On 24 February 2021, the accused stole two cell phones from two different patrons who were revelling at Nyamuziwa Night Club at Patchway, Kadoma. From one of the complainants, the accused additionally stole a tracksuit jacket. The accused was convicted by the magistrate at Kadoma on 15 March 2021 on two counts of theft as defined in s 113 of the Criminal Law (Codification & Reform) Act. The accused was sentenced to 8 months imprisonment of which 2 months was suspended for 5 years on condition of good behaviour and 4 months was suspended on condition of performing 140 hours of community service, leaving 2 months of the sentence unaccounted for.
The conviction on both counts of theft was confirmed. The sentence was altered: the words '8 months' were deleted and replaced with 'Both counts taken as one, 6 months' with the rest of the sentence remaining unchanged. The trial court records were ordered to be corrected to reflect this change and the accused was to be advised accordingly.
On review of criminal proceedings, when a trial magistrate makes a mathematical error in sentencing that if corrected would result in a more severe sentence for the accused, the reviewing court must exercise its power under s 29(2)(b)(ii) of the High Court Act to substitute a sentence that does not exceed the one previously imposed, in order not to prejudice the accused. A substituted sentence on review should not be more severe than the original sentence imposed by the trial court.
The court observed that it was proper to treat two counts of theft as one for purposes of sentence where both offences were committed at the same place on the same night. The court also noted that it is competent on review to substitute a different sentence from the one imposed, subject to the limitation that the substituted sentence should not exceed that previously imposed.
This case demonstrates important principles regarding the correction of sentencing errors on review in Zimbabwean criminal law. It establishes that while courts have power on review to correct mathematical and technical errors in sentencing, such corrections must not result in the accused being subject to a more severe sentence than originally imposed. The case reinforces the protective approach taken toward accused persons in review proceedings, ensuring that procedural corrections do not inadvertently prejudice their rights. It also illustrates the proper treatment of multiple counts committed in the same circumstances as one for sentencing purposes.