Auxilia Katongomara, Chronicle Reporter
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.
Nevison Mpofu (39) filed an appeal at the High Court against both conviction and sentence.
Mpofu 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 Mpofu 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.
Mpofu, a security guard with Umguza Rural District Council, was charged with deliberately transmitting HIV.
The court heard that on October 26 last year, Mpofu 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 Mpofu that they must go to the New Start Centre for testing and he kept dodging.
“The following day, the complainant accompanied Mpofu 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.Mpofu appealed against both the conviction and sentence.
In respect of conviction, Mpofu 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 [email protected]