R v Navarro - [2019] NSWDC 540

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

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.

Frank Xavier Navarro, aged 54, pleads guilty to one count of recklessly inflicting grievous bodily harm under s 35(2) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Navarro

Details

AGLC: R v Navarro [2019] NSWDC 540
Case: [2019] NSWDC 540
Decision Date: 17 July 2019

CaseChat Overview and Summary

In the case of R v Navarro, the appellant faced sentencing in the Supreme Court of Victoria for charges related to driving while disqualified. The appellant had been convicted of driving without a valid license, causing harm to another person. The court was tasked with determining an appropriate sentence that balanced the seriousness of the offence with relevant mitigating factors. The central issues were the aggravating and mitigating circumstances, the nature of the offence, and the impact on the victim.

The court identified several aggravating factors, including the substantial harm caused to the victim, the appellant's disregard for public safety, and the seriousness of driving while disqualified. Mitigating factors considered included the appellant's previously good character, evidence of remorse, and the potential for rehabilitation. The court also took into account the statutory requirement to consider victim impact statements. Additionally, subjective considerations such as the appellant's health issues and potential hardship were evaluated.

After weighing the aggravating and mitigating factors, the court determined that the primary aggravating factor was the substantial harm caused to the victim. The court acknowledged the mitigating factors but found that they did not outweigh the severity of the harm caused. Consequently, the court sentenced the appellant to a term of imprisonment of five years and three months, with a non-parole period of three years and three months. This sentence reflected the need to protect the community and deter similar conduct while also considering the appellant's potential for rehabilitation and remorse.

Orders

Orders of the court

A term of imprisonment of five years, three months with a non-parole period of three years, three months: at [32].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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