The State v Lovemore Imbayarwo

On 31 January 2013, at Musengi Bobby Show Farm outside Gweru, the complainant, a 23-year-old pregnant married woman, was visiting her husband. Around 6-7pm, after her husband left to fetch water, she went outside to use the toilet. The accused approached her, inquiring about her husband's whereabouts and claiming to have brought tobacco. He then grabbed her, threw her down, throttled her by the neck, carried her away from the house and raped her once. After the rape, the accused took the complainant's Nokia 1202 cellphone but returned the SIM card when she pleaded for it. He threatened to kill her if she told anyone. The complainant reported the incident to her aunt where her husband was. The accused was arrested that night, and the cellphone was recovered from his premises upon search.

• Whether the essential elements of robbery were established on the evidence
• Whether it was appropriate to treat two distinct offences (rape and robbery) as one for the purposes of sentencing
• Whether the evidence supported a conviction of theft rather than robbery
• Whether section 129(1) of the Criminal Law (Codification and Reform) Act requirements for robbery were met

(1) The conviction on the charge of rape is confirmed and the accused is sentenced to 12 years imprisonment with labour. (2) The conviction on the charge of robbery is set aside. (3) The accused is convicted of theft of a cellphone and is sentenced to 6 months imprisonment with labour.

The binding legal principles established are: (1) For a conviction of robbery under section 129(1) of the Criminal Law (Codification and Reform) Act, there must be clear evidence of threats of immediate violence used to obtain property - a threat that violence will be used immediately if control over property is not surrendered. Casual evidence that property was taken without consent, without clear proof of the manner of taking or use of immediate threats of violence, will only support a conviction for theft. (2) It is inappropriate and undesirable to treat serious offences such as rape and robbery as one for the purposes of sentence, even where they are closely connected in time and space. Each serious count attracting lengthy imprisonment should be sentenced separately on its own merits. (3) Courts on review have the power to substitute appropriate convictions and sentences where the evidence supports a lesser offence than that for which the accused was convicted.

MAKONESE J observed that while there is no rule absolutely forbidding the treatment of closely connected offences as one for sentencing purposes, this approach is "not advisable or desirable in respect of serious offences such as rape and robbery." The judge noted that such an approach creates practical difficulties where one conviction is set aside on appeal or review, as it forces the appellate court to exercise wide discretion and apply value judgment to determine appropriate sentence for the remaining count. The court also noted, following S v Banda 1984 (1) ZLR 96, that the approach of treating counts as one for sentence is usually more appropriate for less serious offences, and that it is wrong to treat as one for sentence counts which are separated in time and place. The court emphasized it is also inappropriate to impose individual sentences on individual counts merely to arrive at an appropriate aggregate sentence.

This case is significant in Zimbabwean criminal law for establishing important principles regarding: (1) the proper distinction between robbery and theft, particularly the requirement under section 129(1) of the Criminal Law (Codification and Reform) Act that robbery requires threats of immediate violence; (2) the impropriety of treating serious offences as one for sentencing purposes, especially where they carry lengthy prison sentences; (3) the exercise of review powers where trial magistrates adopt inappropriate sentencing approaches; and (4) the requirement that each serious criminal count be treated separately on its own merits in sentencing.