The State v Richard Chibaya and Prosper Shoko

Six accused persons were initially charged with stock theft. Four were acquitted. The first accused, Richard Chibaya, was convicted on seven counts of stock theft involving bovine animals stolen between 6 November and 30 November 2014, with cattle valued at approximately $8,000. The third accused, Prosper Shoko, was convicted on three counts of stock theft involving cattle valued at $2,900. The trial magistrate found no special circumstances and sentenced them pursuant to s 114(2)(e) of the Criminal Law (Codification and Reform) Act, which provides for a mandatory minimum sentence of nine years per count. Chibaya received a cumulative sentence of 63 years imprisonment. Shoko received a cumulative sentence of 27 years imprisonment. The matter came before the High Court on criminal review.

• Whether the cumulative sentences imposed by the trial magistrate were excessive
• Whether sentences for multiple counts of stock theft committed on the same day or in similar circumstances should run concurrently rather than consecutively
• Whether the magistrate properly applied s 343 of the Criminal Procedure and Evidence Act regarding concurrent sentences

The sentences were set aside and substituted. For Richard Chibaya (first accused): Counts 1, 2, 3, 4 and 5 (each with effective 9 years after suspensions) to run concurrently; Counts 6 and 7 (each with effective 9 years) to run concurrently with each other but consecutively to the first group. Total effective term: 18 years imprisonment (reduced from 63 years). For Prosper Shoko (third accused): Counts 3, 4 and 5 (each 9 years) to run concurrently. Total effective term: 9 years imprisonment (reduced from 27 years). The magistrate was directed to bring the altered sentences to the attention of the relevant authorities.

Where an accused is convicted of multiple counts of stock theft at one trial, each attracting a mandatory minimum sentence under s 114(2)(e) of the Criminal Law (Codification and Reform) Act, the court retains discretion under s 343(2) of the Criminal Procedure and Evidence Act to order that sentences run concurrently. Sentences for offences of similar nature and closely linked in time, particularly those committed on the same day, should ordinarily run concurrently to avoid an excessive cumulative sentence that fails to meet the justice of the case. The principle of proportionality requires that the total effective sentence be considered and rationalized, not merely that each individual count be sentenced within the prescribed range.

The court observed that the magistrate had conceded she could have made the sentences run concurrently but was unsure whether she could do so, highlighting a potential gap in understanding among magistrates regarding their sentencing powers. Tsanga J noted that there are two approaches to sentencing where multiple counts are involved: sentencing as one those similar in nature, or where counts are individually sentenced, ordering the sentences to run concurrently. The court emphasized that sentences on counts carrying minimum sentences "can, and often are made to run concurrently" (citing S v Pearce).

This case is significant in Zimbabwean sentencing jurisprudence as it clarifies that even where mandatory minimum sentences apply for stock theft under s 114(2)(e) of the Criminal Law (Codification and Reform) Act, courts retain discretion under s 343 of the Criminal Procedure and Evidence Act to order that sentences run concurrently where multiple counts are involved. The judgment demonstrates the importance of proportionality in sentencing and serves as a reminder that cumulative consecutive sentences must be considered in their totality to ensure they are not excessive and meet the justice of the case. It provides practical guidance on when concurrent sentences are appropriate: where offences are similar in nature and closely linked in time, particularly when committed on the same day.