S v Ngwenya (HB 59 of 2017; HCA 171 of 2015; XREF HCB 151 of 2015) [2017] ZWBHC 59 (16 March 2017)

1 HB 59-17 HCA 171-15 XREF HCB 151-15 PERFECT NGWENYA versus THE STATE HIGH COURT OF ZIMBABWE MAKONESE AND MOYO JJ BULAWAYO 6 MARCH 2017 AND 16 MARCH 2017 Criminal Appeal K Dube for the appellant T Hove for the respondent MOYO J: The appellant in this matter was charged and convicted of “deliberate transmission of HIV” as defined in section 79(1) of the Criminal Code [Chapter 9:23]. He was sentenced to 8 years imprisonment of which 3 years imprisonment were suspended on condition of good behaviour. Dissatisfied with the court’s decision he now appeals against both conviction and sentence. The proven facts of the matter are that appellant tested positive for HIV on 26 June 2014. The affair between him and complainant had started prior to that date, that is in August 2013. Up to September 2014, the two engaged in unprotected sexual intercourse. Appellant did not between 26 June 2014 and September 2014, disclose his status to the complainant. The complainant herself had tested twice in 2012, prior to her relationship with appellant and she had been negative. The complainant stumbled on appellant’s HIV therapy tablets on 4 September 2014 whilst she was cleaning. The main ground of appeal was that the learned magistrate erred in convicting the appellant in the absence of evidence to sustain that charge. The offence of deliberate transmission of HIV per section 79(1) of the Code is committed where an accused knows that he is or she is infected with HIV or realizes that there is a risk of this and an accused intentionally does something or permits the doing of anything which he or she realizes involves a real risk of infecting the other. HB 59-17 HCA 171-15 XREF HCB 151-15 In this matter the undisputed evidence in the court record is that the appellant tested positive for HIV on 26 June 2014. He was duly counseled and given ART therapy. He hid the medication that he was given until complainant stumbled on it in September 2014. In the meantime, appellant did during that period have unprotected sexual intercourse with the complainant. It is therefore not clear what the appellant is at qualms with in this matter. It is common cause that the parties engaged in unprotected sex after 26 June 2014, the date the appellant became aware of his HIV positive status. The complainant gave this evidence and the appellant did not challenge it. He was bent on denying the date on which he became aware of his status in his defence. That is, he initially disputed having tested HIV positive on 26 June 2014 until records were produced and a police officer testified to that fact which he had obtained from Blanket Mine clinic. There is therefore no misdirection on the conviction of the appellant by the learned magistrate. Ad sentence The appellant decries the sentence of 8 years imprisonment 3 suspended on the usual conditions, as being excessive and inducing a sense of shock. There is unfortunately no case law on sentencing of offenders in HIV related offences. I will thus seek guidance from the penal provision in the Code. The penalty provision is imprisonment for a period not exceeding 20 years. Clearly where the legislature provides no option of a fine in the penal provision, the offence is considered a serious one in nature. Again the threshold given for a sentence not exceeding 20 years implies as well that the legislature considers that a long term of imprisonment is the appropriate penalty. This is rightly so considering that the deliberate infection of another with the HIV virus changes their whole life in a drastic way and could even affect their life expectancy. It does have serious and life changing consequences to the victim. However, there is the notion that a victim who also engages in unprotected sexual intercourse in this day and age without knowing the status of the partner is also taking a risk on his or her life. Especially where such sexual encounter is outside a marriage. There is also the principle that the penalty should fit the offence, and the offender. The personal circumstances of HB 59-17 HCA 171-15 XREF HCB 151-15 the appellant are that he is a first offender, and he is on HIV therapy as well as that he has hypertension. The offence definitely calls for a custodial sentence seeing the manner the legislature couched the penalty provision. It is the period of imprisonment that the court should determine. I hold the view that considering the personal circumstances of the appellant perhaps a sentence in the region of 3 years imprisonment would meet the justice of the case. I accordingly order as follows: 1) Conviction on the first count is confirmed. 2) The sentence on the first count is set aside and substituted as follows: The accused person is sentenced to 3 years imprisonment of which 1 year imprisonment is suspended for 5 years on condition the accused is not within that period convicted of contravening section 79 (1) of the Criminal Law Codification and Reform Act [Chapter 9:23]. Makonese J agrees…………………………………………….. Shenje and Companies, appellant’s legal practitioners National Prosecuting Authority, the respondent’s legal practitioners