Ghanaian man to appeal over prison sentence in HIV case

A Ghanaian convicted of fraud after he denied he had HIV when he successfully applied for New Zealand residency was today handed a six-month jail term.

However, Ishmael Asamoah, 38, was given bail in Auckland District Court pending an appeal to the High Court against sentence and also possibly against conviction.

Judge Anne Kiernan granted bail on the ground that the appeal process might not be completed by the time Asamoah had served his sentence.

She remanded Asamoah to reappear on January 10, when an appeal date would be determined.

Asamoah was found guilty last month of intent to defraud over a medical certificate he filled in while in Australia. He had pleaded not guilty.

Judge Kiernan said an important purpose of the sentence was deterrence.

She said the premeditation that had gone into the offence was the primary aggravating feature of the case.

Asamoah had also gained from residency, including getting essential medical treatment estimated to cost $10,000 to $13,000 a year.

Judge Kiernan said mitigating factors included Asamoah's lack of previous convictions, the fact that he had been a good resident and his full-time employment.

Summarising the facts, Judge Kiernan said Asamoah tested positive to HIV in November 1998, but did not tell his Australian partner.

The couple married in June 1999 and decided to move to New Zealand. In June 2000, Asamoah had a medical examination, during which he filled in part of a medical form.

To a question about whether he had Aids or HIV, he ticked "no".

His medical certificate was used in applying for New Zealand residency and in January 2001 he was issued with a residency permit.

He and his wife separated, and Asamoah had come to New Zealand by himself. The couple have since divorced and Asamoah has a new partner.

Asamoah's case came to the notice of New Zealand authorities when an Australian journalist followed up the story of Asamoah's former wife.

The latter had discovered that she had contracted the virus when she was pregnant with Asamoah's daughter, who is now three.

In an interview with the journalist, Asamoah said he was sorry he had lied to his ex-wife about his HIV results.

Department of Labour lawyer Janet Rushton told the court the integrity of New Zealand's immigration system had to be protected.

She said Asamoah's offending was premeditated and sustained and had requited cumulative deceitful action.

But defence lawyer Melanie Coxon said "basic human instinct" rather than criminality had taken over when Asamoah ticked the "no" box.

During the bail application, Ms Coxon said an appeal would be lodged against the "manifestly excessive" sentence.

She also said Asamoah was considering whether to appeal against conviction because he was unhappy with the legal counsel who had represented him during his trial.

Outside the court, Immigration Service investigator John Marston said that, in light of the conviction and sentence, an assessment would be made about whether to revoke Asamoah's residency.

- NZPA