Citation: R v Camelo-Gomez [2022] NSWSC 1559
Court: Supreme Court of New South Wales
Date: 16 November 2022
Judge: Wilson J
Background
On the evening of 2 November 2001, a 56-year-old woman was murdered in her Lansvale home by ligature strangulation and stabbing. She had spent the evening at a birthday dinner with her daughter before returning home. Her daughter was later charged with her murder.
The offender, aged 27 at the time of the killing, had developed an intense and unrequited attachment to a married man she met through church. The victim, a single mother of limited means whose principal asset was her home, disapproved strongly of that relationship and refused demands that she sell her property to fund a business venture the pair had planned together.
Following a trial that ran from April to May 2022, the jury convicted the offender of murder. The sentencing hearing required the court to determine the factual basis for sentence, resolve disputed facts, and fix an appropriate penalty. Because the offence predated the 2003 introduction of standard non-parole periods in New South Wales, no standard non-parole period applied.
Legal Issues
- What facts relevant to the offence could be established to the required standard of proof for sentencing purposes, given the silence of the offender and the incapacity of her co-conspirator?
- Whether the murder was committed pursuant to a joint criminal enterprise, and if so, the nature and extent of the offender's role within it.
- What was the offender's level of moral culpability, particularly given the likelihood that the other participant conceived and drove the plan?
- How the sentencing discretion should be exercised, including the relevance of the co-offender likely never facing justice, hardship to the offender's children, and the applicable sentencing principles for murder.
Decision
Wilson J found, applying the principles in R v Isaacs, that facts adverse to the offender must be established beyond reasonable doubt, while facts favourable to her need only be established on the balance of probabilities. Her Honour resolved the contested factual dispute firmly against the offender's version, which posited that an unknown intruder had attacked her and separately killed her mother.
The court found beyond reasonable doubt that the murder was carried out pursuant to a joint criminal enterprise between the offender and Carlos Camelo. The motive was financial: by killing the victim, the offender and Camelo intended to gain control of the victim's property in Lansvale. The court found it likely, on balance, that Camelo first suggested the killing and devised the plan to disguise it as a home invasion, given his history of manipulative conduct and familiarity with violence. However, the offender embraced and executed the plan. Her conduct on the night, including alerting Camelo to her and her mother's return home and making a purposeless short trip to a nearby service station shortly before the killing, was found to be consistent with the agreed plan being put into action.
In assessing moral culpability, the court acknowledged genuine difficulties. The co-offender, Camelo, had suffered brain damage and was unlikely to face justice. The court considered the offender's role relative to Camelo's, the premeditated nature of the killing, the breach of the fundamental trust owed by a child to a parent, and the fact that the offence was committed in the victim's own home on the evening of her birthday. Mitigating factors, including hardship to the offender's children, were also weighed.
The court imposed a sentence of 20 years imprisonment with a non-parole period of 14 years, commencing 20 May 2022. The non-parole period expires 19 May 2036, with the total term expiring 19 May 2042.
Orders Made
- The offender was sentenced to imprisonment for 20 years for the murder of Irene Jones on 2 November 2001.
- The sentence commences 20 May 2022.
- Non-parole period of 14 years, expiring 19 May 2036, upon which date the offender becomes eligible for release to parole.
- Total term expires 19 May 2042.
Key Takeaways
- In resolving disputed facts at sentence, the Supreme Court applied the established principle that adverse findings must be established beyond reasonable doubt, but facts favourable to the offender need only meet the civil standard of proof on the balance of probabilities.
- A joint criminal enterprise does not require equal participation: the court found that one co-offender likely conceived and drove the plan, while still holding the convicted party fully responsible for participation in that enterprise.
- Where a co-offender cannot face justice due to incapacity, that circumstance does not reduce the offending of the convicted party but may inform the court's overall assessment of relative culpability.
- Premeditation, the killing of a parent in her own home, and a financially motivated motive were each treated as significant aggravating factors in fixing the sentence.
- Because the offence predated the 2003 sentencing amendments, no standard non-parole period applied, leaving the court to exercise an unguided discretion within established common law principles for murder sentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Cotter & Ors [2003] NSWCCA 273
- R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Beale v R [2015] NSWCCA 120
- Carter v R [2018] NSWCCA 138
- FP v The Queen (2012) 224 A Crim R 82; [2012] NSWCCA 182
- R v MacLeod [2013] NSWCCA 108
- King v R [2010] NSWCCA 202
- KR v R [2012] NSWCCA 32
- Magnuson v R [2013] NSWCCA 50
- Holyoak v R (1995) 82 A Crim R 502
- R v Edwards (1996) 90 A Crim R 510
- R v Lewis [2001] NSWCCA 448
- R v Gonzales [2004] NSWSC 822
- R v Ritchie [2003] NSWSC 864
- R v TJA [2004] NSWSC 1308
- R v Walkington [2003] NSWSC 517
- R v Weightman [2005] NSWSC 1354