[Update]Australia: Lam Kuoth’s laywers appeal against ‘excessive’ suspended sentence

AN HIV-positive refugee who had unprotected sex with a young woman claims his suspended jail term was too harsh.

Lam Kuoth, 29, was sentenced to two years in jail, suspended for three years, and was given a community-based order in the County Court earlier this month.

Kuoth who came to Australia from Sudan in 2006 and lives in Geelong pleaded guilty to two counts of recklessly endangering another person.

His lawyers lodged an appeal against the sentence with the Court of Appeal yesterday claiming the suspended term was “manifestly excessive”.

The court will rule in the next few months if he can win permission to appeal.

Sentencing judge Paul Lacava heard that Kuoth knew of his HIV status when he twice had unprotected sex with his unwitting 24-year-old victim in April last year.

He acted in defiance of public health orders that required him to use a condom.

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 and the child, now eight months, is not believed to be HIV-positive.

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.

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.

A HIV-infected Geelong man has pleaded guilty to deliberately having unprotected sex with a partner who was unaware of his condition.

Lam Kuoth, 28, today pleaded guilty in the Melbourne Magistrates’ Court to two counts of reckless conduct endangering serious injury, but reserved his plea on a further three counts of the same charge.

Kuoth will appear in the Victorian County Court on February 21 for a pre-sentence hearing.

He has admitted having unprotected sex with a woman without divulging his HIV positive status on April 22 year.

Kuoth was diagnosed HIV positive in September last year and warned he must advise partners of his condition and practise safe sex.

An application by the defendant to have the matter heard in a closed court was refused by magistrate Greg Connellan.

“In my view the charges alleged here are matters properly dealt with in the County Court with all the formality and deliberation that is necessarily part of that court’s jurisdiction,” Mr Connellan said.

A PSYCHOLOGIST reported a Geelong man as a “high risk of infecting others with HIV” to Victorian health authorities 11 days before the man went on to allegedly expose a woman to the virus by having unprotected sex with her, a court has heard.

Documents tendered to the Melbourne Magistrates Court yesterday also revealed the Department of Human Services waited more than two weeks to detain the Sudanese migrant after the psychologist’s warning in April.

In between the psychologist’s report and his detention, the HIV-positive man, Lam Kuoth, allegedly had unprotected sex with a woman five times without disclosing his status to her.

A prosecution summary tendered to the court showed that after Kuoth’s HIV diagnosis in September last year, departmental staff received at least two complaints that he was behaving recklessly before he allegedly exposed the woman to HIV on April 22.

The document also revealed that former Chief Health Officer Dr Robert Hall placed Kuoth on an order under the Health Act on April 4 to practise safe sex and advise sexual partners of his HIV status.

Dr Hall was sacked in the same month The Age revealed his bungled handling of another HIV-positive man accused of spreading the virus.

Police have charged Kuoth with five counts of reckless conduct endangering serious injury.

He was released on bail in June after a Geelong magistrate said he believed Kuoth had changed “considerably”. The 28-year-old appeared in the Melbourne Magistrates Court for his committal hearing yesterday, but it did not proceed after his lawyer applied for the case to be heard in a closed court.

Magistrate Greg Connellan adjourned to Monday his decision on the lawyer’s application to close the court.