Robber with HIV seeks reduced term

Judge asked to set aside 13-year sentence

TEN years ago, a man known as “LM” was involved in the armed robbery of Protea Coin security guards at a KFC outlet in Mamelodi.

Now – suffering from TB and HIV-positive – he is trying to have his 13-year jail term reduced.

The man, identified only by his initials LM in the North Gauteng High Court, and an accomplice robbed the security guards of a firearm, a cellphone and a cash box.

They fired several shots at the guards, who fired back at them. LM was wounded and arrested at the scene, while his accomplice escaped.

LM was convicted of robbery with aggravating circumstances and attempted murder, and sentenced to an effective 13 years’ imprisonment.

He has now appealed against his sentence, and said he was treated unfairly as he chose to disclose his health status to the court, yet the magistrate did not regard this as a mitigating factor.

His counsel told the high court on appeal that the magistrate failed to conduct an inquiry to establish the extent of LM’s ill health before sentencing him.

Acting Judge NE Nkosi was asked to set aside the 13-year jail sentence, and to order that the matter be referred back to the trial court. This is to investigate his health and reduce his sentence based on this fact.

LM’s counsel is relying on a similar case in which a judge said that while illness did not, per se, entitle a person convicted of a crime to evade imprisonment, it should be considered in order to do justice to the accused.

In that case a woman was convicted on 99 charges of fraud and sentenced to 16 years’ imprisonment. She, however, found out after being sentenced that she had contracted HIV, which had developed into Aids.

She took her matter to the Supreme Court of Appeal (SCA) in Bloemfontein, which called for further expert reports on her condition, which found her condition to be so bad that without proper treatment she could die within months.

The court reduced her sentence in light of her shortened life expectancy, and she was released from prison.

Judge Nkosi said in LM’s case that in appropriate circumstances, ill health and in particular HIV and Aids may be a mitigating factor to impose a lesser sentence.

He, however, said the SCA case differed from this one, as LM discovered in jail while waiting to be sentenced that he had contracted HIV. He told the court that he was on treatment, which he received from the prison hospital.

“Clearly his condition has not developed into full-blown Aids and it would seem his HIV status is at its early stages,” the judge said.

He concluded that the trial court, in this case, did take LM’s condition into consideration when it imposed the 13-year sentence.