The State v Edward Bhedha Makiwa and Pressmore Mukoni

The two accused persons, both aged 18 years and unemployed from Zvishavane, were convicted of three counts of robbery committed on 17 November 2017. Acting with two other accomplices (who were convicted separately), they committed the following offences: In count one, they intercepted Martin Kadzimu, a police officer, at about 2000 hours near Delta Beverages in Zvishavane, grabbed him by the neck, threatened him with a machete, and stole a Samsung cellphone, a mobiwire cellphone, and a black wallet containing $14-00 and various cards, valued at $400-00. In count two, they accosted Fidelis Nyamazana along Drinkwater Street, grabbed him by the neck, and stole two cellphones and a wallet containing his national identity card and bank card, worth $463-00 (property worth $363-00 was recovered). In count three, they robbed Nobert Shava of a Huawei 535 cellphone valued at $360-00 which was never recovered. Both accused pleaded guilty. The magistrate at Zvishavane convicted them and imposed sentences totalling an effective 8 years and 8 months imprisonment with minimal suspensions on condition of restitution.

• Whether the aggregate sentence of 8 years and 8 months imprisonment was excessive and induced a sense of shock
• Whether the magistrate properly exercised discretion in sentencing youthful first offenders
• Whether the magistrate properly applied principles of sentencing where there are multiple counts closely connected in time
• Whether suspending extremely small portions of a heavy sentence on condition of restitution serves any meaningful purpose
• Whether a mathematical or tariff approach to sentencing is appropriate in cases involving multiple counts

The convictions were confirmed. The sentences were set aside and substituted as follows: (a) Counts 1 and 2 treated as one: 3 years imprisonment of which 1 year suspended for 5 years on condition of good behaviour (no offence involving violence); (b) Count 3: 24 months imprisonment of which 12 months suspended for 5 years on condition of good behaviour (no offence involving violence); (c) Of the remaining 3 years, 1 year suspended on condition each accused restitutes $200-00 to Martin Kadzimu (count 1) and $180-00 to Nobert Shava (count 2) by 30 April 2018. Effective sentence: 2 years imprisonment.

Where an accused is convicted of multiple counts of offences closely connected in time and circumstance, a court should avoid a purely mathematical or tariff approach to sentencing whereby the same sentence is imposed for each count, as the aggregate sentence may be so excessive as to induce a sense of shock. Courts should either: (1) impose a globular sentence treating all related counts as one for purposes of sentence; or (2) determine appropriate sentences for each count and then palliate the severity of the aggregate by ordering some counts to run concurrently. Suspensions of sentence on condition of restitution must be substantial enough to provide meaningful incentive to the accused to pay restitution and meaningful benefit to the complainant; suspending extremely small portions of otherwise heavy sentences serves no purpose. Youthful first offenders who plead guilty must be sentenced with proper regard to their age and rehabilitative prospects, and should not receive disproportionately harsh sentences that would apply to mature offenders. A sentencing court must give real effect to mitigating factors and not merely pay lip service to them.

Mathonsi J observed that magistrates should avoid by all means suspending extremely small portions of an otherwise very heavy sentence on condition of restitution when it is obvious that the accused person serving a long term of imprisonment will have no incentive whatsoever to pay restitution under those circumstances. The judge commented that to be meaningful and benefit an accused person, a suspension on condition of restitution must substantially reduce the sentence so that it will entice the accused to restitute and derive benefit. The court noted that while robbery invariably attracts a custodial sentence, each case must be looked at on its own facts and circumstances. The judge also observed that there was an element of suggestibility in that the accused may have been influenced by the other two co-accused whose ages were not given, and that any doubt should have been for the benefit of the accused persons. The state did not challenge that part of the mitigation, and it was possible the other two could have been the principal offenders.

This case is significant in Zimbabwean sentencing jurisprudence as it provides important guidance on: (1) the dangers of adopting a purely mathematical or tariff approach to sentencing in cases involving multiple counts, which can result in aggregate sentences that are grossly excessive and induce a sense of shock; (2) the principle that suspensions on condition of restitution must be substantial enough to provide meaningful incentive to the accused and benefit to the complainant; (3) the proper treatment of youthful first offenders who plead guilty, emphasizing that they should not be punished like mature offenders and should not be destroyed by disproportionately lengthy prison terms; (4) the application of the principles for sentencing multiple counts that are closely connected in time and circumstance, following S v Tadzembwa, S v Nyathi, S v Chirwa and S v Sifuya; and (5) the importance of giving real effect to mitigating factors rather than merely paying lip service to them. The case reinforces that sentencing must be individualized, proportionate, and serve the broader purposes of justice rather than being a mechanical exercise in arithmetic.