State v Wiridzanai Kamutashura

The accused, aged 44 years, pleaded guilty to and was convicted on 4 November 2014 of the offence of "Having Extra Marital Sexual Intercourse" with a young person as defined in law. The victim was a person who looked to the accused as a parent figure. Upon conviction, it was discovered that the accused was HIV positive. The trial magistrate lacked jurisdiction to impose a sentence beyond the mandatory minimum of 10 years, so the case was referred to the Attorney General for guidance and then to the High Court for sentencing. The accused was a first offender and had nothing to say in mitigation beyond what was said in the lower court, and could not demonstrate special circumstances to avoid the mandatory minimum sentence.

• Whether special circumstances existed to justify departing from the mandatory minimum sentence of 10 years imprisonment
• What appropriate sentence should be imposed for the offence of having extra marital sexual intercourse with a young person where the accused is HIV positive

The accused was sentenced to 15 years imprisonment, of which 5 years imprisonment was suspended for 5 years on condition that during that period he does not commit any offence involving sexual assault for which, if convicted, he is sentenced to imprisonment without the option of a fine.

Where an accused is convicted of having extra marital sexual intercourse with a young person and is HIV positive, this constitutes a serious aggravating factor that endangers the victim's life. In the absence of special circumstances demonstrated by the accused, courts will impose sentences exceeding the mandatory minimum of 10 years imprisonment. The HIV positive status of an offender in sexual offences against vulnerable young persons, particularly those in positions of trust, warrants a heavy custodial sentence to protect the public.

The court observed that a heavy sentence removing the accused from the general public may probably discipline him, suggesting that rehabilitation through incapacitation was an objective of the sentence beyond mere punishment and deterrence.

This case demonstrates the Zimbabwean courts' approach to sentencing in cases of sexual offences against young persons where the accused is HIV positive, and illustrates the procedure for referring cases to higher courts when special circumstances are claimed but the trial court lacks jurisdiction to depart from mandatory minimum sentences. It emphasizes the aggravating nature of the accused's HIV positive status in sexual offences involving vulnerable young persons, particularly where there is a position of trust.