[3] The Magistrate sent this matter to this Court for sentence as he felt that appropriate sentence to the offence charged was well beyond his jurisdiction. The relevant section being section 32 (a) (vii) which reads: “(a) In a case of a first conviction where a person is infected with the immunodeficiency virus and at the time of the commission of the offence the person had knowledge or reasonable suspicion of the infection, to the death penalty.” [4] The crown in argument has asked that since the accused when he so committed the Sexual Offence on his child already knew of his status having tested HIV Positive in 2008, before the complainant was even born, that accused be sentenced to death. [5] The defence on the other hand argued that the state of mind of the accused when he committed the offence must not be overlooked. The accused and his wife and the complainant were from a feast on that fateful day, and were both drunk. The wife must have been more drunk, as the evidence showed she fell on her way home and that gave the husband ample chance to have rushed home with the child where on arrival started having sex with his 5 year old daughter.