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Saturday 16 August 2008

Australia: Suspended sentence for HIV exposure angers some

Interesting (over)reaction to the two year suspended sentence handed down to Lam Kuoth for HIV exposure in Melbourne last week.

Following a guilty plea to two counts of recklessly endangerment, Mr Kuoth has been sentenced to two years' prison, suspended for three years and is currently under 24-hour staff supervision in a halfway way. Mr Kuoth is allowed four hours of unsupervised release each day.

ABC radio, with its ridiculous headline - Outrage over soft sentence for HIV sex crime - reports that a spokesman for the Crime Victims Support Association is outraged at the 'soft' sentence, and wants not just Mr Kuoth locked up, but anyone whose doctor is aware they might be having unprotected sex. Only at the very end do they quote the President of the Law Institute of Victoria, who supports the sentence. Very nicely balanced piece of reporting, ABC radio!

Reports from The Age, and the transcript from ABC's PM programme, below.

HIV-infected man who had unprotected sex avoids jail sentence
Miki Perkins
August 12, 2008

LAM Kuoth knew he was HIV-positive when he met a woman at a Chapel Street nightclub, returned to her home and had unprotected sex with her.

Yesterday Kuoth, 29, received a two-year wholly suspended sentence in the County Court after he pleaded guilty to two counts of recklessly endangering the unwitting 24-year-old woman. He was put on a strict community-based order and told he must undergo treatment and counselling, and abstain from alcohol.

His victim was not infected with the virus, but Judge Paul Lacava said Kuoth had known he exposed her to danger.

Kuoth, formerly of the Geelong suburb of Norlane, migrated to Australia from Sudan in 2006 and was diagnosed HIV-positive three months later.

Former chief health officer Dr Robert Hall placed Kuoth on an order under the Health Act on April 4, 2007, to practise safe sex and tell partners he had HIV.

In December Kuoth was deemed a security risk for a second time and isolated in an empty ward at the Thomas Embling hospital. Now in a suburban house under 24-hour staff supervision, Kuoth is allowed four hours of unsupervised release each day.

Judge Lacava said that after a year of counselling Kuoth acknowledged the mistakes in his conduct.

PM - Outrage over soft sentence for HIV sex crime
Monday, 11 August , 2008
Reporter: Alison Caldwell

MARK COLVIN: Victims of crime are angry that a HIV positive man, who pleaded guilty to having unprotected sex with a woman without telling her about his condition is not going to jail.

The man was sentenced to two years in Melbourne this morning but the judge suspended the sentence and placed him on a two year community-based order.

Alison Caldwell reports.

ALISON CALDWELL: 29-year-old Lam Kuoth pleaded guilty to two counts of reckless conduct endangering another person.

Twice last year he had unprotected sex with a woman he met at an inner city nightclub. He didn't tell her that he had HIV.

The County Court was told Kuoth was unwilling to come to terms with his diagnosis and that he'd been placed under a supervision order by the Department of Human Services.

The Court also heard that his prospects for lasting rehabilitation were uncertain and that it was of paramount importance to protect the community from him.

Even so, today Justice Paul Lacava sentenced him to two years jail, suspended for three years and placed him on a two year community-based order.

NOEL MCNAMARA: I think it's disgraceful. It's really outrageous. Quite out of line with what the community would feel about a guy like this.

ALISON CALDWELL: Noel McNamara is the spokesman for the Crime Victims Support Association.

His daughter was murdered and he often speaks out against what he sees as overly lenient sentences.

He says today's sentence is no different.

NOEL MCNAMARA: It's certainly a dangerous practice and it's got to be stamped out and the only way you're gonna stamp it out is not by giving him a suspended sentence and sending him off to play a few games down at the community sentencing people. He should have been locked up and punished.

ALISON CALDWELL: Recently appointed County Court judge Paul Lacava has placed Lam Kuoth under strict supervision orders.

Judge Lacava told the court:

PAUL LACAVA (voiceover): Fortunately you didn't infect the woman with the HIV virus, but you could have and you knew you could have.

ALISON CALDWELL: The prosecution submitted Kuoth shouldn't be jailed.

Judge Lacava said he initially thought that was too lenient but after reading DHS reports, he agreed continued treatment was the best option for Kuoth.

Kuoth initially refused to admit to having sex with the woman and was served with an isolation order that confined him to a hospital.

In March he was transferred to a home in Melbourne where he was monitored by staff and video surveillance 24 hours a day.

Since May he's gradually been allowed more unsupervised time, as it is, that can be up to four hours a day.

Judge Lacava said Kuoth had recently told a doctor that if he found a new girlfriend he would always use a condom when they had sex.

He said Kuoth appeared to be taking more responsibility for his behaviour.

Noel McNamara still believes Kuoth should be behind bars.

NOEL MCNAMARA: Naturally he's going to say that. He's not going to say he's going to reoffend without a condom because he would go to jail then. But I mean, no I don't think it's good enough.

ALISON CALDWELL: Two and a half weeks ago, another Melbourne man was found guilty of trying to deliberately spread HIV to other men.

A jury found Michael John Neal guilty of 15 charges including attempting to infect another person with HIV, rape and procuring sexual penetration by fraud.

As in Kuoth's case, the Department of Human Services opened a file on Neal after his doctor contacted it in November 2001.

DHS sent Neal three letters between 2001 and 2006 advising him of his responsibility to practice safe sex and to disclose his HIV status.

Neal is soon to be sentenced.

Noel McNamara says, it shouldn't be up to the DHS.

NOEL MCNAMARA: That should be taken off DHS and put into the Justice Department because that's where it belongs.

ALISON CALDWELL: If there's an adult male, or female, who is diagnosed with HIV and their doctor is concerned that they are having unsafe sex, do you think the doctor should be going to the police straight away and bypassing DHS?

NOEL MCNAMARA: It should be mandatory.

ALISON CALDWELL: But the Law Institute of Victoria is defending the sentence. President Tony Burke.

TONY BURKE: A trial judge, when crafting a sentence such as in this instance, has to weigh up on the one hand deterrent with the need to encourage rehabilitation on the other. And it's fairly clear that in this instance the judge has sought to balance those two countervailing influences to craft a sentence which both the prosecution and the defence agreed was appropriate.

MARK COLVIN: The President of the Law Institute of Victoria, Tony Burke ending Alison Caldwell's report.



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