A 29 year-old Melbourne man, Lam Kuoth, is likely to receive a suspended sentence following his guilty plea last year for two counts of HIV exposure (to the same woman).
The Sudanese migrant, whose case was highly publicised last year due to the political fallout following the sacking of Victoria's chief health officer Dr Robert Hall, for his alleged mismanagement of HIV-positive people who exposed others to the virus – notably Michael Neal, whose trial is currently taking place in Melbourne – spent five days in isolation in a psychiatric hospital in April 2007, as ordered by the Victoria Department of Human Services following an assessment that he was at a high risk of exposing others to HIV. He also spent two months in prison following his arrest before he was allowed out on bail in June 2007.
Mr Kuoth’s case highlights the quandary Melbourne health officials are currently facing when they find out that recently diagnosed individuals, often in denial of their status, are having unprotected sex without disclosing their status, which is a crime in Melbourne's state, Victoria.
He had only arrived in Australia as a refugee in May 2006, and was diagnosed as being HIV-positive in October 2006.
Mr Perry said Kuoth was repeatedly told of the risks involved and his obligation not to engage in conduct that could transmit the disease. He had difficulty accepting the diagnosis, the court heard.Locking up a man in a psychiatric hospital seven months after his diagnosis, and then reporting him to the police appears to be much more a case of political expediency than a measured and appropriate response to a traumatised HIV-positive individual, and smacks of pandering to public opion (such as calls from the right-wing newspaper, The Age, for overly-draconian measures for HIV-positive people who "put others at risk.")
It is quite remarkable, then (and a very welcome development) now the publicity over Dr Hall’s sacking has died down, that even the prosecution in this case is not looking for a prison term. This comes in stark contrast to calls from a Melbourne judge to increase the maximum five year penalty for HIV exposure, around the time of Mr Kuoth’s hearing.
There are two stories below from the Herald Sun, the first during the sentencing hearing and second close to its conclusion a week later.
HIV man guilty of unsafe sex may avoid jail
June 20, 2008
A HIV-positive man who had unprotected sex with a young woman could avoid a jail term.
The County Court heard that Lam Kuoth, 29, knew he was HIV-positive when he had sex with the unwitting woman on April 22 last year.
The woman was not infected with the virus.
Kuoth also had unprotected sex with another woman but she did not want to be involved in any prosecution, the court was told.
That woman has since had his child. The child, now eight months, is not believed to be HIV-positive.
The prosecution told Judge Paul Lacava that a wholly suspended jail term and community-based order would be appropriate sentences in the case.
The Melbourne Magistrates' Court heard last year that five days after the offences, Kuoth was put in isolation in a psychiatric hospital by the Department of Human Services.
Prosecutor Max Perry said yesterday that the Sudanese-born Kuoth met the complainant, 24, through a friend.
On the way to a St Kilda nightclub, Kuoth touched her, rubbed her back and told her that he loved her.
The woman became drunk at the club. They later returned to her home and had sex.
The Melbourne Magistrates' Court heard that Kuoth was accused of having unprotected sex with the woman five times.
But he only pleaded guilty to two counts of reckless conduct placing a person in danger of serious injury.
Mr Perry said the charges covered the first and last instance of unprotected sex. The woman did not know of Kuoth's HIV status, he said.
"The risk of unprotected sexual activity with a Sudanese male subsequently received considerable publicity and the accused man was identified by the complainant and other partners," Mr Perry said.
Kuoth later denied even knowing her or having unprotected sex with her.
Kuoth, who arrived in Australia as a refugee in May 2006, was diagnosed as being HIV-positive in October 2006.
Mr Perry said Kuoth was repeatedly told of the risks involved and his obligation not to engage in conduct that could transmit the disease. He had difficulty accepting the diagnosis, the court heard.
Defence lawyer Simon Moglia said Kuoth had no prior convictions and had since developed a level of understanding about his responsibilities.
He said there were suggestions that Kuoth could be suffering a post-traumatic stress disorder from his experiences in war-torn Sudan.
Kuoth, formerly of Norlane in Geelong, will be sentenced next week.
No jail for Lam Kuoth over unprotected HIV sex
June 28, 2008
AN HIV-positive man who had unprotected sex with a young woman is expected to be released on a wholly suspended jail term and community-based order.
The prosecution has accepted this would be an appropriate sentence for Lam Kuoth, and yesterday County Court judge Paul Lacava said he agreed "in principle".
But he ordered a pre-sentence report, saying "I am most anxious to ensure the community's protection if there was any release."
Kuoth, 29, formerly of the Geelong suburb of Norlane, knew he was HIV-positive when he had sex with the unwitting woman last year. She was not infected.
He pleaded guilty to two counts of recklessly endangering a person.