The State v Tutsirai Tobaiwa Makoni and Others (Two Cases)

Two related criminal matters involving Tutsirai Tobaiwa Makoni came before the court on review. In MTK 293-5/16, Makoni appeared with two co-accused charged with two counts of unlawful entry into premises in contravention of s131(1)(a) as read with subsection 2(e) of the Criminal Law Codification and Reform Act Chapter 9:23. All accused pleaded guilty and were convicted. Makoni had two previous convictions for unlawful entry dating back to 2010. The third accused had two previous convictions from 2013, including suspended sentences. Property worth $350 was stolen and all was recovered. The first and third accused were sentenced to 6 years imprisonment each, and the second accused to 5 years imprisonment. In MTK 271-72/16, Makoni was jointly tried with Revai Sagombeto for another count of unlawful entry. They stole property valued at $300, with $290 recovered. Makoni was sentenced to 6 years imprisonment and his co-accused to 5 years imprisonment. The same previous convictions were produced in both matters.

• Whether the trial magistrate followed proper procedure in admitting and considering previous convictions before sentencing
• Whether the magistrate adequately recorded the procedure for putting previous convictions to the accused
• Whether the magistrate properly exercised discretion regarding suspended sentences from previous convictions
• Whether the sentences imposed were excessive and induced a sense of shock
• Whether the magistrate provided adequate reasons for sentence, particularly regarding treatment of previous convictions

The sentences in both matters were set aside and substituted. In MTK 293-95/16: Accused 1 and 3 were sentenced to 5 years imprisonment; Accused 2 was sentenced to 4 years imprisonment. In MTK 271-72/16: Accused 1 was sentenced to 5 years imprisonment; Accused 2 was sentenced to 4 years imprisonment.

The binding legal principles established are: (1) Previous convictions must be formally put to accused persons and their admission or denial recorded in the court record; (2) The court's approach to previous convictions and the weight placed on them must be clearly articulated in the reasons for sentence; (3) Where previous convictions include suspended sentences, the court must explain whether and why they are being brought into effect or disregarded; (4) Every document produced and placed in the record during proceedings must have a trail and its production must be recorded; (5) The procedure for admitting previous convictions requires the prosecutor to advise the court, put them to the accused, obtain admission or denial, and where relevant, apply for suspended sentences to be brought into effect; (6) A review court may interfere with sentencing discretion where sentences are excessive and induce a sense of shock, particularly where no basis is laid for stringent sentences and they are not in line with sentences in similar cases.

The court made several non-binding observations: (1) Previous convictions should not be admitted into the record "for mere decoration" but must be properly utilized; (2) It is not in every case where previous convictions are acknowledged that a court must bring suspended sentences into effect - the court has discretion; (3) Even stale or expired previous convictions have a bearing on sentence and ought to be produced if relevant; (4) Factors to consider include the seriousness and prevalence of the crime, the number of previous convictions, how long ago the offence was committed, and the intervals at which offences were committed; (5) For unlawful entry cases, sentences range between 3-4 years imprisonment for first offenders in similar circumstances; (6) The court noted that while unlawful entry is a prevalent and serious offence, this alone does not justify excessive sentences without considering mitigating factors such as recovery of stolen property.

This case is significant in Zimbabwean criminal procedure for establishing clear guidelines on the proper procedure for admitting and considering previous convictions in sentencing. It emphasizes the importance of: (1) properly recording all proceedings relating to previous convictions; (2) formally putting previous convictions to accused persons and recording their response; (3) providing clear reasons for how previous convictions influenced the sentence; (4) explaining why suspended sentences are or are not brought into effect; and (5) ensuring sentences are proportionate and in line with established ranges. The case serves as an important reminder to magistrates that procedural regularity in dealing with previous convictions is not merely technical but essential to fair sentencing, and that review courts will intervene where sentences induce a sense of shock.