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District Court 17 July 2019

R v Navarro

[2019] NSWDC 540

Assault & violence

Citation: R v Navarro [2019] NSWDC 540
Court: District Court of New South Wales
Date: 17 July 2019
Judge: M L Williams SC DCJ

Background

The offender, a 54-year-old man, pleaded guilty to one count of recklessly inflicting grievous bodily harm under s 35(2) of the Crimes Act 1900, having transmitted HIV to a female sexual partner. He had been diagnosed with HIV in 2003 and was repeatedly counselled by medical practitioners over many years about the legal and health consequences of unsafe sex and non-disclosure.

The offender began a sexual relationship with the victim in mid-2016. He never disclosed his HIV status to her, and she had tested negative for sexually transmitted infections in February 2016. After an initial protected encounter, the relationship continued with unprotected intercourse. By early 2017 the victim fell ill, and on 14 February 2017 she received confirmation she was HIV positive. The offender compounded the harm by deceiving her about when he had been diagnosed, suggesting the infection was recent when in fact he had known of his status for over a decade.

From 2015, the offender had discontinued all HIV treatment, including antiretroviral therapy, meaning his viral load was not being managed during the period he was having unprotected sex with the victim. He was arrested at his workplace on 22 March 2018. A Form 1 matter was also taken into account: possession of ammunition without a licence, consisting of shotgun, rifle, and pistol rounds found on him at arrest.

  • What sentence was appropriate for recklessly inflicting grievous bodily harm by transmitting HIV, having regard to the standard non-parole period and the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to objective aggravating factors, including the degree of recklessness, concealment, and harm caused?
  • What weight should be given to subjective mitigating factors, including good character, a guilty plea, expressions of remorse, health, and the circumstances of the offender's elderly parents abroad?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the total sentence.
  • How should the Form 1 offence (possession of ammunition) affect the sentence?

Decision

Williams SC DCJ characterised the offending as objectively serious. The degree of recklessness was high: the offender engaged in unprotected sex with the victim over several months, knowing he was HIV positive, while not receiving treatment that could have reduced his viral load. He actively deceived her about his status both before and after her diagnosis, and destroyed documentary evidence to conceal his long-standing condition. The court drew on remarks from the Court of Criminal Appeal in Kanengele-Yondjo v The Queen describing reckless HIV transmission as demonstrating a gross, callous, and reprehensible disregard for the health and welfare of victims.

On mitigation, the court accepted that the offender had no relevant prior criminal record and was of good character. A 25% discount was applied for the utilitarian value of the guilty plea, consistent with the circumstances in which it was entered. Expressions of remorse, including a handwritten letter and a psychologist's report, were accepted to a limited extent. However, the court treated them with "a significant degree of caution" because the offender did not give evidence and was therefore not available for cross-examination, consistent with the approach in R v Qutami.

The court acknowledged that the offender's HIV-positive status made custody more onerous, but applied the established principle that illness does not automatically reduce a sentence below what the circumstances otherwise require. The offender's health, combined with the fact this was his first period in custody, the absence of community and medical support during incarceration, and a need for extended supervision on release (including an anticipated return to Spain to care for elderly parents), together supported a finding of special circumstances. This finding permitted the court to set a non-parole period at a lower proportion of the total sentence than the standard ratio.

The total sentence of five years and three months, with a non-parole period of three years and three months, reflected all of these factors together with the Form 1 ammunition offence.

Orders Made

  • The offender was convicted of the offence of recklessly inflicting grievous bodily harm.
  • A sentence of imprisonment of 5 years and 3 months was imposed, commencing 22 March 2018, taking into account the Form 1 matter.
  • A non-parole period of 3 years and 3 months was imposed, expiring 21 June 2021.
  • Special circumstances were found.
  • A non-publication order was made in relation to the victim's name under s 7 of the Court Suppression and Non-Publication Orders Act 2010.

Key Takeaways

  • Reckless transmission of HIV through sustained unprotected intercourse, accompanied by deliberate concealment and ongoing deception, was treated by the District Court as objectively very serious, warranting full-time custody despite the offender's otherwise good character and guilty plea.
  • Active concealment of an HIV diagnosis, and conduct designed to prevent a partner from discovering the true timeline of infection, constituted significant aggravating features going to the degree of recklessness and disregard for the victim's welfare.
  • A guilty plea entered in circumstances attracting a 25% discount for utilitarian value remains an important mitigating factor, but expressions of remorse unsupported by sworn evidence are to be treated with caution, consistent with the Court of Criminal Appeal's approach in R v Qutami.
  • An offender's HIV-positive status and the additional hardship it causes in custody are relevant to sentencing but do not, of themselves, justify a sentence lower than the circumstances otherwise require, following R v L and R v Higgins.
  • Special circumstances may be established where a combination of factors, including serious health conditions, first-time custody, lack of support networks, and an identified need for extended post-release supervision, collectively justify extending the parole period beyond the standard proportion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Firearms Act 1996 (NSW), s 65(3)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases
- Aubrey v The Queen (2017) 260 CLR 305
- Kanengele-Yondjo v The Queen [2006] NSWCCA 354
- R v Qutami (2001) 127 A Crim R 369
- R v Higgins [2002] NSWCCA 407
- R v Thomas [2007] NSWCCA 269
- Houghton v Western Australia [2006] WASCA 143
- R v L (unreported, NSWCCA, 17 June 1996)
- R v Jaksic (unreported, NSWDC, Zahra DCJ, 26 September 2018)
- R v Muronzi (unreported, NSWDC, Hock DCJ, 15 November 2013)