The State v Martin Gwarega

The accused, Martin Gwarega, was charged with three counts of stock theft involving three heifers which he stole from his employer. He sold the heifers to two different people and was subsequently arrested following a tip-off. He pleaded not guilty to all three counts but was convicted on all counts. The magistrate found no special circumstances and imposed sentences of 9 years imprisonment on each count, with the sentences in counts 1 and 2 to run concurrently.

• Whether the magistrate misdirected himself in making counts 1 and 2 run concurrently
• Whether making mandatory sentences run concurrently effectively reduces the sentences below the statutory minimum
• The proper approach to sentencing multiple counts of stock theft where mandatory minimum sentences apply

1. The conviction is confirmed. 2. The sentence is set aside. 3. The matter is referred back to the trial magistrate for the re-assessment of a suitable sentence.

Mandatory minimum sentences cannot be interfered with or reduced through the mechanism of making sentences run concurrently. Where a court orders mandatory sentences to run concurrently, this effectively means the accused has not been sentenced for all counts, which constitutes a misdirection. If a court wishes to mitigate the cumulative effect of multiple related offences attracting mandatory sentences, the proper approach is to treat closely related counts as one for sentencing purposes and add any remaining counts to achieve an appropriate overall sentence that respects the mandatory minimum requirements.

The court observed that the magistrate's concern about sentences being burdensome was understandable, but this did not justify circumventing mandatory sentencing provisions. The court implicitly recognized that there are legitimate ways to address concerns about overly harsh cumulative sentences while still respecting statutory mandatory minimums, namely by consolidating related counts for sentencing purposes.

This case clarifies the proper approach to sentencing in Zimbabwean criminal law where multiple counts attract mandatory minimum sentences. It establishes that courts cannot use concurrent sentencing to effectively circumvent or dilute mandatory minimum sentences prescribed by statute. The judgment provides guidance on the alternative approach where related counts should be consolidated and sentenced appropriately to give effect to the legislative intent behind mandatory sentencing provisions.