The State v Greatjoy Ndlovu

The accused, Greatjoy Ndlovu, aged 19, was charged with criminal trespass in contravention of section 132(1) and theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act. The accused trespassed into the complainant's yard under cover of darkness and stole a bicycle. He was arrested the following day when a potential buyer took both the cycle and the accused to the police station to have the cycle cleared. The accused pleaded guilty to both counts. The bicycle was recovered. The accused had a previous conviction (CRB VF 96/12) with a suspended sentence imposed on 27 February 2012 for 5 years on condition of good behaviour. The accused was allegedly severely assaulted by police during the investigation, sustaining injuries including a conjunctival haematoma in the left eye, a black spot around the left eye, and dysuria (painful urination).

• Whether the trial magistrate over-sentenced the accused by imposing 7 months imprisonment when section 132(1) provides a maximum of 6 months for criminal trespass
• Whether the trial magistrate erred in further suspending the previously suspended sentence for 4 years thereby extending the suspension period by 7 months and prejudicing the accused
• Whether the trial magistrate failed to comply with section 358(5) and (7) of the Criminal Procedure and Evidence Act by not inviting the accused to show cause why the previously suspended sentence should not be brought into operation
• The appropriate sentence when multiple dissimilar counts are taken as one for sentencing purposes

The sentence imposed by the trial magistrate was set aside and substituted with: Both counts taken as one for sentence - 6 months imprisonment. The previously suspended sentence imposed in CRB VF 96/12 is further suspended on the same conditions (without extension of the period). The proceedings were otherwise confirmed.

When multiple dissimilar counts are taken as one for sentencing purposes, the apex of the sentence imposed is necessarily limited to the maximum of the least statutory limit of one of those counts. Anything above that least statutory limit amounts to over-sentencing in respect of the offence with the least maximum sentence. A trial magistrate cannot alter or extend the period of a previously suspended sentence through recalculation as this prejudices the accused. When an accused has a previous conviction with a suspended sentence, the court must comply with section 358(5) and (7) of the Criminal Procedure and Evidence Act by inviting the accused to show cause why the suspended sentence should not be brought into operation.

The court noted with disquiet that it has become a common error by some trial magistrates to treat counts as one for sentence purposes and then proceed to over-sentence in respect of one of the counts. Trial magistrates were urged to always bear the correct principle in mind when adopting that course of sentencing. The court also noted that some trial magistrates still overlook the requirement of inviting the accused to show cause why a suspended sentence should not be brought into operation, despite the clear provisions of section 358(5) and (7). The court observed that the trial magistrate may have eschewed bringing the previously suspended sentence into operation on account of the brutal assault perpetrated upon the accused by the police, though the reasons for the police assault were not stated and the issue was not explored to its logical conclusion. The court commented that it would not be in the interest of justice to recall the accused to show cause after he had finished serving his sentence.

This case is significant for establishing important principles regarding sentencing in Zimbabwean criminal law, particularly: (1) the correct approach when taking multiple dissimilar counts as one for sentencing purposes - the maximum sentence is capped at the lowest statutory maximum among the counts; (2) the procedural requirements under section 358(5) and (7) of the Criminal Procedure and Evidence Act when dealing with previously suspended sentences; (3) that trial magistrates cannot unilaterally alter or extend the period of previously suspended sentences as this prejudices the accused; and (4) the importance of proper sentence calculation and adherence to statutory limits. The judgment serves as important guidance to magistrates on avoiding common sentencing errors.