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Supreme Court 15 August 2014

R v Salcedo

[2014] NSWSC 1099

Homicide
CRIMINAL LAW SENTENCING WITHIN LOWEST RANGE OF CULPABILITY EFFECT OF DRUGS INGESTED BY DECEASED DISCOUNT FOR OFFER OF PLEA BEFORE TRIAL

Citation: R v Salcedo [2014] NSWSC 1099
Court: Supreme Court of New South Wales
Date: 15 August 2014
Judge: Adams J

Background

The offender was charged with the murder of his partner following her death in the early hours of 7 June 2012. A jury acquitted him of murder but convicted him of manslaughter by unlawful and dangerous act. The Crown had rejected his earlier offer to plead guilty to manslaughter.

The circumstances were unusual. The couple had spent the evening together without apparent conflict. In the early hours of the morning, the deceased attempted to stop the offender from leaving. He grabbed and twisted a scarf she was wearing around her neck for a few seconds. She fell to the ground and was later found dead.

The cause of death was compression of the blood vessels in the neck, not strangulation. Critically, the deceased was a long-term heavy amphetamine user and had a toxic level of the drug in her blood at the time of death. Medical evidence indicated the drugs very likely contributed to her death by affecting her heart, and that she would probably not have died but for their presence.

  • Whether the manslaughter fell within the lowest range of culpability, and what weight that carried for sentencing
  • What effect the offender's probable schizophrenia had on his moral culpability and the relevance of general and personal deterrence
  • What weight to give to the deceased's drug use as a contributing cause of death
  • Whether a 15 per cent discount for the pre-trial offer to plead guilty to manslaughter was appropriate
  • Whether special circumstances existed justifying a variation from the standard non-parole period ratio

Decision

Adams J found the offence sat at the very lowest end of manslaughter culpability. The offender had not intended to cause any harm and had used only moderate force. The level of force was insufficient to cause bruising or any other injury. The death resulted from an unexpected physiological response compounded by the deceased's drug-affected state. His Honour was satisfied no reasonable person in the offender's position would have anticipated a fatal or even grievous outcome.

The court accepted psychiatric evidence that the offender was probably suffering from schizophrenia throughout 2012. This condition likely contributed to the poor judgment he displayed, both in twisting the scarf and in leaving the scene without calling for help. His Honour found that the psychiatric condition reduced moral culpability and moderated the weight ordinarily given to general deterrence, though personal deterrence remained significant given the offender's criminal history.

The toxic level of amphetamines in the deceased's blood was found to be a highly probable contributing cause of death. Adams J treated this as a factor further reducing the offender's culpability, since it materially affected the causal chain between his act and the fatal outcome.

A 15 per cent discount was applied to the sentence because the offender had offered to plead guilty to manslaughter approximately three weeks before trial, well before that offer was formally rejected by the Crown. His Honour also found special circumstances warranting a non-parole period shorter than the standard ratio, given the offender's long-term need for supervision and structured support following release.

Orders Made

  • The offender sentenced to a total term of four years imprisonment commencing 17 March 2013
  • Non-parole period of two years, ending 16 March 2015
  • Balance of term of two years, commencing 17 March 2015 and ending 16 March 2017

Key Takeaways

  • Adams J described this as one of the least culpable cases of manslaughter in his experience, reflecting that low culpability at the objective end of the scale significantly informs the sentence even where a death has occurred.
  • Where a victim's pre-existing condition or drug use materially contributes to a fatal outcome, that contribution may reduce the offender's moral culpability for sentencing purposes, even though the causal link between the offender's act and the death is established.
  • A probable psychiatric condition at the time of the offence, supported by expert evidence, can reduce the weight given to general deterrence while simultaneously increasing the emphasis on personal deterrence, particularly where the offender has a history of prior violence.
  • Under the applicable sentencing framework, an offender who offers to plead guilty before trial, only for that offer to be rejected by the Crown, retains an entitlement to a discount reflecting what would have been a guilty plea, assessed at 15 per cent in this case.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established where the offender has a long-term ongoing need for supervision and structured rehabilitation support after release.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole period ratio)

Cases:
- No specific cases were cited in the portions of the judgment provided.