[Update]Zimbabwe: High Court reduces jail sentence of man living with HIV from 13 years to 2 years

Appeal won

HIV+ man's jail term for infecting partner reduced

November 21, 2017
Source: The Chronicle

AN HIV positive man heaved a sigh of relief after the High Court reduced his 10-year sentence to two years for allegedly infecting his partner with the virus.

X (39) filed an appeal at the High Court against both conviction and sentence. X was jailed for 13 years by the Bulawayo Regional Court. Three years were suspended for five years on condition that he does not commit a similar offence.

Bulawayo High Court judge, Justice Nicholas Mathonsi, sitting with Justice Maxwell Takuva, dismissed the appeal against conviction, but upheld the appeal against the sentence. “Having regard to all those factors, the sentence imposed induces a sense of shock and calls for interference by this court especially as it is a fact that the appellant is now living with HIV. A lengthy prison term is therefore undesirable in those circumstances. The applicant needs to manage his condition clinically and subjecting him to a lengthy term serves no purpose,” said the judges.

“The sentence of the court a quo (lower court) is hereby set aside and in its place is substituted with a sentence of five years, of which three years imprisonment is suspended for five years on condition the appellant does not within that period commit any offence involving deliberately transmitting HIV for which upon conviction he is sentenced to imprisonment without the option of a fine.”

Mr Lizwe Jamela from the Zimbabwe Lawyers for Human Rights representing X argued that mitigating factors outweighed aggravatory ones. “The penal provision imposes a maximum prison sentence of 20 years even where there has been transmission of HIV. In this matter there was no transmission given that the complainant was HIV negative The appellant even requested a postponement of sentencing to cater for the window period but that was not given,” argued Mr Jamela.

He said his client was a first offender and had pleaded guilty and should have benefited from the guilty plea. Justice Mathonsi said he agreed with Mr Jamela that owing to modern medical developments in the world, HIV is now manageable and no longer poses the same scary risk that it did in the past.

X, a security guard with Umguza Rural District Council, was charged with deliberately transmitting HIV. The court heard that on October 26 last year, X intentionally had unprotected sexual intercourse with the complainant who is HIV negative, while aware that he was HIV positive, thereby exposing his partner to the virus.

Prior to that, his partner had on various accounts asked X that they must go to the New Start Centre for testing and he kept dodging.

“The following day, the complainant accompanied X to Erenkini long distance bus terminus where she asked to search his bag and discovered ARV pills. Upon questioning him, he told her that the pills belonged to his uncle who was in Nkayi,” read the papers.

The woman immediately made a report to the police leading to his arrest. X appealed against both the conviction and sentence.

In respect of conviction, X argued that the court did not properly explain the charge to him as an unrepresented person. He said the sentence imposed after having pleaded guilty was so severe as to induce a sense of shock.

Mr Thompson Hove appeared for the State.


Guard jailed 13 years for deliberate spread of HIV

November 7, 2016
Source: The Chronicle

AN HIV positive married security guard at Umguza Rural District Council was on Friday sentenced to 13 years in jail for deliberately having unprotected sex with his girlfriend.

X (39) of Douglasdale in Bulawayo was convicted on his own plea of guilty to deliberately transmitting HIV in contravention of section 79 (1)(a) of the Criminal Law (Reform and Codification) Act by Bulawayo regional magistrate Mrs Sibongile Marondedze.

He will serve an effective 10 years in jail after three years were suspended for five years on condition that he does not within that period commit a similar offence.

In passing the sentence, Mrs Marondedze said X committed a serious crime which warranted a lengthy prison term.

“You intentionally had unprotected sex with the complainant knowing that you were HIV positive. In fact, deliberately transmitting HIV is a serious offence that attracts up to 20 years imprisonment. Although the complainant tested HIV negative, the fact that you exposed her to the deadly virus or in doing so you realised that there was a risk or possibility of infecting her, is in itself a serious offence,” she said.

Mrs Marondedze described X as a heartless man who deserved to be removed from society.“A fine or community service is not a suitable sentence for such a serious offence. In the circumstances, a deterrent sentence is called for to deter would-be offenders from committing such monstrous crimes,” ruled the magistrate.

Prosecuting, Mr Tinashe Dzipe said on June 27 this year, the complainant met X at Egodini bus terminus and he proposed love to her and she agreed. The court heard that on October 2, X took advantage of his wife’s absence and invited his girlfriend to his house where they engaged in unprotected sex.

“After sex, the complainant suggested to the accused person that they go for HIV testing and X agreed. However, the accused kept procrastinating to go for the test until October 26 when the complainant visited him for the second time and they had another sexual encounter,” said Mr Dzipe. The following day, the complainant accompanied X to Renkini bus terminus and while on their way, the victim demanded to search her boyfriend’s bag. She stumbled upon a plastic bag which contained antiretroviral drugs and she quizzed Moyo.

“When the complainant confronted X, he initially lied to him that they belonged to his uncle in Nkayi. The inquisitive complainant continued to pester him until he confessed that he was on antiretroviral therapy,” said Mr Dzipe. The complainant reported the matter to the police leading to X’s arrest.

In mitigation, X pleaded for leniency, saying he was married and the breadwinner taking care of his wife and three minor children.