"I'm sorry.
Napoleon Ngeruka, an HIV-positive Yukon man who was found guilty of aggravated sexual assault for having unprotected sex while not disclosing his condition, offered these words as an expression of remorse in Yukon territorial court on June 29.
Ngeruka struggled to contain his tears when he asked Justice Michael Cozens for leniency at the sentencing hearing.
He was convicted on June 16 after pleading guilty.
“He failed to disclose to her that he had HIV, he failed to use a condom and he failed to take anti-retroviral drugs to maintain as low a viral load dose as possible,” wrote Justice Cozens, adding that there could be no consent in that situation.
The Crown is asking for three years in federal prison, but Ngeruka is pleading to avoid serving time in a penitentiary. His lawyer is asking for a conditional sentence of two years less a day.
It wasn’t immediately clear whether the judge could give Ngeruka a conditional sentence, which could allow him to serve the sentence at his home. That possibility was taken out of the criminal code for aggravated sexual assaults in 2007.
The aggravated sexual assault charges were laid for two periods of time: 2005 and 2009. However, it is during the first one, in 2005, that the infection likely occurred, the judge said, which would make the conditional sentence available.
“A conditional sentence is available but the Crown doesn’t think it’s appropriate,” Crown attorney Joanna Phillips told the judge.
Ngeruka testified he has already been to jail three times, including once for breaching his bail conditions. He also said he lost friends after the case was reported in the media.
“Sometimes when I go to bed, I wish I wouldn’t wake up,” he told the court. He had been under a curfew until last October.
Justice Cozens noted Ngeruka suffered from a number of health issues, including diabetes and high blood pressure. He is also the sole caregiver for one of his daughters, who suffered significant psychological damages after witnessing her mom being killed, the court heard.
Ngeruka suffered from alcohol addiction, was diagnosed with post-traumatic stress disorder and had to flee his home country in 1997 because of death threats, the judge also noted.
However, the judge noted several aggravating factors, one of which being how Ngeruka infected a woman with HIV.
While he expressed remorse, Ngeruka also made the complainant testify extensively about her sexual history, the judge said.
After entering a guilty plea, Ngeruka disputed the fact he was the one who infected the woman with HIV.
As a result, she had to disclose the nature, length and other details of her sexual life before the court.
Her name and any identifying details that could reveal her identify are covered by a publication ban due to the nature of the crime.
The judge ruled Ngeruka did in fact infect her, relying on expert testimonies from two doctors and the victim.
HIV testing showed Ngeruka and the woman had a similar strain of HIV virus, one that is “not common” in comparison to other strains in the territory.
None of the woman’s former partners except for Ngeruka tested positive for HIV.
At trial, the woman testified Ngeruka didn’t tell her about his condition, and didn’t use a condom.
She would never have had unprotected sex with him had she known he was HIV-positive, she testified.
The two first met in 2005 and their relationship lasted a couple of months. They met again in 2009, and had sex about four times, the woman testified.
Justice Cozens also pointed out that medical advances mean an HIV infection is not “a virtual death sentence anymore.”
“But it’s still hanging over your head.”
Despite that, the psychological harm is still quite significant, Phillips said.
Justice Cozens is expected to render his decision on Ngeruka’s sentence next Thursday in Yukon territorial court.
Contact Pierre Chauvin at
pierre.chauvin@yukon-news.com