The State v Mkhululi Dlodlo

The accused appeared before a senior magistrate at Tsholotsho facing 3 counts of unlawful entry and 3 counts of theft. On 25 June 2017, the accused went on a spree of housebreakings at Mavava Line Homestead at Tsholotsho. On three different occasions, the accused broke into premises and stole goods comprising takkies, money and cellphones with a total value of R1,630. The accused pleaded guilty to all charges and was convicted. He was a family man and showed contrition. He had a previous conviction, though the operative suspended portion was not brought into operation as it referred to dishonesty as an element and did not cover unlawful entry. The trial magistrate sentenced the accused by clustering the offences, imposing a total sentence of 9 years imprisonment, of which 2 years was suspended for 5 years on the usual conditions of good behaviour.

• Whether the sentence of 9 years imprisonment for unlawful entry and theft involving goods valued at R1,630 was excessive and induced a sense of shock
• Whether the trial magistrate's approach of clustering offences for sentencing purposes was appropriate
• Whether the trial magistrate misdirected himself in imposing sentence by failing to properly consider mitigating factors
• What the appropriate sentencing approach is when an accused is convicted of multiple offences

1. The conviction is upheld. 2. The sentence is set aside and substituted with the following: Count 1 and 2 - 12 months imprisonment; Count 3 and 4 - 12 months imprisonment; Count 5 and 6 - 12 months imprisonment. Of the total 36 months imprisonment, 6 months imprisonment is suspended for 5 years on condition the accused is not within that period convicted of an offence involving unlawful entry and theft and for which he is sentenced to a term of imprisonment without the option of a fine.

Where an accused is convicted of two or more offences, it is preferable that he should be sentenced separately for each offence, especially where the offences are entirely different. A reasonable sentence can be determined by deciding upon a reasonable sentence for each offence and then scaling down the sentences if the cumulative effect renders the total unreasonable. A sentence that induces a sense of shock, is out of line with similar cases, and is excessive in relation to the value involved and circumstances of the case constitutes a misdirection that entitles the court on review to interfere with the sentence. Proper consideration must be given to mitigating factors including guilty pleas, and an accused should be treated as a first-time offender where a previous conviction is found not to be relevant to the current offences.

The court observed that while globular sentences had received judicial approval in South Africa in a number of cases, the practice in England was to enter up judgment and sentence separately on each count. The court noted that in the vast majority of cases no practical advantage results from imposing a globular sentence. The court also noted that the trial magistrate's finding that the accused showed an unrepentant attitude and disregard for the law was inconsistent with the earlier finding that the accused was contrite and had pleaded guilty, suggesting internal contradictions in the trial magistrate's reasoning.

This case is significant in Zimbabwean criminal sentencing jurisprudence as it reinforces important principles regarding appropriate sentencing methodology when dealing with multiple offences. It emphasizes that clustering or globular sentencing must be approached with caution and that sentences must remain proportionate to the offences committed. The case demonstrates the appellate court's willingness to interfere with manifestly excessive sentences that induce a sense of shock, even on review. It also highlights the importance of properly weighing mitigating factors, including guilty pleas and treating accused persons fairly regarding previous convictions. The judgment provides guidance on when sentences are considered to be out of line with comparable cases and what constitutes a misdirection in sentencing.