Herman Phillip Tembo v The State

The appellant was convicted in two separate trials on the same day (2 February 2005) before the same Regional Magistrate but was sentenced on different days. In CRB R35/05, he pleaded guilty to theft of a motor vehicle (Toyota Corolla) on 30 January 2005 at G.V.Z. Leisure Centre, Hwange, valued at Z$15,000,000.00, and was sentenced to 6 years imprisonment with 2 years suspended (effective 4 years). In CRB R36-8/05, he was jointly tried with two accomplices and pleaded guilty to: (1) Robbery - on 11 January 2005, in company with two accomplices armed with an axe and plough shares, they assaulted security guards at Cotton Company Depot at Rushinga Business Centre and stole an Astra 12 bore shotgun valued at Z$3,000,000.00; (2) Armed Robbery - on 15 January 2005, they robbed a female complainant at gunpoint using the stolen shotgun, tied her up, and stole her motor vehicle and property valued at Z$53,085,000.00; and (3) contravening s 4(2)(b) of the Firearms Act for possessing the stolen firearm without a permit. He was sentenced to 12 years on each robbery count (total 24 years with 4 years suspended) plus a mandatory 5 years for the firearms offence, totaling 29 years imprisonment with 4 years suspended.

• Whether the trial court misdirected itself by failing to order sentences in CRB R36/05 to run concurrently with the sentence in CRB R35/05
• Whether the trial court misdirected itself by treating the two robbery counts separately for purposes of sentence when they were committed within four days of each other and were kindred offences
• Whether it is competent for a court to order a sentence to run concurrently with a sentence imposed in an earlier separate trial
• The proper application of section 343 of the Criminal Procedure and Evidence Act regarding concurrent sentences

The appeal partially succeeded. The convictions in both trials were confirmed. The sentence in CRB R35/05 remained 6 years imprisonment with 2 years suspended (effective 4 years). The sentence in CRB R36/05 was set aside and substituted with: Counts 1 and 2 (treated as one) - 12 years imprisonment with 5 years suspended on condition of good behavior (effective 7 years); Count 3 (Firearms Act) - 5 years imprisonment (unchanged).

A trial court has no competence under section 343 of the Criminal Procedure and Evidence Act to order a sentence imposed in one trial to run concurrently with a sentence imposed in a separate earlier trial, because: (1) at the time of sentencing in the first trial, the future sentence does not exist and the court becomes functus officio; and (2) at the time of conviction in the second trial, the accused is not "under sentence or undergoing punishment" as required by section 343(1). However, when sentencing for multiple counts within a single trial, kindred offences committed within a short space of time should be treated as one for purposes of sentence to avoid excessively long cumulative sentences that diminish deterrent effect.

The court observed that if the sentence in CRB R35/05 had been taken as a previous conviction when sentencing for CRB R36/05, the best the court could have done was to further suspend it for a period deemed fit, but the suspended sentence could not have been brought into effect. The court also noted that the sentence in CRB R35/05 did not induce a sense of shock and that the lower court properly and judiciously exercised its sentencing discretion in that case, with the sentence being within the range supported by numerous precedents. The court cited with approval the principle from S v Buka 1995 (2) ZLR 130 (S) that "a point is reached after which additions to already long prison sentences produce progressively smaller increases in deterrence effect."

This case clarifies the application of section 343 of the Criminal Procedure and Evidence Act regarding concurrent sentences in Zimbabwean criminal procedure. It establishes that courts cannot order sentences to run concurrently when convictions arise from separate trials, even if conducted by the same magistrate on the same day, because the court becomes functus officio after sentencing in the first trial. The case also reinforces the principle that kindred offences committed within a short time should be treated as one for sentencing purposes to avoid excessively long cumulative sentences that lose deterrent effect. It demonstrates the appellate court's willingness to intervene where cumulative sentences become disproportionate.