R v Valencia Valencia

Facts on Sentence

1. On 8 January 2020, the offender and the deceased contacted each other via mobile phone. They arranged for the offender to attend the deceased's home to receive sexual services for a fee. The offender attended the deceased's unit shortly after 3:18pm and left at about 4:15pm, believing he was meeting a woman aged 38. The deceased was in fact 69 years old.
2. Once inside the unit, the offender paid the deceased $100 and was instructed to go into one of the bedrooms, take his clothes off and lie on the bed. He complied. The unit was dark with no lighting. The deceased performed fellatio on the offender until he ejaculated. Minutes later, the offender discovered that the deceased was transgender and became angry. He was so angry that he assaulted her by punching her to the stomach and face.
3. The deceased sought to defend herself by arming herself with a nearby lamp. She struck the offender to his shoulder with the lamp. A struggle ensued, which resulted in both the deceased and offender falling to the floor, with the offender on top of the deceased.
4. The offender then held the lamp cord across the deceased's neck and pushed down with some force. He held the cord down on the deceased's neck with each of his hands to the side of her neck for some seconds, rendering her unconscious. The cause of death was asphyxiation caused by neck compression. The unlawful and dangerous act giving rise to manslaughter is the act of holding the cord down against the front of the deceased's neck with some force for several seconds.
5. I rejected any suggestion that the offender was acting in self-defence. He applied the pressure to the deceased's neck to stop her from struggling, as opposed to defending himself. It was the offender who initiated the violence.
6. Afterwards, the offender rummaged through the unit looking for the deceased's mobile phones to destroy them, to prevent him from being linked to her. He put them in the toilet. He did not render assistance or call "000" emergency services. Instead, he left the unit, likely believing that Kim McRae was dead.
7. The offender then fled the jurisdiction within days of the incident, arriving in Colombia on 13 January 2020. He was arrested in Aruba on 26 February 2020 and subsequently extradited to Australia. He has been in custody since 26 February 2020.

Objective Seriousness

1. The circumstances giving rise to a manslaughter offence are so varied that the penalties imposed in other cases are of little assistance: see R v Hoerler [2004] NSWCCA 184 at [88]; R v Wood [2014] NSWCCA 184 at [56]; R v Loveridge [2014] NSWCCA 120 (Loveridge) at [193], [227]; Goundar v R [2012] NSWCCA 87 at [43].
2. A court must have regard to the "full context" and "surrounding circumstances" of the offence in determining objective gravity: see Loveridge at [229]. I bear in mind that objective seriousness and moral culpability are separate but related concepts: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77]. I commence by addressing the objective seriousness of this offence.
3. Sentences imposed for an offence of manslaughter must reflect the fact that there has been a felonious taking of human life: see R v Dawes [2004] NSWCCA 363 at [32]; R v Edwards (1996) 90 A Crim R 510 at 517; R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep). The relevant yardstick for measuring the seriousness of the offence is a maximum penalty of 25 years imprisonment. However, unlike murder, I am not sentencing the offender for an act that was committed with an intention to kill or cause grievous bodily harm.
4. In assessing the objective seriousness, I have taken into account a number of aggravating factors. First, the offence was committed with the use of a weapon, namely the electrical cord. Second, the deceased, on account of her work and workplace, was isolated and therefore vulnerable. Third, the deceased was killed in her own home. Fourth, the offender initiated the violence.
5. I have also taken into account the mechanism causing death, namely asphyxiation by neck compression. The expert evidence adduced during the trial supported a finding that the pressure required to compress the neck and interrupt blood flow was not very high and could render a person unconscious within seconds.
6. The offence was not premeditated or planned. The violence was a spontaneous reaction that unfolded very quickly, over seconds. That said, the offender, angry or not, should have simply left the unit rather than reacting violently as he did.
7. The Crown relies upon two further factors as relevant to an assessment of objective seriousness. I will address them separately.
8. The Crown submitted that the deceased was assaulted because she was transgender, making this a crime motivated by hatred or prejudice. I reject that submission. This case can be distinguished from cases where an individual is targeted because of their gender or sexuality. There was no premeditation involved and no targeting of the deceased, let alone targeting her because she was transgender.
9. I am satisfied that the offender initiated the violence by punching the deceased twice immediately upon finding out that she was transgender. The punches were not, however, the cause of death. The act causing death occurred during a struggle with the deceased which immediately followed the initial violence.
10. I am not persuaded that the deceased was motivated by hatred or prejudice in the way contemplated by s 21A(2)(h) of the CSPA. Put another way, the Crown has not established beyond reasonable doubt, that the act that caused death was motivated by a hatred of or prejudice against the deceased because she was transgender.
11. The offender however did initiate the violence, a matter that I have taken into account in assessing the objective seriousness of the offence. I have taken into account all of the circumstances of the offence and the aggravating factors listed above. There is no doubt that this is a serious offence having been committed in the home of the deceased, warranting a term of full-time imprisonment.
12. The Crown relies upon the offender not seeking assistance for the victim, despite not being sure if she were dead, as a matter increasing the objective seriousness of the offence. During the course of oral submissions, I indicated that the offender's failure to seek assistance for the victim is a matter relevant to an assessment of his moral culpability as opposed to the objective seriousness of the offence. This is not a case where there was evidence, for instance, that medical attention would have saved the deceased. Furthermore, I am satisfied that when the offender left the unit, he had likely realised that the deceased was dead.
13. The failure to render assistance did not contribute to the cause of death. Instead, it demonstrates a callousness on the part of the offender and a lack of remorse immediately after the killing. I have however, had regard to what appeared to be a panicked and impulsive response to his realisation that he had rendered the deceased unconscious and likely dead.
14. I am satisfied that the offender's failure to seek assistance for the victim is a matter relevant to an assessment of his moral culpability, which I will address separately in due course.
15. I am satisfied that the offence falls at the middle of the range of objective seriousness.

Moral Culpability

1. Dr Sam Calvin notes that the offender attended a military school which placed him in a restrictive environment. [4] Dr Calvin states that his emotional development has been hindered due to his maladaptive coping strategies. [5] His move to Australia introduced him to new freedoms, which influenced him to engage in "reckless" and "risky" behaviour. [6] Dr Calvin opines that the offender struggles to form lasting relationships, leading to casual encounters, due to the restrictive environment he was raised in. [7] Moving to Australia, the offender faced significant culture changes and identity issues, which further exacerbated his reckless behaviours. [8]
2. The Crown submitted that the offender's moral culpability is high. I do not agree with that assessment. He was only 20 years old at the time that he committed the offence. His age is relevant to an assessment of moral culpability.
3. In KT v The Queen [2008] NSWCCA 51;(2008) 182 A Crim R 571 at [23], McClellan CJ at CL (as his Honour then was) discussed the relationship between an offender's psychological immaturity and offending behaviour: "The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61])."
4. On the other hand, the offender left the unit without attempting to assist the deceased or call for assistance. This demonstrates a degree of callousness, albeit in a panicked state, that is also relevant to an assessment of moral culpability.
5. Although I am not persuaded that the offender's moral culpability is high, nor am I of the view that his moral culpability is significantly reduced. The offender's moral culpability is, however reduced, in light of his relatively young age at the time he committed the offence and his reduced capacity for mature decision-making.

Personal Psychiatric History

1. The offender's background is before me primarily by way of a report prepared by Dr Calvin, case note reports from New South Wales Department of Corrective Services, Justice Health Records and two letters prepared by his parents, and a report prepared by Dr Ellis, Forensic Psychiatrist, on the impact of the COVID-19 pandemic and associated restrictions on inmates. The contents of those documents can be summarised as follows:
2. The offender is a 23 year old single man from Colombia. He was 20 years old at the time of the offence. Growing up he had a supportive family and positive childhood. [9] He reported that his parent's divorce led to an unstable period in his life. [10] He does not have any developmental deficits and denied any traumatic encounters as a child. [11]
3. He attended a military school, which had a strong emphasis on discipline. [12] When he completed school, he enrolled in the Army. He completed a range of training courses but did not engage in combat or military missions. [13] He told Dr Calvin that he undertook an English language course and then moved to Australia on a student visa for a more promising future. [14]

Remorse

1. The offender reported continuous feelings of deep remorse, guilt and shame when reflecting on the offence. He attributed his actions to an impulsive outburst when he found out that the victim was transgender. [15] After the offence, he reported experiencing flashbacks, shock, and an overwhelming, intense rush of emotions. [16] The offender did not grasp the severity of his actions at the time of the offence. [17]
2. The offender provided his mother and father a false account about the offence. Essentially, he told them that he had an argument with a woman, and she fainted. [18] It is reasonable to infer that he provided a false account because he was too ashamed and embarrassed to tell his parents what had occurred. Dr Calvin opines that the offender's reported symptoms were reflective of having an adjustment disorder. However, since the offence he has been able to reflect on his actions and has appropriately articulated his remorse. [19]
3. His plea of guilty, at an early opportunity, to the offence for which he was convicted and Dr Calvin's observations, together with some of the representations made by the offender in the "Christian Porter" letter, establish on a balance of probabilities that the offender is remorseful.

Isolation

1. Whilst in custody in Aruba, the offender's mother was unable to visit him often due to the COVID-19 pandemic. She was only able to see him on a couple of occasions, including the day he was extradited to Australia. [20] He would sometimes call her crying and expressing fear about the prospect of extradition to Australia.
2. Upon entering custody in Australia, he was subject to various restrictive procedures due to the COVID-19 pandemic. Justice Health Records indicate that he was quarantined when he entered custody in New South Wales from 24 November 2020, until he was cleared on 9 December 2020. [21] He received the second COVID-19 vaccination on 11 August 2021. However, on 7 July 2022, he tested positive to COVID-19 and was placed in isolation until 15 July 2022. [22] Dr Calvin opines that the pandemic led to restrictions that had a profound effect on him in custody. [23] I accept that these restrictions and his extended periods in isolation would have made the offender's time in custody more onerous.

Contact with Family

1. The offender has had limited contact with his family, who reside overseas. The only in-person contact whilst he has been in custody in Australia has been with his lawyers. [24] The offender communicated with his family through audio-visual link sessions. [25] However, he eventually requested to have them cancelled due to the difficulty and time differences. [26] Dr Calvin opines that the offender's time in custody weighs more heavily upon him than an average inmate, in that limited contact with his family may lead to further separation. [27]

Cultural and Language Barriers

1. Dr Calvin opines that cultural and language barriers will continue to impact the offender's ability to communicate, understand his rights and engage in prison courses. [28] The applicant has limited knowledge of the English language. He has no in-person contact with family or friends. These factors have and will continue to impact adversely on the offender.

COVID-19

1. In addition to these hardships, the offender's time on remand has substantially coincided with a period of stringent restrictions and a shortage of programs and other services in custody, because of the pandemic. He experienced significant delays in obtaining medical and dental treatment whilst in custody. Justice Health Records indicate that he made repeated requests for dental treatment, to see an optometrist for glasses and pain relief for his foot and leg. He also experienced significant delays in receiving such treatment. Doctors were not travelling to the clinics from Sydney due to the pandemic. [29]
2. Dr Ellis, in his report, confirms that because of the virus, there were staff shortages and delays in access to medical care, education and training programs, and recreational activities. [30] He further opines that measures introduced to contain the virus in prison settings, such as through quarantines, lockdowns and reduced mental health services, did worsen pre-existing mental conditions of those in custody. [31]
3. Dr Ellis states that when inmates are subject to a change of procedures with limited access to psychological services and quarantine, without being infected with the virus, this may lead to depression or post-traumatic stress disorder (PTSD). [32] I accept that periods of isolation and limited access to medical treatment and educational programs, would have been challenging for the offender. Dr Ellis further opines that certain groups in custody, such as persons from non-English speaking backgrounds, would be more affected than others and are particularly vulnerable. [33] It is evident that the offender was subject to periods of isolation, which resulted in limited contact with his family and access to prison services required to support his mental health.

Impact of COVID-19 on sentencing

1. In R v Tangi (No 12) [2020] NSWSC 547, Rothman J recognised the impact of COVID-19 on offenders in custody at [57]-[58]: "Nevertheless, the effect of the strict conditions that have been imposed and that has led to the absence of Coronavirus in the prison system is also that the conditions of incarceration are much more difficult. While one can hope that those conditions will be temporary, some restrictions will be in place for a significant amount of time. The Court has before it a World Health Organisation Report on the prevention and control of COVID-19 in prisons and other places of detention dated 15 March 2020. Further, it cannot be said with any precision when restrictions will ease or when all restrictions will cease. I accept that the combination of the COVID-19 restrictions and the limited visitation renders the incarceration of the offender more onerous and it will remain more onerous for some period of time."
2. In McKinnon v R [2020] NSWCCA 106 at [32], (per Payne JA, Beech-Jones (as his Honour then was) and N Adams JJ agreeing) it was held that the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing: Scott v R [2020] NSWCCA 81 (Scott). In Scott at [166] (per Hamill J, Brereton JA and Fagan J agreeing) the Court noted that the suspension of social and family visits was a factor that is considered on sentence: "The Department says it has taken steps to minimise the risk of the virus entering the prisons. One of those steps has been to suspend all social and family visits, a matter that makes the conditions of incarceration of most inmates more onerous. I have taken these matters into account in re-sentencing."
3. In Moodie v R [2020] NSWCCA 160 at [144], Bell P ((as his Honour then was) Davies and N Adams JJ agreeing) stated that impacts of COVID-19 should be considered on sentence, but they should not be overstated or necessarily extrapolated: "Also relevant is the impact of the COVID-19 crisis on the conditions of incarceration and the suspension of opportunities for family visits and contact in at least the last three month period. This is a matter that has been and, in my opinion, should be taken into account on sentencing (see, for example, Scott v R [2020] NSWCCA 81; McKinnon v R [2020] NSWCCA 106 at [32]). However, this should not be overstated or necessarily extrapolated, given the fluid nature of distancing restrictions and the current cautious confidence in New South Wales as to control of the pandemic and the concomitant gradual relaxation of emergency restrictions on social movement."
4. I accept that during his period on remand, the applicant has experienced hardship in custody, resulting from increased restrictions on movements, delayed access to medical care, suspended educational courses and other services. This resulted in more onerous conditions in custody, a matter of relevance to the overall sentence.
5. The restrictions and delays, while not completely eradicated, are less onerous now than they were in 2020-2022. However, I take into account the cultural and language barriers that continue to exist, together with the fact that the offender will continue to serve his term of imprisonment without in-person contact with his family. These are matters relevant to the manner in which he will serve his sentence and factors that I take into account in determining whether special circumstances exist, and to what extent.

Progress on Remand

1. The offender reported to Dr Calvin that he was committed to rehabilitation while in custody. [34] Notwithstanding the impact of COVID-19 restrictions on the availability of programs, the offender has made an effort to engage in numerous educational and vocational pursuits. These include horticulture, literacy, digital awareness, first-aid, spray painting, art, and animal studies. [35] The offender has also completed the below programs:

• Certificate I in Information, Digital Media and Technology
• Engagement in the Digital Literacy Program
• TAFE completion of Ground Maintenance - Planting
• First Aid and Cardiopulmonary Resuscitation Certificates of Attainment
• Automotive program and Statement of Attainment in Two-Pack Paint

1. Dr Calvin notes that the offender has positively contributed to others in custody through engaging in roles, such as gardening, haircuts to other inmates and teaching Spanish. [36] He is also observed to be both punctual and respectful in these tasks. [37]
2. Dr Calvin opines that the offender has good prospects of rehabilitation. He has shown insight into his offending, has displayed stable mental health, and engaged in numerous prison activities and courses. [38] He does not show any signs of mental illness, a limited history of substance abuse, and no record of past violence. [39]
3. In light of the offender's remorse, his positive engagement in employment and education as far as possible while in custody, the absence of a criminal record and the absence of entrenched substance abuse, I am satisfied that the offender has good prospects of rehabilitation and is unlikely to reoffend.

Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

1. Section 3A of the CSPA (NSW) provides: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
2. Specific deterrence has minimal application to the sentencing exercise, noting the offender's good prospects of rehabilitation and his prior good character. Equally, this is not a case where the offender poses a risk to the community upon his release.
3. General deterrence remains, however, a relevant consideration which has been afforded weight in determining the proportionate sentence. The offender must also be adequately punished for his crime. He must be held accountable and his conduct denounced.
4. At the outset of this judgment, I acknowledged the harm done as a result of this killing. I repeat that acknowledgement now. Although the deceased's sister was not a direct victim of the offender's crime, I do acknowledge the pain and suffering caused to her as a result of this offence and the harm caused to other members of the deceased's family and the community more broadly.

Sentence/ Special Circumstances

1. I make a finding of special circumstances warranting a variation of the statutory ratio: section 44(2) of the CSPA. I make that finding for the following combined reasons: 1. The offender is a relatively young man who is serving his first term of imprisonment. 2. The offender will serve his sentence under onerous conditions given his language and cultural barriers and, importantly, his isolation from family and friends. 3. The offender has good prospects of rehabilitation.
2. Having taken into account the objective seriousness of the offence, the offender's moral culpability and subjective case, together with the relevant principles of sentencing, the only appropriate penalty is one of full-time imprisonment. The term of imprisonment reflecting a proportionate sentence is discounted by 25% to reflect the utilitarian value of the plea. The finding of special circumstances is reflected in the variation of the statutory ratio. I am satisfied that a total term of 10 years imprisonment is a proportionate sentence in all the circumstances.
3. Accordingly, I sentence you to a term of imprisonment consisting of a non-parole period of 6 years and 9 months commencing on 26 February 2020 and expiring on 25 November 2026, with an additional term of 3 years and 3 months imprisonment. The total sentence is one of 10 years imprisonment. You will be eligible for release to parole at the expiration of the non-parole period.

Endnotes

1. Exhibit C4 at [4].
2. Exhibit A, letter prepared by Karen McRae, dated 10 November 2021.
3. Ibid.
4. Psychological Report of Dr Sam Calvin, dated 30 March 2023 (Psychological Report of Dr Calvin), at 7[41].
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid.
9. Ibid at 4[10].
10. Ibid.
11. Ibid.
12. Ibid at 4[11].
13. Ibid.
14. Ibid.
15. Ibid at 5[19].
16. Ibid at 3[3].
17. Ibid at 5[19].
18. Exhibit 3, letter prepared by Hector Valencia Anaya, dated 17 April 2023.
19. Psychological Report of Dr Calvin, above n 4, at 10[55].
20. Exhibit 2, letter prepared by Gabriela Valencia Martinez, dated 1 April 2023.
21. Justice Health & Forensic Mental Health Unit Patient Self Referral, 24 November 2021 (Defense Bundle, Page 103).
22. Justice Health & Forensic Mental Health Unit Clinical Notes, 15 July 2021 (Defense Bundle, Page 109).
23. Psychological Report of Dr Calvin, above n 4, at 9[54].
24. Affidavit, Jonathan Jaramillo, 23 June 2023 at par 12.
25. Ibid.
26. Macquarie Correctional Centre Inmate Request Form, 18 April 2022 (Defense Bundle at p 111).
27. Psychological Report of Dr Calvin, above n 4, at 8[48].
28. Ibid at 8[45].
29. Justice Health & Forensic Mental Health Unit Clinical Notes, 13 September 2021 (Defense Bundle, Page 97).
30. Psychiatric Report of Dr Andrew Ellis, dated 9 April 2023 (Psychiatric Report of Dr Ellis), at 8.
31. Ibid at 6.
32. Ibid at 3.
33. Ibid at 5.
34. Psychological Report of Dr Calvin, above n 4, at 5[23].
35. Ibid at 5[23].
36. Ibid at 5[24].
37. Ibid at 6[28].
38. Ibid at 10[56].
39. Ibid.

Amendments 10 July 2023 - Correction of date on Coversheet 10 July 2023 - Corrected reference DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2023