Court orders fresh sentencing in HIV risk case
The High Court has nullified the sentence imposed on a Chitungwiza man convicted of engaging in sexual activity with a minor, ruling that the trial magistrate failed to follow statutory sentencing procedures and exceeded her jurisdiction.
The ruling, handed down by Justice Joel Mambara — sitting with Justice Regis Dembure on automatic review —concerned the case of 27-year-old man, who was convicted under section 70 (1) (a) of the Criminal Law (Codification and Reform) Act for having consensual intimacy with a 16-year-old girl.
Both the assailant and the complainant are HIV-positive, a factor which activates mandatory sentencing provisions under Section 80 of the Act.
The Chitungwiza magistrate had sentenced the assailant to 14 months in prison, with four months suspended, leaving an effective 10-month term.
However, the High Court found that this sentence was irregular because the magistrate failed to conduct the legally required inquiry into whether “special circumstances” existed to justify departing from the 10-year statutory minimum sentence mandated by Section 80.
Justice Mambara said the magistrate not only overlooked the mandatory inquiry, but also acted outside her jurisdiction by sentencing on an offence carrying a mandatory minimum beyond the powers of an ordinary magistrate.
“A magistrate cannot assume greater powers simply because an offence carries a heavy mandatory sentence,” he ruled.
“The matter ought to have been referred to a higher court for sentencing if no special circumstances were found.”
The court stressed that section 80 requires a minimum of 10 years’ imprisonment in cases involving the risk of HIV transmission unless the accused demonstrates special circumstances.
In this case, no such inquiry was made.
Justice Mambara further noted that when faced with such offences, magistrates must refer sentencing to a higher court if no special circumstances are established.
While confirming the assailant’s conviction, the High Court quashed the sentence and ordered that the matter be remitted to the magistrates’ court for sentencing afresh.
The lower court was directed to give the assailant an opportunity to present evidence or arguments on special circumstances, with the prosecution entitled to respond.
If no special circumstances are found, the man must be sentenced to the mandatory 10 years’ imprisonment.
If they are established, the court may impose a lesser sentence under section 70.
Justice Mambara underlined the need for strict compliance with statutory procedures in cases involving mandatory sentences, warning that failure to conduct an inquiry into special circumstances amounts to a serious procedural irregularity.
