The State v Tapiwa Sibanda and Moses Sibanda

Two accused persons, aged 34 and 28 years respectively, were convicted of multiple counts of unlawful entry into premises and theft. Between 23 February and 8 April 2017, the accused persons went on a spree of unlawful entry into people's homes, stealing a variety of household goods and effects. In one instance, they broke into the residence of a police officer residing in police quarters. The first accused was not a first offender and held a relevant previous conviction involving theft. The magistrate convicted and sentenced them but made a mathematical error in calculating the total sentence, resulting in 80 months instead of the intended 78 months. Prison officers discovered the anomaly upon the accused persons' admission to prison, and the magistrate forwarded the matter for review to correct the error.

• Whether the trial magistrate's sentence calculation was correctly structured
• Whether the approach of treating multiple counts separately for sentencing purposes was appropriate
• Whether the effective sentences imposed were in accordance with real and substantial justice
• Whether a globular sentence or separate sentences should be imposed in cases involving multiple counts

The court confirmed the proceedings as being in accordance with real and substantial justice and corrected the sentence as follows: For Accused 1 (Tapiwa Sibanda): Counts 1-3 to run concurrently (30, 24, and 12 months); Counts 4-6 to run concurrently (12, 12, and 48 months); total of 78 months imprisonment with 6 months suspended on condition of compensation of $221.50 to complainants by 30 June 2017; effective sentence of 72 months imprisonment. For Accused 2 (Moses Sibanda): Same structure totaling 78 months with 6 months suspended on condition of compensation of $221.50 by 30 June 2017, and a further 6 months wholly suspended for 5 years on condition of no further offences involving dishonesty/unlawful entry; effective sentence of 66 months imprisonment.

Where multiple counts are involved in a criminal matter, the power to impose a globular sentence must be exercised in appropriate circumstances and only if the sentencing court, in the exercise of its unfettered discretion, considers it necessary to do so. The approach of treating counts separately for sentencing purposes is preferable because if on appeal or review a count standing alone is set aside, there would be no difficulty in separating the sentence in respect of each individual count. The High Court has jurisdiction under section 57 of the Magistrates' Act to correct mathematical errors in sentences on review where the trial magistrate's reasoning and approach are sound but an arithmetical mistake has occurred.

The court made observations about the disturbing frequency with which the accused persons, aged 34 and 28 years respectively, had committed the offences of unlawful entry and theft over a brief period. The court noted the brazenness of the accused in breaking into a police officer's residence in police quarters. The court emphasized that only a custodial sentence was deemed appropriate given the circumstances, particularly where one accused had a relevant previous conviction for theft. The trial magistrate's apology for the error and the fact that prison officers discovered the anomaly upon admission demonstrated the importance of careful sentence calculation.

This case demonstrates the importance of accurate sentence calculation in criminal matters and the review jurisdiction of the High Court to correct mathematical errors made by magistrates' courts. It also provides guidance on sentencing methodology in cases involving multiple counts, confirming that treating counts separately is a preferable approach as it facilitates easier separation if any count is set aside on appeal or review. The case reinforces the principle that custodial sentences are appropriate for repeat offenders engaged in systematic property crimes such as unlawful entry and theft.