R v Silvano - [2006] NSWSC 832

CITATION: R v SILVANO [2006] NSWSC 832
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 and 15 August 2006

JUDGMENT DATE :
15 August 2006

JUDGMENT OF: Hulme J at 1

DECISION: See paragraphs 67-70

PARTIES: Regina
Oliver Silvano

FILE NUMBER(S): SC 2005/1040

COUNSEL: Crown: R Herps
Prisoner: T Watts

SOLICITORS: Crown: S Kavanagh
Prisoner: S O'Connor

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IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

HULME J

Tuesday, 15 August 2006

2005/1040

R v Oliver SILVANO

REMARKS ON SENTENCE

1 On 8 May 2006 the Prisoner was arraigned on 3 charges:-

(i) that on 28 April 2004 he assaulted David Horan with intent to rob him, whilst armed with a dangerous weapon, viz a double barrel shotgun;

(ii) that on 28 April 2004 he murdered Tracey Lee Oliver; and

(iii) that on 28 April 2004 he maliciously shot at David Horan with intent to do grievous bodily harm to him.

2 To each of these offences he pleaded not guilty. On 19 May 2006 a jury found him guilty of all 3 charges and it falls on me to sentence the Prisoner. In the course of that exercise, I must determine the facts relevant to the sentences to be imposed including those relevant to the Prisoner’s criminality and his subjective circumstances. In that process I am bound by the findings necessarily implicit in the jury’s verdict considered in light of the issues fought at trial but my task is not otherwise to determine what the jury decided – R v Martin (1981) 2 NSWLR 640 at 642; Sandord (1994) 72 A Crim R 160 at 194. I record that I am required to be satisfied beyond reasonable doubt of any matters I use in a manner adverse to the Prisoner. The standard of proof of matters that argue in mitigation is proof on the balance of probabilities – see Pilley (1991) 56 A Crim R 202 at 203-4; R v Olbrich (1999) 199 CLR 270.

The Offences

3 Apart from forensic evidence obtained at the scene where Tracey Oliver’s body was found and of some surrounding events recorded on Sydney City Council CCTV cameras, the principal witness as to the commission of the offences was Mr Horin whose evidence generally I accept. Mr Horin’s account of events was corroborated in substantial measure by a statement of agreed facts which became Exhibit F in the Prisoner’s trial, a “walk-around” or demonstration in which the Prisoner and police participated and which was recorded on video, by the Prisoner in the third and fourth interviews he had with police and by evidence the Prisoner gave during his trial. That is not to suggest that all the Prisoner had to say argued for his guilt. In particular in his first and second interviews and in his evidence he gave an account radically different in material respects. However, I am satisfied that the account given in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Silvano

Details

AGLC: R v Silvano [2006] NSWSC 832
Case: [2006] NSWSC 832
Decision Date: 16 August 2006

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Hulme J sentenced Oliver Silvano on three charges: assault with intent to rob while armed with a dangerous weapon, murder, and malicious shooting with intent to cause grievous bodily harm. Silvano pleaded not guilty to all charges, but a jury found him guilty. The court had to determine the facts relevant to the sentences, including Silvano's criminality and subjective circumstances, considering the jury's verdict and the evidence presented. Silvano's plan with Tracey Oliver to commit an armed robbery resulted in her death and the malicious shooting of David Horan. Silvano's actions were influenced by drugs, and he showed remorse during his interviews with the police. The court considered various statutory provisions, sentencing principles, aggravating and mitigating factors, and the purposes of sentencing, including general deterrence, retribution, and rehabilitation. Silvano was sentenced to imprisonment for each offence, with non-parole periods of 7 years for the assault charge, 4 years for the grievous bodily harm charge, and 16 years for the murder charge, with the earliest eligibility for parole set for 28 April 2021.

Orders