Emmanuel Murambiwa v The State

The appellant was charged jointly with one Albert Dzingai with two counts of contravening section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (housebreaking and theft). Between January and February 2009, the accused and his accomplice broke into Major Meats Butchery in Bulawayo and stole meat valued at R31,700.00, of which R17,430.00 was recovered. The appellant pleaded guilty, was convicted, and sentenced by the trial court to 7 years imprisonment on count 1 and 8 years imprisonment on count 2, totaling 15 years imprisonment, with 3 years suspended for 5 years on condition of good behavior.

• Whether the sentence of 15 years imprisonment (before suspension) was excessive and induced a sense of shock
• Whether the sentences imposed on counts 1 and 2 should run concurrently rather than consecutively
• Whether the trial court misdirected itself in sentencing

The appeal against sentence was allowed. The original sentence was set aside and substituted with: Count 1 - 7 years imprisonment of which 1 year is suspended for 5 years on condition the accused does not commit any offence involving 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 to run concurrently with the sentence in count 1. Effective sentence: 6 years imprisonment.

Where a person is convicted of multiple counts, the court should either take all counts as one for the purposes of sentence or impose appropriate sentences for each count with consideration for concurrent running where appropriate. Sentences must be fair and just to both the offender and the offended, and should not be so excessive as to leave an accused with nothing to look forward to upon release, preserving some residue of dignity. Courts should distinguish between crimes of a violent nature and those involving non-violence when determining whether sentences should run concurrently or consecutively. A sentence that induces a sense of shock when taken in totality constitutes a misdirection warranting appellate intervention.

The court emphasized that whatever sentence is imposed on an accused should at least leave him with some residue of dignity as opposed to relegating him to self-pity. The court noted that courts are encouraged to allow sentences to run concurrently where there is a need to do so, particularly in bringing normalcy to sentencing practices.

This case reinforces important principles in Zimbabwean criminal sentencing jurisprudence, particularly the principle that courts should avoid imposing cumulative sentences that are so excessive as to shock the conscience. It emphasizes the importance of considering concurrent sentences in appropriate cases, particularly for non-violent property crimes, and the need to preserve human dignity even in sentencing convicted persons. The case demonstrates the appellate court's willingness to intervene where trial courts impose manifestly excessive sentences by treating multiple related offenses consecutively when concurrency would be more appropriate.