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Supreme Court 7 July 2023

R v Valencia Valencia (No 3)

[2023] NSWSC 780

Homicide

Citation: R v Valencia Valencia (No 3) [2023] NSWSC 780
Court: Supreme Court of New South Wales
Date: 7 July 2023
Judge: Yehia J

Background

The offender, a Colombian national, attended the Coogee home of the deceased, a 69-year-old transgender sex worker, in January 2020 to obtain sexual services. Upon discovering that the deceased was transgender, he became angry and initiated a violent assault. A struggle followed in which the offender held an electrical lamp cord against the deceased's neck with force for several seconds, causing death by asphyxiation through neck compression.

The offender had pleaded guilty to manslaughter in the Local Court, but the Crown did not accept that plea in full satisfaction of the indictment and proceeded to trial on a charge of murder. Following a judge-alone trial, Yehia J acquitted the offender of murder but found him guilty of manslaughter on 24 February 2023. The sentencing proceedings addressed by this judgment followed that verdict.

The offender fled Australia within days of the incident, travelling to Colombia before being arrested in Aruba on 26 February 2020. He was subsequently extradited to Australia and has been in custody since the date of his arrest.

  • Where on the spectrum of objective seriousness should this manslaughter offence be placed?
  • Whether the offence was motivated by hatred or prejudice toward a transgender person, as an aggravating factor under sentencing legislation
  • Whether the post-offence conduct of fleeing the jurisdiction and destroying evidence was relevant to sentence
  • Whether the offender's custody conditions, including COVID-19 restrictions, cultural and language barriers, and isolation, constituted special circumstances warranting variation of the standard non-parole period ratio
  • What discount applied by reason of the early plea of guilty, and how that discount interacted with the overall sentence

Decision

Yehia J assessed the offence as falling within the mid-range of objective seriousness. Several aggravating features weighed in that assessment: the use of a weapon (the electrical cord), the vulnerability of the deceased by reason of her occupation and isolated workplace, the fact that she was killed in her own home, and the offender initiating the violence. The mechanism of death, asphyxiation by neck compression, was also noted, with expert evidence indicating that the pressure required to compress the neck and interrupt blood flow was not high and could render a person unconscious within seconds.

The Crown submitted that the offence was motivated by hatred or prejudice toward the deceased as a transgender person, which would constitute a statutory aggravating factor. Yehia J rejected that submission. Her Honour found that, while the offender initiated violence immediately upon discovering the deceased was transgender, the case was distinguishable from offences where a victim is targeted because of their gender or sexuality. There was no premeditation, no targeting of the deceased on that basis, and the act causing death occurred during a struggle that immediately followed the initial punches rather than arising from a deliberate campaign of violence driven by prejudice.

On the offender's subjective case, the court accepted several mitigating factors, including that the offender was a young adult, had limited prior criminal history, had experienced a particularly onerous period in custody due to COVID-19 restrictions, and faced significant cultural and language barriers in a foreign prison environment. These circumstances, combined with his relative youth and prospects for rehabilitation, supported a finding of special circumstances, which justified extending the additional term beyond the statutory ratio.

The court applied a 25% discount for the utilitarian value of the early plea of guilty, consistent with the plea having been offered in the Local Court. The resulting total sentence was 10 years imprisonment, with a non-parole period of 6 years and 9 months commencing 26 February 2020.

Orders Made

  • The offender was sentenced to a total term of 10 years imprisonment.
  • Non-parole period of 6 years and 9 months, commencing 26 February 2020 and expiring 25 November 2026.
  • Additional term of 3 years and 3 months imprisonment.
  • The offender is eligible for release to parole at the expiration of the non-parole period.

Key Takeaways

  • A manslaughter conviction does not require an intent to kill or cause grievous bodily harm; that distinction from murder was central to how the Supreme Court characterised the offender's moral culpability and fixed the sentence within the mid-range rather than the upper range.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a 25% discount for utilitarian value applied where the offender had offered a plea of guilty to manslaughter as early as the Local Court proceedings, even though the Crown did not accept it in full satisfaction of the indictment at that stage.
  • Sentencing courts must assess whether an offence is motivated by hatred or prejudice toward a protected characteristic with care; Yehia J declined to find that aggravating factor where the violence, though triggered by the discovery of the deceased's transgender identity, was spontaneous and unplanned rather than constituting targeted conduct.
  • Onerous conditions in custody, including restrictions arising from the COVID-19 pandemic, cultural isolation, and language barriers, were accepted as relevant to special circumstances and supported a variation of the standard statutory ratio between non-parole period and additional term.
  • The objective seriousness of a manslaughter offence must be assessed by reference to its full context and surrounding circumstances, with sentences imposed in comparable cases offering limited guidance given the wide variation in conduct that can give rise to the offence.

Legislation and Cases Referenced

Legislation
- 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
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Goundar v R [2012] NSWCCA 87
- KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51
- 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, unreported)
- R v Tangi (No 12) [2020] NSWSC 547
- R v Valencia Valencia [2023] NSWSC 163 (the trial verdict judgment)
- R v Wood [2014] NSWCCA 184
- Scott v R [2020] NSWCCA 81