S v Tembo (R 36 of 2005; REF CRB BYO R 35 of 2005) [2015] ZWHHC 146 (28 January 2015)

S v Tembo (R 36 of 2005; REF CRB BYO R 35 of 2005) [2015] ZWHHC 146 (28 January 2015)

The trial magistrate erred by not treating the two robbery counts as one for sentencing purposes in CRB R 36/05, resulting in an excessive cumulative sentence. However, sentences from separate trials cannot be ordered to run concurrently. The sentence for the firearms offence must stand due to the mandatory minimum.

Citation
[2015] ZWHHC 146
Parties
Appellant: Herman Phillip Tembo; Respondent: The State
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
28 January 2015
Case Number
R 36 of 2005 ; REF CRB BYO R 35 of 2005
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
Appeal partially allowed
Legal Topics
Sentencing, Concurrent Sentences, Robbery, Theft, Firearms Offences
Source Language
English
Criminal Law Sentencing Concurrent Sentences Robbery Theft Firearms Offences

Case Brief

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Parties

Herman Phillip Tembo

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether sentences from two separate trials should run concurrently
  2. 2 Whether the trial magistrate erred in treating two robbery counts separately for sentencing
  3. 3 Whether the cumulative sentence was excessive

Ratio Decidendi

The trial magistrate erred by not treating the two robbery counts as one for sentencing purposes in CRB R 36/05, resulting in an excessive cumulative sentence. However, sentences from separate trials cannot be ordered to run concurrently. The sentence for the firearms offence must stand due to the mandatory minimum.

Court Disposition

Appeal partially allowed

Orders

  • Sentence in CRB R 35/05 confirmed: 6 years imprisonment, 2 years suspended for 5 years, effective 4 years imprisonment.
  • In CRB R 36/05, counts 1 and 2 (robbery) treated as one for sentence: 12 years imprisonment, 5 years suspended for 5 years, count 3 (firearms) 5 years imprisonment.