An HIV positive man who had unprotected sex with his partner, and did not inform him of his status, has had his sentence reduced by the Court of Appeals.
Mikio Filitonga tested positive for HIV in 2013 and was aware of his legal obligations to disclose his status to sexual partners. In 2014 he entered into a relationship with a man and had unprotected sex over the course of this relationship.
Radio New Zealand reports that the victim told the court he did not know Filitonga was HIV positive and that he’d asked him several times whether it was safe and was told it was. He tested positive for HIV after the pair broke up in October 2014.
In March 2017, Filitonga was found guilty of causing grievous bodily harm with reckless disregard and criminal nuisance.
Filitonga’s sentence was initially two years and 10 months in prison but he took his case to the Court of Appeal and it was reduced to 10 months after a second sentencing hearing in the Auckland District Court on Friday.
His lawyers Paul Borich QC and John Munro argued at the Court of Appeal that the district court judge misdirected the jury by telling them that infecting someone with HIV constituted grevious bodily harm. The Court of Appeal ordered a retrial, ruling that this was for a jury to decide.
However, a trial was not needed as Filitonga admitted the charge of criminal nuisance and Judge Mary-Beth Sharpe took time off his sentence for the early guilty plea.
The lawyers had also argued that causing grievous bodily harm with reckless disregard and criminal nuisance constituted double jeopardy as they related to the same offending.