THE State V TONY Munyangani

### Preamble
1
HH 725-17
CRB MUT R188/17
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THE STATE

and

TONY MUNYANGANI

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 30 October 2017

Review Judgment

MUREMBA J: The accused (61) was convicted of having sexual intercourse with a young person aged 14 years as defined in s 70 of the Criminal Law Code. He was convicted on his own plea. The conviction is proper and l hereby confirm it.

He was then sentenced to “12 years imprisonment” the reason being that he was HIV positive and was aware of it when he had sexual intercourse with the complainant. In imposing this sentence, the trial magistrate did not explain how she arrived at it. The sentence is wrong for the following reasons. For a contravention of s 70 of the Criminal Law Code the maximum prison term is 10 years. In terms of s 80 (1) of the same Act a person who is convicted of rape, aggravated indecent assault or having sexual intercourse with a young person and it is proved that at the time of the commission of the crime, the convicted person was infected with HIV, whether or not he or she was aware of his or her infection, he or she shall be sentenced to imprisonment for a period of not less than 10 years. Put differently, an HIV positive person who is convicted of rape, aggravated indecent assault or of having sexual intercourse with a young person is liable to receive a minimum mandatory sentence of 10 years imprisonment if it is proven that at the time he or she committed the offence he or she was infected with HIV. Whether or not he was aware of it, is immaterial.

Whilst this provision (s 80) gives this minimum mandatory sentence, it does not, however, give the maximum sentence that the court can impose. So what does this mean for the sentencing court? It means that in sentencing the offender or convicted person it is guided by the penalty provision for the offence the accused is convicted of. So s 80 (1) is read in conjunction with the relevant penalty provision. In casu s 80 is therefore read with the penalty provided for under section 70. The maximum prison term under s 70 being 10 years, it therefore means that an offender should not and cannot be sentenced to a prison term of more than 10 years. The minimum sentence under s 80 (1) being 10 years, what it means is that the offender is liable to a sentence of 10 years imprisonment. Ten years being the minimum mandatory sentence, nothing from this sentence can be conditionally suspended.

In view of the foregoing the learned regional magistrate misdirected herself by passing the sentence of 12 years imprisonment.

In the result, l hereby set aside the sentence and substitute it with the following sentence.

“10 years imprisonment.”

The accused should be recalled from prison and advised of his altered sentence.

Musakwa J agrees:…………………………