S v Guvheya (334 of 2024) [2024] ZWHHC 334 (7 August 2024)

HH 334-24 HCHCR 2958/24 THE STATE versus SIMBARASHE GUVHEYA HIGH COURT OF ZIMBABWE MUNGWARI J HARARE, 7 August 2024 REVIEW JUDGMENT W Badalane, for the applicant R Mutare, for the respondent MUNGWARI J: The proceedings in this matter were adjourned following the accused’s conviction for a sexual offence, in accordance with s54 of the Magistrates’ Court Act [Chapter7:10]. During the pre-sentencing hearing stage, it was brought to the attention of the trial magistrate that the offender suffers from Human Immunodeficiency Virus (HIV), which causes a condition known as Acquired Immunodeficiency Syndrome whose acronym is AIDS. He was HIV positive at the time he committed the offence he now stands convicted of. Taking into account his own ordinary sentencing jurisdiction of 5 years imprisonment or alternatively a fine not exceeding level 10, and that s 80 of the Criminal Law Codification and Reform Act [Chapter 9:23] (the Criminal Law Code)provides for a mandatory minimum sentence of 10 years imprisonment in the absence of special circumstances, the provincial magistrate in terms of s 54 (2) of the Magistrates Court Act [ Chapter 7:10 ] (the MCA), stopped the proceedings and submitted his report and the record of proceedings to the Prosecutor General. The Prosecutor General, in turn directed that the matter be referred to the High Court in terms of s 54 (2) of the MCA as read with s 225 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA). Acting in terms of s 227 of the CPEA the registrar of this court subsequently placed the record of proceedings before me for the sentencing of the offender.

HH 334-24 HCHCR 2958/24

[1] The powers of the High Court or a judge thereof in such instances as well as the procedures which must be followed when seized with a matter referred to it in terms of s 54(2) of the MCA are clearly spelled out in ss 227 and 228 of the CPEA. The provisions provide useful guidelines on how the court must proceed. They state the following: “227 Powers of judge in respect of case transferred to High Court for sentence.

(1) Upon receipt of the documents mentioned in subparagraph (ii) of paragraph ( c) of section two hundred and twenty-six , the registrar of the High Court shall with all convenient speed lay them before a judge in chambers and, if the judge considers the proceedings to be in accordance with real and substantial justice, he shall cause the accused to be brought before him in open court, on a date and at a place to be notified by the registrar to the accused and to the Prosecutor-General, to receive sentence in respect of the offence of which he was convicted by the magistrate or such other offence as the judge, in the exercise of the powers conferred upon him by section (2), has substituted for such first-mentioned offence.

(2) The judge may in respect of the proceedings exercise such of the powers conferred upon the High Court by subsections (1) and (2) of section 29 of the High Court Act [Chapter 7:06], as may be appropriate. 228 Sentence by judge When an accused is brought before a judge in terms of subsection (1) of section two hundred and twenty-seven, he shall not be called upon to plead to the charge but shall be dealt with as if he had been convicted by the High Court of the offence concerned.”

[2] From the above, it is clear that in dealing with such matters the court is required do the following: a. Review the proceedings to ensure that they are in accordance with real and substantial justice before proceeding to do anything b. Where necessary, exercise the review powers provided for in section 29 of the High Court Act [Chapter 7:06] c. If the proceedings are in accordance with real and substantial justice, the judge shall cause the offender to appear before him/her in court and thereafter undertake all the pre-sentencing procedures before sentencing the offender. Whether the proceedings are in accordance with real and substantial justice

[3] Simbarashe Guvheya a twenty three year old appeared before the Magistrate’s court in Chivhu on a charge of “contravening section 70 of the Criminal Law Codification and Reform Act [Chapter 9:23] as read with section 4 of the Presidential Powers(Temporary Measures) (Criminal Law (Protection of Children and young

HH 334-24 HCHCR 2958/24 Persons)) Regulations, 2024 of SI 2 of 2024”. On 7 March 2024 he was convicted on his own plea of guilty.

[4] The above charge is wrong. This court as per MUTEVEDZI J in the case of S v Bernice Chitsidza HH 258/24 dealt with a similar scenario and held that: “When the record of the above proceedings was placed before me for review, it occurred to me that the conviction could not have been entirely correct for one stand out reason. It is the citation of the charge. Where there is an amendment to a principal Act, what is charged is not the amendment but the amended Act itself. In legal parlance, an amendment refers to a formal or official change or alteration to the existing law. The purpose of most amendments to Acts of Parliament is to improve that law. It is done when it is considered better or convenient to do so than to write a new Act. The change is achieved by adding to, subtracting from, or wholly substituting some provisions. 1 The amending regulation or provision does not therefore create law. It simply adds to, subtracts from or substitutes the existing law. Once that happens, its purpose is over and must sink into oblivion. The only reference to the amending provision that is often found in the amended Act is some kind of a footnote that advises users that the provision was inserted by that amendment. In summary therefore and as EBRAHIM J (as he then was) held in the case of S v Mbewe and Ors 1988(1) ZLR 7(HC) where a charge alleges a contravention of a statutory provision which has been amended, it should allege a contravention of the principal Act rather than a contravention of the amending Act or Regulations. Put bluntly, it is unnecessary to refer in the charge to the amending Act or Regulations.”

[5] The same ailment afflicts the charge in this case. It was not necessary to read s 70 of the Criminal Law Code together with the Presidential Powers (Temporary Measures) Regulations which amended it to its current form. That unnecessary citation is not however fatal to the charge. Apart from that, I found that the trial magistrate meticulously explained all the essential elements of the offence and secured a genuine plea of guilty from the accused. Based on that, the trial court therefore correctly convicted the accused person of having sexual intercourse with a young person. By virtue of the powers reposed in this court by s 29 of the High Court Act [Chapter 7:06 ] the charge which the offender was convicted of is altered to read “contravening section 70 of the Criminal Law (Codification and Reform) Act. Thereafter, I have no qualms to certify as I hereby do, that the proceedings before the trial court were in accordance with real and substantial justice.

[6] Before scheduling the sentencing hearing, I noted the gravity of the situation in which the offender found himself in. He was facing imprisonment for a minimum mandatory ten years. It became clear that he needed legal assistance for me to 1 https://www.law.cornell.edu/wex/amend; accessed on 18 June 2024

HH 334-24 HCHCR 2958/24 properly deal with the matter and to ensure that all the relevant information was placed at my disposal. I therefore directed the registrar of this Court to appoint counsel to represent the offender. Pursuant to that order, Ms Mutare from the Legal Aid Directorate was appointed counsel for the offender. She took instructions from the offender and provided representation throughout. I am eternally grateful for her dedication to duty. Pre-sentencing hearing

[7] At the pre-sentencing hearing of the matter, the state informed the court that the offender has a previous conviction for physical abuse and for which he was sentenced to a wholly suspended term of 10 months imprisonment on condition of his future good behaviour. The offender acknowledged the existence of the previous conviction. With the consent of the defence, the prosecutor sought the admission of the certificate of previous convictions as an exhibit. I duly admitted it and it became Exhibit

1. The prosecutor argued that the previous conviction should be brought into effect as both offences involved abuse and are similar in nature. The defence however countered and argued that the offences are not similar. I will return to deal with the arguments later in the judgment.

[8] What is more important in my view is that the offence attracts a minimum mandatory sentence of ten years imprisonment. The offender does not deny that he is HIV positive. He does not deny that he was aware of his HIV status at the time that the offence was committed. It became obvious therefore that like in many other crimes where the minimum mandatory sentence can only be escaped from by establishing the existence of special circumstances, the starting point had to be an interrogation of the question of special circumstances. It had to precede the canvassing of all other general mitigation and aggravation.

[9] To establish the existence of special circumstances which she argued were present, Ms Mutare caused the offender to give oral testimony. She also presented a written document detailing the offender’s personal circumstances and urged the court to consider them as special circumstances.

[10] Ms Badalane, the state representative had opportunity to cross examine the offender. She tendered a variety of exhibits with the defences’ consent which included, the offenders HIV test results. She also tendered the complainants’ two test

HH 334-24 HCHCR 2958/24 results, one conducted on 1 March 2024 and the other conducted on 17 July 2024 (two days before this hearing). In both tests, the victim of this offence tested negative of HIV. The test result slips were admitted as Exhibit

2. Additionally, a victim impact statement from Diana Blessed Wood was presented (Exhibit 3) as well as supporting affidavits: one from the victim’s mother, Mavis Tanganayi (Exhibit 4) and another from the investigating officer Tonderai Chirandu (Exhibit 5). Both counsels then delivered their closing oral addresses. The following is the sentencing judgment that resulted from the pre-sentencing hearing:

[11] On 16 February, the victim, a sixteen-year-old female, left the farming compound in Wiltshire Chivhu where she lived, in search of a job. At around 6 pm the naïve and youthful girl encountered a twenty-three old tout (the offender) at Masasa business centre. He was a complete stranger to her but appeared helpful. Despite being unknown to her, he soon expressed his affection towards the victim, who reciprocated. They exchanged personal details and agreed to go to the offender’s residence. In the full knowledge of the victim’s age the offender engaged in unprotected sexual intercourse with her and with her consent. Driven by what they perceived as mutual love, they agreed that the complainant would live with the offender as his wife and resultantly engaged in more sexual encounters. In the process the victim conceived. Convinced that her problems were solved, the victim abandoned her plans to seek employment.

[12] Unfortunately, the blind and short-lived romance soon soured. Twelve days later, the victim sought relationship advice from the police at Masasa station. Upon learning of this illicit relationship and living arrangement the police apprehended the offender and arraigned him before a provincial magistrate sitting at Chivhu on a charge of contravening section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Having sexual intercourse with a young person). The offender subsequently pleaded guilty and was convicted as already stated above.

The Law

[13] Section 80 of the Criminal Law Code is couched as follows:

(1) Where a person is convicted of – (a)… (b)… or (c) sexual intercourse …with a young person involving any penetration of any part of his /her or another person’s body that incurs the risk transmission of HIV:

HH 334-24 HCHCR 2958/24 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 sentence to imprisonment for a period of not less than ten years. Provided that— (i) notwithstanding s 192, this subsection shall not apply to an incitement or conspiracy to commit any crime referred to in para (a), (b) or (c), nor to an attempt to commit any such crime unless the attempt involved any penetration of any part of the body of the convicted person or of another person’s body that incurs a risk of transmission of HIV; (ii) (ii) if a person convicted of any crime referred to in para (a), (b) or (c) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court, why the penalty provided under this subsection should not be imposed, the convicted person shall be liable to the penalty provided under s 65, 66 or 70 as the case may be.

[14] From the above, there is no argument that the burden to prove that an offender was at the time of the commission of the crime infected with HIV lies with the prosecution. In other words, the prosecutor must present evidence to the court showing that the convicted individual was HIV-positive when the sexual offence took place. Once that evidence is provided, it is presumed that the accused was aware of his HIV status at the material time. It does not matter whether he was or was not aware of his HIV status. In this case the state counsel tendered the offenders HIV results. They not only show that he was HIV positive but the offender himself admitted that he was aware at the material time of his HIV positive status. He stated that he had always been aware of his HIV status because he had been born with the virus. Both issues were therefore common cause. Once the offender confirmed that he exposed the complainant to HIV then the mandatory sentence specified in s 80 of the Criminal Law Code as shown above is triggered.

[15] Section 80 of the Criminal Law Code outlines the procedures and the sentences that may be imposed when a court convicts an accused of any of the specified offences listed therein and it is proved that the accused’s actions posed a risk of infecting the victim of the crime with HIV. In cases where the court determines that there are no special circumstances, its discretion in sentencing is constrained. It must impose the minimum mandatory ten years imprisonment. The offender can only avoid the minimum mandatory sentence if he satisfies the court that there are special circumstances peculiar to the case that justify deviating from

HH 334-24 HCHCR 2958/24 imposing the mandatory penalty. If the offender successfully establishes the presence of special circumstances, the court’s sentencing discretion under section 70 is restored.

[16] As already stated therefore the initial stage in evaluating a sentence for a charge related to having sexual intercourse with a young person where the offender may have exposed the complainant to the risk of transmission of HIV is for the court to determine whether there are special circumstances. The rationale behind this approach is clear and needs no explanation. See the cases of S v Mbewe 1998(1) ZLR and the case of S v Stephen Kambuzuma HH175/2015.

[17] In casu, the legislature provided for special circumstances which are peculiar to the case. That emphasis suggests a more expansive interpretation of the question of special circumstances, encompassing factors related to both how the offence was committed and the personal circumstances of the offender which should be special in nature. MUREMBA J dealt with the issue in S v Stephen Kambuzuma (supra) where she cited with approval the remarks of BEADLE J in the case of R v DA Costa Silva 1956 92) SA 173 (SR) that: “There is, to my mind, some difference between ‘a circumstance of the case’ and ‘a circumstance of the offence’. The Court is here dealing with the quantum of punishment, and in making a decision on this I think that any fact which might legitimately be considered as an aggravating or mitigating feature of the case must be regarded as ‘a circumstance of the case’, even though it may not be ‘a circumstance of the offence’. An example might perhaps best illustrate this point. If a very elderly man who is suffering from some chronic disease which requires special diet and specialised medical treatment were convicted of driving a car whilst not insured against third party risks, and if it were shown that a sentence of imprisonment would be likely to cause his death, it seems to me that this would be a proper factor which the court could take into account in imposing a sentence of a fine instead of a sentence of imprisonment, although it would be a circumstance ‘special’ to the offender, and not ‘special to the offence’.”