Palmer v The State of Western Australia
[2018] WASCA 225
•20 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PALMER -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 225
CORAM: MAZZA JA
MITCHELL JA
ALLANSON J
HEARD: 17 OCTOBER 2018
DELIVERED : 20 DECEMBER 2018
FILE NO/S: CACR 30 of 2018
BETWEEN: CLAYTON JAMES PALMER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 1349 of 2016
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted after trial of one count of grievous bodily harm - Negligent HIV transmission - Sentence of 6 years' imprisonment - Manifest excess - Turns on own facts
Criminal law - Practice and procedure - Application for peak body to appear amicus curiae - Turns on own facts
Legislation:
Criminal Code (WA), s 297(1)
Result:
Appeal allowed
Appellant resentenced
Application to adduce evidence allowed
Application for amicus curiae refused
Category: B
Representation:
Counsel:
| Appellant | : | Mr S D Freitag SC |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Allen v The State of Western Australia [2017] WASCA 203
Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305
Baker v The State of Western Australia [2018] WASCA 15
Bowe v The State of Western Australia [2017] WASCA 166
Bropho v Tickner (1993) 40 FCR 165
Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391
Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260
Kere Kere v The State of Western Australia [2016] WASCA 189
Kruger v The Commonwealth [1997] HCA 27
Kruger v The Commonwealth [1997] HCA Trans 12
Laurence Nathan Levy v The State of Victoria & Ors [1997] HCA 31; (1997) 189 CLR 579
Lee v The State of Western Australia [2018] WASCA 156
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mercanti v The State of Western Australia [2009] WASCA 109
Peake v The State of Western Australia [2015] WASCA 239
R v GJ [2005] NTCCA 20; (2005) 16 NTLR 230
Reynolds v The State of Western Australia [2017] WASCA 214
The State of Western Australia v Mackey [2017] WASCA 204
The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308
Trompler v The State of Western Australia [2008] WASCA 265
Winmar v The State of Western Australia [2016] WASCA 62
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
JUDGMENT OF THE COURT:
On 19 January 2018, the appellant was convicted after trial in the District Court of one count of doing grievous bodily harm, contrary to s 297(1) of the Criminal Code (WA) (the Code).[1] The maximum penalty for this offence is 10 years' imprisonment.
[1] ts 656; WAB 77.
On 16 February 2018, the appellant was sentenced to 6 years' immediate imprisonment with eligibility for parole backdated to commence on 1 April 2017.[2] The appellant is a birth‑assigned male who has, for all of her adult life, identified as female. For many years, she has lived as a woman.[3] When referring to the appellant, we will, as occurred in the court below, use the feminine pronoun. She appeals to this court against the sentence on the ground that it is manifestly excessive.[4]
Application by the National Association of People Living with HIV Australia (Inc) for leave to appear as amicus curiae
[2] ts 734; WAB 74.
[3] ts 680; WAB 74.
[4] Leave to appeal was granted on 6 May 2018 by Mazza JA, WAB 4.
By application filed 12 October 2018, the National Association of People Living with HIV Australia (Inc) (NAPWHA) sought leave to appear as amicus curiae and to adduce evidence in the appeal. The application was opposed by the respondent. At the hearing of the appeal, the court unanimously dismissed the application.[5] Our reasons for doing so are as follows.
[5] Appeal ts 16.
The evidence before this court reveals that NAPWHA is a national organisation that has represented people with HIV in Australia since 1988. Among its activities, NAPWHA monitors and responds to the impact of HIV on the lives of people with HIV, and has, in the past, produced reports on the effect of treatment of HIV, HIV and criminalisation, non‑disclosure and transmission. NAPWHA also supports those in the community who have HIV to lead full and healthy lives.[6] It is said that NAPWHA is the national peak independent body in Australia for people with HIV.[7]
[6] Mr Gunasekera's submissions, pars 1 - 5.
[7] Mr Gunasekera's draft amicus curiae submissions, par 2.
The application was supported by the affidavits of Asanka Gunasekera sworn 12 October 2018, Aaron John Cogle sworn 12 October 2018 and Professor Carla Justine Treloar affirmed on 9 October 2018.
In his affidavit, Mr Cogle, who is the executive director of NAPWHA, explained why the application was brought late in the proceedings. As the respondent did not make any real issue of the lateness of the application, there is no need to refer further to the contents of this affidavit.
Annexed to Mr Gunasekera's affidavit were draft submissions which, broadly speaking, addressed a number of issues, including the power of this court to grant the application, why the power should be exercised in favour of NAPWHA, and if the application were granted, the matters which NAPWHA wished to draw to the court's attention. As to the last‑mentioned topic, NAPWHA wished to draw to the court's attention recent research from the Centre for Social Research in Health (CSRH) at the University of New South Wales, which was published on 5 October 2018.[8] NAPWHA also wished to offer submissions on the following areas:
(a)the modern experience of HIV in Australia;
(b)living with HIV in 2018;
(c)health and life expectancy comparisons;
(d)HIV and sexual relationships;
(e)HIV and family;
(f)relationships between HIV positive and HIV negative people; and
(g)employment and discrimination for people living with HIV.
[8] Mr Gunasekera's draft amicus curiae submissions, par 13.
The principal points NAPWHA wished to make were summarised in Mr Gunasekera's draft submissions as:[9]
64.The most recent academic data on HIV‑related stigma suggests that HIV is not 'a social death sentence'.
65.The lived experience of PWHIV [people with HIV] today is one of minimal 'lifestyle restrictions'.
66.PWHIV can, and do, live 'normal' lives.
[9] Mr Gunasekera's draft amicus curiae submissions, pars 64 - 66.
In her affidavit, Professor Treloar, who is the director of the CSRH, described how in 2017 a survey of attitudes (AuSSA) was undertaken, designed to investigate the extent to which the Australian public would discriminate against certain categories of people, including those with HIV. In August and October 2018, some of the results from the survey were published.[10] The survey revealed that out of 1,001 people surveyed, 76% said that they would 'never' or 'rarely' treat a HIV positive person differently because of their HIV status.[11] The proportion of respondents reporting positive attitudes towards people living with HIV was substantially larger than those reporting negative attitudes.[12]
[10] Professor Treloar's affidavit, pars 36 ‑ 38.
[11] Professor Treloar's affidavit, pars 22, 25 ‑ 26.
[12] Professor Treloar's affidavit, par 31.
NAPWHA made it clear that it did not wish to support any particular party in the proceedings before this court, and that it only sought to assist the court to understand 'important and recent developments in the Australian HIV response'.[13] The court does not doubt the sincerity of NAPWHA's offer to assist the court.
[13] Mr Gunasekera's amicus curiae leave to appear submissions, par 5.
NAPWHA does not seek leave to intervene in the appeal, and does not assert that its legal interests may be affected by this court's decision in a manner that would support an application to intervene.[14] Further, to allow intervention in this case would cut across time‑honoured principles that criminal proceedings are joined between the State of Western Australia (in Commonwealth cases, the Crown) and the accused. It is the State which represents all of the interests of the community, including the individual interests of the victims of crime, and no one else. At least ordinarily an intervener will not be allowed to raise issues not raised by the State, as to do so would be unfairly prejudicial to require the accused to meet two different cases.[15]
[14] Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 602 and cases there cited.
[15] Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 [109] - [110]; R v GJ [2005] NTCCA 20; (2005) 16 NTLR 230 [54] (Mildren J).
This court has inherent jurisdiction to permit counsel to appear as amicus curiae. For example, it has been the practice of this court to permit counsel to appear on behalf of a person who has been convicted of a criminal offence and who wishes to participate in an appeal against conviction and/or sentence in which they are a party, where that person would otherwise be unrepresented. The present application is not of this type.
In Levy, Brennan CJ said that the hearing of an amicus curiae is entirely in the court's discretion. He described the footing on which an amicus curiae is heard as being that '[the] person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted'.[16]
[16] Levy(604).
Brennan CJ referred to a ruling he made in Kruger v The Commonwealth[17] in which he refused counsel's application to appear for a person as amicus curiae because the applicant failed to show that the 'parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case'.[18] He also said that the court must be cautious in considering applications to be heard by persons who would be amicus curiae, having regard to the possibility that the efficient operation of the court would be prejudiced.[19]
[17] Kruger v The Commonwealth [1997] HCA 27.
[18] Kruger v The Commonwealth [1997] HCA Trans 12 (Brennan CJ).
[19] Levy (604).
Considerations bearing on whether a person will be permitted to act as an amicus curiae include:
(1)the degree to which relevant issues would not otherwise be adequately canvassed;
(2)whether the court considers it would be significantly assisted by the submissions of the amicus curiae;
(3)whether it is in the parties' interests that an amicus curiae be permitted to make submissions; and
(4)whether such costs as are occasioned by consideration of those submissions are not disproportionate to the assistance expected.
Further, where, as here, a third party seeks leave in a criminal proceeding to advance a submission in its own interest the legal policy considerations referred to at [11] above remain important to the exercise of the court's discretion.
In the present case, the parties were represented by counsel. The appellant was represented by experienced senior counsel. The court at first instance had the benefit of the evidence of Dr David Nolan, a specialist clinical immunologist with particular expertise in HIV. That evidence is described in some detail between [45] and [50] of these reasons. In essence, Dr Nolan testified that advances in medicine are such that a person infected with HIV, under treatment, has a similar life expectancy to those who are not infected with the virus.[20]
[20] ts 479.
As to the question of stigma, his Honour's focus was quite properly upon the victim's subjective perception of the stigma attached to being a person with HIV. His Honour recognised that the community's attitudes to those who are HIV positive is in the process of change, and that, hopefully, in time, the victim will 'be able to move forward with his life'.[21] Further, as will be seen, and as was foreshadowed at the hearing of this appeal, the appellant has now brought an application to adduce as additional evidence in the appeal the affidavit of Professor Treloar, on the basis that if the appeal is allowed, it is a matter this court can take into account in resentencing the appellant.
[21] ts 733; WAB 73.
In these circumstances, we were of the view that the court would not be significantly assisted by hearing NAPWHA as an amicus curiae in this appeal. Further, it would not be appropriate in these circumstances to allow NAPWHA to advance a case which differs from that of the State in criminal proceedings between the appellant and the State.
Given this conclusion, it is unnecessary to decide whether an amicus curiae is permitted to tender controversial evidence, or has the right to lead evidence.[22]
[22] Cf Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391, 399; Bropho v Tickner (1993) 40 FCR 165, 172 ‑ 173.
The facts
On 19 January 2018, following the verdict of the jury, the trial judge made detailed factual findings with respect to the commission of the offence.[23] On 16 February 2018, his Honour summarised those findings.[24] The salient facts are as follows.
[23] ts 680 ‑ 688; WAB 101 ‑ 109.
[24] ts 727 ‑ 728; WAB 67 - 68.
For some time prior to the commission of the offence, the appellant was a transgender sex worker. She was also using methylamphetamine intravenously. On two occasions in August 2014, she provided blood samples for analysis to a nurse, Ms Morgan.[25] A blood sample obtained by Ms Morgan on 27 August 2014 tested positive to HIV. On 3 September 2014, Ms Morgan informed the appellant that she had tested positive to HIV. Despite this diagnosis, the appellant continued to conduct her sex work, which included engaging in unprotected anal sex.
[25] ts 727; WAB 67.
On 5 November 2014, the victim, a male, made contact with the appellant after seeing one of her online advertisements in which she represented she was 'clean'.[26] Shortly after they met, and in response to an enquiry made by him, the appellant confirmed she was 'clean' and that she underwent monthly checks for sexually transmitted diseases.[27] At the time, the appellant knew that she was not 'clean' and had been infected with HIV.
[26] ts 727; WAB 67.
[27] ts 727 ‑ 728; WAB 67 - 68.
Between 1 January 2015 to about the end of July or early August 2015, that is, over a period of about eight months, the appellant and the victim, on several occasions, engaged in unprotected anal sex. At no time did the appellant disclose to the victim that she was HIV positive. It was not disputed by the appellant, and his Honour found as a fact, that the victim would not have engaged in sexual activity with her had he known of her condition.[28] The State's case at trial was that the appellant's conduct was criminally negligent. His Honour appears to have sentenced the appellant on this basis.
[28] ts 729; WAB 69.
In September 2015, the victim became ill. A blood test revealed that he had become HIV positive. His Honour found that the appellant transmitted the virus to the victim.[29] On 25 September 2015, there was an exchange of text messages between the appellant and the victim. In these messages, the appellant, in effect, feigned ignorance of her HIV status. A further exchange of text messages on 29 September 2015 was to the same effect.
[29] ts 685; WAB 106.
The appellant travelled to Sydney. She continued to advertise as a transgender sex worker until she was spoken to by police in Sydney on 5 January 2016.[30] On 19 February 2016, she was taken into custody and later extradited to Western Australia. Her evidence at trial was that she did not know she was HIV positive until her arrest. This evidence was untrue and was plainly rejected by the jury.[31]
[30] ts 728; WAB 68.
[31] ts 685; WAB 106.
His Honour characterised the appellant's criminality as being 'at the upper end of the range of seriousness'.[32] His Honour said that the appellant had a 'callous disregard' for the victim 'in the circumstances where as a sex worker [the appellant] [was] plainly aware of the seriousness of sexually transmitted diseases'.[33]
[32] ts 728; WAB 68.
[33] ts 728; WAB 68.
His Honour said that the offending was significantly aggravated by the appellant's dishonesty in the representations she made to the victim.[34]
[34] ts 728 - 729; WAB 68 - 69.
His Honour observed that at the time of the commission of the offence, the appellant was addicted to methylamphetamine, and that this 'subjective need' overrode any care or concern about the victim and the risk or possibility of infecting him with HIV.[35] His Honour also found that the length of time over which the appellant was prepared to engage in sexual activity with the victim without informing him of her HIV status was 'significant and aggravating'.[36]
[35] ts 729 - 730; WAB 69 - 70.
[36] ts 730; WAB 70.
His Honour described the appellant as displaying 'a wilful and wanton disregard for the safety or welfare of the victim'.[37]
[37] ts 730; WAB 70.
The appellant's personal circumstances
The appellant was 40 years of age when sentenced. She was born and raised in New Zealand. She has no relevant prior criminal record.[38]
[38] ts 731; WAB 71.
The appellant has identified as a woman her entire adult life.[39] She has dressed as a woman since high school and beginning in her early 20s, has been taking female hormones.[40]
[39] ts 680; WAB 101.
[40] Defence sentencing submissions WB 118 - 119.
After completing high school, she studied at a teacher's college. She did not complete her studies, having formed the view that her transgender identity would pose a problem for future employers.[41]
[41] Defence sentencing submissions WB 119.
In her late 20s, the appellant commenced using methylamphetamine. Over time, her sex work and drug use became intertwined.[42]
[42] Defence sentencing submissions WB 119 - 120.
His Honour found that the appellant has now accepted her HIV diagnosis, and that she is taking effective medication which has reduced the appellant's viral load to a level which is regarded as undetectable.[43] Prior to her incarceration, the appellant had volunteered and assisted with the education of sex workers about HIV.
[43] ts 731; WAB 71.
The sentencing judge received two reports by Dr Sam Winter. Dr Winter's expertise is in transgender and transsexual health and wellbeing. Dr Winter reported that the appellant meets the diagnostic criteria for transsexualism. Dr Winter was of the view that if the appellant were to be held in custody, it should be in a women's prison. At the time Dr Winter wrote the report, the appellant was detained in the Crisis Care Unit (CCU) of a maximum security male prison, an environment Dr Winter said was 'inconsistent with her gender identity', and which placed the appellant 'in harm's way'.[44]
[44] Report of Dr Winter, 14 March 2016.
Dr Winter recommended that the appellant be promptly given appropriate hormone treatment, and that she be given 'basic amenities available under normal circumstances to female inmates'. Dr Winter also recommended that the appellant be provided gender‑appropriate clothing, basic cosmetic products and provisions to ensure privacy and dignity during shower and search procedures.
Since being sentenced, the appellant has remained in the CCU. The measures recommended by Dr Winter have not been put in place. It is highly unlikely that the appellant will be kept anywhere other than a male prison during the custodial part of her sentence.
There was no dispute that as a result of being kept in the CCU and by reason of her transsexualism, she has limited access to recreational, educational and work programs, and her socialisation is limited. His Honour accepted that by reason of the appellant identifying as transgender, she will have to be kept in the CCU for her own safety, and that being kept in the CCU is an additional hardship.[45]
[45] ts 731 - 732; WAB 71 - 72.
Victim impact statement
The fact that the victim has an undetectable viral load does not mean that the fact he is HIV positive has not had ongoing serious consequences for him. Because of the victim's particular cultural background, he feels he must hide his HIV status and how he came to be infected from his family and friends. Were it to become known that he is HIV positive, he believes he would be ostracised by them. He regards marriage as no longer an option for him. The stress leading up to the trial weighed heavily upon him.
In his victim impact statement, the victim said that, by reason of being HIV positive, he is unable to participate in sport and, in particular, boxing. He has noticed that, as a result of the medication he is required to take every day, his body shape has changed in a way that he finds undesirable. As a consequence of being HIV positive, he feels depressed and worthless.
The sentencing remarks
We have already set out his Honour's findings of fact, and the aggravating circumstances of the offending.
By way of mitigation, his Honour found that:
(a)at least to the extent that the appellant is required to take medication for the rest of her life, she appreciates the impact of her offending on the victim;[46]
(b)the time the appellant will be in custody carries with it an additional degree of hardship that will not, and would not, be present for others who are not transgender;[47]
(c)the appellant does not pose a risk to the public, provided she continues taking her daily medication;[48]
(d)by reason of the rehabilitative steps she has taken, the need for the sentence to provide personal deterrence and public protection has been reduced.[49]
[46] ts 731; WAB 71.
[47] ts 731; WAB 71
[48] ts 733; WAB 73.
[49] ts 733; WAB 73.
His Honour referred to the decision of this court in Houghton v The State of Western Australia.[50] He correctly observed that since that case was decided there have been remarkable scientific and medical advances so that those who have contracted HIV and who take the appropriate daily medication can expect to live a normal life and have a normal life expectancy.[51] His Honour accepted that, over time, the stigma which had been associated with those who are HIV positive will reduce and that he expected that 'over time this victim will be able to move forward with his life'.[52] However, his Honour also recognised that there was an element of seriousness in the offence because the potency of the virus and the damage it can cause to community health, if undetected and untreated, remains.[53] This finding is consistent with evidence adduced at trial from Dr David Nolan.[54]
[50] Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260.
[51] ts 732; WAB 72.
[52] ts 733; WAB 73.
[53] ts 733; WAB 73
[54] ts 456 ‑ 483.
Evidence of Dr David Nolan
Dr Nolan is a specialist clinical immunologist with particular expertise in HIV. He gave some general evidence concerning HIV and some specific evidence in respect of both the appellant and the victim. None of this evidence was materially challenged at trial or in the sentencing proceedings. It informed some of his Honour's findings of fact.
Left untreated, HIV is fatal to 95% of the population.[55] Over the last 20 years there has been an 'incredible evolution of treatment' which Dr Nolan described as 'safe, very effective [and] long term'.[56] The treatment requires the person infected with HIV to take daily medication for life. A person living with HIV under treatment has a similar life expectancy to members of the community who are not infected with the virus.[57]
[55] ts 456.
[56] ts 456 ‑ 457.
[57] ts 479.
Dr Nolan explained that once a person has been diagnosed as being infected with HIV, a test is conducted to see how high the viral level is in the bloodstream.[58] The result of that test reveals the person's viral load.
[58] ts 457.
Dr Nolan explained that the most common way that people are infected with HIV is via sexual contact where the virus travels through a mucosal barrier.[59] HIV crosses the lining of the rectum more easily than, for example, the vagina. Dr Nolan described the rectal mucosa as being 'a much weaker barrier to viral infection'.[60] A condom is a 'very effective' means of preventing HIV transmission.[61]
[59] ts 458.
[60] ts 459.
[61] ts 459.
Dr Nolan testified that, in the case of anal sex, receptive anal intercourse has a greater likelihood of transmission.[62] Nevertheless, the risk of transmission is still high for insertive and receptive anal intercourse. Dr Nolan, as a 'ballpark figure', estimated that the rate of HIV transmission in the case of both insertive or receptive unprotected anal sex is in the order of one in a thousand per sexual act.[63] There are factors which can affect this estimate.[64]
[62] ts 477.
[63] ts 477.
[64] Such as whether the insertive party is circumcised, which decreases the risk quite dramatically. See ts 477.
As at 17 January 2018, when Dr Nolan testified at trial, both the appellant and the victim had viral loads of less than 40 copies per millilitre of blood.[65] This result was considered to be a 'undetectable viral load', which means that the risk of transmission from them is as close to zero as condom use.[66]
[65] ts 478.
[66] ts 479.
General appellate principles
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences in the kind in question, and the personal circumstances of the offender.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is significant for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[67]
[67] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
The appellant's submissions
It was submitted by senior counsel on behalf of the appellant that, having regard to the combination of the following factors, the sentence of 6 years' immediate imprisonment was manifestly excessive:
(a)The infliction of the grievous bodily harm did not involve physical or sexual violence, nor did the appellant inflict the harm intentionally.
(b)The additional hardship that the appellant must suffer as a result of being a transgender woman incarcerated in a male prison.
(c)While the victim has been infected with a potentially life‑threatening condition, provided he maintains his medication, he will have a normal life expectancy and has the capacity to live a normal life.
(d)The appellant has gone from a stance of denial to a stance of acceptance of her HIV status and wishes to educate sex workers in respect of HIV.
(e)The appellant has no relevant criminal history.
(f)The appellant poses no ongoing risk to public safety.
(g)Personal deterrence is a largely irrelevant sentencing consideration.
The respondent's submissions
On behalf of the respondent it was submitted that the sentence imposed was not unreasonable or plainly unjust and that this court should not interfere.
Counsel submitted that the sentencing judge's characterisation of the offence as being at the upper end of the range was correct. The victim had been infected with a lifelong and potentially deadly virus which, if left untreated, would have killed him. The appellant's behaviour toward the victim involved deceit over a period of months and has caused the victim great hardship. Counsel for the respondent pointed to the fact that the victim must take daily medication for the rest of his life. Counsel emphasised the social consequences of being HIV positive for the appellant, including the victim's perceived inability to form intimate relationships and the perceived social stigma that attaches to those who are HIV positive in both his cultural group and the general population.
Counsel for the respondent pointed to the fact that, between the time the appellant was informed that she was HIV positive on 3 September 2014 and to at least the time of her extradition on 19 February 2016, the appellant posed a risk to public health and safety.
Disposition of the appeal
As we have already noted, the maximum penalty for unlawfully doing grievous bodily harm to another, if the offence is not committed in the circumstance of aggravation, contrary to s 297(1) of the Code, is 10 years' imprisonment.
With respect to comparable cases, the parties focused upon the decision of this court in Houghton v The State of Western Australia.[68] In that case, the offender was convicted after a retrial of a single count of doing grievous bodily harm to the complainant, contrary to s 297(1) of the Code. He was sentenced to 4 years 8 months' imprisonment.
[68] Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260.
In 1990, the offender discovered that he was HIV positive. In 1997, he met the complainant, a 16‑year‑old girl. In 1999, their relationship became a sexual relationship. They engaged in unprotected vaginal and anal sex. The offender did not tell the complainant that he had acquired HIV.[69] In 2000, the complainant found out that she had contracted the virus. The offender provided the victim and her mother with documents that he had forged to the effect that he was HIV negative.[70]
[69] Houghton [2].
[70] Houghton [3].
At the time the offender was sentenced, he was 37 years of age and had no prior convictions. The sentencing judge concluded that the offender's conduct was a gross betrayal of trust, and that his conduct lay towards the highest end of the scale of criminal negligence.[71]
[71] Houghton [6].
The offender appealed, alleging that the sentence was manifestly excessive. This court rejected that claim. In doing so, it was observed that the complainant had been left in the situation where she was forced to live with ongoing uncertainty provided by her disease, and with the probability that, in time, it would eventually progress to the stage of 'full blown' AIDS which, in turn, is likely to result in death.[72]
[72] Houghton [11].
The outcome in Houghton is of very limited assistance. As a matter of principle, one or even a small number of comparable cases does not establish a range of sentences which can inform the issue of whether the sentence in question represents a sound exercise of the sentencing discretion. Further, advances in medicine since Houghton was decided are such that, provided the person infected with the virus is treated, being HIV positive is highly unlikely to result in death.
The parties referred to other cases decided in other jurisdictions where an offender has been convicted of an offence, the gravamen of which is the offender has transmitted to the victim in circumstances where the victim was unaware that the offender carried the virus. It is unnecessary to analyse these cases because they involve offences which are not precise analogues to s 297(1) of the Code, and they were decided under different sentencing regimes. The appellant made reference to two High Court authorities, Zaburoni v The Queen[73] and Aubrey v The Queen.[74] As both of these cases involve appeals against conviction and not sentence, they provide no guidance to the outcome in this appeal.
[73] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482.
[74] Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305.
In the recent decision of Lee v The State of Western Australia,[75] this court examined numerous cases of offending against s 297(1), including Trompler v The State of Western Australia;[76] Mercanti v The State of Western Australia;[77] The State of Western Australia v Taylor;[78] Peake v The State of Western Australia;[79] Winmar v The State of Western Australia;[80] Kere Kere v The State of Western Australia;[81] Bowe v The State of Western Australia;[82] Allen v The State of Western Australia;[83] The State of Western Australia v Mackey;[84] Reynolds v The State of Western Australia;[85] Baker v The State of Western Australia.[86]
[75] Lee v The State of Western Australia [2018] WASCA 156.
[76] Trompler v The State of Western Australia [2008] WASCA 265.
[77] Mercanti v The State of Western Australia [2009] WASCA 109.
[78] The State of Western Australia v Taylor [2012] WASCA 233; (2012) 226 A Crim R 308.
[79] Peake v The State of Western Australia [2015] WASCA 239.
[80] Winmar v The State of Western Australia [2016] WASCA 62.
[81] Kere Kere v The State of Western Australia [2016] WASCA 189.
[82] Bowe v The State of Western Australia [2017] WASCA 166.
[83] Allen v The State of Western Australia [2017] WASCA 203.
[84] The State of Western Australia v Mackey [2017] WASCA 204.
[85] Reynolds v The State of Western Australia [2017] WASCA 214.
[86] Baker v The State of Western Australia [2018] WASCA 15.
The court had regard to the remarks of Buss JA (as his Honour then was) in Taylor between [35] and [39], where his Honour said:
In Trompler, Wheeler JA (Buss JA agreeing) noted that there are, in general, three matters of significance in determining the criminality of an offence which involves unlawfully doing grievous bodily harm. First, there is the nature of the harm which is inflicted. Although any grievous bodily harm is necessarily serious, it may range from a permanent injury with which the complainant is able to cope, to a severe and life‑threatening injury which occasions significant permanent disability. Secondly, there is the nature of the act which causes the harm. This may range from a single act, to repeated acts of violence. Thirdly, there is the background to and circumstances of the offence. This may range from a response to a provocative act of the complainant, to random and senseless violence. See Trompler [9] ‑ [11]. See also Hussaini v The State of Western Australia [2009] WASCA 207 [23] (Wheeler JA).
McLure JA made these comments in Trompler about the broad range of sentences (post-transitional) for unlawfully doing grievous bodily harm:
'The sentences actually imposed for offences of this type have a post transitional range of 8 months (Camilleri) to 5 years and 4 months (Bruno v The State of Western Australia [2005] WASCA 149). I have reviewed many of the cases in between (including R v Hodges [1999] WASCA 278; Hayes v The Queen [2003] WASCA 230; Clements v The State of Western Australia [2006] WASCA 69; Etrelezis v The Queen [2001] WASCA 327) [38].'
In each of The State of Western Australia v Camilleri [2008] WASCA 217; (2008) 189 A Crim R 394, Bruno v The State of Western Australia [2005] WASCA 149, R v Hodges [1999] WASCA 278, Hayes v The Queen [2003] WASCA 230 and Clements v The State of Western Australia [2006] WASCA 69, the offender entered a plea of guilty.
In Trompler Wheeler JA observed:
'I would note that in Camilleri (The State of Western Australia v Camilleri [2008] WASCA 217), I reviewed a number of cases involving offences of grievous bodily harm. They reveal that, as one would expect, serious offences of the kind inevitably attract sentences of imprisonment of some severity and that, prior to the increase in the maximum penalty from 7 years to its current maximum of 10 years, relatively serious examples of that kind of offence would result in a range of sentences (pre transitional) of 3 to 5 years. Allowing for the effect of the transitional provisions and the effect of the increase in the maximum, one would expect a post transitional range of 3 to 5 years for those offences which are towards the upper end of the range, although not of the most serious kind [19].'
In Mercanti, Miller JA (Wheeler & Pullin JJA agreeing) held that the general range established in cases of unlawfully doing grievous bodily harm is between 8 months and 5 years 4 months, but more like 3 to 5 years for offences towards the upper end of the range [35]. His Honour added that these ranges were 'post transitional' and, in view of the decision of the majority in The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414, this was the appropriate range to apply [36]. See also Djiagween v The State of Western Australia [2012] WASCA 141; Holden v The State of Western Australia [2011] WASCA 238; Hobby v The State of Western Australia [2011] WASCA 197; Steel v The State of Western Australia [2010] WASCA 118; Ward [No 2].
His Honour's characterisation of the appellant's criminality as being 'at the upper end of the range of seriousness' is an evaluative judgment on his Honour's part. It is a characterisation which explains why his Honour imposed the sentence he did. However, whether the sentence is manifestly excessive is to be determined by reference to the factors we referred to in [51] of these reasons. We will not repeat what we have already written about the facts and circumstances of the offence. Nor will we repeat the aggravating and mitigating circumstances identified by his Honour. Despite the fact that advances in medicine mean that, provided the victim maintains a regime of daily medication, he will live a normal life, the fact remains that he has been infected with a lifelong and potentially deadly virus. The appellant deliberately deceived the victim, claiming that she was free from sexually transmitted diseases. As a result of that deceit, the victim engaged in unprotected anal sex.
His Honour accepted that the attitudes of the Australian public towards people who are HIV positive has changed, and continues to change, and that the social stigma that once attached to those who were HIV positive is diminishing. However, that is not the victim's own experience, having regard to his particular cultural background. No challenge was made in the sentencing proceedings or in this court to the accuracy of the victim impact statement. It must be accepted that, from the victim's perspective, his HIV positive status has been a great burden. It has adversely and significantly affected his enjoyment of life and will continue to do so into the future, although it is hoped that in time those adverse effects will diminish.
Nevertheless, the sentence imposed upon the appellant was severe, having regard to the range of sentences customarily imposed for offences of grievous bodily harm. The sentence was beyond the post‑transitional range established for offences towards the upper end of the scale, recognising, of course, that the range of sentences customarily imposed does not dictate the upper or lower limb of a proper exercise of the sentencing discretion.[87]
[87] Allen [62] - [65].
There were substantial mitigating factors. Two such factors stand out. First, it is uncontested that the appellant will serve the custodial portion of her sentence in a male prison, under protection, and will experience hardship beyond that experienced by mainstream prisoners. The second factor is that, by reasons of the steps taken by the appellant, the need to provide personal deterrence and public protection has been reduced.
Having regard to all relevant circumstances, we have been persuaded that the sentence of 6 years' imprisonment was manifestly excessive. In our opinion, having regard to all of the relevant facts and circumstances, the sentence that was imposed was, having regard to the maximum penalty, the seriousness of the offending, the range of sentences customarily imposed, the importance of providing an appropriate measure of punishment and deterrence, and having regard to all mitigating factors, the length of the term was unreasonable or plainly unjust.
The ground of appeal has been made out and this court's jurisdiction to resentence the appellant has been enlivened.
Resentencing
In the course of argument before this court, senior counsel made an oral application to adduce, as additional evidence in the appeal, the affidavit of Professor Treloar on the basis that it may be considered by this court if the appellant came to be resentenced.[88] The respondent objected to the application on the basis that Professor Treloar's affidavit was irrelevant.[89] The appellant was given leave to file a written application seeking to adduce Professor Treloar's report. On 19 October 2018, the foreshadowed application was filed.
[88] Appeal ts 30 - 31.
[89] Appeal ts 30 - 31.
We must say that, in respect of the resentencing of the appellant, Professor Treloar's report is of marginal relevance. Its relevance is restricted to providing the court with background information to the effect that the negative stigma attached to those who are HIV positive has, thankfully, diminished. That underscores the hope recognised by the sentencing judge that the social stigma the victim feels may diminish in time. To be balanced against this is updated information obtained by the respondent from the victim who, having been made aware of Professor Treloar's findings, confirmed the contents of his victim impact statement.[90] To the limited extent that we described, we would grant the appellant's application to adduce additional evidence in the appeal.
[90] Email, Office of DPP to Manager of the Court of Appeal office, 29 October 2018.
A further matter which has been drawn to the court's attention and which is relevant to the appellant's resentencing is that the appellant has been moved from the CCU to the Special Protection Unit (SPU). The conditions of prisoners housed in the SPU are less restrictive than those in the CCU. The appellant can now access gender neutral toiletry products and has been provided with female underwear. However, prisoners located in the SPU require a high degree of protection, given the risk associated with their circumstances. It also appears that the appellant will complete her sentence in a male prison.[91]
[91] Letter, Office of DPP to Manager of the Court of Appeal office, 9 November 2018.
Having taken into account the maximum penalty, the facts and circumstances of the offences, all of the aggravating and mitigating factors, the information that this court has been provided with since the hearing of the appeal and the need to provide adequate punishment and deterrence, we would resentence the appellant to 4 years' immediate imprisonment.
As the term of imprisonment is less than 5 years, we have considered whether the term should be suspended, with or without conditions. We have reconsidered all relevant factors. In our opinion, the facts and circumstances of the offence are simply too serious. We are positively satisfied that it is not appropriate to suspend, or conditionally suspend, the term of imprisonment.
We have decided that the only appropriate penalty is a term of immediate imprisonment. We would, as the sentencing judge did, order that the appellant be made eligible for parole and that her sentence be backdated to commence on 1 April 2017.
Orders
The orders that we would make are as follows:
1.The application to adduce additional evidence in the appeal filed 19 October 2018 is granted.
2.The appeal is allowed.
3.The sentence imposed by Stevenson DCJ on 16 February 2018 is set aside.
4.In lieu thereof, the appellant is sentenced to 4 years' immediate imprisonment backdated to commence on 1 April 2017 with eligibility for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Research Associate/Orderly to the Honourable Justices Murphy and Mazza20 DECEMBER 2018
2