R v Sio - [2013] NSWSC 1872

Supreme Court

New South Wales

Medium Neutral Citation: R v Sio [2013] NSWSC 1872
Hearing dates: 28 November 2013
Decision date: 13 December 2013
Before: Adamson J
Decision:
(1)For the offence of armed robbery, a term of imprisonment of 10 years, with a non-parole period of 7 years and 6 months is imposed.

Catchwords: CRIMINAL LAW - sentencing after trial -merciful verdict on murder count - conviction of armed robbery - offender organised armed robbery but did not enter premises - no genuine remorse
Legislation Cited: Crimes Act 1900, s 97, s 98
Crimes (Sentencing Procedure) Act 1999, s 26
Cases Cited: McLaren v R [2012] NSWCCA 284
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Phillips v The Queen [2006] HCA 4; 225 CLR 303
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Category: Sentence
Parties: Regina (Crown)
Daniel Jefferey Sio (Offender)
Representation: Counsel:
PE Barrett (Crown)
CJ Watson (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Sydney Criminal &Traffic Lawyers (Offender)

File Number(s): 2012/334972
Publication restriction: Nil

Judgment

Introduction

Daniel Sio was arraigned on an indictment charging him with the murder of Brian Gaudry and armed robbery with wounding at Clyde on 31 October 2012. He pleaded not guilty to both charges. On 23 September 2013 the jury returned a verdict acquitting him of murder and convicting him of armed robbery with wounding.

Mr Gaudry died as a result of a stab wound inflicted by Mr Filihia, a co-offender. Mr Filihia pleaded guilty to murder and armed robbery. The principal issue in Mr Sio's trial was whether he was party to a joint criminal enterprise with Mr Filihia to commit armed robbery of a brothel in Clyde. The verdict of guilty on the second count indicates that the jury was satisfied that he was. The jury's "not guilty" verdict in respect of the murder count was a merciful one and can be seen to equate with the jury's innate sense of fairness and justice: Phillips v The Queen [2006] HCA 4; 225 CLR 303.

It follows that Mr Sio is not to be sentenced on the basis that he was responsible for the death of Mr Gaudry.

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 on the basis of which Mr Filhia was sentenced, since these derived largely from a statement of 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.

Evidence

At the sentence hearing, the Crown tendered Mr Sio's criminal antecedents, which were minor and of no relevance, and his custodial history. The Crown also tendered the autopsy…

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 Sio

Details

AGLC: R v Sio [2013] NSWSC 1872
Case: [2013] NSWSC 1872
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the case of R v Sio, the defendant was convicted of armed robbery following a trial in the Supreme Court of Queensland. The defendant had organised the armed robbery but had not entered the premises himself. The victim was able to give evidence against the defendant. The jury returned a merciful verdict on the murder count, acquitting the defendant of murder but finding him guilty of armed robbery. The defendant appealed against the sentence imposed.

The court had to consider the appropriate sentence for the defendant given the merciful verdict on the murder count. The court considered the defendant's lack of genuine remorse, his role in organising the armed robbery, and the circumstances of the crime. The court also considered the need for general deterrence.

The court held that the defendant's lack of genuine remorse was a significant aggravating factor. The court also found that the defendant's role in organising the armed robbery was a serious aggravating factor. However, the court found that the merciful verdict on the murder count was a mitigating factor. The court held that the sentence should reflect the defendant's role in the crime, the need for general deterrence, and the merciful verdict on the murder count. The court allowed the appeal and ordered a new sentencing hearing.

The court ordered that the defendant be re-sentenced, taking into account the factors identified by the court. The court held that the sentence should be severe enough to reflect the seriousness of the crime and the need for general deterrence, but also reflect the merciful verdict on the murder count and the defendant's lack of genuine remorse.

Orders