Court orders fresh sentencing in HIV risk case

The High Court has overturned the sentence of a Chitungwiza man convicted of engaging in sexual activity with a minor, ruling that the trial magistrate failed to follow mandatory sentencing procedures and exceeded her jurisdiction.

The case involved a 27-year-old man 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 accused and the complainant are HIV-positive, a circumstance which triggers mandatory sentencing provisions under Section 80 of the Act.

The Chitungwiza magistrate had imposed a 14-month sentence, with four months suspended, leaving an effective term of 10 months. However, Justices Joel Mambara and Regis Dembure, sitting on automatic review, found the sentence 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.

Justice Mambara emphasised that the magistrate not only overlooked this mandatory step but also acted beyond her jurisdiction by sentencing in a matter carrying a statutory minimum sentence beyond the powers of an ordinary magistrate.

"A magistrate cannot assume greater powers simply because an offence carries a heavy mandatory sentence," Justice Mambara ruled. "The matter ought to have been referred to a higher court for sentencing if no special circumstances were found."

The court confirmed the man's conviction but quashed the sentence, ordering the case back to the magistrates' court for fresh sentencing. The lower court must now give the accused an opportunity to present evidence of special circumstances, while the prosecution may respond.

If no special circumstances are established, the man faces the mandatory 10-year prison term under Section 80. If such circumstances are found, the court may impose a lesser sentence under Section 70.

Justice Mambara stressed the importance of strict adherence to statutory procedures in cases involving mandatory minimums, warning that failure to conduct inquiries into special circumstances constitutes a serious procedural irregularity.