Lizard Sibanda v The State

The appellant appeared before a Regional Magistrate in Bulawayo facing 3 counts of rape as defined in section 65 of the Criminal Law Codification and Reform Act (Chapter 9:23). The appellant pleaded guilty and was convicted. The offences were committed in November 2007 within the space of two days on consecutive dates. The appellant was married to the complainant's mother and had four children with her. While the complainant's mother was away visiting her grandmother, the appellant entered the 16-year-old complainant's bedroom on three occasions and raped her. The complainant was the appellant's step-daughter. She eventually ran away from home to escape the abuse. The trial magistrate sentenced the appellant to 15 years imprisonment on each count (totaling 45 years) with 5 years suspended on conditions of good behaviour, resulting in an effective sentence of 40 years imprisonment.

• Whether the sentence of 45 years imprisonment (40 years effective) was manifestly excessive
• Whether the trial magistrate erred in imposing separate sentences on each count instead of treating the closely related offences as one for purposes of sentence
• Whether the trial magistrate's approach to sentencing was proper given that the three counts of rape were committed within a short time period using the same modus operandi
• Whether the trial magistrate's emotional tone in sentencing affected the exercise of sentencing discretion

1. The conviction was confirmed. 2. The sentence was set aside and substituted with the following: Counts 1, 2 and 3 taken as one for sentence. The accused was sentenced to 20 years imprisonment of which 5 years was suspended for 5 years on condition the accused is not within that period convicted of an offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine. This resulted in an effective sentence of 15 years imprisonment.

One globular sentence for two or more offences should be considered where: (1) the offences are of the same or similar nature, and (2) they are closely linked in point of time. Where these requirements are satisfied, treating multiple counts as one for purposes of sentence is appropriate. Even where separate sentences are imposed on individual counts, a trial court must scale down the individual sentences if the cumulative effect renders the total sentence unreasonable and excessive. A convicted person should not be visited with punishment to the point of being broken. Sentencing courts must exercise their discretion objectively, without emotional language or tone, and must pay attention to all relevant sentencing factors, not only the seriousness of the offence. An appellate court is entitled to interfere with a sentence where it is so excessive as to induce a sense of shock.

MAKONESE J observed that in rape cases, the normal approach is to treat each count separately for purposes of sentence because if on appeal or review a count of rape is set aside, the sentence relating to that individual count will automatically be set aside. However, this does not preclude treating counts as one where the requirements are met. The court also noted that trial magistrates should always approach sentencing objectively without expressing an emotional tone. The court commented that sentences in respect of all criminal offenders should generally be rehabilitative and not purely punitive, while still meeting societal expectations by imposing fair and just sentences. The court referenced English practice of entering judgment and sentence separately on each count, and noted that scaling down sentences can avoid the problem of an unreasonable cumulative effect.

This Zimbabwean case is relevant to South African jurisprudence as it illustrates important sentencing principles applicable in both jurisdictions, particularly regarding: (1) when multiple counts of the same or similar offences should be treated as one for sentencing purposes; (2) the importance of scaling down individual sentences when imposing consecutive sentences to avoid an unduly harsh cumulative effect; (3) the requirement for judicial officers to approach sentencing objectively without emotional language; and (4) the principle that sentences should be rehabilitative rather than purely punitive, and should not break an offender. The case demonstrates the appellate court's willingness to interfere with sentencing discretion where the sentence imposed is so excessive as to induce a sense of shock.