R v Filihia

Case [2013] NSWSC 1871

Supreme Court


New South Wales

Medium Neutral Citation: R v Filihia [2013] NSWSC 1871
Hearing dates:5 December 2013
Decision date: 13 December 2013
Before: Adamson J
Decision:

(1)For the offence of armed robbery with wounding, sentenced to a term of imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 10 months.

(2)For the offence of murder, sentenced to a term of imprisonment of 14 years and 3 months, commencing 13 March 2013, with a non-parole period of 10 years and 8 months.

Catchwords: CRIMINAL LAW - sentence - plea of guilty - murder and armed robbery - conditional liberty at the time of offence - genuine remorse
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 9, s 12, s 44(2), s 44(2B)
Cases Cited: McLaren v R [2012] NSWCCA 284
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Previtera (1997) 94 A Crim R 76
Category:Sentence
Parties: Regina (Crown)
Richard Filihia (Offender)
Representation: Counsel:
PE Barrett (Crown)
PM Winch (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid (Offender)
File Number(s):2012/331980
Publication restriction:Nil

Judgment

Introduction

  1. In the early hours of Wednesday 24 October 2012 in a brothel in George Street, Clyde, Richard Filihia stabbed and robbed Brian Gaudry who died as a result of the wound. Later that day Mr Filihia was arrested and charged with murder and armed robbery. He pleaded guilty to both charges. He was committed for sentence upon entering the pleas. He was arraigned on 2 August 2013. His sentence was deferred until the completion of the trial of Mr Sio, a co-offender, who had planned the robbery, investigated the layout of the brothel, driven him to the scene and supplied him with clothes in which to commit the robbery as well as providing him with a large hunting knife to use in the robbery.

  1. Mr Sio was convicted of armed robbery and acquitted of murder. The factual basis of his sentence derives from the evidence at the trial and on the sentence hearing. It is slightly different from the facts set out below, which are largely taken from the Statement of Facts prepared by the Crown and agreed by the offender (the Agreed Facts), as well as admissions made in the Electronically Recorded Interview with Suspected Person (ERISP), some of which are extracted in the Agreed Facts.

  1. I have had regard to the principles of parity when sentencing Mr Sio and Mr Filihia, paying due regard to the fact that Mr Filihia is to be sentenced for murder and armed robbery with wounding but Mr Sio is to be sentenced only for armed robbery with wounding.

Evidence

  1. I have also taken into account the evidence at the sentence hearing. In addition to the ERISP and the Agreed Statement of Facts, the Crown tendered the offender's criminal and custodial histories, a photograph of the knife and…

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AGLC
R v Filihia [2013] NSWSC 1871
Case
[2013] NSWSC 1871
Decision Date

CaseChat Overview and Summary

The case of R v Filihia involved the conviction of the defendant, Filihia, for the crimes of murder and armed robbery. The dispute arose from a planned armed robbery at a brothel in Clyde, where the victim, Mr. Gaudry, was killed. The defendant had entered into an agreement with Sio to commit the crime, with Sio providing a knife and directing Filihia to commit the robbery. The case was heard in the relevant criminal court, where the primary focus was on determining an appropriate sentence for Filihia, taking into account the nature of his crimes and his circumstances at the time of the offence.

The legal issues before the court involved the sentencing principles applicable to Filihia's crimes, particularly considering the aggravating and mitigating factors present in the case. The court needed to weigh the severity of the crimes against the defendant's level of remorse, his addiction to methylamphetamine, and his conditional liberty at the time of the offence. Additionally, the court had to balance these factors against the principles of parity in sentencing, as the co-offender, Sio, was to be sentenced for lesser charges.

In its reasoning, the court found that Filihia's addiction to ice and his need for money to support his family and habit were significant mitigating factors. However, these did not outweigh the gravity of the crimes committed, particularly the murder of Mr. Gaudry. The court also considered the evidence of genuine remorse shown by Filihia, including his cooperation with authorities and admissions in his ERISP. Despite these mitigating factors, the court concluded that the crimes warranted a substantial custodial sentence. The court ultimately determined that Filihia's sentence should reflect the seriousness of the crimes, his level of involvement, and the need for deterrence and retribution.

The final orders of the court included a custodial sentence for Filihia, which was determined to be appropriate given the nature of the crimes and the mitigating circumstances. The court also took into account the need for proportionality in sentencing, ensuring that the sentence reflected the gravity of the offences while also considering the defendant's personal circumstances and level of remorse.

Orders

Orders of the court

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Background

Background to the litigation

Mr Sio was convicted of armed robbery and acquitted of murder. The factual basis of his sentence derives from the evidence at the trial and on the sentence hearing. It is slightly different from the facts set out below, which are largely taken from the Statement of Facts prepared by the Crown and agreed by the offender (the Agreed Facts), as well as admissions made in the Electronically Recorded Interview with Suspected Person (ERISP), some of which are extracted in the Agreed Facts. I have had regard to the principles of parity when sentencing Mr Sio and Mr Filihia, paying due regard to the fact that Mr Filihia is to be sentenced for murder and armed robbery with wounding but Mr Sio is to be sentenced only for armed robbery with wounding. I have also taken into account the evidence at the sentence hearing. In addition to the ERISP and the Agreed Statement of Facts, the Crown tendered the offender's criminal and custodial histories, a photograph of the knife and the autopsy report as well as closed circuit television (CCTV) footage. The brothel was fitted with cameras both inside and outside. The entire incident was captured on CCTV footage. Mr Winch, who appeared on behalf of the offender tendered: Mr Gaudry worked as a receptionist for a brothel in George Street, Clyde. The brothel was open 24 hours a day. In October 2012 Mr Filihia lived with his partner and their four children at Carss Park Motel, a facility used by the Department of Housing. Mr Filihia was addicted to methylamphetamine, commonly known as ice. In the early hours of Wednesday 24 October 2012, Daniel Sio and Sarah Coffison, both of whom were known to Mr Filihia, drove to Carss Park, where Mr Filihia met them outside the hotel. Ice was supplied to Mr Filihia, who smoked it, as did Mr Sio and Ms Coffison. While they were smoking ice in the car, Mr Sio told Mr Filihia that he was under financial pressure and that he was going to drop Ms Coffison home and pick up someone in Cronulla to rob a brothel. Mr Sio commented that it would be a relatively easy job as one of the sex-workers was helping and the receptionist would not offer resistance. Mr Filihia, who also needed money to support both his family and his ice habit, volunteered to be involved in the robbery. After this discussion, Mr Sio drove Ms Coffison and Mr Filihia to a park where he let them out of the car and drove off. When he returned a short time later he handed some clothes to Mr Filihia for him to put on over what he was wearing. Mr Sio described the layout of the brothel and told him that the receptionist kept the takings in his back pocket in a pencil case. When they reached George Street, Clyde at 5.08am Mr Sio gave Mr Filihia a large 'Crocodile Dundee-style' knife. The knife belonged to Mr O'Hare, a temporary lodger at Ms Coffison's house. Mr Sio reversed his car into a driveway in George Street some distance away from the brothel. He and Ms Coffison remained in the car, leaving it to Mr Filihia to commit the robbery.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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