An HIV-positive man who transmitted the virus to an unknowing woman has been sentenced to 30 months in jail.

In an unusual move Thursday afternoon, territorial court Judge Michael Cozens made a “strong recommendation” that Napolean Ngeruka be permitted to serve his sentence locally, at the Whitehorse Correctional Centre.

Typically, sentences longer than two years send an offender to federal prison.

Cozens said that if Ngeruka stayed in the territory, he could continue with his counselling, which has been successful so far, and maintain his relationship with his daughter.

“It’s only a recommendation,” the judge said. “I can’t order it.”

The decision is up to the Correctional Service of Canada (CSC).

“The Correctional Service of Canada will review the case and make a decision based on various factors, one such factor may be the recommendation of court,” spokeswoman Rhonda Cochrane said in an email this morning.

Ngeruka, 57, pleaded guilty last year to aggravated sexual assault against a Whitehorse woman between 2005 and 2009.

The two had a sexual relationship during that time, but he didn’t tell her he had the human immunodeficiency virus. She later tested positive for it.

“It is admitted that Mr. Ngeruka had sexual intercourse with (her) without her consent, in that 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,” Cozens wrote in a ruling last month on whether Ngeruka transmitted the virus to the woman.

“Thus (her) ‘consent’ to have sexual relations with him was not valid.”

The sexual assault was aggravated because it endangered her life.

Though Ngeruka admitted he didn’t tell the woman about his condition, he disputed that she contracted HIV from him.

In June 2014, a hearing began to hear evidence on the matter.

The woman testified in detail about her sexual history. She said that if she’d known Ngeruka was HIV-positive, she wouldn’t have had unprotected sex with him.

After the hearing, Cozens ruled that the only “reasonable explanation” for her contracting HIV was sex with Ngeruka, and not any previous partners.

This was an aggravating factor in sentencing.

The Crown sought three years’ jail time.

Ngeruka’s previous lawyer, Malcolm Campbell, proposed a two-year conditional sentence – time served in the community and not in jail.

In a victim impact statement, the woman said she continues to suffer physically and emotionally from the diagnosis.

It is a “very significant burden she has to carry as a result of Mr. Ngeruka’s actions,” Cozens said.

He showed “reckless disregard,” and put the woman’s life in danger, the judge said.

Cozens opted to impose a 30-month jail term.

He noted Ngeruka’s “very tragic” background, but decided a conditional sentence wouldn’t be appropriate.

Ngeruka grew up in Rwanda. He attended residential school there and recalls ethnic tension and killings, according to a pre-sentence report filed in court.

He left the troubled country in the late 1980s, but his parents were killed in the Rwandan genocide.

Most of the people he knew growing up are dead or missing.

In 1993, Ngeruka became a Canadian citizen. The same year, he was diagnosed with HIV.

According to the report, Ngeruka at times demonstrates dissociative behaviour and signs of deep sadness and trauma. One doctor suggested he may suffer from post-traumatic stress disorder.

In 2000, Ngeruka’s daughter came to live with him in Whitehorse after her mother was killed in Rwanda.

She has a learning disability, likely a result of watching her mother die, according to the report.

Cozens said the man suffers from depression, high blood pressure, insomnia and nightmares. He’s battled alcohol addiction for several years, but sought counselling and is doing well, the judge noted.

Ngeruka said his actions in this case were the result of carelessness and alcohol consumption.

“The victim is not to blame,” said Cozens, reading a statement written by the offender.

“If she said I didn’t tell her, then I didn’t. I was drinking and don’t remember.”

Ngeruka will be entered into the national sex offender registry for 20 years.

The Corrections and Conditional Release Act outlines exchange of services agreements, which allow for offenders to be kept at a provincial or territorial jail when sentenced to a prison term.

Cochrane said the CSC has such an agreement with the Yukon.