R v Valencia Valencia (No 3) - [2023] NSWSC 780

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Valencia Valencia (No 3) [2023] NSWSC 780
Hearing dates: 30 June 2023
Date of orders: 07 July 2023
Decision date: 07 July 2023
Jurisdiction: Common Law
Before: Yehia J
Decision:
(1) I impose 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.
(2) The total sentence is one of 10 years imprisonment.
(3) The offender will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:
CRIME — Sentence — Manslaughter — Unlawful and dangerous act — Cause of death asphyxiation by neck compression — Mid-range objective seriousness — Young adult — Onerous conditions in custody by virtue of COVID-19 restrictions, cultural and language barriers and isolation — Special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), s 18(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(h), 25D(3), 44(2)
Evidence Act 1995 (NSW), s 191

Cases Cited:
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Goundar v R [2012] NSWCCA 87
KT v The Queen [2008] NSWCCA 51;(2008) 182 A Crim R 571
McKinnon v R [2020] NSWCCA 106
Moodie v R [2020] NSWCCA 160
R v Dawes [2004] NSWCCA 363
R v Edwards (1996) 90 A Crim R 510
R v Hoerler [2004] NSWCCA 184
R v Loveridge [2014] NSWCCA 120
R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v Tangi (No 12) [2020] NSWSC 547
R v Valencia Valencia [2023] NSWSC 163
R v Wood [2014] NSWCCA 184
Scott v R [2020] NSWCCA 81

Category: Sentence
Parties: Rex (Crown)
Hector Enrique Valencia Valencia (Offender)
Representation:
Counsel:
E Blizard (Crown)
C Wasley (Defence)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
James and Jaramillo Lawyers (Defence)

File Number(s): 2020/00043308

JUDGMENT

Hector Enrique Valencia Valencia (“the offender”) was charged that, between 7 January 2020 and 14 January 2020, he did murder Kimberly McRae (“Kim McRae” or “the deceased”). He pleaded guilty to an alternative count of manslaughter, which plea was not accepted by the Crown in full satisfaction of the indictment.
He stood trial by judge alone before me, commencing on 6 February 2023. On 24 February 2023, I found him not guilty of the offence of murder, but guilty of manslaughter.
The offender must now be sentenced for manslaughter, an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years life imprisonment.
The Crown accepts that having offered to plead guilty to manslaughter in the Local Court, the offender is entitled to a 25% discount by virtue of s 25D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA). A summary of the evidence adduced at trial, the inferences relied upon, and findings made,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] NSWSC 780
Decision Date: 07 July 2023

CaseChat Overview and Summary

The case of R v Valencia Valencia (No 3) involved the sentencing of Valencia Valencia, who had been found guilty of manslaughter by unlawful and dangerous act, which resulted in the death of another individual by asphyxiation due to neck compression. The court was tasked with determining an appropriate sentence for this offence, taking into account various factors, including the objective seriousness of the crime, the age of the offender, and the conditions of his detention due to COVID-19 restrictions, cultural and language barriers, and isolation. The case was heard in a higher court, likely the Court of Appeal, based on the nature of the issues raised.

The primary legal issues the court had to decide were the objective seriousness of the crime, the culpability of the offender, and the appropriate sentence considering the special circumstances of the offender's detention. The court needed to balance the severity of the crime against the personal circumstances of the offender, particularly the conditions of his detention which were exacerbated by the COVID-19 pandemic, cultural and language barriers, and isolation. The court also had to consider whether these factors constituted special circumstances warranting a departure from the usual sentencing principles.

The court determined that the objective seriousness of the crime was mid-range, acknowledging the offender's role in causing the death through an unlawful and dangerous act. However, it also recognised the significant impact of the offender's detention conditions on his mental and physical well-being. The court found that these conditions, including the effects of COVID-19, cultural and language barriers, and isolation, constituted special circumstances. As a result, the court imposed a sentence that reflected both the severity of the crime and the unique challenges faced by the offender during his detention, ultimately deciding on a sentence that balanced these competing considerations.

The court's final orders reflected the detailed consideration of both the crime's seriousness and the special circumstances of the offender's detention. The specific sentence was determined to be appropriate under the circumstances, aiming to address the offender's culpability while also considering the unique hardships he faced. The decision underscored the importance of taking into account all relevant factors in sentencing, particularly when the conditions of detention significantly impact the offender's situation.

Orders