R v Camelo-Gomez (Sentence)

[2022] NSWSC 1559

Supreme Court

New South Wales

Medium Neutral Citation:

R v Camelo-Gomez (Sentence) [2022] NSWSC 1559

Hearing dates:

27 October 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. For the murder of Irene Jones on 2 November 2001, at Lansvale in this State, the offender is sentenced to a term of imprisonment of 20 years, with a non-parole period of 14 years. The sentence will commence on 20 May 2022. The non-parole period will expire on 19 May 2036, upon which date the offender will be eligible for release to parole. The total term will expire on 19 May 2042.

Catchwords:

CRIME – murder – offender found guilty at trial – joint criminal enterprise with another – victim offender’s mother – offence committed in home of victim – death by ligature strangulation and stabbing – question of the offender’s moral culpability – other offender unlikely to face justice – hardship to children

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

Beale v R [2015] NSWCCA 120

Carter v R [2018] NSWCCA 138

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

FPvTheQueen (2012) 224 A Crim R 82; [2012] NSWCCA 182

Holyoak v R (1995) 82 A Crim R 502

King v R [2010] NSWCCA 202

KR v R [2012] NSWCCA 32

Magnusonv R [2013] NSWCCA 50

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Cotter & Ors [2003] NSWCCA 273

R v Edwards (1996) 90 A Crim R 510

R v Gonzales [2004] NSWSC 822

R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587

R v Lewis [2001] NSWCCA 448

RvMacLeod [2013] NSWCCA 108

R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97

R v Ritchie [2003] NSWSC 864

R v TJA [2004] NSWSC 1308

R v Walkington [2003] NSWSC 517

R v Weightman [2005] NSWSC 1354

R v Wilkinson [2004] NSWSC 1307

R v Wirth (1976) 14 SASR 291

R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222

TL v R [2020] NSWCCA 265

Totaan v R [2022] NSWCCA 75

WaughvTheQueen [2010] NSWCCA 3

Category:

Principal judgment

Parties:

Rex (Crown)
Isabela Carolina Camelo-Gomez (Accused)

Representation:

Counsel:
D Scully & G Steedman (Crown)
B Rigg SC & C Wasley (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (NSW) (Accused)

File Number(s):

2019/298987

Publication restriction:

Nil. Note that information identifying the children of the Offender cannot be published.

Judgment

1. On the late evening of 2 November 2001 Irene Jones, who had earlier returned to her Lansvale home after a celebratory birthday dinner spent with her daughter at a restaurant, went into the kitchen to make herself a cold drink. As she stood with her back to the lounge room, a ligature was dropped over her head from behind, and lowered to her neck. The ligature was pulled tight by Mrs Jones’ assailant, cutting off her oxygen supply, probably leading quickly to unconsciousness. After she had fallen or was pushed to the kitchen floor, she was stabbed to the neck with a sharp implement, likely a knife. She died as she lay on the kitchen floor, from the combined effects of ligature strangulation and the stab wound inflicted upon her.

2. Isabela Carolina Camelo-Gomez stood trial before this Court between 4 April 2022 and 25 May 2022, charged with the murder of Mrs Jones, her mother. The jury returned a verdict of guilty to the charge on the last day of trial and, the offender having been convicted that same day, it is now the Court’s task to sentence her.

3. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). It carries a maximum sentence of life imprisonment. Because this crime occurred before 2003, no standard non-parole period applies.

The Facts of the Offence

4. The Crown case at trial was that the offender, acting alone or in a joint criminal enterprise with Carlos Camelo, murdered her mother. The offender’s case, advanced through the accounts she gave to investigating police over the years, was that she herself was strangled and sexually assaulted by an unknown assailant who surprised her in her bedroom on the night of 2 November 2001, and who must also have killed her mother, before fleeing with some property stolen from the house.

5. As that short summary of the respective cases makes clear, the dispute between the Crown and the offender as to the facts of the events of that evening was wide reaching, taking in all elements of the offence charged, other than that of the death of Mrs Jones that evening in her home. It is the Court’s role in imposing sentence to resolve that dispute and determine the facts of the offender’s crime insofar as the evidence permits it to be done.

6. The principles governing fact finding by a trial judge for the purpose of sentencing were enunciated in R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 at 377-8. Among them, that facts found for the purpose of sentencing must be consistent with the jury’s verdict, that findings of fact adverse to an offender must be established beyond reasonable doubt, and also that there is no requirement that an offender should be sentenced upon a view of the facts most favourable to the offender. Matters favourable to the offender need only be established to the lower civil standard of proof.

7. Beyond the bare facts of the present offence the task is an extraordinarily difficult one. With Carlos Camelo brain damaged and unable, even if he were willing, to give details of a plan hatched to kill Mrs Jones or of its execution, and the offender silent as to the truth of what occurred, there must be a hiatus in what can be known of the circumstances surrounding Mrs Jones’ death. The following facts are those that can be determined to the relevant standards of proof on the evidence given before this Court at trial.

8. Mrs Jones had been a single parent for much of the life of her daughter, who was aged 27 years in November 2001. Mrs Jones had struggled financially to provide for her child, christened Megan Jones, and money was not plentiful in the Jones household. The only real asset Mrs Jones had was her home in Lansvale.

9. After finishing school and reaching adulthood the offender remained living with her mother. In 1996 the offender began working in the administrative offices of a large church, a church into which she was, as an adult, received. It was through attendance at church services in 1996 that the offender came to meet Carlos Camelo, the husband of a fellow parishioner, and a man who would influence her life significantly, and for the worse.

10. Although the offender denied having anything more than a friendship with Carlos Camelo in the period leading up to her mother’s murder, including in her case as it was presented before the jury, the evidence at trial showed that denial to be a false one. That evidence pointed not just to an intimate relationship between the offender and Mr Camelo, but to an obsession on the part of the offender for him. That Mr Camelo did not reciprocate her feelings is equally clear. Although it is not necessary to determine it, it is very likely that the wedding dress the offender purchased from Park Avenue Bridal Boutique, with payments against the purchase made between June and November 2000, ^[1] was intended by her for what she hoped would be her marriage to Carlos Camelo, necessarily after a divorce from his wife, Paolo Camelo. ^[2]

    1. Ex. A.

    2. T114:47 – T115:27.

11. The depth of the offender’s feelings for Camelo, her desire to make a life with him, and her willingness to financially support him, including by working two jobs to pay for his expenses, ^[3] were all amply demonstrated on the evidence led at trial. The offender told others of her love for him; ^[4] she bought him expensive gifts; ^[5] urged him to apply with her for “joint custody” of Camelo’s young daughter, ^[6] gave him the use of a car ^[7] purchased by the offender despite her limited means; wrote to him of missing him when she had not seen him for “a couple of days”; ^[8] and of her deep love for him. ^[9] To please Camelo, and to her mother’s great distress, ^[10] the offender was even prepared to marry a man she had not previously met, Camelo’s brother Cesar, in what was – at least at the time – a sham marriage, to facilitate Cesar’s immigration to Australia as the purported spouse of a citizen. It is in the offender’s strong feelings for Carlos Camelo that the plan to murder Mrs Jones originated.

    3. Ex. CA at [2]; T116.

    4. T155:14.

    5. Ex. T; T154.

    6. Ex U.

    7. T155:20; Ex AD.

    8. Ex V.

    9. Ex U.

    10. T99:40.

12. Mrs Jones did not view the connection between Carlos Camelo and the offender favourably. When the offender allowed Camelo to stay at the family home for periods of time in 2000 and 2001 Mrs Jones did not like his presence there. She did not like Camelo and – with good reason – thought that he was exploiting her daughter. Mrs Jones confided in some of her friends about her concerns in that regard. To one friend, Margaret Bunter, Mrs Jones said that she neither liked Carlos Camelo, nor wanted him to associate with her daughter. ^[11] In a letter of June 2001 to family she expressed her hope that the offender would “wake up” and stop helping Camelo in a way that had “gone overboard”. ^[12] In the months leading up to Mrs Jones’ murder in November 2001, she had confided in Mrs Bunter that the offender and Camelo wanted her to sell her house to provide them with $20,000 with which to begin a business. Mrs Bunter told the court that Mrs Jones:

“[…] was upset because […] that house was all she had. She had her daughter and she had the house.” ^[13]

11. T74:41 - 44.

12. Ex. CD, p.2.

13. T75:36.

13. Mrs Jones was unwilling to sell her house or provide money for the offender and Camelo to commence a business. ^[14]

    14. T92:17; T385 & 389, 8.4.2022.

14. Her dislike of Camelo and of his association with the offender was such that, in the second half of 2001, the offender felt it necessary to deceive her mother into believing that Camelo was leaving or had left Australia, returning to his native country, Colombia. ^[15] Mrs Jones was happy to learn of Camelo’s departure and mentioned her relief about it to others. ^[16] Unbeknownst to her mother, and to facilitate the deception, the offender took care to divert all mail for a nascent business, Zarion Constructions, that she had established with Camelo as Director, ^[17] away from the Lansvale house to a post office box. ^[18]

    15. Ex. CD, p.4; p.7; T386, 8.4.2022.

    16. T100:01; T107:15.

    17. Ex. BK; Ex. BN.

    18. T234:34.

15. Camelo did not leave the country and, it seems, had never intended to.

16. With her mother ignorant of this, the offender was proceeding with her plan to commence a business with Carlos Camelo for his benefit, and she maintained her belief in their future together. She took the necessary steps to establish Zarion Constructions as an entity and continued her liaison with Camelo.

17. With money needed to establish Zarion Constructions as a viable business and, with that, provide for Carlos Camelo and give him a reason to maintain his relationship with the offender, the offender and Carlos Camelo planned to kill Mrs Jones, so that the offender – and through her, Camelo – could obtain control of Mrs Jones’ assets, notably her property in Lansvale. It is not possible to say definitively which of the two conceived the plot although, on balance, having regard to other evidence which pointed to Carlos Camelo’s manipulative and devious intentions to extract money from the Jones family, it is likely that it was Carlos Camelo who suggested Mrs Jones be killed. He, unlike the offender, was no stranger to the use of violence, and it is reasonable to conclude that it was him who suggested and devised a plan to kill Mrs Jones, and thereafter disguise the killing as a home invasion committed by a stranger, in which Mrs Jones was randomly killed by the intruder. It is likely that the plan began as no more than fanciful discussions, initiated by Camelo but, at some point, and by no later than the evening of 2 November 2001, when Camelo travelled to the Lansvale area, ^[19] the plan to kill Irene Jones solidified. The Crown submitted that the offender determined to put the plan into action on learning on the afternoon of 2 November 2001 that her neighbours would not be at home that evening, and it is reasonable to conclude that their absence was the final feature that led the offender and Camelo to determine to put their plan into action.

    19. Ex. AS.

18. On the early evening of 2 November 2001, the offender drove her mother to a restaurant at South Wentworthville where they shared a meal to mark Mrs Jones’ 56th birthday a few days before. The offender must have known by that time that Carlos Camelo would be in Lansvale that evening, pursuant to their agreement. After dinner, she and Mrs Jones returned home to Lansvale, arriving at approximately 7.50pm. A call placed by the offender to Carlos Camelo at 8.04pm that evening ^[20] alerted him to her and her mother’s presence in the Lansvale house.

    20. Ex. CS, 62.

19. Shortly after calling Camelo the offender left the house to go to a nearby service station, where she was caught on closed circuit security footage at 8:16pm. She purchased a small amount of petrol for her car. There seems to have been no sensible reason that can be determined on the evidence for that short journey.

20. At that time Camelo was or soon would be nearby. ^[21] I am satisfied to the criminal standard that the presence of Carlos Camelo in the area of the Jones family home on the evening of 2 November 2001 was by agreement with the offender, pursuant to the joint criminal enterprise between the two to murder Mrs Jones. Camelo persistently lied to police about his whereabouts and movements that evening with the evidence establishing that, despite his attempts to create a false alibi for the relevant period, he could not give a credible account of his location at about the time Mrs Jones was killed because he was in Lansvale.

    21. Ex. AS.

21. At some stage between about 7.50pm when Mrs Jones and the offender returned from dinner, and about 9.40pm, when the offender ran to a neighbour’s home asking for assistance, Mrs Jones was strangled with a ligature by an assailant who approached her from behind, and then stabbed her to the neck. ^[22] She was forced down by the assailant onto the kitchen floor, with her head pushed into a kitchen mat, leaving a patterned bruise. ^[23] The principal cause of death was strangulation, with the stabbing playing a minor role. ^[24] Mrs Jones would have rapidly fallen into unconsciousness from the effects of the pressure of the ligature on her airways, ^[25] although in the seconds before she lost consciousness she must have been bewildered, shocked, and then, when she realised what was taking place, terrified.

    22. T797.

    23. T309:29 – 33, 8.4.2022.

    24. T307:47, 8.4.2022.

    25. T308:7, 8.4.2022.

22. The evidence does not establish beyond reasonable doubt whether Carlos Camelo or the offender was the assailant, or whether they both played an active role in inflicting the fatal injuries. Dr Little, who conducted the postmortem examination, could not exclude either a scenario involving two attackers, or one. ^[26] On balance however, it is reasonable to infer that it was Camelo who physically strangled and stabbed Mrs Jones, with the offender present and able to assist, pursuant to the enterprise. Camelo had already demonstrated a willingness to resort to violence, having assaulted his estranged wife earlier that year, including by choking her. He had no long term emotional connection to Mrs Jones, as the offender had. He is likely to have been far more comfortable in visiting violence upon her than the offender, no matter her willingness – in thrall to Camelo – to be part of an enterprise with the objective of murdering her mother.

    26. T308:38, 8.4.22.

23. After Mrs Jones was attacked, either the offender or Camelo or both of them went about the house opening drawers in various areas and moving objects around in an attempt to simulate a search of the premises by a robber. The attempt was a clumsy one that only approximated what might have been expected of a crime scene where, setting aside Mrs Jones’ murder, a woman was supposedly seriously assaulted and robbed. There were no signs of forced entry; no real disruption to the offender’s bed and bedding, despite her claim to have fought for her life against an intruder on and in the vicinity of the mattress; and no obvious signs of theft, with valuable items including a handbag left in plain sight. Nor was the offender ever able to give a satisfactory account of property stolen, with her claim that Christmas presents were removed effectively rebutted by photographs of the Christmas tree that had been erected in the lounge room, taken before and after the murder, showing the same wrapped gifts under the tree. ^[27]

    27. Ex. BM; Ex BO; Ex. BP.

24. Since neither the ligature nor the knife were ever located, it is likely that Camelo took them away and disposed of them when he left the house.

25. Once he was safely away from the crime scene the offender ran to a neighbour for help. She gave an account of having emerged from her ensuite bathroom after her shower to find a blonde haired intruder in her bedroom, who assaulted and tried to strangle her. The description the offender gave of the attacker was as far removed from the appearance of Carlos Camelo as it was possible to be, I infer, deliberately.

26. The absence of any real disarray or even displacement of the bedding and other objects in the bedroom tended to disprove her assertion, as did the very minor nature of the observable injuries of which the offender complained. Setting aside complaints of unobservable pain and tenderness, the nature of the injuries seen on examination after the offender’s admission to Liverpool Hospital were inconsistent with the sort of desperate struggle that the offender described to police. The Court accepts the evidence of Dr Van Diemen in that regard.

27. Thereafter, the offender maintained her false account of an intruder, an account that certainly hindered the police investigation into Mrs Jones’ murder.

The Impact of the Crime

28. It affects everyone in the community when a fellow citizen is violently killed at the hand of another. For those who loved Mrs Jones, the loss was a grievous and deeply personal one.

29. The Court heard from the Sheldrick family as to the impact of this crime upon them. Joyce Sheldrick is Mrs Jones’ cousin ^[28] and she, her husband Keith, and their children are Mrs Jones’ closest surviving family, other than the offender. Mr and Mrs Sheldrick had the dreadful responsibility of going to the Jones’ home immediately after the murder, being exposed to the visceral horror of the scene of the crime, a horror that has never left them. They had the terrible task of arranging for the area to be cleaned. The whole family has felt very deeply the trauma and grief of Mrs Jones death, and the great distress of its circumstances, but also the continuing sadness of the offender’s loss to them. The family supported the offender in the immediate aftermath of Mrs Jones’ death and felt bewildered and diminished when she distanced herself from them, eventually cutting off all contact.

    28. T105:17.

30. The ongoing pain and loss to the Sheldrick family evidences the harm done to the community by this crime.

The Gravity of the Offence

31. The features of this offence which make it so shocking, and heightens its gravity, is that Mrs Jones’ murder was planned and carried out by her own beloved daughter; with Mrs Jones violently killed in what should have been the safety of her home, by someone she trusted entirely, for a reason no better than romantic obsession and associated greed.

32. This was a pre-meditated killing, done to achieve Mrs Jones’ death. The idea of Mrs Jones’ murder must have been discussed between the offender and Carlos Camelo prior, and possibly well prior, to 2 November 2001, although it is not possible to conclude to the criminal standard that it became a firm intention at any time prior to that afternoon and evening. Although the Crown submitted that, at the time of her resignation from her Church employment on 17 September 2001, the offender must have expected to soon be in possession of her mother’s estate, the Court cannot exclude other reasons for her resignation, including the possibility that she regarded her position as untenable in light of doubts expressed by her employers as to her “temple worthiness”.

31. Despite the possibly truncated period of planning, the level of planning was considerable, with an agreement necessarily reached as to the manner, method, and execution of the murder, and the subsequent concealment of the crime.

32. The murder was a violent one, with two forms of brutality – strangulation and stabbing – inflicted upon Mrs Jones, utilising two separate weapons. Whilst unconsciousness would have come quickly, Mrs Jones would have felt both the pain and terror of what was done to her in the seconds before hypoxia took hold.

33. After Mrs Jones was murdered, the offender effected an elaborate deception on the authorities, her family and friends, and others, to obfuscate her crime, and to protect Carlos Camelo.

34. The motivation for the murder was financial, although at the heart of the offender’s desire to have access to her mother’s estate was her desperation to please Carlos Camelo and thereby keep him by her side, tying him to her financially if she could not secure him emotionally.

35. For all of those reasons, this crime is a very serious instance of murder. It is not necessary to express that conclusion by reference to a range.

36. Matricide is a rare crime; it is one to which a particular degree of horror attaches because it breaks the ordinary bonds of love and gratitude that typically exist between mother and child. It is a crime that all right thinking members of the community view with great aversion, and vigorously decry.

The Subjective Case

39. As at the date of the offence the offender was a person of good character, with no criminal convictions. Later, in 2004 and 2011, she was dealt with for minor traffic offences without conviction, but they are of no present relevance and do not detract from her good character, before her mother’s murder, and after it.

40. The offender did not give evidence, at trial or on sentence. The absence of any evidence from Ms Camelo-Gomez in her case on sentence, in circumstances where she has been shown to be a person capable of very great and prolonged deception, has consequences. The Crown took issue with the veracity of the hearsay account of much of what the offender advanced in her subjective case and, in the absence of evidence on oath, the Court must exercise caution in assessing whether such evidence should be accepted.

41. The offender’s assertions as to her personal circumstances were before the Court through affidavits of her solicitor, Ms Elston, affirmed on 7 September 2022 and 26 October 2022, and accompanied by several documentary exhibits; and a report from Dr Andrew Ellis, forensic psychiatrist, dated 20 September 2022.

42. The offender was born in September 1974 and is now aged 48 years old. She grew up in a single parent family. Her mother loved her and provided for her materially as best she could; it appears that her father played a less positive parental role. Ms Camelo-Gomez reported that her father, when she had contact with him, was emotionally cruel, belittling her and disavowing his relationship with her, reportedly because he thought his daughter was plain. There is some independent support for that claim, as Mrs Jones gave a similar account to her friend June Crowther at some stage before her death. If the offender’s father did treat her in this way, and the Court accepts on balance that he did, it might account for the offender’s apparent insecurity about her appearance and worth.

43. Evidence at trial established that, until about the time of Mrs Jones death, the offender was fully employed. Afterwards, she continued to work with the Church for a short period, and then studied for a certificate in Community Services – Aged Care, a field in which she was later employed from time to time. She was occupied in other work, such as administration, on occasion. For significant periods the offender has been fully engaged caring for her children. She has been interested in cake baking, and in writing stories for children, although these pastimes brought no remuneration.

44. Ms Camelo-Gomez has three children, all born after Mrs Jones was murdered, and all to different men. The offender appears to have had very little assistance with the care of her two eldest children, and both her sons have had health issues. The offender’s eldest son demonstrated challenging behaviour that required police intervention on an occasion in February 2019, at which time he was a young adult. Her middle child, tragically, suffered with leukaemia, being diagnosed when he was very young. Extensive and prolonged treatment was required, which must have been extremely traumatic for the offender as well as her son. Ms Camelo-Gomez’ youngest child is only 10 years old. That child is now living with her father, and it seems that the offender has very few opportunities for contact with her. Orders of the Federal Circuit Court prevent the offender from any contact with her daughter other than by telephone or mail, with the contact generally dependent upon the willingness of the father of the child to facilitate it.

45. Whilst the offender had a somewhat fractured relationship with her eldest son, and he had been living away from her for some time prior to the trial, Ms Camelo-Gomez’ incarceration for this offence has led to her separation from her two youngest children, and her contact with each is now very limited. Her youngest son has been directly and detrimentally affected by the offender’s imprisonment. At 15 years of age, he is too young to live alone, and he has no adult family member to care for him. When the offender entered custody on 25 May 2022 her son was rendered homeless, and he is now accommodated in a crisis youth refuge in Sydney’s eastern suburbs. It seems that, since entering the refuge, the boy’s behaviour has altered, and he is exhibiting “abusive and aggressive behaviours.” ^[29] His situation is very sad, and it does not require any suspension of disbelief to accept that the offender must be desperately worried about him and suffering herself because of her separation from her son, and her fears for his future.

    29. Ex. S2, p.2.

46. There is some evidence that the offender has been, unsurprisingly, treated for depression since being charged with her mother’s murder in 2019. She probably has a problem with high blood-pressure, as she is prescribed medications used to treat that condition. The offender contracted COVID-19 on two occasions during the pandemic, and she is concerned that her on-going well-being has been adversely affected by what is generally referred to as “Long Covid”. She worries that she is not receiving adequate treatment in custody, a concern that may be accepted as genuine, without accepting that there has been or will be any failure by Justice Health to carry out its statutory obligations for the care of a prisoner.

47. The offender is presently housed on protection because she is fearful for her safety in a prison environment. Whilst protection status can come with limitations in accessing services and facilities within the gaol environment, that status applies to the offender at her own request; it could be changed at any time, and the consequences of such a status cannot be reliably predicted into the future. In R vMostyn the Court of Criminal Appeal said that:

“It can no longer be assumed that a prisoner, by reason of the fact that he will serve his sentence on protection, will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self improvement courses and education”. ^[30]  

30. R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97, at [179], per Howie J. See also [180]; and TL v R [2020] NSWCCA 265 at [366].

48. In his report Dr Ellis gave the history taken from the offender as to the circumstances of her children. He observed that:

“Her most pressing concern is that she ‘lost my children’. The separation from her children is like a form of grief for her.”

49. There is no reason to doubt the genuineness or depth of the sentiment expressed to Dr Ellis.

50. The offender described her custodial conditions as highly adverse, although the accuracy of her description, if not the sentiment of fear and bewilderment behind it, is unknown. Ms Camelo-Gomez also gave a history of domestic violence which had left her, she said, fearful of things such as closed doors and necklaces about her neck. The Crown pointed out that there is some objective evidence that casts doubt on the latter claim, and the accuracy of the detail of the offender’s assertions cannot be known. However, gullibility is not a pre-requisite to accept that a woman in this community has suffered at the hands of a violent partner or partners. To the community’s shame, many women experience domestic violence. In a general sense then, I accept that Ms Camelo-Gomez has had that terrible experience, including at the hands of Carlos Camelo and, having regard to Dr Ellis’ report, and as a matter of common sense, it is likely to have had an adverse impact upon her. In addition to her experience within intimate relationships, the offender told Dr Ellis that she has been the victim of sexual violence and, since entering custody, violence from other prisoners. There is no independent evidence of either although, regrettably, neither claim is so outrageous that they should, on balance, be rejected.

51. On examination, and taking into account the history provided, Dr Ellis concluded that the offender “likely” meets the criteria for post-traumatic stress disorder. The use of the word “likely” was clarified by Dr Ellis in oral evidence. He said:

“I think that, given all the information that I have, it is a diagnosis of reasonable medical certainty. But any diagnosis of post‑traumatic stress disorder relies on the person having suffered a candidate traumatic event and that most of the candidate traumatic events are reported by [the offender] rather than verified by others. There is some secondary verification in her hospital notes, that clinical staff felt that she was the victim of domestic violence, but it is not ‑ in the materials I had it is not clearly recorded but I think that the diagnosis is a reasonable one given the total information.” ^[31]

31. T13:31 – 39 of 16 October 2022.

52. He thought that the instability in her personal background pointed to an unstable self-image, with it “likely” that she meets the criteria for a personality disorder.

53. The doctor thought that her probable risk for recidivism is low, given the particular circumstances surrounding the commission of the offence, the lapse of time since its occurrence, and her otherwise good character. Dr Ellis observed that the potential risk of future violence by the offender arose in particular circumstances, rather than more generally. His overall assessment was that Ms Camelo-Gomez poses a low risk of violent recidivism, although he conceded in cross-examination before the Court on 16 October 2022 that the assessment might vary if the offender’s motivation in killing her mother and the level of planning involved in the crime were considered as part of the assessment. Dr Ellis said that, if features of planning, financial motivation, and a continuing denial of responsibility were included as part of the risk assessment process, the risk would rise to a moderate risk of future violence. ^[32]

    32. T16 – T18 of 16 October 2022.

54. Dr Ellis thought that the offender would find the custodial environment difficult. He said:

“Her psychiatric conditions are common in female prison populations. PTSD and personality disorder are more commonly present than not in this group. Her lack of experience in custodial settings, tenuous family and social supports and the nature of her offence are more prominent factors that could make her time in custody more difficult than average. She will likely require protective custody with greater limitations and access to rehabilitative activities as a result. Being naive to prison culture and with her particular personality style she may be more vulnerable to manipulation, and has reported being assaulted. She has few community supports she can remain in contact with who can provide emotional assistance” (footnotes omitted).

Other Relevant Features

Moral Culpability

55. An offender’s moral culpability for an offence has arisen as a – frequently difficult – sentencing consideration, separate to the assessment of the objective gravity of a crime, since the decision of Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 was handed down by the High Court in 2011. Although the issue is not without controversy, the facts informing moral culpability are generally accepted as a matter to be determined by a sentencing judge where there is evidence to permit the assessment to be carried out. ^[33]

    33. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70], the court held: “Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender’s moral culpability”.

56. Where, as here, an offender is sentenced for his or her part in a crime committed pursuant to a joint criminal enterprise, the law is clear that each is responsible for the acts of the other or others in carrying out that enterprise. ^[34] On sentence each participant in the enterprise will stand to be sentenced for the full range of criminal acts perpetrated in the commission of the crime, whether personally executing the acts or not. ^[35]

    34. R v Cotter & Ors [2003] NSWCCA 273, at [87].

    35. Cotter, at [90].

57. There remains a distinction, however, between legal responsibility for the “full range of criminal acts” and an individual’s moral culpability. In KR v R [2012] NSWCCA 32 at [19] to [22] Latham J said of that distinction:

“… participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.

Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.

Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. ‘The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability.’: R v O'Connor [1980] HCA 17 at [20] ; 146 CLR 64 at 72, per Barwick CJ.

Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors [1999] NSWCCA 111 at [254] ; 46 NSWLR 346 ; 106 A Crim R 149.”

58. It is thus necessary to make some attempt to assess the offender’s moral culpability. The Crown argued that the paucity of evidence amounted to a complete vacuum with respect to any information that would permit the offender’s moral culpability to be distinguished from that of Carlos Camelo. The Crown submitted that, whilst it might be accepted that the offender was financially exploited by Camelo, there was a complete absence of evidence as to the circumstances of the murder, its planning and execution, and it was not possible to determine on balance where the greater moral responsibility lay, assuming there is a distinction to be drawn.

59. The offender submitted that there was evidence to support a conclusion that Carlos Camelo, who wanted money from the Jones family, cynically manipulated the offender to his ends, and thus that his was the greater moral culpability, with the offender unlikely to be the principal in devising or effecting the crime.

60. There is, as the Crown pointed out, no evidence, and certainly no direct evidence, as to which of the offender or Carlos Camelo suggested that Mrs Jones be murdered, was responsible for most or all of the planning, or carried out the physical acts involved in the killing of Mrs Jones. Care must be taken in considering this issue since, “[w]here the evidence does not permit a differentiation between the role of the participants in a joint criminal enterprise then an analysis of their “moral culpability” separate to their criminal responsibility cannot be undertaken”. ^[36]

    36. Beale v R [2015] NSWCCA 120 at [59], per Beech-Jones J with whom Hoeben CJ at CL and R A Hulme J agreed.

61. To reach the conclusion that the offender urges on the Court it would be necessary to draw an inference concerning these matters. The evidence to support that inference must be acknowledged to be limited.

62. Evidence from some witnesses was to the effect that the offender and her mother had a close relationship prior to Carlos Camelo entering their home and lives, albeit one where the pair argued from time to time. Certainly, there is no suggestion that the offender ever importuned her mother for money prior to becoming entangled with Camelo. She was consistently employed in these years and financially independent, if of relatively limited means. Her immediate response to her desire to financially support Carlos Camelo was to take on a second job, clearly so that she could earn the money he required. That does not suggest that it was the offender who coldly turned her mind to her mother’s murder for financial gain.

63. The position with Carlos Camelo is to the contrary. There is evidence to establish that his principal interest in the offender’s society was to extract money from her, and that he had in mind well before the murder the possibility of securing to himself the Jones family’s only asset, the Lansvale property. Consistent with that, Camelo viewed and spoke of the offender in a disparaging way. When talking about her to others in her absence, he referred to her by a demeaning and insulting nickname; ^[37] and he rejected suggestions of any romantic intention towards her in incredulous and disgusted tones. ^[38] To his wife, Carlos Camelo made the revealing claims that:

“[…] the only way I would be with her […] is just to take her money off her” ^[39] ,

and

“I would marry her just to take the house off her”. ^[40]

37. T358:09 of 11 April 2022.

38. T341:49 of 11 April 2022.

39. T342:02 of 11 April 2022.

40. T342:10 of 11 April 2022. See also T373:25 of the same date.

64. Those pieces of evidence point to Carlos Camelo as the person who likely first conceived of the plan to kill Mrs Jones to access her estate. His greater dominance and his demonstrated willingness to utilise violence to achieve his ends further suggest that it was Camelo rather than the offender who physically carried out the fatal attack.

65. To the lesser standard of proof applicable to matters in mitigation, the Court can infer that Carlos Camelo was the leader of the joint criminal enterprise and bears a greater level of moral turpitude than the offender, whose moral culpability is diminished to a degree by her vulnerability to exploitation and persuasion by him. The offender, affected as I accept she was by feelings of inadequacy that are too often experienced by young women who do not readily fit society’s idea of beauty or desirability, likely went along with a plan of Carlos Camelo’s devising, believing it was necessary to achieving a dream of love and marriage that had previously evaded her.

66. The continuing tragedy is that, decades on, having destroyed her mother’s and her own life in her desperation to please Carlos Camelo; having showered tens of thousands of dollars on Camelo, hoping to keep him by her side; and despite his abandonment of her and their son, she still maintains her silence about these events, and protects him. It is most unlikely that he will ever face justice.

64. The diminution in the offender’s moral culpability by virtue of her unstable personality and vulnerability to the manipulation of Carlos Camelo, and likely lesser participation in the physical attack on her mother, removes this case from the category of case of the morally highly culpable murderer, coldly motivated by greed. The offender’s motivation, superficially, was financial, but underlying that was the desire to secure the love of Carlos Camelo.

Delay

68. The delay in bringing this matter to trial has clearly been significant: it is just over 21 years since Mrs Jones was murdered, and the offender has lived with her mother’s violent death as a significant feature of her life story for that time.

69. Whilst the false scenario advanced by the offender to police and others no doubt diverted and frustrated the police investigation and contributed to the delay, Ms Camelo-Gomez is not otherwise responsible for it. The passage of time is accounted for by an insufficiency of evidence to bring any person to justice at a time earlier than September 2019, even though Ms Camelo-Gomez was suspected of responsibility within days of the offence, and was exacerbated by limited police resources for the investigation of cold cases over the years.

70. Delay is significant because of its relevance to any anxiety the offender may have experienced over time; her possible rehabilitation with the passage of years; and the differences in the sentencing patterns for murder offences at the turn of the century and those that apply now. Those features must be considered individually and, together, they require a more flexible approach to the exercise of the sentencing discretion.

71. The first of the features relates to the question of howsoever the lengthy delay between offence and charge has affected the offender. In Holyoak v R (1995) 82 A Crim R 502 at 508-509, it was observed that:

“Whether, in any particular case, so long a delay is a detriment depends upon the circumstances of that case. There is no rule of law that it always is a detriment - although often it will be. It could be, to take a case at one extreme, that the offender has spent years in emotional hell, appalled at what he has done, terrified that the day may come when he is found out, disgraced and convicted, fearing that at any time there will be that knock on the door and never feeling free to remain so long in any community that he comes to be known and his background be of interest to others. At the other extreme the offender may have gone through the years untroubled by his offences, lacking any remorse in respect of them and feeling confident that they will never come to light […] his confidence increasing as the years went by […] the offender enjoying over the many years unwarranted acceptance by his associates in his respectable and stable lifestyle.” 

72. It is difficult to say where on the spectrum established by those extremes the offender may fall, as she has given no evidence about the impact of delay upon her. Her assertions to her solicitor are an inadequate foundation to conclude that the burden of the delay has necessarily been a heavy one, and there is no real reason to suppose that she has daily feared the dread hand of justice, since her exculpatory account of the night of her mother’s murder gave her some protection from criminal prosecution until very recently. In a general sense, however, the unsolved murder of her mother, in circumstances where the offender was aware that she was a principal suspect, must have hung about her over the decades, and left her with feelings of insecurity and uncertainty. She must have felt some anxiety at times, particularly with respect to her children, and what would happen to them if she were to be criminally charged. To that extent it cannot be said that there has been no real impact upon her.

73. One positive aspect of the delay for the offender is that she has been enabled to live her life over the last two decades, working, forming relationships and friendships, and having her precious children. That life would have been denied to her had she been prosecuted and imprisoned for her mother’s murder in her late twenties.

Rehabilitation

74. The passage of time since Mrs Jones was murdered permits a conclusion to be drawn that the offender has been rehabilitated. The commission of this terrible offence was an isolated instance of great wrongdoing, in a life which has otherwise been without the darkening stain of criminal conduct. The fact that it occurred in an otherwise generally law-abiding life points, as does other evidence, to the malign influence of Carlos Camelo.

75. Since the concatenation of factors that led to the offender’s involvement in murder would be most unlikely to ever be repeated, the Court is of the view that Ms Camelo-Gomez has very good prospects of living a law-abiding life in the future, as she has done for the last twenty or so years. The principle of specific deterrence has no real role to play in the exercise of the sentencing discretion.

Sentencing Patterns

76. One consequence of delay is that the Court is obliged to sentence the offender in accordance with the sentencing patterns that applied in the early years of the century, insofar as any pattern can be determined. It is not always easy or possible to discern an historical pattern of sentences for a particular period. Where the task is impossible, the Court must apply the principle referred to in Magnusonv R [2013] NSWCCA 50 at [85] that:

“[…] the judge should commence the sentencing process in the usual way; that is, by reference to the maximum penalty, and the place in the range of objective gravity occupied by the offence: see Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497 at [66] - [71] per Howie J (with whom Fitzgerald JA agreed).”

77. Other than to conclude that sentences were somewhat lower than sentences imposed currently, where a standard non-parole period applies, the Court cannot determine with any accuracy a pattern from the period of about 2000 – 2003. The Court was referred to the Public Defender’s Tables, but the cases cited therein tend to highlight the wide range of sentences handed down at the material time.

78. Offences of murder committed with a financial motivation frequently incurred a penalty of life imprisonment, ^[41] although that very much depended upon the circumstances. Offences involving the killing of a parent attracted a wide range of sentences. Without suggesting any prior matter as truly comparable to the present case, some of the cases the Court has considered are R v TJA [2004] NSWSC 1308, R v Wilkinson [2004] NSWSC 1307, R v Ritchie [2003] NSWSC 864, R v Gonzales [2004] NSWSC 822, R v Weightman [2005] NSWSC 1354, and R v Walkington [2003] NSWSC 517.

    41. R v Lewis [2001] NSWCCA 448 for example. Sentence was imposed at first instance on 9 June 2000 per Ireland J.

79. Ultimately, I am unable to discern a “pattern”, other than accepting that sentences have become lengthier with the advent of standard non-parole periods, not applicable to this offence. Sentence will be imposed according to the principle referred to in Magnuson. It should be understood that a sentence imposed for the same offence committed contemporaneously would be higher.

Remorse

80. The offender has maintained her false account of the events of 2 November 2001 and, presumably, maintains it still. Despite that, I accept that the graveside apology made by the offender to her mother was genuine. It is possible that the horrible reality of the outcome of the plan to kill Mrs Jones did not really strike the offender until after it was carried out and, with that realisation, she regretted what she had done. Be that as it may, the Court accepts that, as the reality of what had occurred sank in, the offender, at least in those early days following Mrs Jones murder, felt remorseful. It cannot, however, be concluded that her remorse has been ongoing, or remains to this day.

81. There is no other evidence of remorse, and the offender’s continuing denial of responsibility does not permit the Court to conclude that she is presently remorseful, or contrite, or has any insight into her conduct.

Hardship to Third Parties

82. There is evidence in this matter of hardship to one of the offender’s children that goes beyond what might ordinarily be expected where there is an enforced separation between mother and child, and which applies to her separation from her daughter. The offender’s middle child has been made homeless by his mother’s incarceration and is now accommodated in a crisis youth refuge. It is possible that he will be placed under the guardianship of the State. Children who grow up without the stability of settled family life and the loving guidance of a parent may be accepted to have poorer outcomes than children without that significant disadvantage. The impact upon the offender’s middle child of the imposition of sentence on her is likely to be dire.

83. Acknowledging the unsettled state of the law that relates to the question of hardship to third parties occasioned by a sentence imposed upon a State offender, ^[42] the Court will have regard to the consequences of the sentence that is to be today imposed upon Ms Camelo-Gomez not by reference to the outcome for her son of her incarceration, but rather by taking into account the additional burden that her punishment will constitute for the offender, because of the hardship caused to her son. Her time in custody will no doubt be even harder to bear than it might otherwise have been because of her concern for her son, and her distress at his circumstances. To a lesser extent this is also relevant to her separation from her daughter. The impact upon the children has of itself an impact upon the offender, and it is to that feature that mitigating weight will be afforded.

Special Circumstances

42. See the sometimes differing statements from Totaan v R [2022] NSWCCA 75, Carter v R [2018] NSWCCA 138, R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222; FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182, R v MacLeod [2013] NSWCCA 108; Waugh v The Queen [2010] NSWCCA 3; King v R [2010] NSWCCA 202; R v Edwards (1996) 90 A Crim R 510; R v Wirth (1976) 14 SASR 291.

84. The impact upon the offender of her separation from her youngest children is a basis to conclude that special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act1999 (NSW) apply, and the ratio of sentence should be varied to a modest degree. Also of relevance to that conclusion is the offender’s vulnerable personality, and her complete naiveite of prison life on entering it. At age 48, having lived a law-abiding life but for the terrible divergence from that lifestyle that this offence represents, the Court accepts that the offender has experienced prison life and will experience it, at least for a time, as bewildering and frightening. It is most unlikely that she has the personal or experiential resources to readily adapt to a custodial environment, and she will find prison life more difficult than many. She will require considerable assistance on returning to society with reconnecting to her children, and re-establishing a life in the community.

General Deterrence

85. General deterrence has a role to play in the imposition of sentence upon the offender, there being no evidence that would ameliorate the consequences of its application. The sentence to be imposed upon the offender should serve as a warning to all against visiting lethal violence upon others, for financial or any other reason.

Sentence

86. In determining the sentence that is about to be imposed, all of the features to which I have referred must be and have been considered. The Court has had regard to s 3A of the Crimes (Sentencing Procedure) Act.

87. For the murder of Irene Jones on 2 November 2001, at Lansvale in this State, the offender is sentenced to a term of imprisonment of 20 years, with a non-parole period of 14 years. The sentence will commence on 20 May 2022. The non-parole period will expire on 19 May 2036, upon which date the offender will be eligible for release to parole. The total term will expire on 19 May 2042.

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Endnotes

Decision last updated: 16 November 2022