Supreme Court New South Wales Medium Neutral Citation: R v Salcedo [2014] NSWSC 1099 Hearing dates: 28 - 29 April, 1 - 8 May and 20 June 2014 Decision date: 15 August 2014 Jurisdiction: Common Law Before: Adams J Decision: Mr Salcedo is sentenced to a total term of 4 years imprisonment commencing on 17 March 2013, comprising a non-parole period of 2 years ending on 16 March 2015 and a balance of term of 2 years commencing on 17 March 2015 and ending on 16 March 2017 Catchwords: CRIMINAL LAW - sentencing - manslaughter by unlawful and dangerous act - within lowest range of culpability - impact of offender's psychiatric condition - effect of drugs ingested by deceased - discount for offer of plea before trial Category: Sentence Parties: Regina (Crown) Dakohta Salcedo (Offender) Representation: Counsel: P McGrath (Crown) P Young SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Blair Criminal Lawyers (Offender) File Number(s): 2013/68774 Headnote (not to be read as part of the judgment) Dakhota Salcedo has been sentenced to imprisonment for four years with a non-parole period of two years for the manslaughter of Holly Francis-Burroughs in the early hours of the morning on 7 June 2012. The jury convicted him of manslaughter having acquitted him of murder. The unusual circumstances made this one of the least culpable cases of manslaughter in the judge's experience. Having happily spent the evening together, Ms Francis-Burroughs attempted to stop Mr Salcedo from going home. He grabbed the scarf she was wearing around her neck and pulled and twisted it for a few seconds when she suddenly fell to the ground. The cause of death was not strangulation but the blockage of the blood vessels in the neck. Although the scarf had been pulled more tightly than a tight shirt collar, not enough force was used to cause bruising or any other injury. Ms Francis-Burroughs was a long-term heavy drug user, mainly of amphetamines, and had been seen by a neighbour taking this drug before Mr Salcedo arrived. At the time of her death she a toxic quantity of amphetamines was found in her blood. It was highly probable that the drugs contributed to her death because of its effect on the heart and that, had not the drugs been present, she would not have died. Whilst in custody Mr Salcedo, who was 24 years of age at the time of the offence, was examined by a psychiatrist who concluded that he was probably suffering from schizophrenia throughout 2012. This factor probably contributed to the poor judgment displayed by Mr Salcedo in twisting the scarf around Ms Francis-Burroughs' neck and leaving the scene without calling the police or ambulance. The judge found that Mr Salcedo did not intend to cause Ms Francis-Burroughs any harm but was simply attempting to leave, although his response was unnecessarily violent and constituted an assault. His Honour also found that Mr Salcedo was remorseful for his actions. Since he had offered to plead guilty to manslaughter well before trial, the law provided that the sentence which otherwise should have been imposed was to be reduced by 15%. Judgment Introduction 1Dakohta Salcedo was indicted on the charge of murdering Holly Francis-Burroughs on 7 June 2012. On 8 May 2014 he was acquitted of that offence and, instead, convicted of Ms Francis-Burroughs' manslaughter, to which his earlier plea of guilty had been rejected by the Crown. There was no dispute that Mr Salcedo had caused Ms Francis-Burroughs' death. The real question for the jury was whether it was satisfied that he had acted with the intention of causing her death or grievous bodily harm. In light of the evidence as a whole and the medical evidence in particular, the ultimate verdict was inevitable. It is for me, as the judge, to determine the relevant facts for the purpose of sentence but only as consistent with the verdict of the jury. 2The maximum sentence for the crime of manslaughter is 25 years imprisonment, reserved of course for the worst cases. There is no dispute that this case is very far from the worst. Mr Salcedo offered to plead guilty to manslaughter on 7 April 2014, three weeks before the trial was due to commence, but this was rejected by the Crown. In these circumstances it is appropriate to discount the sentence which otherwise would be imposed by 15 per cent. The offender was arrested on 6 March 2013 and has been in custody since that date. At that date he was serving a sentence of imprisonment expiring on 16 August 2013, the non-parole period of which expired on 16 March 2013. It is agreed that it is appropriate to commence the present sentence on 17 March 2013. The elements of the offence 3Of the available bases for bringing in a verdict of manslaughter, the only one which fits the evidence is that Ms Francis-Burroughs died as a result of the offender's unlawful and dangerous act. The unlawful act was an assault which was dangerous in the sense that a reasonable person in the position of the Mr Salcedo at the time would have realised that what he did exposed the victim to a risk of serious injury. By "serious injury", I do not mean grievous bodily harm, let alone life-threatening. It is important also to note that it does not matter whether Mr Salcedo actually realised that what he did might cause serious injury but, rather, whether an ordinary member of the community in his position would have realised or appreciated that it might have done so. By his plea of guilty, Mr Salcedo admitted, inter alia, that he had used more force than was reasonably necessary to escape Ms Francis-Burroughs's attempt to restrain him and, inferentially, that he was guilty of common assault. Although it was not bound to do so, the jury plainly accepted this admission as proof of the unlawful act which was necessary to establish the offence of manslaughter. 4If the offender intended to cause serious injury the crime is obviously more serious that if the death was caused unexpectedly, though by an act which a reasonable person would have realized risked serious injury. In this case, as will become clear, Ms Francis-Burroughs' death was not only unexpected but, I think, would not have been expected by any reasonable person. Nor would reasonable people have thought that grievous (as distinct from serious) harm might have been caused by what Mr Salcedo did. After carefully reviewing the evidence, I am satisfied that he had no intention of causing Ms Francis-Burroughs any serious injury or thought that what he did might do so. Objective circumstances 5Mr Salcedo and Ms Francis-Burroughs had been going out together for some months. They were not living together but occasionally spent the night in Ms Francis-Burroughs' unit. The evidence discloses that that their relationship appeared to be on the whole a happy one. More particularly there is no suggestion that, on the evening of her death, they had argued or that anything untoward had occurred between them. Far from it. Ms Francis-Burroughs told a neighbour with whom she was in the habit of confiding personal details of her life, that earlier in the evening around 7pm or so, she and the offender had sex, about which she was obviously pleased. 6When the two first met that day is not clear but does not presently matter. It can be accepted that they were together from sometime before 7pm on 6 June 2012 until shortly after 3am on 7 June 2012. At some time, perhaps around 10pm, the power to the premises was cut (due to storm damage), and was rendered safe about 11.30pm but not repaired until the following day. It appears likely that Mr Salcedo left the unit sometime after 3.35am and before 6am. (The first of these of these times is taken from the last SMS message sent from the victim's phone and the latter from the time when the offender arrived at his home.) Be that as it may, at about 8.30am or so on the morning of 7 June 2012, a neighbour went to the victim's unit as had been previously arranged. The backdoor was unlocked so, after knocking, he entered and saw Ms Francis-Burroughs lying on her bed, fully clothed. She was dead. The police were called and arrived at 9.40am. Dr Matthew Orde, then a forensic pathologist working at the Department of Forensic Medicine at Glebe was called to the scene and arrived at about 2.30pm. He described the victim as fully clothed, lying on her back on the bed with her legs crossed. There was a scarf around her neck. 7It is not necessary for present purposes to set out all the details of the post-mortem examination but some are important, since they cast light on what happened and how Ms Francis-Burroughs came to die. In substance, the cause of death was the compression of the vessels supplying blood to the brain resulting from the scarf being pulled with moderate force around her neck. This was not strangulation or choking. The doctor described the force as "perhaps moderate ... more than [that of] a tight collar like I am wearing today. This would have been firm force applied around the neck". There were associated signs that "would have taken several, possibly many seconds, possibly a couple of minutes or more to develop... [so that] death was likely to have occurred ... not less than at least several seconds [after force was applied]". Elsewhere in his evidence he described the death as having occurred "fairly quickly in around or at the same time as the compression of the neck was taking place". Although Dr Orde had earlier used the term "like light compression" he explained it was difficult to know with certainty how much force would have been required but it was a "quite significant substantial force". However, the force was not sufficient to cause any bruising or injury. The marks around the victim's neck were caused by the scarf preventing blood flow. There were no other injuries that might have suggested violence. 8Of considerable importance so far as the cause of death is concerned is the tragic fact that Ms Francis-Burroughs had been addicted to illicit drugs for some years. Toxicology testing showed the presence of amphetamine, methylamphetamine, cannabis derived compounds, diazepam and other diazepam related chemicals in her blood at the time of death. Of these, the amphetamine was the most significant because of its toxic stimulant effects. The toxicologist, Dr Allender said that the quantity that he found in the deceased was the highest he had seen in his experience (which went back to 1978) and was certainly at a toxic level. Even allowing for what must have been a substantial level of tolerance, it was nevertheless reasonably possible that, at the levels he found, the amphetamine might have had a significant contribution to the deceased's death. Dr Orde, for his part, added that it was highly probable the drugs which the deceased had ingested would have rendered her more susceptible to succumbing to the compression of her neck because they predispose the heart to go into an unstable rhythm, which was a contributing factor to her death. 9The medical expert opinion justifies the conclusion, to a high level of probability, that the substantial quantity of drugs ingested by Ms Francis-Burroughs contributed significantly to her death by increasing her vulnerability if there were an interruption to the blood supply to her brain, so that she died much more quickly than otherwise would have been expected, even perhaps only several seconds after compression occurred. 10The medical evidence provides significant corroboration for Mr Salcedo's description to his mother of what happened. She said - "I remember asking Dakohta directly, 'Did you do it?' I was meaning, 'Did you hurt Holly?' Dakohta looked at me and he was very quiet when he spoke back to me, 'Yeah. I didn't mean to do it, it was an accident.' I distinctly remember him saying this to me. He was really quiet. I said, 'Well, how did it happen? What happened?' He said, 'I got up to leave. I was going to come home. I went over to the door. She tried to stop me.' I think I might have said, 'Did you argue?' He said, 'I grabbed her by the scarf. I pulled it and turned it.' I said, 'Oh. What happened next?' He said, 'She just dropped'. I said, 'You must have cut off her airways'. He said, 'I didn't mean it, it was an accident. I didn't mean for her to die.' I said, 'Well, the detective said she was on the bed or someone said she was on the bed'. He didn't say anything about this." 11Mr Salcedo had given other accounts of what occurred that night which omitted any mention of his use of the scarf and suggested that the victim had simply died from a drug overdose whilst he was asleep in the room. I am satisfied that, as far as it goes, what he ultimately told his mother was the truth, as I said, because it is substantially in accordance with the medical evidence. 12On 12 June 2012, Mr Salcedo was interviewed by police. He told them he and Ms Francis-Burroughs stayed together overnight from time to time and was with her the evening in question, timing it, however, from about 8.30pm. He denied ever having sex with Ms Francis-Burroughs, I assume because this embarrassed him, since it is clear that there was nothing untoward about this event. He told police he had been lying on the bed and fell asleep, waking at about 3 am to find Ms Francis-Burroughs lying on the floor. I think it very likely that Ms Francis-Burroughs had indeed fallen to the floor when she collapsed and that he picked her up and put her on the bed. He denied seeing her use the phone that night, which is possible but unlikely. He put his hand under her nostrils to see whether she was breathing but felt no air being inhaled or exhaled and said he was certain that she was dead when he left the unit and there was no point in getting help. He said she had taken drugs after she had returned to the unit, which might well have been so but she had been seen by a neighbour taking amphetamine at an earlier stage that evening. Mr Salcedo said that he had left the unit at around 3am, arriving home at 3.20am and that his mother was mistaken in saying that he arrived closer to 6am. I am not in a position to resolve this contradiction. However, particularly in light of the medical evidence, I am satisfied that there would have been no point in calling "000". 13As later mentioned, Mr Salcedo told Dr Furst, amongst other things, that Ms Francis-Burroughs had stood in the doorway to stop him from leaving and he had grabbed her by the scarf to stop her from screaming and making an embarrassing scene, which she had done before. (This was supported by the evidence of a witness who saw such an incident in the street a few weeks previously.) 14Accordingly, although it is not possible to resolve all uncertainty, not least because the offender lied to police in his initial accounts of what occurred, I am satisfied that the following brief description is in all likelihood what happened and provides an appropriate factual basis for the purpose of sentence. Mr Salcedo and Ms Francis-Burroughs were happy together, particularly on the night of her death. He had come to the unit some time before 7pm and the couple had made love. After going to a nearby hotel for some drinks and shopping together at a nearby supermarket, they returned to the hotel and then to the unit at around 10pm where they remained together until the offender left, alone, some time after 3.35am and before 6am. There was no motive for Mr Salcedo to commit any real violence and no evidence of any fight. Ms Francis-Burroughs had ingested drugs, certainly amphetamine and probably others. Mr Salcedo had probably taken some drugs also but there is no evidence that he was intoxicated or even significantly affected. Some time shortly before 2am Ms Francis-Burroughs sent a text message to Mr Salcedo's brother trying to obtain other drugs, probably marijuana. Mr Salcedo also probably made calls to and received calls from his brother, possibly trying to obtain drugs but this is speculative. At 3.30am, 3.33am and 3.35am text messages were sent to the Mr Salcedo's brother from the telephone being used by Ms Francis-Burroughs. Whether these messages were actually made by her is unknown but it seems likely that they were. Some time after these messages, to which there was no response, Mr Salcedo got up to leave to go home. When he went over to the door, Ms Francis-Burroughs tried to stop him from leaving by standing in the doorway. He grabbed her by the scarf she was wearing and pulled and turned it with some force but not sufficient to cause any bruising. After several seconds she unexpectedly fell to the ground. Mr Salcedo lifted her onto the bed and checked her breathing, to discover she was dead. He may have stayed in the unit for some little time or, perhaps, walked around before eventually arriving home. 15I am satisfied that the offender did not himself appreciate the risk of serious injury to which his acts exposed the deceased and that he was simply responding to her attempt to prevent him from leaving. Consistently with the verdict, his response was unnecessarily violent and constituted an assault but I am satisfied that he did not intend to cause her any harm. Certainly what he did was a substantial contributing factor in causing Ms Francis-Burroughs's death, but I am satisfied that it would not have occurred - indeed, nor would any serious injury - had Ms Francis-Burroughs not been so greatly affected by drugs. Accordingly, so far as objective seriousness is concerned, this case should be regarded as well within the lowest range of culpability for offences of manslaughter. Indeed, it is one of the least culpable cases of manslaughter in my experience on the Bench. Criminal record 16The offender was something over 24 years old at the time of the offence. He had previously been convicted of a number of offences, the first of which occurred in June 2008, when he was 20 years of age and involved the theft of a motor vehicle, possession of a prohibited drug, common assault and intimidation. There followed other offences involving car theft and resisting an officer in the execution of his duty. His first sentence of imprisonment was imposed in August 2009 of 9 months for assault occasioning actual bodily harm and concurrently 12 months for stealing from the person and four months later he was sentenced to a short term of imprisonment for the offence of common assault. In August 2008 he was fined for possessing a prohibited drug and placed on a bond for contravening a domestic apprehended violence order, which, however, does not appear to have been associated with any violence. In July 2009 he was convicted of two aggravated break and enter offences for which he was released on parole in April 2010. In January 2011 he was sentenced to a term of 9 months imprisonment with a non-parole period of 6 months for common assault and, in December 2011 of theft and intimidation in respect of which he was given a 10 months suspended sentence for which he was ultimately called up on 17 October 2012 and sentenced to imprisonment for 10 months with a non-parole period of 5 months concluding 16 March 2013. His last offence before the commission of the present offence was committed on 21 April 2012 for which he was sentenced on 17 October 2012 to 3 months imprisonment expiring on 16 January 2013. This record of offences involving violence, although low level, is persistent (and is perhaps partly attributable to Mr Salcedo's psychiatric problems to which I refer below) and requires a greater than usual degree of emphasis to the need for personal, as distinct from general, deterrence. Psychiatric issues 17The offender was examined by a very experienced consultant forensic psychiatrist, Dr Richard Furst, who assessed him first in February 2014 and, following his conviction, in May 2014. At the outset of his report Dr Furst noted that it appeared that all the offender's family members on his mother's side had suffered from schizophrenia and bipolar disorder, requiring most of them to have been hospitalised at some time or another. Indeed, his mother was unable to give evidence because she was, at the time the trial, an involuntary patient in a psychiatric unit of a Sydney Hospital. 18Dr Furst, as is customary, took a history from Mr Salcedo which is not suggested to be unreliable. He grew up in a Sydney suburb and attended school until year 10, being an average student with no indications of a learning disorder or ADHD. There was some domestic violence in his childhood with his father being violent towards his mother. His two older sisters were placed in the care of DOCS. He had problems with substance abuse as a teenager and saw a psychiatrist on a couple of occasions in 2010 although he had never been admitted to a psychiatric hospital. However, when he was incarcerated during 2011 he experienced some psychotic episodes for which he was medicated. His medication ceased when he was released in December 2011. He relapsed into using cannabis and ice although he was on parole. He told Dr Furst that, at the time of the offence, he was living in a community house in North Ryde run by the Salvation Army, but it appears he was also living at home episodically. He was doing some community work. Although he was decreasing his drug use, it continued. 19As to the offence, Mr Salcedo told Dr Furst that, when he said he was going home, the deceased replied, "What? Stop, you're going to ditch me?" and stood in front of the door. He said that he grabbed her scarf and pulled on it and twisted it as he did not want her to follow him down the street and yell at him as she had previously done. The offender told Dr Furst that he had called his brother after this event who had advised him to call an ambulance but he said that he was too scared to do so because he thought "they would think that I killed her". However, the telephone records tendered in the trial show calls between the offender and his brother at 2.15am, 2.18am and 2.23am with a somewhat longer conversation at 2.28am, followed by a number of unresponsive calls and SMS messages. If the offender's account about this is reliable, which is somewhat doubtful, the text messages after 3.30am from the deceased's phone must have been made by him. However this may be, this version of events is consistent with what he told his mother. Mr Salcedo said he had shared one joint of cannabis with the deceased during the night and also took two dexamphetamine tablets. 20The offender told Dr Furst that he had smoked cannabis from the age of 15 which became a regularly daily habit. He stopped using cannabis when arrested at the age of 19 years but lapsed again when released in December 2011, continuing to use cannabis until his arrest in October 2012. He had also used ice, as I understand it smoking it once a week and taking benzodiazepine also perhaps once a week. 21Mr Salcedo's mental state examination when seen by Dr Furst was unremarkable although, whilst in prison, he had from time to time exhibited psychotic symptoms at first suggestive of schizophrenia and, subsequently, leading to a diagnosis of partially treated schizophrenia and major depressive disorder. In summary, he has a history of psychotic symptoms including paranoid thinking, auditory hallucinations, mood disturbance and apparent self-referential thinking. He presented at the assessment with Dr Furst in February 2014 with features of restricted affect and some residual paranoid thinking. His Justice Health files disclosed multiple psychiatric assessments, three admissions to the Long Bay Mental Health Unit between 2009 and 2013 and a history of treatment with anti-psychotic and anti-depressant medication over recent years consistent with a diagnosis of schizophrenia. He also has co-morbid substance abuse issues and probably has a personality disorder. Dr Furst found it difficult to form any firm conclusions about his mental state at the time of the offence which was complicated by the effects of substance abuse at the time. However, Dr Furst concluded that (though it is possible he was exaggerating some symptoms and underreporting or minimising others, as he lacked insight) Mr Salcedo was probably suffering from a serious mental illness in the form of schizophrenia throughout 2012,. 22Of present particular significance, Dr Furst thought that the presence of schizophrenia and its associated symptoms were relevant factors that probably contributed to the poor judgment the offender displayed in twisting the scarf around the deceased's neck and leaving her at the scene without calling police or ambulance. He noted that people with schizophrenia often struggle to think clearly and solve problems, either due to symptoms of psychosis or residual cognitive deficits. 23Dr Furst noted that Mr Salcedo appeared to have poor insight into the nature of his mental problem and the need for medication and recommended that the offender should remain under the care of a psychiatrist and the mental health nurses working for Justice Health and continue his anti-psychotic and anti-depressant medication. He thought that he was good candidate for a custody based drug and alcohol rehabilitation programme and probably for a psychological treatment program, to address his history of violence. He thought the offender's risk of re-offending would be reduced if he abstained from illicit drugs and engaged in the psychological treatment programs available within the prison system and adhered to the counselling recommendations that might be made. Victim Impact Statements 24Victim impact statements were produced to the Court from Ms Francis-Burroughs' godmother, guardian and aunt (also a guardian). They speak eloquently of their love for Holly and their great grief and that of all her family over her tragic death. Nothing the Court can do can assuage their pain. I have dealt with these statements as required by law. Discussion 25Although the Crown prosecutor submitted to the contrary, there is no proper basis in my view to disregard the opinion of Dr Furst about the effect of the offender's mental illness on Mr Salcedo's judgment at the time of the offence. In my view, this reduces his moral culpability and also, in line with decisions of this Court on the question, also significantly moderates the importance of general deterrence. However, this condition warrants a greater emphasis on the need for personal deterrence, especially in light of his criminal history. The sentence which I impose reflects my view of the importance of this aspect. 26The offender expressed remorse both to his mother when he confessed what he had done and also to Dr Furst. His plea of guilty to manslaughter is also consistent with this attitude. I accept he is remorseful. Given his history of violence, although relatively minor, and the circumstances of this case, where it had catastrophic consequences as well as his psychiatric condition, his prospects for non-offending are guarded but there are grounds for optimism in his now being able to access focused assistance in a structured environment. 27The offence was impulsive, he was responding, though inappropriately, to Ms Francis-Burroughs' attempt to stop him from leaving, the level of violence was not objectively severe, although the consequences were appalling and, as the jury in effect found, a reasonable person in the offender's position would have realised that he was exposing the deceased to serious injury. 28As I have already noted, in December 2011 the offender received suspended sentences in the Local Court. The current offence was therefore a breach of the condition of the suspension. He was called up for this breach and returned to custody because of it. It is necessary to avoid any double punishment but this breach has some significance when considering the offender's prospects of rehabilitation. I also note that Mr Salcedo was on bail at the time of the offence for damaging property. 29When he is released, Mr Salcedo will have a continuing and long term need for supervision to persevere with his rehabilitation. This need is a special circumstance that justifies a variation of the non-parole period from that which would result from the application of the ratio stipulated in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Conclusion 30After making an allowance in the order of 15 percent for his plea, Mr Salcedo is sentenced to a total term of four years imprisonment commencing on 17 March 2013 comprising a non-parole period of two years ending on 16 March 2015 and a balance of term of two years commencing on 17 March 2015 and ending on 16 March 2017. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2014