Jethro Mthokozisi Gumede and Nehemiah Moyo v The State

Between 2 March 2004 and 18 May 2004, the two appellants committed multiple armed robberies in Bulawayo suburbs using a pistol. They were charged with 8 counts of armed robbery and 1 count of attempted murder. Within a two-day period, they committed 5 armed robberies. In count 6, a police officer was shot in both legs. Their activities resulted in various complainants losing property and created terror in Bulawayo and its environs. Both appellants pleaded not guilty. At trial, both were discharged on count 9 before plea. The 1st appellant was discharged at close of state case on counts 1, 2, 5, and 8, but convicted on counts 3, 4, 6, and 7. The 2nd appellant was discharged on count 5, convicted on counts 3, 4, and 7, but acquitted on count 8. The 1st appellant received 30 years imprisonment total, and the 2nd appellant received 24 years imprisonment total (with 6 years suspended on conditions of good behaviour on certain counts).

• Whether the sentences imposed by the trial court were so excessive as to induce a sense of shock
• Whether the trial court exercised its sentencing discretion judiciously
• The appropriate sentencing approach for multiple counts of armed robbery committed in aggravating circumstances

The convictions were confirmed. The appeal against sentence was dismissed.

An appellate court will not interfere with a sentence imposed by a trial court merely because it would have imposed a different sentence, unless the trial court failed to exercise its discretion judiciously. Under section 126(2) and (3) of the Criminal Law (Codification and Reform) Act No. 23/2004, robbery committed in aggravating circumstances attracts severe penalties including life imprisonment or imprisonment up to 50 years, reflecting the Legislature's view of the seriousness of such offences. Lengthy custodial sentences for multiple armed robberies committed as part of a crime spree are appropriate and do not induce a sense of shock where the offences involved violence, use of firearms, shooting of victims, and created terror in the community. The trauma and anxiety experienced by victims of armed robbery cannot be downplayed in favor of standard mitigating factors.

The court made observations about the terror that gripped Bulawayo and its environs during the period of the robberies. The court noted that "such orgy of violence cannot by any stretch of imagination be played down or sacrificed on the altar of the usual and ordinary mitigatory features which are now a mantra to every convicted person." The court used the metaphor that appellants "sailing too close to the wind would ultimately result in their yatchts being blown off and therefore, they can not be heard to complain of their failure of captaincy of the said yatcht." The court observed that despite their ages, the appellants "had no respect for other people's dignity, freedom and property" and "surely deserve to be removed from society to hopefully teach them a lesson and warn those of like mind of the dim view these courts take in these matter."

This case illustrates the Zimbabwean High Court's approach to sentencing for multiple armed robberies committed in aggravating circumstances post-codification of criminal law. It demonstrates that courts will uphold substantial custodial sentences for armed robbery sprees that terrorize communities, particularly where violence is used. The case clarifies that the sentencing principles in S v Chitiyo regarding lengthy imprisonment must be read in light of the Criminal Law (Codification and Reform) Act which expressly authorizes sentences up to life imprisonment for aggravated robbery. It emphasizes that courts will not interfere with trial court sentencing discretion unless it was not exercised judiciously, and that mitigating factors will not outweigh the seriousness of violent crime sprees that create public terror.