9 Feb 2018

Sentence reduced for man who gave partner HIV

4:06 pm on 9 February 2018

An HIV positive man convicted for not taking precautions and infecting his partner has had his jail sentence reduced.

Outside the Auckland District Court on Albert Street.

Mikio Filitonga had his sentence reduced at Auckland District Court Photo: RNZ / Claire Eastham-Farrelly

Mikio Filitonga was initially sentenced to two years and 10 months in prison but took his case to the Court of Appeal.

Today in Auckland District Court his sentence was reduced to 10 months after a second sentencing hearing.

Filitonga's trial heard evidence that he tested positive for the virus early in 2013 and was later told of his legal obligations by a nurse.

The following year he began a relationship with the victim which lasted several months, during which time the pair had unprotected sex.

The victim did not know Filitonga was HIV positive and told the court he'd asked Filitonga on several occasions whether it was safe and was told it was.

After breaking up in October 2014, the victim tested positive to HIV.

A jury found Filitonga guilty of causing grievous bodily harm with reckless disregard and criminal nuisance in March last year.

However, his lawyers Paul Borich QC and John Munro argued at the Court of Appeal that both charges related to the same offending and therefore constituted double jeopardy.

They also argued that the district court judge mis-directed the jury when she told them that infecting someone with HIV constituted grievous bodily harm.

The Court of Appeal ruled that should have been left up to the jury to decide and ordered a retrial.

The Crown had pursued a retrial but Filitonga admitted the charge of criminal nuisance today and a trial was not necessary.

Judge Mary-Beth Sharpe took time off his sentence for his early guilty plea and sentenced him to nine months in prison.

Today lawyers for the Crown and Filitonga kept their submissions brief.

But previously, the Crown prosecutor Philip Arnold told the court it was important the sentence was used to deter people who would put other's health at risk.

"There is no cure for the HIV virus; it is something [the victim] will have to live with for the rest of his life.

"This isn't a case where Mr Filitonga merely omitted to mention the fact that he had HIV. This is a case of continuing deceit over the period of the relationship," Mr Arnold said.

"In effect, Mr Filitonga played Russian roulette with the victim's health."

As well as the obvious physical impact, the victim was now facing limitations, had to monitor his health daily, and was now under the same obligations to disclose HIV, which limits sexual activities and removes life choices, Mr Arnold said.

The victim also had to deal with the continuing stigma and misconceptions around the virus.

Filitonga's lawyer, John Munro, told the court a similar case from the 1990s, which was being used to guide the prison sentence length, should be adjusted, given today's societal and technological advances around the virus.

"The Crown have relied on a 1995 case of Mwai, which was 22 years ago [at a time] when you died from HIV once it turned to AIDS and there's no medication to assist a person," he said.

"It is serious harm, we can't dispute that, but we need to temper it ... with the fact that we have medication, that you don't die from it now.

"We need to temper with the way society deals with it, we need to temper it also with the fact that we have organisations now, HIV organisations, who are dead against these prosecutions because they do not deter."

Judge Sharp said while HIV was no longer a death sentence, Filitonga was obliged to tell the victim of his HIV status so he could choose whether to enter the relationship.

The sentence imposed needed to take into account advances in medical science, she said.

"It is my view that there needs to be a reduction to identify and acknowledge that the outcomes for an HIV positive person, whilst still very serious, are no longer life threatening."