Mabvumba v State (404 of 2025) [2025] ZWHHC 404 (7 July 2025)

6 HH 404-2025 CASE HCHCR 4637/24 MARTIN MABVUMBA versus THE STATE HIGH COURT OF ZIMBABWE DUBE JP & FOROMA J HARARE, 28 January 2025 & 07 July 2025 Criminal Appeal Appellant in person Ms. L Chitanda, for the respondent DUBE JP Introduction On 28 January 2025, we heard an appeal brought by the appellant challenging sentences imposed in a case involving 5 counts of robbery as defined in s126 and another of rape as defined in terms of s65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the Code. The appellant pleaded not guilty to the charges, was convicted by a Gweru magistrate after a full trial and sentenced to an effective 43 years imprisonment. He appealed against the sentence imposed. After hearing argument, we dismissed the appeal and gave brief reasons for our decision. We have since been requested for detailed reasons for the order granted. These are they: Background Facts The allegations in count 1 are that on 20 July 2015, the appellant was driving a Toyota Corolla from Kwekwe, he stopped at Kaguvi Training Centre and offered a lift to Fari Mildred, the complainant. Just after he passed the Gweru – Kwekwe tollgate, the appellant, turned right into a dust road. He produced a knife, threatened the complainant with death and demanded her cell phone and cash. The complainant surrendered USD$20.00 and her cell phone. After this, he drove off leaving the complainant at the scene of crime. The value of the stolen property is USD$120.00 and the cellphone valued at USD$100.00 was recovered. The allegations in respect of counts 2 and 3 are that on 22 July 2015, the appellant was driving a Toyota Corolla vehicle when he gave a lift to the complainant, Nyasha Norah Musariranwa from Armtec Gweru to Kwekwe. Just before the Gweru-Kwekwe tollgate, the appellant turned left into a dust road, produced a knife, threatened the complainant with death and demanded that she surrender her cell phone and US$14.00 cash which she did. The appellant forcibly took the complainant’s cellphone and cash, forced the complainant to have unprotected sexual intercourse with him without her consent. After the rape the appellant drove back to Gweru leaving the complainant at the scene of crime. The value of the stolen property is USD$114.00. The knife allegedly used and cell phone valued at USD$100.00 was recovered.In count 4, the allegations are that on 23 July 2015, the appellant was driving along the Gweru-Shurugwi Road when he gave a lift to Rumbidzai Chanyau who was going to Masvingo. Just before he reached the Gweru-Shurugwi tollgate, he turned right into a dust road, stopped and produced a small iron bar, threatened the complainant with death and demanded cash and a cell phone. The complainant surrendered her cell phone and USD $14.00 cash. The appellant drove off leaving the complainant at the scene of crime. The value of the stolen goods is USD $164.00 and USD $150.00 was recovered. In count 5, the allegations are that on 23 July 2015, the appellant was driving a Toyota Corolla towards Shurugwi from Gweru when he offered a lift to Felistus Moyo at the Cathedral Hall. He drove past Flame Lily, turned into a dust road, produced an unknown object and hit the complainant on the head with it. The complainant managed to open the car door and fell out of the moving car leaving a bag containing clothes in appellant’s car. The value of the stolen property is USD$650.00 and property worth USD$120.00 was recovered. The complainant in count 6 is Linia Nkiwane. On 24 July 2015, the appellant was driving a Toyota Corolla when he stopped at Armtec Garage in Gweru and offered a lift to the complainant who was going to Kwekwe. At the Gweru-Kwekwe tollgate the appellant turned left into a dust road. Whilst there, he held the complainant by the neck whilst holding a knife, threatened her with death and took her USD $3.00 cash, a bag containing clothes and a cell phone. The value of the stolen goods is USD435.00 and property worth USD$432.00 was recovered. Court a quo’s reasons for sentence The appellant pleaded not guilty to all counts and was convicted and sentenced as follows: “Count 1-10 years imprisonment Count 2 &3 treated as one -15 years imprisonment Count 4 -10 years imprisonment Count 5 -10 years imprisonment, 2 years of which is suspended on condition accused restitutes $530.00 to complainant Count 6 -10 years imprisonment” Nothing turns on the conviction. The appellant’s gripe is with the sentences imposed by the court a quo. In considering the appropriate sentence, the court a quo found it aggravating that the appellant stood convicted of 6 very serious offences using dangerous weapons, traumatised all his victims by instilling fear and distress in them. In addition, the court also found it aggravating that appellant raped one of his victims and found his degree of moral blameworthiness very high and warranting severe censure from the court. In his favour the court a quo considered that he was aged 31 years, a first offender and that in most counts, the amounts stolen were minimal and did not order restitution in respect thereof. In count 5, a portion of the sentence imposed was suspended on condition of restitution. In counts 1, 4, 5 and 6, he was sentenced individually and counts 2 and 3 were treated as one for purposes of sentence. A cumulative total of 53 years imprisonment sentence was imposed, with 10 years’ imprisonment being suspended on the usual conditions leaving an effective 43 years imprisonment. Aggrieved, the appellant appealed to this court on the basis of the following grounds: “Grounds of appeal The court a quo erred in imposing a harsh sentence of a total of 43 years imprisonment mitigating in its reasons that the magistrate was emotional and used overblown language giving the impression that the sentence is to tag society and would be offenders to be deterredThe trial court allowed its emotions to cloud its judgment as to what is a suitable sentence as it is so apparent that the Magistrate was carried away by his emotions ended up exaggerating the seriousness of the offence to the extent of imposing a disappropriate penalty for the offence, Harrington 1988 (2) ZLR 344(S)The Court a quo failed the sentencing guidelines enunciated in S v Chibaya and another HH243/16, Honourable Tsanga underscored the need to make concurrently given the similarity in nature and proximity in time in their commission of some of the countsThe court a quo failed justice when it failed to take note and or realise the affinity and or closeness of the counts of similar nature, some committed on the same day and area, a fact which ought to have persuaded it to order them to run concurrentlyThe court erred on a point of law in its sentencing discretion when it failed to comply with the provisions of section 279 A of the Code chapter 9:23, to either order the sentences to run concurrently or to have reached a sentence which could have been arrived at had some counts ordered to run concurrentlyThus, the severe and shocking sentence of 43 years is testament to the court a quo’s failure to fully recognise and appreciate the appellant’s status as a first offender’’ The appellant’s grounds of appeal pose a number of challenges. The court raised issues regarding the propriety of the appellant’s grounds of appeal. The following shortcomings with the grounds of appeal were highlighted to the appellant: Ground of appeal no. 1 is not clear and concise and does not make it clear what sentiments are challenged. Ground no. 2 falls into the same predicament. The impugned conduct is not clear from the ground and is too general and not concise. On the authority of this see Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division). Grounds of appeal must be concise, clear and not repetitive. Order 31 (1) (4) (b) of the Magistrates Court (Civil) Rules, 2019, provides that a notice of appeal or cross-appeal shall state in the grounds of appeal concisely the findings of fact or rulings of law appealed against. Ground no 2 also impugns the emotions of the court a quo and is therefore repetitive. Grounds of appeal nos 3, 4, and 5 deal with the court a quo's alleged error in failing to order the sentences imposed to run concurrently and are repetitive. In addition, they are couched in the form of heads of argument to the extent of citing supporting case authorities. The appellant was not able to advance any meaningful response regarding the propriety or otherwise of the grounds of appeal resulting in counsel for the State Ms Chitanda, suggesting that the appeal proceed on the basis of the grounds filed as the appellant is a self-actor as she was able to discern the issues as raised by the grounds. Issues for determination We resolved in the exercise of our discretion, to consider whether the court a quo misdirected itself by not ordering that all the sentences imposed run concurrently as articulated underground of appeal no. 4. Secondly, whether the court a quo failed to place sufficient weight on the fact that the appellant was a first offender thereby imposing sentences that are harsh and excessive. Submissions before this court The appellant submitted that the court a quo misdirected itself and failed justice by imposing a harsh sentence contending that the court a quo should have made the sentences run concurrently given the similarity of the cases and the proximity in time in the commission of the offences. In addition, he submitted that the court a quo failed to consider that no firearm was used and that he was a first offender resulting in it imposing a sentence that is shockingly excessive. The respondent defended the appeal and submitted that the sentences imposed by the trial court are appropriate in the circumstances and do not induce a sense of shock. Ms Chitanda submitted that the offences are serious, were committed in aggravating circumstances considering that the appellant used dangerous weapons and that there was premeditation justifying the imposition of deterrent sentences. The law Section 126(2) of the Code stipulates as follows: “(2) A person convicted of robbery shall be liable (a) to imprisonment for life or any shorter period, if the crime was committed in aggravating circumstances as provided in subsection (3); or (b) in any other case (i) to a fine not exceeding level fourteen or not exceeding twice the value of the property that forms the subject of the charge, whichever is the greater; or (ii) to imprisonment for a period not exceeding fifty years; Or both: Provided that a court may suspend the whole or any part of a sentence of imprisonment imposed for robbery on condition that the convicted person restores any property stolen by him or her to the person deprived of it or compensates such person for its loss.” Section 126(3) creates the offence of robbery committed in aggravating circumstances as one where the convicted person or an accomplice possessed a firearm or a dangerous weapon, inflicted or threatened to inflict serious bodily injury upon any person or killed a person warranting imposition of sentences prescribed in s 126(2). A dangerous weapon in the context of armed robbery may be defined as a firearm, replica of a firearm or any other object that imitates a lethal weapon or has potential to harm or to induce submission. Serious injury is threatened where use of dangerous weapons is resorted to in order to induce a victim of a robbery into submission. Aggravating circumstances help a court to define the degree of violence, a factor which helps to assess an appropriate sentence. A person convicted of robbery committed in aggravating circumstances is in terms of s 126(2) liable to be imprisoned for life or any shorter period depending on the circumstances of the case. The sentencing guidelines provide for a presumptive sentence of 20 years for robbery committed in aggravating circumstances. Where a robbery is committed in aggravating circumstances where a dangerous weapon is used, it has different consequences for sentence than a case where no weapon was used to induce submission in a robbery.For serious offences such as aggravated robbery, a sterner approach is called for even for first youthful offenders. In S v Kufandada HH 233/24 the court stated thus: “The rampant nature of robbery offences warrants a less lenient approach to sentencing, even when mitigating factors like youthfulness are present. This is why I question the decision by the learned regional magistrate to impose 10 years’ imprisonment and suspend 4 years thereof in light of the presumptive penalty of 20 years’ imprisonment. By not imposing 12 years when she had jurisdiction to do so, and by suspending a significant portion of the sentence she imposed on condition of future good behavior, the magistrate’s approach was overly lenient. Her sentencing decision did not adequately reflect the severity of the offence, the aggravating circumstances and the presumptive penalty. It raises concerns about the balance between mitigating factors and the need for appropriate punishment in cases of robbery committed in aggravating circumstances.’’ Section 343 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for concurrent or cumulative sentences and stipulates as follows: “343 Cumulative or concurrent sentences When a person is convicted at one trial of two or more different offences or when a person under sentence or undergoing punishment for one offence is convicted of another offence, the court may sentence him to such several punishments for such offences or for such last offence, as the case may be, as the court is competent to impose.” Reliance by the appellant on s 279 of the Criminal Procedure and Evidence Act [Chapter 9:07] as authority for the proposition that the court a quo ought to have imposed concurrent sentences for all counts in terms of this section is misplaced as it provides for concurrent and alternative charges. The approach to sentencing in cases involving multiple counts is well settled. In Murambiwa v S HB108/10, the court said the following of concurrent sentences: “It is now an established principle in our law that: Where a person is convicted of multiple counts, the court should either take all counts as one for the purposes of sentence; or Impose an appropriate sentence for each count.” See also S v Maruta HH 123/22, where the court said the following of concurrent sentences; “In essence, it is indeed competent to sentence for each count but it is also equally competent for a sentencing court to direct that sentences run concurrently. Where a court desires to impose an exemplary sentence, indeed one way of doing so is by making sentences run consecutively particularly where the offence is grave and prevalent, even if similar.” 19. Section 343 reposes on the court wide discretionary powers on what approach to take and does not bar passing of individual sentences for each count. There must be a need to impose concurrent sentences. Consequently, it is not a misdirection for a court to elect to sentence accused facing cases involving multiple counts for each count. All that a court has to be wary of is that it imposes a just and fair sentence. The case of Murambiwa v The State supra articulates the rationale for imposition of concurrent sentences as follows: “The rationale of this approach is that courts should come up with sentences which should be fair and just to both the offender and the offended. Courts should guard against the common error of imposing sentences which are so excessive to an extent of leaving an accused with nothing to look forward to upon release. The courts should, at all times, bear in mind that whatever sentence it imposes on an accused, should at least leave him with some residue of dignity as opposed to relegating him to self-pity. See S v Sifuya 2002 (2) 437 (H). Courts are, therefore, encouraged to allow sentences to run concurrently where there is a need to do so. See S v Chirwa HH79-94. To buttress this reasoning, which is aimed at bringing in some normalcy in sentencing, our courts now distinguish sentences for crimes of a violent nature from those involving non-violence. See S v Nyahuna and Another HH135-03.” See S v Chibaya HH243/16. It is not every case of multiple counts that calls for imposition of concurrent sentences. Concurrent or cumulative sentences are only permissible where the offences are the same or of a similar nature. It is undesirable to impose concurrent sentences in serious offences such as rape and robbery, see S v Imbayarwo HH 53/13, where the court remarked thus: “Whilst I agree that there is no rule forbidding the treating of closely connected offences as one for the purposes of sentence, ideally this is not advisable or desirable in respect of serious offences such as rape and robbery. Both offences usually attract lengthy prison sentences and as such the proper approach is to impose separate sentences for each count. In the instant case both the state outline and the complainant’s own evidence on oath do not specifically reveal that any violence or threats of evidence preceding the taking of the cellphone. The evidence clearly shows that after the rape the accused stole cellphone. …. With due respect to the learned Magistrate, the approach he adopted in sentencing is usually correct where the offences are not serious’’ Concurrent sentences are usually appropriate where the offences arise out of the same incident or same facts. The offences must have been closely connected in terms of time and place of occurrence. In Imbayarwo, the court cited with approval sentiments expressed by WADDINGTON J in S v Banda 1984 (1) ZLR at p 96, where the court stated that it is wrong to treat as one for sentence counts which are separated in time and place. Seriousness of the offence has a bearing on whether sentences should be made to run concurrently. It is undesirable for sentences in serious offence to run concurrently. Application of the law to the factsIn casu, the appellant committed 5 counts of robbery using dangerous weapons and in the course of one robbery, raped a complainant. Robbery committed in aggravating circumstances is a prevalent and serious offence and is a reprehensible offence because of use of dangerous weapons and threats of violence to induce submission. The appellant went on a robbery spree to rob complainants of their valuable property. The offences were premeditated and meticulously planned with three taking place along the Gweru-Kwekwe Road and two along the Gweru-Shurugwi Road and within a space of 5 and almost on a daily basis. His moral blameworthiness is quiet clearly very high. The court a quo was alive to the fact that the appellant was both a youthful first offender and did not use firearms in the commission of the crimes. The appellant benefited from his youthfulness and being a first offender as reflected in a total suspended sentence of 10 years from the total 53 years. Looking at the circumstances of the commission of the offences, the appellant must count himself lucky that counts 2 and 3 involving rape and robbery were treated as one for purposes of sentence. A conviction of rape in aggravating circumstances on its own ordinarily attracts a sentence of at least 15 years imprisonment. In casu, the court a quo sentenced the appellant based on individual counts, suspended a portion in count 5 on condition of restitution. Of the total sentence imposed, he suspended 10 years on the usual conditions. We were not persuaded by the appellant’s plea to interfere with the sentence and order that they run concurrently. Four of the robbery counts the appellant was convicted of do not arise out of the same incident or facts and are widely separated in time and place. They being serious offences, the trial court cannot be faulted for deciding to treat them as individual counts for purposes of sentence. No real relationship was shown to exist between the offences save that they were of a similar nature and the same modus operandi was used. Whilst the robbery and rape in count 2 and 3 are closely connected in terms of the time and place, they are two very separate and distinct serious offences. The approach adopted by the trial court of treating counts 2 and 3 may not have been desirable for this reason. Notably, the appellant benefitted from that approach as the counts of robbery and rape were taken as one for purposes of sentence.In S v Maruta HH 123 /22 the accused was found cutting TelOne communication drop wires and found in possession of cables. He was convicted of two counts of contravening s 89 (4) (b) and (5) of the Postal and Telecommunications Act, [Chapter 12:05]. In the third count, he was found in possession scrap copper rewinds and convicted of contravening s10 of the Copper Control Act [Chapter14:06]. He was sentenced to the minimum mandatory sentence of 10 years for the first count, 5 years for the second count and 12 years imprisonment for the third count. On review, the court held that counts 1 and 2 ought to have been treated as one for sentencing because the offence was one or similar in nature. Secondly that the offences were closely linked in time and arose out of the same transaction of going around stealing telephone wires. This case is distinguishable from the one in casu as the appellant was convicted of prevalent and serious offences which did not arise from the same transaction and were not closely linked in time and place. The individual sentences imposed are not excessive and are way below the presumptive sentence of 20 years for robbery committed in these circumstances. The sentences of 10 years for each count of robbery are extremely lenient when one has regard to the aggravating circumstances of this case. Sentences of 20 years with portions suspended on the usual conditions would have met the justice of the case. Having sentenced the appellant in the manner the court did, it would have been inappropriate for the sentences to order the sentences to run concurrently for the 6 counts as that would have yielded an undesirable sentence of 10 years imprisonment. The sentences imposed on the appellant are in our view appropriate. They are neither harsh nor do they induce a sense of shock. The appellant should count himself lucky that he got away with lenient sentences. We found no misdirection on the part of the court a quo which exercised its discretion judiciously. The sentences imposed are not disproportionate to the offences he was convicted of. An appellate court will not interfere with the sentencing discretion of a trial court unless it is shown that the court acted on a wrong principle or that the sentence imposed is too excessive and out of line with cases of a similar nature. In Gonamombe & Anor v State HH51/23 the court held that: “The guiding principle in an appeal against a sentence is that where the sentence is not vitiated by irregularity or misdirection, an appellate court only interferes with the sentencing discretion of a trial court where the sentence is not only severe but is so excessive as to be disturbingly inappropriate. The test is whether the sentence is shocking, in other words, whether there is a striking disparity between the sentence passed and that the appellate court would have imposed had it been in the position of the trial court.” See also S v Chimbo HH 56/15. In Predom Investments Pvt Ltd & 2 Ors v State HH32/15; S v Shepherd Shambare and Others HH 65/18. There being no misdirection on the part of the court a quo, we found no basis for interfering with the sentences imposed by the court a quo and dismissed the appeal. DUBE JP: ………………………………………………………. FOROMA J: ……………………………………………..Agrees National Prosecuting Authority, respondent’s legal practitioners 6 HH 404-2025 CASE HCHCR 4637/24 6 HH 404-2025 CASE HCHCR 4637/24 MARTIN MABVUMBA versus THE STATE HIGH COURT OF ZIMBABWE DUBE JP & FOROMA J HARARE, 28 January 2025 & 07 July 2025 Criminal Appeal Appellant in person Ms. L Chitanda, for the respondent DUBE JP Introduction On 28 January 2025, we heard an appeal brought by the appellant challenging sentences imposed in a case involving 5 counts of robbery as defined in s126 and another of rape as defined in terms of s65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the Code. The appellant pleaded not guilty to the charges, was convicted by a Gweru magistrate after a full trial and sentenced to an effective 43 years imprisonment. He appealed against the sentence imposed. After hearing argument, we dismissed the appeal and gave brief reasons for our decision. We have since been requested for detailed reasons for the order granted. These are they: Background Facts The allegations in count 1 are that on 20 July 2015, the appellant was driving a Toyota Corolla from Kwekwe, he stopped at Kaguvi Training Centre and offered a lift to Fari Mildred, the complainant. Just after he passed the Gweru – Kwekwe tollgate, the appellant, turned right into a dust road. He produced a knife, threatened the complainant with death and demanded her cell phone and cash. The complainant surrendered USD$20.00 and her cell phone. After this, he drove off leaving the complainant at the scene of crime. The value of the stolen property is USD$120.00 and the cellphone valued at USD$100.00 was recovered. The allegations in respect of counts 2 and 3 are that on 22 July 2015, the appellant was driving a Toyota Corolla vehicle when he gave a lift to the complainant, Nyasha Norah Musariranwa from Armtec Gweru to Kwekwe. Just before the Gweru-Kwekwe tollgate, the appellant turned left into a dust road, produced a knife, threatened the complainant with death and demanded that she surrender her cell phone and US$14.00 cash which she did. The appellant forcibly took the complainant’s cellphone and cash, forced the complainant to have unprotected sexual intercourse with him without her consent. After the rape the appellant drove back to Gweru leaving the complainant at the scene of crime. The value of the stolen property is USD$114.00. The knife allegedly used and cell phone valued at USD$100.00 was recovered. In count 4, the allegations are that on 23 July 2015, the appellant was driving along the Gweru-Shurugwi Road when he gave a lift to Rumbidzai Chanyau who was going to Masvingo. Just before he reached the Gweru-Shurugwi tollgate, he turned right into a dust road, stopped and produced a small iron bar, threatened the complainant with death and demanded cash and a cell phone. The complainant surrendered her cell phone and USD $14.00 cash. The appellant drove off leaving the complainant at the scene of crime. The value of the stolen goods is USD $164.00 and USD $150.00 was recovered. In count 5, the allegations are that on 23 July 2015, the appellant was driving a Toyota Corolla towards Shurugwi from Gweru when he offered a lift to Felistus Moyo at the Cathedral Hall. He drove past Flame Lily, turned into a dust road, produced an unknown object and hit the complainant on the head with it. The complainant managed to open the car door and fell out of the moving car leaving a bag containing clothes in appellant’s car. The value of the stolen property is USD$650.00 and property worth USD$120.00 was recovered. The complainant in count 6 is Linia Nkiwane. On 24 July 2015, the appellant was driving a Toyota Corolla when he stopped at Armtec Garage in Gweru and offered a lift to the complainant who was going to Kwekwe. At the Gweru-Kwekwe tollgate the appellant turned left into a dust road. Whilst there, he held the complainant by the neck whilst holding a knife, threatened her with death and took her USD $3.00 cash, a bag containing clothes and a cell phone. The value of the stolen goods is USD435.00 and property worth USD$432.00 was recovered. Court a quo’s reasons for sentence The appellant pleaded not guilty to all counts and was convicted and sentenced as follows: “Count 1-10 years imprisonment Count 2 &3 treated as one -15 years imprisonment Count 4 -10 years imprisonment Count 5 -10 years imprisonment, 2 years of which is suspended on condition accused restitutes $530.00 to complainant Count 6 -10 years imprisonment” Nothing turns on the conviction. The appellant’s gripe is with the sentences imposed by the court a quo. In considering the appropriate sentence, the court a quo found it aggravating that the appellant stood convicted of 6 very serious offences using dangerous weapons, traumatised all his victims by instilling fear and distress in them. In addition, the court also found it aggravating that appellant raped one of his victims and found his degree of moral blameworthiness very high and warranting severe censure from the court. In his favour the court a quo considered that he was aged 31 years, a first offender and that in most counts, the amounts stolen were minimal and did not order restitution in respect thereof. In count 5, a portion of the sentence imposed was suspended on condition of restitution. In counts 1, 4, 5 and 6, he was sentenced individually and counts 2 and 3 were treated as one for purposes of sentence. A cumulative total of 53 years imprisonment sentence was imposed, with 10 years’ imprisonment being suspended on the usual conditions leaving an effective 43 years imprisonment. Aggrieved, the appellant appealed to this court on the basis of the following grounds: “Grounds of appeal The court a quo erred in imposing a harsh sentence of a total of 43 years imprisonment mitigating in its reasons that the magistrate was emotional and used overblown language giving the impression that the sentence is to tag society and would be offenders to be deterred The trial court allowed its emotions to cloud its judgment as to what is a suitable sentence as it is so apparent that the Magistrate was carried away by his emotions ended up exaggerating the seriousness of the offence to the extent of imposing a disappropriate penalty for the offence, Harrington 1988 (2) ZLR 344(S) The Court a quo failed the sentencing guidelines enunciated in S v Chibaya and another HH243/16, Honourable Tsanga underscored the need to make concurrently given the similarity in nature and proximity in time in their commission of some of the counts The court a quo failed justice when it failed to take note and or realise the affinity and or closeness of the counts of similar nature, some committed on the same day and area, a fact which ought to have persuaded it to order them to run concurrently The court erred on a point of law in its sentencing discretion when it failed to comply with the provisions of section 279 A of the Code chapter 9:23, to either order the sentences to run concurrently or to have reached a sentence which could have been arrived at had some counts ordered to run concurrently Thus, the severe and shocking sentence of 43 years is testament to the court a quo’s failure to fully recognise and appreciate the appellant’s status as a first offender’’ The appellant’s grounds of appeal pose a number of challenges. The court raised issues regarding the propriety of the appellant’s grounds of appeal. The following shortcomings with the grounds of appeal were highlighted to the appellant: Ground of appeal no. 1 is not clear and concise and does not make it clear what sentiments are challenged. Ground no. 2 falls into the same predicament. The impugned conduct is not clear from the ground and is too general and not concise. On the authority of this see Songono v Minister of Law and Order 1996 (4) SA 384 (Eastern Cape Division). Grounds of appeal must be concise, clear and not repetitive. Order 31 (1) (4) (b) of the Magistrates Court (Civil) Rules, 2019, provides that a notice of appeal or cross-appeal shall state in the grounds of appeal concisely the findings of fact or rulings of law appealed against. Ground no 2 also impugns the emotions of the court a quo and is therefore repetitive. Grounds of appeal nos 3, 4, and 5 deal with the court a quo's alleged error in failing to order the sentences imposed to run concurrently and are repetitive. In addition, they are couched in the form of heads of argument to the extent of citing supporting case authorities. The appellant was not able to advance any meaningful response regarding the propriety or otherwise of the grounds of appeal resulting in counsel for the State Ms Chitanda, suggesting that the appeal proceed on the basis of the grounds filed as the appellant is a self-actor as she was able to discern the issues as raised by the grounds. Issues for determination We resolved in the exercise of our discretion, to consider whether the court a quo misdirected itself by not ordering that all the sentences imposed run concurrently as articulated underground of appeal no. 4. Secondly, whether the court a quo failed to place sufficient weight on the fact that the appellant was a first offender thereby imposing sentences that are harsh and excessive. Submissions before this court The appellant submitted that the court a quo misdirected itself and failed justice by imposing a harsh sentence contending that the court a quo should have made the sentences run concurrently given the similarity of the cases and the proximity in time in the commission of the offences. In addition, he submitted that the court a quo failed to consider that no firearm was used and that he was a first offender resulting in it imposing a sentence that is shockingly excessive. The respondent defended the appeal and submitted that the sentences imposed by the trial court are appropriate in the circumstances and do not induce a sense of shock. Ms Chitanda submitted that the offences are serious, were committed in aggravating circumstances considering that the appellant used dangerous weapons and that there was premeditation justifying the imposition of deterrent sentences. The law Section 126(2) of the Code stipulates as follows: “(2) A person convicted of robbery shall be liable (a) to imprisonment for life or any shorter period, if the crime was committed in aggravating circumstances as provided in subsection (3); or (b) in any other case (i) to a fine not exceeding level fourteen or not exceeding twice the value of the property that forms the subject of the charge, whichever is the greater; or (ii) to imprisonment for a period not exceeding fifty years; Or both: Provided that a court may suspend the whole or any part of a sentence of imprisonment imposed for robbery on condition that the convicted person restores any property stolen by him or her to the person deprived of it or compensates such person for its loss.” Section 126(3) creates the offence of robbery committed in aggravating circumstances as one where the convicted person or an accomplice possessed a firearm or a dangerous weapon, inflicted or threatened to inflict serious bodily injury upon any person or killed a person warranting imposition of sentences prescribed in s 126(2). A dangerous weapon in the context of armed robbery may be defined as a firearm, replica of a firearm or any other object that imitates a lethal weapon or has potential to harm or to induce submission. Serious injury is threatened where use of dangerous weapons is resorted to in order to induce a victim of a robbery into submission. Aggravating circumstances help a court to define the degree of violence, a factor which helps to assess an appropriate sentence. A person convicted of robbery committed in aggravating circumstances is in terms of s 126(2) liable to be imprisoned for life or any shorter period depending on the circumstances of the case. The sentencing guidelines provide for a presumptive sentence of 20 years for robbery committed in aggravating circumstances. Where a robbery is committed in aggravating circumstances where a dangerous weapon is used, it has different consequences for sentence than a case where no weapon was used to induce submission in a robbery. For serious offences such as aggravated robbery, a sterner approach is called for even for first youthful offenders. In S v Kufandada HH 233/24 the court stated thus: “The rampant nature of robbery offences warrants a less lenient approach to sentencing, even when mitigating factors like youthfulness are present. This is why I question the decision by the learned regional magistrate to impose 10 years’ imprisonment and suspend 4 years thereof in light of the presumptive penalty of 20 years’ imprisonment. By not imposing 12 years when she had jurisdiction to do so, and by suspending a significant portion of the sentence she imposed on condition of future good behavior, the magistrate’s approach was overly lenient. Her sentencing decision did not adequately reflect the severity of the offence, the aggravating circumstances and the presumptive penalty. It raises concerns about the balance between mitigating factors and the need for appropriate punishment in cases of robbery committed in aggravating circumstances.’’ Section 343 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for concurrent or cumulative sentences and stipulates as follows: “343 Cumulative or concurrent sentences When a person is convicted at one trial of two or more different offences or when a person under sentence or undergoing punishment for one offence is convicted of another offence, the court may sentence him to such several punishments for such offences or for such last offence, as the case may be, as the court is competent to impose.” Reliance by the appellant on s 279 of the Criminal Procedure and Evidence Act [Chapter 9:07] as authority for the proposition that the court a quo ought to have imposed concurrent sentences for all counts in terms of this section is misplaced as it provides for concurrent and alternative charges. The approach to sentencing in cases involving multiple counts is well settled. In Murambiwa v S HB108/10, the court said the following of concurrent sentences: “It is now an established principle in our law that: Where a person is convicted of multiple counts, the court should either take all counts as one for the purposes of sentence; or Impose an appropriate sentence for each count.” See also S v Maruta HH 123/22, where the court said the following of concurrent sentences; “In essence, it is indeed competent to sentence for each count but it is also equally competent for a sentencing court to direct that sentences run concurrently. Where a court desires to impose an exemplary sentence, indeed one way of doing so is by making sentences run consecutively particularly where the offence is grave and prevalent, even if similar.” 19. Section 343 reposes on the court wide discretionary powers on what approach to take and does not bar passing of individual sentences for each count. There must be a need to impose concurrent sentences. Consequently, it is not a misdirection for a court to elect to sentence accused facing cases involving multiple counts for each count. All that a court has to be wary of is that it imposes a just and fair sentence. The case of Murambiwa v The State supra articulates the rationale for imposition of concurrent sentences as follows: “The rationale of this approach is that courts should come up with sentences which should be fair and just to both the offender and the offended. Courts should guard against the common error of imposing sentences which are so excessive to an extent of leaving an accused with nothing to look forward to upon release. The courts should, at all times, bear in mind that whatever sentence it imposes on an accused, should at least leave him with some residue of dignity as opposed to relegating him to self-pity. See S v Sifuya 2002 (2) 437 (H). Courts are, therefore, encouraged to allow sentences to run concurrently where there is a need to do so. See S v Chirwa HH79-94. To buttress this reasoning, which is aimed at bringing in some normalcy in sentencing, our courts now distinguish sentences for crimes of a violent nature from those involving non-violence. See S v Nyahuna and Another HH135-03.” See S v Chibaya HH243/16. It is not every case of multiple counts that calls for imposition of concurrent sentences. Concurrent or cumulative sentences are only permissible where the offences are the same or of a similar nature. It is undesirable to impose concurrent sentences in serious offences such as rape and robbery, see S v Imbayarwo HH 53/13, where the court remarked thus: “Whilst I agree that there is no rule forbidding the treating of closely connected offences as one for the purposes of sentence, ideally this is not advisable or desirable in respect of serious offences such as rape and robbery. Both offences usually attract lengthy prison sentences and as such the proper approach is to impose separate sentences for each count. In the instant case both the state outline and the complainant’s own evidence on oath do not specifically reveal that any violence or threats of evidence preceding the taking of the cellphone. The evidence clearly shows that after the rape the accused stole cellphone. …. With due respect to the learned Magistrate, the approach he adopted in sentencing is usually correct where the offences are not serious’’ Concurrent sentences are usually appropriate where the offences arise out of the same incident or same facts. The offences must have been closely connected in terms of time and place of occurrence. In Imbayarwo, the court cited with approval sentiments expressed by WADDINGTON J in S v Banda 1984 (1) ZLR at p 96, where the court stated that it is wrong to treat as one for sentence counts which are separated in time and place. Seriousness of the offence has a bearing on whether sentences should be made to run concurrently. It is undesirable for sentences in serious offence to run concurrently. Application of the law to the facts In casu, the appellant committed 5 counts of robbery using dangerous weapons and in the course of one robbery, raped a complainant. Robbery committed in aggravating circumstances is a prevalent and serious offence and is a reprehensible offence because of use of dangerous weapons and threats of violence to induce submission. The appellant went on a robbery spree to rob complainants of their valuable property. The offences were premeditated and meticulously planned with three taking place along the Gweru-Kwekwe Road and two along the Gweru-Shurugwi Road and within a space of 5 and almost on a daily basis. His moral blameworthiness is quiet clearly very high. The court a quo was alive to the fact that the appellant was both a youthful first offender and did not use firearms in the commission of the crimes. The appellant benefited from his youthfulness and being a first offender as reflected in a total suspended sentence of 10 years from the total 53 years. Looking at the circumstances of the commission of the offences, the appellant must count himself lucky that counts 2 and 3 involving rape and robbery were treated as one for purposes of sentence. A conviction of rape in aggravating circumstances on its own ordinarily attracts a sentence of at least 15 years imprisonment. In casu, the court a quo sentenced the appellant based on individual counts, suspended a portion in count 5 on condition of restitution. Of the total sentence imposed, he suspended 10 years on the usual conditions. We were not persuaded by the appellant’s plea to interfere with the sentence and order that they run concurrently. Four of the robbery counts the appellant was convicted of do not arise out of the same incident or facts and are widely separated in time and place. They being serious offences, the trial court cannot be faulted for deciding to treat them as individual counts for purposes of sentence. No real relationship was shown to exist between the offences save that they were of a similar nature and the same modus operandi was used. Whilst the robbery and rape in count 2 and 3 are closely connected in terms of the time and place, they are two very separate and distinct serious offences. The approach adopted by the trial court of treating counts 2 and 3 may not have been desirable for this reason. Notably, the appellant benefitted from that approach as the counts of robbery and rape were taken as one for purposes of sentence. In S v Maruta HH 123 /22 the accused was found cutting TelOne communication drop wires and found in possession of cables. He was convicted of two counts of contravening s 89 (4) (b) and (5) of the Postal and Telecommunications Act, [Chapter 12:05]. In the third count, he was found in possession scrap copper rewinds and convicted of contravening s10 of the Copper Control Act [Chapter14:06]. He was sentenced to the minimum mandatory sentence of 10 years for the first count, 5 years for the second count and 12 years imprisonment for the third count. On review, the court held that counts 1 and 2 ought to have been treated as one for sentencing because the offence was one or similar in nature. Secondly that the offences were closely linked in time and arose out of the same transaction of going around stealing telephone wires. This case is distinguishable from the one in casu as the appellant was convicted of prevalent and serious offences which did not arise from the same transaction and were not closely linked in time and place. The individual sentences imposed are not excessive and are way below the presumptive sentence of 20 years for robbery committed in these circumstances. The sentences of 10 years for each count of robbery are extremely lenient when one has regard to the aggravating circumstances of this case. Sentences of 20 years with portions suspended on the usual conditions would have met the justice of the case. Having sentenced the appellant in the manner the court did, it would have been inappropriate for the sentences to order the sentences to run concurrently for the 6 counts as that would have yielded an undesirable sentence of 10 years imprisonment. The sentences imposed on the appellant are in our view appropriate. They are neither harsh nor do they induce a sense of shock. The appellant should count himself lucky that he got away with lenient sentences. We found no misdirection on the part of the court a quo which exercised its discretion judiciously. The sentences imposed are not disproportionate to the offences he was convicted of. An appellate court will not interfere with the sentencing discretion of a trial court unless it is shown that the court acted on a wrong principle or that the sentence imposed is too excessive and out of line with cases of a similar nature. In Gonamombe & Anor v State HH51/23 the court held that: “The guiding principle in an appeal against a sentence is that where the sentence is not vitiated by irregularity or misdirection, an appellate court only interferes with the sentencing discretion of a trial court where the sentence is not only severe but is so excessive as to be disturbingly inappropriate. The test is whether the sentence is shocking, in other words, whether there is a striking disparity between the sentence passed and that the appellate court would have imposed had it been in the position of the trial court.” See also S v Chimbo HH 56/15. In Predom Investments Pvt Ltd & 2 Ors v State HH32/15; S v Shepherd Shambare and Others HH 65/18. There being no misdirection on the part of the court a quo, we found no basis for interfering with the sentences imposed by the court a quo and dismissed the appeal. DUBE JP: ………………………………………………………. FOROMA J: ……………………………………………..Agrees National Prosecuting Authority, respondent’s legal practitioners