R v Kuoth

[2010] VSCA 103
Download Judgment: English

The applicant Mr.Kuoth was sentenced by the County Court of Victoria on two counts, which were related to the same victim and the same evening, but were
separated in time. He was sentenced to punishment for his reckless conduct endangering persons under s.23 of the Crimes Act 1958, where he had unprotected sex with the victim without informing her of his HIV positive status. Where HIV, an abbreviation for Human immuno-deficiency virus (HIV) was an infectious disease prescribed by regulations made under the Health Act 1958. On count 1, the appellant received a sentence of two years’ imprisonment wholly suspended for three years; and on count 2, a community-based order for two years with special conditions. The appellant has received an order from the Victorian Chief Health Officer, pursuant to section121 of the Health Act 1958, to divulge his HIV positive status to any sexual partners and to use condoms during sexual intercourse, which he disobeyed.
The applicant made an appeal before the Crown on two grounds: One is that the sentence on count 1 was manifestly excessive. The other is that the sentencing judge erred in declining to reduce the sentence on count 1 to take account of the guilty plea. He argued before the Crown that there had already been substantial restrictions on his liberty because of his civil detention as per health isolation orders so as to emphasize that a community-based order would be sufficient. The crown had conceded and held that ground 2 should be upheld and the appellant re-sentenced which was accepted by the Supreme Court. The Court of Appeal considered this matter solely under the issue of re-sentencing the appellant. In the aid of plea, the counsel for the appellant submitted that between the time when the sentence was imposed (2008) and when the appeal was heard (2010), Kuoth’s health had been seriously compromised as a result of AIDS, and the counsel for the appellant argued to disallow the sentencing, because of the different circumstances.

The Court of Appeal allowed the appeal by the applicant and held that there should be a non-custodial disposition on Count 1. The court reasoned that it was wrong to not consider the guilty plea, because of the seriousness of the offense. Therefore, Kuoth was discharged under s.73 of the Sentencing Act 1991 and was to serve just the community- based order for two years.
The reasons were as follows:
1. The civil detention Kuoth received by the health authorities met the goal of imprisonment i.e. Deprivation of liberty.
2. Kuoth showed progress with the counseling he had been receiving and this moderated the risk to the Victoria community.
3. The health situation that Kuoth was in needed to be taken account of. Offender’s health was held to be a matter which a sentencing court must always consider.
Lastly, the Court ruled that if there be any future offending by the applicant, it will
attract its own and new sanctions. Or if the applicant commits the same offending he would face the very significant sentencing consideration that it was a repeat offense,
committed in spite of everything that has been done for him over this period to
ensure that no such thing happens.

“The exercise of the sentencing discretion does not involve any arithmetical process of addition or subtraction of particular components; less still does it involve the cancellation or discounting of any relevant consideration by reason of some other matter. Of course, it is for the sentencing judge to decide what weight is to be given to the relevant factors and to the applicable sentencing principles, and to determine the relativities of weight as between one consideration and another. But it was plainly wrong to conclude, as his Honour did, that the mitigating effect of the plea of guilty was negated or nullified or cancelled out because of the seriousness of the offending.” Paragraph 12

“But, plainly enough, the essence of imprisonment is the deprivation of liberty. That is precisely what this man suffered because of the – perfectly appropriate, it seems – the imposition of successive isolation orders on him. With respect to the sentencing judge, that seems to be a matter to which insufficient attention was paid in sentencing. The lengthy containment does seem to me to have been a very significant punishment, albeit for public health purposes, in respect of this very conduct.” Paragraph18

“It seems to me to be a matter of great importance to the Victorian community that, by virtue of these non-judicial interventions, what was a very grave risk has now on all the evidence been substantially moderated, if not eliminated altogether. It also means that the need for specific deterrence is much less now that it was at the time of the sentence” Paragraph 19

Sentencing Act 1991, s.37 Core Condition (1) Core conditions of a community-based order are— (a) that the offender does not commit, whether in or outside Victoria, during the period of the order another offence punishable on conviction by imprisonment; (b) that the offender reports to a specified community corrections centre within 2 clear working days after the coming into force of the order; (c) that the offender reports to and receives visits from, a community corrections officer; (d) that the offender notifies an officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change; (e) that the offender does not leave Victoria except with the permission of an officer at the specified community corrections centre granted either generally or in relation to the particular case; (f) that the offender obeys all lawful instructions and directions of community correction officers. (2) A community-based order must have all the core conditions attached to it.