District Court New South Wales Medium Neutral Citation: R v Navarro [2019] NSWDC 540 Hearing dates: 17 July 2019 Date of orders: 17 July 2019 Decision date: 17 July 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of five years, three months with a non-parole period of three years, three months: at [32]. Catchwords: SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Without regard for public safety SENTENCING — Mitigating factors — Good character — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Form 1 offences — Victim impact statments SENTENCING — Subjective considerations on sentence — Hardship — Health issues — Special circumstances Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Cases Cited: Aubrey v The Queen (2017) 260 CLR 305 Houghton v Western Australia [2006] WASCA 143 R v Thomas [2007] NSWCCA 269 Kanengele-Yondjo v The Queen [2006] NSWCCA 354 R v Higgins [2002] NSWCCA 407 R v Jaksic (unreported, NSWDC, Zahra DCJ, 26 September 2018) R v L (unreported, NSWCCA, 17 June 1996) R v Muronzi (unreported, NSWDC, Hock DCJ, 15 November 2013) R v Qutami (2001) 127 A Crim R 369 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Frank Navarro (Offender) Representation: Mr Bates (Crown) Mr Park (Counsel for the Offender) File Number(s): 2018/92139 Publication restriction: Non-publication in relation to the name/identity of the victim Judgment 1. Reckless infliction of HIV upon a sexual partner has been described as a heinous crime which shows a contempt or a callous disregard for the life of a fellow innocent human being. In this case the offender engaged in unprotected sexual intercourse well-knowing the grave risk and potentially devastating consequences involved for his partner. That was, as Hislop J said in Kanengele-Yondjo v The Queen [2006] NSWCCA 354 at [15], showed "a gross callous and reprehensible disregard for the health and welfare of the victims. It was carried out with indifference to human life or suffering. Further, as stated, the offender had concealed his condition notwithstanding a relevant enquiry by each victim and his deliberate conduct was carried out in the knowledge of its legal consequences. In my view that places these two cases, on an objective basis, as falling within the category of the worst case for this offence … There has always been an enormous amount of stigma associated with having HIV infection and the majority of those infected lead socially isolated lives with ongoing fear of rejection or worse by their partner, families and by their community. Many of those factors are now being experienced by both victims … Further the risk of the spread of HIV has enormous and dire implications for the health and welfare of the general community" Those sentiments apply to this case. 1. Frank Xavier Navarro, aged 54, pleads guilty to one count of recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900 which now carries a maximum penalty of ten years imprisonment, with a standard non-parole period of four years. These penalties are important yardsticks to be borne in mind in the sentencing process, which must have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I must not impose a term of imprisonment unless all other alternatives have been considered and rejected in accordance with s 5 of the Act, but it is conceded here by Mr Park of counsel for the offender, that a term of full-time custody is justified. 2. He has been in custody since his arrest on 22 March 2018 and it is common ground that the circumstances in which he pleaded to this offence justify a 25% discount for the utilitarian value of the plea of guilty. He has no prior criminal record other than PCA offences and is a person of otherwise good character. 3. He also asks to be taken into account on a Form 1 a charge of possess ammunition contrary to s 65(3) of the Firearms Act 1996. I will deal with that in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters. The Form 1 offence relates to two red coloured shotguns rounds, one silver rifle round and one silver pistol round contained in a blue pouch found on him when he was arrested. He did not have a licence or a permit to be in possession of ammunition. 4. The female victim in this matter who will be referred to as AR was born in 1968 and was three years younger than the offender. The offender was diagnosed with HIV in 2003. He was repeatedly warned by medical practitioners about the danger of transmitting this virus to sexual partners and the need to adopt safe sex practices in order to avoid transmission. As early as 2004 the clinical notes of the Hunter Sexual Health Service record that he was counselled in relation to this. He acknowledged that he was well aware that he should practice safe sex and he had explained to him again the legal implications if he did not. Another note of that service a week later affirmed the same advice and understanding. 5. In April 2017 he was psychiatrically assessed at Royal Prince Alfred Hospital and he was described as being able to feign awareness of his public health requirements both for protected sex and informing potential partners and he said he was aware of this requirement. 6. He received HIV treatment while he lived in Newcastle and continued to get medication through his treating doctor after moving to Sydney in 2011 but from 2015 he discontinued all forms of treatment, including antiretroviral therapy. During at least one relationship prior to his relationship with the victim he did not disclose his HIV status to his partner despite having protected sex with her over an extended period of time. That individual provided a statement to the police stating that she was contacted by the victim in this matter in 2018 who informed her that the offender had been diagnosed with HIV in 2003. Fortunately that individual undertook testing which returned a negative result for HIV. 7. The offender is subject to a public health order which was issued after a notice from the Chief Health Officer from the Ministry of Health. 8. In February 2016 the victim undertook a comprehensive blood test which showed a negative result for any sexually transmitted diseases. She first met the offender in June 2016 and had sexual intercourse for the first time using a condom in July 2016, and then continued an active sexual relationship without using condoms. He never disclosed any health concerns, STDs or blood borne diseases to her at any time. 9. Towards the end of 2016 she begun to feel unwell, rundown and developed multiple mouth ulcers which did not heal. As she became progressively more unwell she attended a doctor to have further blood tests. She spoke to the offender about STD testing. He lied to her, telling her that he had not been tested and he agreed that he would do so. 10. In early 2017 he disclosed his HIV status to her but he led her to believe this was a recent diagnosis. On 14 February 2017 AR received confirmation that she was HIV positive and over the next 12 months they both received treatment and counselling through the RPA immunology clinic. He continued to lie to her by suggesting that he had only recently contracted the disease. She became increasingly suspicious that the clinic staff knew more about his diagnosis than was being disclosed to her and he continued to take steps to hide information from her, including destroying a letter sent to him by the clinic when she questioned him about it. She was only able to discover his long‑standing diagnosis through her own inquiries. 11. For the duration of his relationship with the victim prior to the diagnosis he was not receiving treatment to reduce his viral load. He was aware that viral load treatment can effectively reduce the risk of HIV transmission and if she had been aware of his HIV status from the beginning of their relationship she would not have consented to having unprotected sex with him. 12. He was arrested on 22 March 2018 at his workplace. He acknowledged that he had given HIV to his partner. He said "I know what I've done is unforgivable and [you know] I've done wrong. I've got to suffer the consequences". He acknowledged that he had HIV since 2003. 13. During the course of a recorded interview a portion of her statement was read to him in which she said that she would not have had unprotected sex with him if he had told her about HIV and he said "[no] until it was too late. I just admitted that… I admitted it … I should have told her and, and like I said, I, I should have told her…" He acknowledged the information that he had received in 2004 about safe sex and legal implications. 14. The offender has not given evidence but he relies on a handwritten letter to the Court together with a report of a psychologist Mr Diment and some translated documents in relation to the circumstances of his elderly parents who are 86 and 77 years of age and living in his native Spain. 15. He says in his letter that he accepts and takes full responsibility for some poor lifestyle choices and actions and particularly this offence. His time in custody has given him time to grasp the negative effects of his actions on his former partner. He says he is fully remorseful and regretful. As the Crown submits, the offender's expressions of regret and remorse and other statements contained in the documents should be treated with a significant degree of caution, in light of cases such as R v Qutami (2001) 127 A Crim R 369, given that he has not proffered himself for testing in cross-examination. Having said that, for a man of previously good character it is understandable that a person in his position would ultimately express remorse and regret and, to that extent I accept those expressions. He said that he now fully realises the importance of practising safe sex procedures in the future. He expresses a wish to be able to return to Spain and assist his parents in times of ill health. 16. Mr Diment took a history which seems unremarkable and a reasonable basis on which to proceed to sentence. He said that he was in tears at times when talking about the impact that his behaviour had on his partner, who he described as a lovely girl and expressed hope so that she is okay, and that he regrets this "100 percent", that he was an idiot, very irresponsible and that it was unfair to her, and that he prays for her every day. 17. He grew up in Canberra and then went to Spain and finished his schooling at age 14. He was in the Special Forces in North Africa and then worked in Spain until 1989, when he came back to Australia and was working regularly for Transfield and for Waterways Constructions at Rozelle. 18. He was married for about two years and he has two children who are in their twenties. He disclosed a history of drug use from age 16, on and off, using cocaine, LSD and amphetamines. Mr Diment diagnosed a persistent depressive disorder and says that he could have met the diagnostic criteria for a substance abuse disorder, but this was now in remission because he has been drug free for two years. 19. His overall impression was of a person prepared to now live a healthy lifestyle and appears to have had the burden lifted in respect of his HIV. He appeared to the psychologist to be genuine in acceptance of his actions and his remorse. 20. The psychologist thought that his actions were not out of selfish malice but a combination of embarrassment, ignorance and denial after he found out his HIV diagnosis and this misguided conflict, exacerbated by illicit drug use, persisted for many years. There is probably an element of truth in that opinion. It is clear that he would benefit from continued counselling and treatment both in custody and upon his release. He has a good work ethic and family support and is in regular contact with his children. 21. A lengthy victim impact statement has been prepared and is part of the Crown bundle. Although the legislature does not provide any specific guidance as to how these matters are to be considered, Basten JA said in R v Thomas [2007] NSWCCA 269, "it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim." 1. The victim impact statement graphically describes the substantial trauma experienced by her when informed of the true situation. She describes how she had fallen in love with the offender, trusted him and was then betrayed by him over a lengthy period of time. Her family have been devastated by the fact that she was knowingly infected with HIV. She lost some friends once they found out that she had HIV. Her lifestyle is affected every day. She struggles with her health and has serious problems with blood pressure, mouth ulcers and loss of a tooth. She has been suicidal, and describes the mental battle as harder than the physical, but one which she is determined to get through. Her new normal involves regular medical appointments. She cannot afford some of the medical and dental treatment that is required. 2. Her statement focuses the Court's attention on the significant harm and long-term consequences of the offender's conduct on the victim and the continuing effect of the harm caused to her is incalculable. She will be burdened by the harm caused by the offender throughout her life. She will endure a life marked by continuing medical supervision and treatment and remain in fear that any ordinary ailment will have the potential to become a serious illness. As his Honour Zahra DCJ said in R v Jaksic (unreported, NSWDC, Zahra DCJ, 26 September 2018), the substantial emotional impact upon the victim was clearly something which should be taken into account as an aggravating factor under s 21AG of the Crimes (Sentencing Procedure) Act 1999. Mr Park of counsel does not contest that finding being made. 3. The Crown's helpful written submissions point out that in looking at objective seriousness, as the High Court said in Aubrey v The Queen (2017) 260 CLR 305, the infliction of harm does not require a direct or indirect application of force and that grievous bodily harm may be inflicted by the transmission of a sexual disease." There is no longer a difference between a blow and consequent physical harm and the uncertain delayed effect of an act of sexual intercourse leading to the infection such as HIV, such an infection involves lifelong distressing and potentially fatal consequences. 4. In assessing objective seriousness, it is common ground that the offending was in the higher range. I take account of the fact that he was aware of his HIV positive status since 2003. He was repeatedly counselled as to the dangers of transmitting the virus and he was aware of the legal implications of it. He received treatment for HIV up until 2015 and did not disclose his status to a previous partner or to the present victim. Further, he lied to her, telling her that he had not been tested for HIV and continued that deception for some time and even destroyed medical correspondence. The conduct which resulted in her contracting the disease was not isolated, but involved repeated acts of sexual intercourse in an unprotected manner over an eight month period with a trusted partner. It is accurate to say, as the Crown puts, that the offence was committed with complete disregard for the health and welfare of the victim. 5. I take account of a number of decisions which have been referred by both parties including Houghton v Western Australia [2006] WASCA 143 , the High Court case in Aubrey v The Queen (2017) 260 CLR 305 which dealt principally with the question of recklessness, and first instance decisions of R v Muronzi (unreported, NSWDC, Hock DCJ, 15 November 2013) and R v Jaksic (unreported, NSWDC, Zahra DCJ, 26 September 2018) as well as the Court of Criminal Appeal decision in Kanengele-Yondjo v The Queen [2006] NSWCCA 354 to which I have referred. 6. Mr Park also concedes that the offence was committed without regard for public safety constituting an aggravating factor as submitted by the Crown. 7. The fact that the offender is HIV positive is relevant to the determination of the appropriate sentence and is assessed in the light of the fact that his illness may make a period in custody more difficult for him but as the Court said in the R v L (unreported, NSWCCA, 17 June 1996), "The fact that an offender suffers from an illness does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less that the circumstance of the case would otherwise require."In R v Higgins [2002] NSWCCA 407 the court held that the criminal justice system could not give priority to the applicant's health and that "[t]he courts must tailor their sentences with an eye to that overriding concern so far as common humanity will allow". 1. Mr Park accepts that the injury inflicted on the victim was a significant one, but it is of little significance that the offence does not involve the use of violence or a ferocious attack. The degree of recklessness was high as the Crown points out, involving unprotected sex over several months. 2. I take account as mitigating factors submitted by Mr Park that he has a reasonably good prior record, and is of relevantly good character, and I think he is unlikely to reoffend given the lesson he has learnt. To date his prospects of rehabilitation are reasonable. I take account of his plea of guilty and his expressions of remorse in the way that I have referred to. It is clear there is a basis for a finding of special circumstances, given his health difficulties, the more onerous custody that will ensue due to the lack of community and medical support, this being his first time in custody and the need to undertake further rehabilitation during an extended period of supervision on his release and ultimate need to return to Spain for the caring of parents. 3. The orders that I make are: (1) The offender is convicted of the offence. (2) Taking into account the matter on the Form 1, I impose a sentence of imprisonment of 5 years, 3 months, to commence on 22 March 2018. (3) I impose a non-parole period of 3 years, 3 months, expiring on 21 June 2021. (4) I find special circumstances. NON PUBLICATION ORDER (5) Pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010, I make a non-publication order in relation to the name of the victim. Note – These extempore remarks were revised without access to the court file ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2019