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

Appeal won

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

February 6, 2020
Source: The Australian

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.

C.P. 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 her to six years’ imprisonment but it was reduced to four years on appeal.

P. 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 P’s risk of reoffending was “extremely low”.

P. 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 P. moved to Sydney and continued to advertise as a transgender sex worker until she was contacted by police.

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

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

“The Tribunal also accepts that she 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.

P. 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).

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

Mr Boyle said the possibility of P. 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 P.’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 [P.’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 P. had strong and relatively longstanding ties to the community.

Appeal won

Transgender sex worker has WA sentence cut

December 20, 2018
Source: The Mercury

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.

X, who identifies as a woman and is known as XX, 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 X 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 X 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.

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

 

Sentencing

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

February 16, 2018
Source: Out in Perth

Perth woman X 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.

X will be returned to a male prison, despite being a transgender woman. X 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 X’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, X’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. X 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 X 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 X’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 X is in a men’s facility and has been condemned to six years of potential complete solitary confinement.”

 

Conviction

Transgender prostitute found guilty of passing on HIV after Perth trial

January 10, 2018
Source: Perth Now

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.

X, 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 X 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 X other information about what she should do next, including her disclosure obligations.

Prosecutor Ben Stanwix told the court that the “only plausible source of the infection” was Ms X, who is now known by her initials XX, 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 X “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 X 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 X 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 X 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 X and her supporters.

Ms X 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 X, 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.

Trial

Transgender sex worker ‘not told of HIV diagnosis’

January 15, 2018
Source: Perth Now

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.

X, 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 X, 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 X for blood-borne viruses and sexually transmitted infections in August 2014.

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

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

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

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

The trial continues.

Trial

Transgender escort pleads not guilty to giving client HIV, will remain in prison for men

July 29, 2016
Source: Yahoo 7 News

A transgender escort charged with giving a client HIV has pleaded not guilty and will remain in a prison for men.

CX, who identifies as a female, appeared in the Perth Magistrate’s Court on a video link from Casuarina Prison for males.

Police allege the accused had advertised as a transgender sex worker under the name Sienna Fox,

Fox’s lawyer Simon Freitag told the court his client identified as a woman, and it was unfortunate for his client to be in a male prison.

Fox was initially detained at Hakea remand prison, also for males.

Mr Frietag had previously told the court that Casuarina Prison was a damaging place for his client and she was in a vulnerable position in jail.

Any decision about moving Fox to a female facility can only be made by prison authorities.

Fox entered the not guilty plea after telling the magistrate she understood the charge against her, ABC reported.

Fox, 38, was extradited from New South Wales earlier this year and has been denied bail twice.

Police opposed bail because of concerns she posed a significant flight risk.

Fox has been charged with grievous bodily harm, after it was alleged she had been diagnosed with HIV in August 2014 and transmitted the infection to another man during unprotected sex between January and September last year.

Police claim Fox knew she was infected with HIV but kept having sex with the man for money.

Martin Muk, another lawyer representing Fox, told the court that his client was in a consensual relationship with the victim and “there was no payment or money involved”, the Daily Mail reported.

Ms Fox is also accused of repeatedly telling the man she was regularly tested and clean of STDs.

Police claim she continued to advertise sex services on the internet on “at least four occasions” after the man confronted her with the allegation that she had infected him with HIV.

On April 21, the Department of Corrective Services said it was “drafting new procedures for the placement, care and management of transgender prisoners”.

Fox is expected to face trial again on October 21, after the matter was sent to the District Court of Western Australia.

Prosecution

Sex worker charged with infecting client with HIV refused bail

April 20, 2016
Source: ABC News

A Perth magistrate has refused to grant bail to a transgender sex worker because she refuses to accept she has HIV and may put other people at risk if she is released.

CX, who identifies as Sienna Fox, is facing a charge of causing grievous bodily harm to a client, whom it is alleged she infected with HIV after several sexual encounters in 2015.
Ms Fox is currently being held in the high-security Casuarina male prison, but today her lawyer Simon Freitag applied for her release on bail.
Mr Freitag provided the Perth Magistrates Court with a report from an expert on transgender issues, which he said had found the male prison was “potentially a very harmful place” for his “vulnerable” client.

Mr Freitag said Ms Fox was being held in a crisis care unit and her access to social interaction and recreation was restricted, putting her mental health and wellbeing at risk.
He said while Ms Fox does not accept that she has HIV, she would be better able to receive counselling and treatment for her health issues if she was in the community.
He said the defence’s “fallback” position was that Ms Fox be held in Bandyup women’s prison.
The bail application was opposed by the police prosecutor, Senior Constable Jarred Gerace, who told the court it was alleged Ms Fox falsely told the man with whom she was having sex that she had no health problems and was regularly being tested.

Senior Constable Gerace said Ms Fox also continued to advertise for sexual services after she was diagnosed with HIV and also refused to undergo any follow up treatment.
Magistrate Andrew Maughan said his main concern was Ms Fox’s denial that she has HIV and the risk she may engage in further sexual work if she is released.
“The risk that she poses of endangering the safety of other people is not a matter that can be overcome by any bail conditions.”
Mr Maughan described the situation as “unfortunate” and urged that a copy of the expert report provided to him by the defence be made available to the prison authorities who determine where Ms Fox should be kept.

Ms Fox was extradited from New South Wales in February.
She is due back in court in July.

Prosecution

Escort ‘kept working after passing on HIV’

February 24, 2016
Source: AU News

A transgender sex worker fled to the Eastern States and continued to advertise escort services online the month after a client he (sic) was accused of infecting with HIV confronted him (sic), a Perth court was told yesterday.

CX, who police said identifies as a woman and advertised as a transgender sex worker under the name Sienna Fox, is being held in the State’s main remand jail for men after being refused bail.

Mr X, who appeared in Perth Magistrate’s Court via video link from Hakea Prison, is charged with grievous bodily harm. Police opposed bail because of concerns he (sic) posed a significant flight risk.

It was alleged that Mr X had been diagnosed with HIV in August 2014 and transmitted the infection to another man during unprotected sex between January and September last year.

It was alleged Mr X fled to NSW after being confronted by the man with news he had tested positive to HIV.

But Mr X’s lawyer Martin Muk said his (sic) client had never been made aware of a diagnosis of HIV. He said his client and the complainant had engaged in consensual sex and there was no payment of money.

He told the court his client had not “fled”, having travelled to NSW two months later to “finish her life” in NSW. Magistrate Paul Heaney refused bail and adjourned the case until next month, saying it was an unusual but serious case and no conditions would overcome the flight risk.

Outside court, People for Sex Worker Rights in WA president Rebecca Davies called for Mr X to be moved to a women’s facility and for changes to onerous gender reassignment laws.

“We are very concerned for her mental health and for her welfare with regards to other prisoners,” Ms Davies said.

Mr X will appear in court again next month.

Charged

Sex worker extradited to WA over HIV transmission charge

February 19, 2016
Source: ABC

A sex worker accused of causing grievous bodily harm through the transmission of HIV has been extradited to Western Australia from New South Wales.

The transgender sex worker, who identifies as a woman, was alleged to have transmitted HIV to a client last year.

She was arrested by NSW detectives on behalf of WA Police on Tuesday.

Police said the woman had been working in the Redfern area and was arrested at a Surry Hills hotel.

It was understood the worker was diagnosed as carrying HIV in August 2014.

She was alleged to have engaged in unprotected sex with a male client from early 2015, despite counselling about treatment options and disclosure obligations.

NSW Sex Crime Squad detectives are continuing inquiries into the woman’s activities while in Sydney.

WA Police liaised with the Health Department during the investigation, and said anyone with concerns regarding their own health was encouraged to seek medical advice.

Charged

NSW escort charged after allegedly infecting customer with HIV in Western Australia

February 18, 2016
Source: ABC

A New South Wales escort has been charged after she allegedly knowingly transmitted HIV to a customer in Western Australia.

NSW Police said the 39-year-old was hired through an adult website advertising transgender escorts in January last year.

Officers said the woman was arrested at a hotel in Surry Hills on Tuesday afternoon.

Police said she had been working in the Redfern area.

The woman was arrested under a West Australian Police arrest warrant.

WA Police have said the escort was legally a man who identified as a woman and was diagnosed with HIV in 2014.

A statement from WA police said the escort had unprotected sex with the client, despite the diagnosis and counselling about treatment options and disclosure obligations she had received.

She was charged with allegedly knowingly infecting someone with the HIV virus and was refused bail at Central Local Court today.

WA Police detectives applied for an extradition order and it was approved.

They said they expected to transport the woman to WA in the coming days.

The client was diagnosed with HIV in September 2015 and complained to police.

NSW Sex Crimes Squad detectives are continuing their inquiries into the escort’s activities in Sydney and appeal for anyone with information to come forward.