniac….,.

I am satisfied that the accused was properly convicted on all counts....,.

Regarding sentence, other than the failure to suspend a portion, there was no other material misdirection. I agree with the substance and quantum of the sentence passed….,.

Unless there is good cause, a sentencing officer should not, out of impulse or whim or caprice, depart from the standard practice of suspending portions of prison terms on appropriate conditions.

In casu, the court a quo apparently took the view that the accused was a lost cause. However, I do not think that any offender, even one condemned to die, is automatically a hopeless case. Wherever possible, rehabilitation, not retribution, should always be given a chance.

In this case, the accused was 29 years old. He was a first offender. He had a wife and two children. It seems this was a new wife because the victim of his assaults was referred to as his ex-wife in the charge sheet and the State Outline. Although the ages of the children were not given, in all probabilities, given his own age, they were still minors. He was gainfully employed. Whilst he deserved to go to jail, nonetheless it is my view that he deserved to benefit from a suspension of a portion of the total sentence and that the shorter two sentences of Counts 1 and 2 should have been made to run concurrently with the longer sentence of Count 3.

In the circumstances, the following is added to the sentences pronounced by the court a quo:

“The sentences in Counts 1 and 2 shall run concurrently with the sentence in Count 3. In addition, six months imprisonment is hereby suspended for five years on condition that the accused is not convicted of any aspect of domestic violence for which he is sentenced to a term of imprisonment without the option of a fine. The effective sentence is therefore three years imprisonment.”

The court a quo is hereby directed to recall the accused and pronounce on him the above altered sentence.

1. Both counts [culpable homicide and assault] are taken as one for the purposes of sentence.