Mashudu Netsianda, Senior Court Reporter
THE High Court has slashed an eight-year jail term of an HIV positive man who deliberately infected his girlfriend with the deadly virus after engaging in unprotected sex, to three years.
Perfect Ngwenya of Blanket Mine tested HIV positive in June 2014 and was put on antiretroviral therapy. He however, hid the medication from his girlfriend until the woman stumbled on it three months later.
Ngwenya pleaded not guilty to a charge of deliberate transmission of HIV, but was convicted by a Gwanda magistrate and sentenced to eight years in jail.
However, three years of the sentence were suspended on condition of good behaviour.
Dissatisfied with the court’s decision, Ngwenya through his lawyers, Shenje and Company, filed an application at the Bulawayo High Court challenging both conviction and sentence.
Justice Nokuthula Moyo, who was sitting with Justice Martin Makonese during the criminal appeals court, confirmed the man’s conviction. She upheld the appeal on sentence and substituted it with an effective two years in jail.
“There is unfortunately no case law on sentencing of offenders in HIV-related offences. The penalty provision is imprisonment for a period not exceeding 20 years as the offence is considered a serious one in nature,” said the judge.
“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 HIV changes their whole life in a drastic way and could even affect their life expectancy.”
Justice Moyo said Ngwenya’s personal circumstances warranted the court to interfere with the sentence.
“The personal circumstances of the appellant (Ngwenya) are that he is a first offender, and he is on ART as well as that he has hypertension,” she said.
The judge said there was no misdirection on the conviction of Ngwenya.
“The conviction is confirmed and the sentence is set aside and substituted with three years in jail of which one year is suspended for five years on condition that the appellant does not within that period commit a similar offence,” ruled the judge.
Ngwenya, in his grounds of appeal, argued that the sentence was excessive and induced a sense of shock.
He argued that the magistrate erred in convicting him in the absence of evidence to sustain the charge.
Proven facts of the matter are that Ngwenya tested HIV positive on June 26 in 2014. The affair between him and the complainant had started in August 2013.
The two engaged in unprotected sex on several occasions until the complainant stumbled on Ngwenya’s antiretroviral drugs on September 4 in 2014.
Ngwenya had not revealed his HIV status to his girlfriend.
The court heard that the complainant had tested twice in 2012 prior to her relationship with Ngwenya and the results came out negative.
A report was made leading to Ngwenya’s arrest.