[Update] Australia: Appeals Tribunal overturns deportation order for transgender sex worker sentenced to 4 years for alleged HIV transmission

February 6, 2020

Published in The Australian on February 6, 2020

No deportation for prostitute, despite ‘callous disregard’ over HIV

A transgender prostitute who recklessly infected a client with HIV will not be deported back to New Zealand following a decision by the Administrative Appeals Tribunal.

Clayton Palmer was convicted in the Western Australia District Court in 2018 of one count of doing grievous bodily harm in relation to having sex with a client and transmitting HIV despite knowing she herself was HIV positive.

Sentencing Judge Christopher Stevenson sentenced Palmer to six years’ imprisonment but it was reduced to four years on appeal.

Palmer has been an Australian resident since 2006 but her visa was subject to mandatory cancellation because of her criminal record.

AAT Deputy President Stephen Boyle overturned the cancellation last week, finding Palmer’s risk of reoffending was “extremely low”.

Palmer was using methamphetamine at the time she was contacted by the client who had seen one of her online advertisements in which she represented she was “clean”.

The pair engaged in unprotected sex over about eight months but after the victim was diagnosed Palmer moved to Sydney and continued to advertise as a transgender sex worker until she was contacted by police.

Judge Stevenson said Palmer had “callous disregard” for the victim “in the circumstances where as a sex worker [Palmer] [was] plainly aware of the seriousness of sexually transmitted diseases”.

Mr Boyle however accepted Palmer was committed to maintaining her treatment and her commitment to abstain from unprotected sex.

“The Tribunal also accepts that [Palmer] is genuine in her commitment to turning her life around and positively contributing to the community through working with the groups with which she was involved before her incarceration and which have provided support to her through her incarceration,” he said.

Palmer told the tribunal she had been involved with sex worker groups Scarlet Alliance and Magenta as well as National Association of People Living with HIV/AIDS (Australia).

Palmer said the organisations had given her a new direction in life and had offered her board positions.

Mr Boyle said the possibility of Palmer being employed by one of the organisations would reduce the risk of her reoffending “not only because that would obviously jeopardise her employment, but because it would give her an income”.

“Her need for money was one of the causes of her offending in the first place,” he said.

Mr Boyle found the Australian community would expect Palmer’s visa to be revoked because of her serious crime but said it should not be given “significant weight”.

“The somewhat unusual, if not unique, circumstances of [Palmer’s] relevant offence, the extremely low chance of her reoffending and the contribution that she could make to the community if she were allowed to stay operate against this consideration being given significant weight,” he said.

Mr Boyle further found Palmer had strong and relatively longstanding ties to the community.


 

Transgender sex worker has WA sentence cut

A transgender sex worker who passed on HIV when she had unprotected sex with a man has had her sentence of six years in a male prison slashed to four years.

Clayton James Palmer, who identifies as a woman and is known as CJ, was sentenced in the West Australian District Court earlier this year for causing grievous bodily harm.

She took her case to the WA Court of Appeal, arguing the term was manifestly excessive, and on Thursday the judges unanimously agreed it was severe.

She will now be eligible for parole in April.

The judges noted Palmer had been moved from the prison’s crisis care unit to the special protection unit.

“The conditions of prisoners housed in the SPU are less restrictive than those in the CCU,” the judges said.

“The appellant can now access gender neutral toiletry products and has been provided with female underwear.”

The court previously heard Palmer had visited the WA Substance Users Association in August 2014 to get tested for sexually transmitted infections and was later told there was a positive indication of HIV.

She never returned follow-up phone calls or messages and continued to advertise sexual services online.

Palmer met the victim soon after and continued to see him until August 2015, telling him she was regularly tested for diseases.

A doctor told the victim he had HIV the following month.

Police found Palmer, who had moved to NSW, through online advertisements for her services under the name Sienna Fox.

Published on December 20, 2018 on The Mercury

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Trans woman CJ Palmer sentenced to six years in a male prison

Perth woman CJ Palmer has been sentenced to serve six years, with a non-parole period of four years, after being found guilty of committing Grievous Bodily Harm for transmitting HIV.

Palmer will be returned to a male prison, despite being a transgender woman. Palmer has to date served 321 days in custody in a male prison, which will be counted towards her final sentence.

Presiding Judge Stevenson told the court he considered Ms Palmer’s crime to be at the “upper end of the range of seriousness,” and neglectful of her responsibility as a sex worker.

Prior to the final decision, Palmer’s defence raised concerns that her needs were not being met in the male-specific facilities, including hormone therapy and appropriate clothing.

Judge Stevenson added that he expected that the prison will receive a copy of the hearing’s transcript and ensure her needs are met. Palmer will also be kept isolated from other inmates in crisis care.

Ahead of today’s decision, a number of advocacy groups had expressed their wariness over the treatment of Palmer as a trans woman. Others were concerned about the criminialisation of HIV, and the potential of legal proceedings increasing stigma and discrimination in society for those living with HIV.

“The criminalisation of people living with HIV is a blunt, ineffective tool in the war to end HIV. It only serves to drive people who need to be tested and treated further into the dark and creates a cultural fear,” The Institute of Many’s co-founder Nic Holas told OUTinPerth.

“In this particular instance, as with so many cases, an overwhelming majority of cases of HIV criminalisation, we have two people here who are victims and those people are victims of the ongoing stigma and discrimination of people living with HIV.”

“I think this is an absolute miscarriage of justice for a six year sentence, I think it’s completely excessive, and I along with many people in the community have deep, grave concerns for CJ’s health and wellbeing – especially since she’s been denied her hormone treatments.”

“We welcome the indication from Judge Stevenson that this extremely heavy sentence is basically on the condition that she will keep receiving her hormone treatments. That is the only silver lining on what is a very dark day for every single person living with HIV in this country, as well as the transgender and sex worker communities.”

Holas said that politicians need to act to ensure changes to these laws.

“We need an overhaul of criminalisation of HIV in every state and territory in this country, including here in Western Australia,” Nic Holas said.

“We really need much better prosecutorial guidelines for transgender individuals. It’s shocking that CJ is in a men’s facility and has been condemned to six years of potential complete solitary confinement.”

Published in Out in Perth on February 16, 2018

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Transgender prostitute found guilty of passing on HIV after Perth trial

A TRANSGENDER prostitute accused of causing grievous bodily harm to a former client by passing on the HIV virus to him through unprotected sex has been found guilty by a jury.

Clayton James Palmer, who identifies as a woman and supplied sex services via online ads under the pseudonym of Sienna Fox, has been on trial in WA’s District Court this week, charged with assaulting the unnamed victim by having unprotected sex him multiple times until late July 2015.

Prosecutors claimed that at the time, Ms Palmer already knew she was HIV positive, having been told months earlier by nurse Joanne Morgan that there was a positive indication of HIV in her blood.

Ms Morgan was also said to have taken five pages of notes about the consultation, in which she gave Ms Palmer other information about what she should do next, including her disclosure obligations.

Prosector Ben Stanwix told the court that the “only plausible source of the infection” was Ms Palmer, who is now known by her initials CJ, pointing to genetic evidence which showed that they shared an extremely rare strain of the HIV virus.

“Having unprotected sex was such a grave departure from the duty of care she owed him, she was criminally negligent,” Mr Stanwix said.

Ms Stanwix said Ms Palmer “didn’t want to face reality” after she was told of her infection by the nurse, who he said in 2014 was “consistent, organised and meticulous”.

But defence barrister Simon Freitag said it was nurse Morgan who was struggling with reality, pointing to her intravenous methamphetamine use, mental health problems and subsequent multiple psychiatric hospitalisations after a breakdown in 2015.

For those reasons, he said, it was in no way certain she had informed Ms Palmer of her HIV status at the crucial time.

“(Ms Morgan’s” breakdown) is said to be the equivalent of a lightning strike. It was more like a flood … and there is a lot of rain that falls before the dam breaks,” Mr Freitag said.

Ms Palmer had maintained before a jury she was never told of her HIV positive status by the nurse, and had no idea she was carrying the virus as she carried on her sex work under the same name for another year.

She also said she may not have been the one to give her former client the virus, as the man had a high sex drive, and was in other sexual relationships, including with another transgender woman.

Giving evidence, Ms Palmer told the court: “I was not given a diagnosis in September 2014. I did not ignore it. I was not told.”

This morning, after nearly four hours deliberation, the jury returned a unanimous guilty verdict, which was greeted with tears from Ms Palmer and her supporters.

Ms Palmer was refused bail by Judge Christopher Stephenson, who said in his opinion the offence was so serious that she needed to be remanded in custody ahead of a sentencing date in February.

Mr Freitag said that Ms Palmer would have to be remanded in a male prison, as she was when she was kept in custody for more than nine months following her arrest in 2016.

Judge Stephenson accepted that would make time in custody for more difficult for the 40 year-old Ms Palmer, but said her conduct had not only put the life of the victim at risk at the time, but had also put the wider community at risk of further infection.

 Published in PerthNow on Jan 19, 2018

Transgender sex worker ‘not told of HIV diagnosis’

A TRANSGENDER sex worker who allegedly infected a client with HIV did not want to face reality after her test results came back positive and continued working as a prostitute, a court has been told.

Clayton James Palmer, who identifies as a woman and worked under the name Sienna Fox, is accused of repeatedly having unprotected sex with a man in 2015 despite knowing she had tested positive to HIV.

Ms Palmer, who is on trial in the District Court charged with causing grievous bodily harm, says the diagnosis was not communicated to her and she may not have been the person who passed on the virus to the alleged victim.

A nurse from the WA Substance Users Association, Joanne Morgan, tested Ms Palmer for blood-borne viruses and sexually transmitted infections in August 2014.

Prosecutor Ben Stanwix said Ms Morgan told Ms Palmer her initial test was positive for HIV during a home visit and gave her information about the virus and her disclosure obligations.

He said Ms Morgan’s notes from the visit indicate Ms Palmer asked her if she was going to die, if she would have to take medication forever and where she got the virus from.

Mr Stanwix said Ms Palmer told Ms Morgan she would not be able to make her next appointment then stopped answering her phone calls and text messages.

“Ms Palmer, it seems, didn’t want to face reality,” he said.

“Despite what Ms Palmer had been told by Ms Morgan, she continued to advertise her sexual services online.”

Ms Palmer met the complainant, whose name is suppressed, in November 2014 and had sex with him a number of times until about August 2015.

Mr Stanwix said the client asked Ms Palmer several times if she had been tested for sexually transmitted infections and she assured him she was tested regularly and did not have any.

The man started to feel ill in September 2015 and was diagnosed with HIV shortly after he went to hospital.

Mr Stanwix said Ms Palmer and the alleged victim had the same “relatively rare” subtype of the virus.

“The accused was in charge of something dangerous, specifically bodily fluids that were infected with HIV,” Mr Stanwix said.

“The accused’s failure to take reasonable care and precaution was, we say, negligence so grave as to justify criminal conviction.”

Defence lawyer Simon Freitag told the jury there were different versions of the conversation between Ms Palmer and the nurse and said his client could not be found guilty if she was not aware she had HIV.

He said there were issues with the “chaotic” WASUA and Ms Morgan had her own personal issues when she was working for the organisation.

“It is not the case that Ms Morgan is the stereotypical image of a nurse that you might expect,” he said.

Mr Freitag told the jury they might have reason to question the alleged victim’s claim that he had sex with Ms Palmer and no one else between meeting her and being diagnosed with HIV.

He said scientists and doctors could not say how the virus was transmitted to the complainant.

Both Mr Stanwix and Mr Freitag urged the jury to decide the case on the evidence and put aside any views they might have about drugs, sex, prostitutes or transgender people.

“You are going to hear some words that you would not normally hear in polite company,” Mr Freitag said.

“Whether you are a sex worker, a lawyer, an accountant, whatever, if you drive trucks for a living, in this court you have the same rights.

“Treat Ms Palmer in the same way you would treat her if you heard she was an accountant.”

The trial continues.

Published in PerthNow on Jan 15, 2018