Judge Michael Cozens sentenced Napoleon Ngeruka to 30 months in prison for aggravated sexual assault.
Ngeruka was convicted on June 16 after pleading guilty.
In 2005 and 2009 Ngeruka had unprotected sex with a Yukon woman without disclosing to her that he was HIV positive.
Justice Cozens found that Ngeruka infected the woman with HIV.
The Crown was asking for a 36-month sentence while Ngeruka’s defence lawyer was asking for a conditional sentence of two years less a day, which he would have been allowed to serve at home.
Justice Cozens did, however, take the unusual step of recommending Ngeruka be sent to the Whitehorse Correctional Centre to serve his sentence. In Canada, sentences over two years are automatically served in federal penitentiaries.
The judge noted incarceration at the Whitehorse jail would allow Ngeruka to continue counselling, deal better with his medical issues and give better support to his daughter.
Ngeruka is a Rwandan genocide survivor who fled to Canada, the judge read from the pre-sentencing report.
Both his parents, grandparents and two of his siblings were killed during the genocide.
His first wife was also murdered in front of his daughter, who suffers from a learning disability as a result, the judge said quoting the report.
That report noted Ngeruka’s “dissociative behaviour” and how he was “mentally withdrawn” when his past and his family were mentioned.
Ngeruka had worked for Yukon College as a custodian since 1992.
From 1994 to 2009 he struggled with alcohol, and would sometimes black out, the judge read.
He completed treatment and doesn’t have a problem with alcohol currently.
The judge also noted from the sentencing report the long list of medical issues Ngeruka is suffering from.
Justice Cozens noted Ngeruka’s “tragic background,” his respect of his bail conditions except for one breach, steady employment, involvement in counselling and remorse expressed for his actions – all factors taken into consideration during the sentencing.
Ngeruka was also sentenced to 15 days in prison for breaching his bail conditions on June 8, 2012, a sentence to be served concurrently to the 30-month one.
While Ngeruka pleaded guilty, he also did force the woman to testify at length about her sexual history, in order to prove he was the one who infected her. Cozens said that while Ngeruka was entitled to use that defence, this lessened his guilty plea as a mitigating factor.
He also noted Ngeruka’s criminal history, which includes several impaired driving, assault and obstruction of justice convictions.
His background is not an excuse for the crime he committed, Cozens said, but it provides context and must be taken into account.
But there is only one victim here, he reminded the court.
“(She) had a reasonable expectation not to be exposed to a life-threatening virus,” he said.
The woman’s name and any detail that could reveal her identify are under a publication ban because of the nature of the crime.
Ngeruka showed reckless disregard for his victim’s life, Cozens said. He didn’t disclose his condition to her even after being told by doctors about the dangers of transmitting HIV.
The woman filed a victim impact statement, expressing the significant impact it had on her life.
“I was impressed (by her) demeanor when she testified,” the judge said.
“She certainly went and is going through a lot of emotions,” he said, adding she seemed to have moved on positively with her life.
Improvement in HIV medication means the condition is no longer a virtual death sentence, the judge noted, but the harm caused to the woman is very serious.
Even though Ngeruka doesn’t pose a threat to the community, the seriousness of his crime rules out a conditional sentence, the judge ruled.
Denunciation and deterrence, two of the main objectives of the justice system, sometimes require incarceration, he said.
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