Magistrate erred in sentence - Judge Makwade

Patricia Edwin | Thursday October 10, 2013 22:33

The magistrate had sentenced Tshepiso Loeto to 10 years on the first count, 10 years on the second and 20 years on the third.  The sentences on counts one and two were to run concurrently.

On the third count the magistrate was under the impression that Loeto knew his positive HIV/AIDS status when he committed the offence.Though Loeto challenged conviction on all three charges, the judge found that the magistrate had only erred in the third count.

'It is the applicant's position that the magistrate was in error in concluding that the applicant knew of his HIV-positive status at the time of the commission of the offence in count three. 'After his conviction the accused person told the court that at the time of the commission of the offence he was aware that he was HIV positive,' said the judge.

He said the court did not take Loeto's word at face value. He said the magistrate court asked Loeto to produce documentary evidence to prove the fact and it is recorded that he produced his medical records.

'It is recorded that the accused produced records and that the same relate to a time in 2011 and no date was specified. The documents have not been filed on record. The court is unable to determine the contents of such documents,' said Makhwade.

Makhwade said the issue about Loeto's HIV/AIDS status arose in mitigation when he informed the court that he suffered from HIV/AIDS and Tuberculosis.

'He said that he had been aware of his HIV status since 2010. This was an unrepresented accused person and it was his view, no doubt, that his HIV status would be used in mitigation of sentence,' said Makhwade. He went on to highlight that there was no doubt that Loeto had been made aware of the fact that this disclosure would result in a minimum mandatory sentence of 10 years instead of 20 otherwise he would not have provided the state with that information.

'It is my considered view that it would be unfair on the applicant to proceed on the basis that indeed he was aware of his HIV-positive status in February 2011 when there is no proof to that effect,' he said.

He added that it was incumbent upon the state to prove Loeto's HIV/AIDS status and not him.

'The applicant may well have lied about knowing about his HIV status in 2010 thinking that the same would result in a lighter sentence,' he said.

Makhwade ruled that the magistrate was clearly aware of the fact that there was a need for sufficient evidence to prove that Loeto knew of his HIV/AIDS status at the time of commission of the offence.

'In my view it was wrong for the magistrate to proceed in the manner that he did,' Makhwade said.

He said it was unfair for the magistrate to conclude that the mandatory sentence of 20 years applied to Loeto.