R v Sio
[2013] NSWSC 1872
•13 December 2013
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 26Cases 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 383Category: 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 report, a photograph of the knife and its sheath, the transcript of Mr Filihia's record of interview and his statement of 25 October 2012. The Crown also tendered plans of the brothel premises and CCTV footage, which were in evidence at the trial.
Mr Sio gave evidence at the sentence hearing. Mr Watson, who appeared on his behalf, tendered a report of Dr Nielssen, psychiatrist, dated 27 November 2013. It will be apparent from my findings of fact that I do not accept Mr Sio's evidence as to the circumstances of the offence and his involvement except where corroborated or against interest.
Facts
Mr Sio was familiar with the brothel where Mr Gaudry was killed. A friend of Mr Sio's, Ramon, asked him to look after his girlfriend, Rebecca Gaudiosi, while Ramon was in gaol. Mr Sio often drove Ms Gaudiosi to work at the brothel. Sometimes he went inside and carried her bags to the room where she worked. He came to know the members of staff, including Mr Gaudry, as well as the general layout of the brothel, and its entrance and exit.
Mr Sio would also visit Ms Gaudiosi at her flat in Alexandria. They would sometimes smoke methamphetamine, commonly known as ice, together. Mr Sio helped her to recover money from various debtors. He asked her if she would help him to do a robbery at the brothel. Although she declined to take part, she disclosed details about the layout of the premises, the operating hours and when the business was likely to be quiet. She told him that the receptionist generally had about $2,000 in cash on his person and that Mr Gaudry kept the money in a pencil case in his back pocket.
Ms Gaudiosi wrote to Ramon every day on A4 paper. She had a considerable number of pads which she kept on a box on her desk in the living room of her flat. One evening, Mr Sio used one of her writing pads to draw a plan of the brothel. He drew a rough plan on a page on which she had already written a "to do" list. He added a further item: "keep tabs on money that Brian's holding". The reference to "Brian" is a reference to Mr Gaudry. On another page in the same pad, Mr Sio drew a detailed plan of the layout of the brothel at Clyde. He left the pad at Ms Gaudiosi's apartment.
About five months after the robbery Ms Gaudiosi discovered the pages when she took the pad out of her bag at work to write a letter to Ramon. She provided the pad to police. The only fingerprints on the page that contained the detailed plan were Mr Sio's. His fingerprints were also detected on the page that contained the list and the rough plan.
Mr Sio knew Sarah Coffison and would often drive her to and from work at sex shops in Liverpool and Beverly Hills. They smoked ice together. They both knew Mr Filihia, who also regularly used ice.
Ms Coffison lived in Jannali. Her temporary lodger, Robert O'Hare, owned a sharp-edged hunting knife which he described as a "Crocodile Dundee" knife. Some time before the robbery, Mr O'Hare became increasingly concerned about the people who came to the house to smoke ice with Ms Coffison. He put his bowie knife on top of the television unit in the lounge room so that it would be within reach if he needed to defend himself. Shortly before the robbery Mr O'Hare noticed that the knife was missing. When he raised its absence with Ms Coffison, she gave an unsatisfactory answer. Mr O'Hare's knife was the weapon with which Mr Filihia killed Mr Gaudry.
In early October 2012 Mr O'Hare overheard Mr Sio and Ms Coffison talk about robbing a brothel.
On Tuesday 23 October 2012, the day before the robbery, Ms Coffison came across Mr Filihia near Hurstville railway station. He asked her to pass on to Mr Sio that he was looking for him and was now living at the Carss Park Motel.
In the meantime, relations between Ms Coffison and Mr O'Hare, which were already strained, deteriorated further. He was distressed because one of his former partners, who was the mother of his child, had died the previous day. He planned to attend her funeral in Coffs Harbour. Although he asked Ms Coffison to "go easy" on him, she played rap music loudly, which made it difficult for him to sleep, since he used the couch in the main living area as his bed.
When Mr Sio collected Ms Coffison from work on Tuesday night at about 10pm she was reluctant to return home to Jannali because of the tensions with Mr O'Hare. Instead, they went to the beach at Ramsgate and smoked ice.
In the early hours of Wednesday morning Mr Sio and Ms Coffison drove to Carss Park Motel where Mr Filihia was waiting for them. Within a couple of minutes Mr Filihia and his partner got into the car and began smoking ice with Mr Sio and Ms Coffison.
At some point, Mr Filihia's girlfriend left the car and went back inside the motel. Mr Sio told Mr Filihia that he owed money to the finance company for the red Commodore and revealed his plan to rob a brothel at Clyde that morning. When Mr Sio mentioned he was going to collect someone from Cronulla to do the job, Mr Filihia volunteered to do it himself. Mr Filihia needed cash too, in part to pay for the ice, but also because he did not like his family not having their own house and being obliged to stay at the Carss Park Motel.
At some point between Carss Park and Clyde, Mr Sio stopped the car and asked Ms Coffison and Mr Filihia to get out and wait for him. He returned to collect them about five minutes later. When the two were back in the car, Mr Sio handed some items to Mr Filihia, who was in the back seat, including clothing for him to wear over his own clothes when committing the robbery. Mr Filihia continued to smoke ice on the way to Clyde.
The evidence does not establish whether it was Mr Sio or Ms Coffison who took Mr O'Hare's knife from Ms Coffison's house. However, I am satisfied that at some stage, either at Carss Park, or on the way to Clyde, or on arrival at the brothel, Mr Sio gave Mr Filihia the knife so that he could use it, if need be, to rob the brothel.
When they reached George Street, Clyde at about 5am Mr Sio reversed into a factory driveway some distance from the brothel, stopped the car and turned the engine off. He got out of the car to explain to Mr Filihia, who was affected by ice, the general layout and to point out the location of the entrance and exit. Mr Sio got back into his car and Mr Filihia approached the entrance to the brothel, the bowie knife concealed under this clothes.
Mr Filihia pushed the buzzer. Mr Gaudry allowed him to enter. There were discussions between them and also between Mr Filihia and a sex worker, after which Mr Gaudry motioned to him along the hallway in the direction of the sex worker. At this point, Mr Filihia withdrew a knife with his right hand from the inside of his hooded jumper and pointed it towards Mr Gaudry who reached out with his left hand several times to ward off the offender. Mr Filihia pulled the hood of his jumper over his head and walked towards Mr Gaudry. They moved into the office area off the hallway.
Mr Filihia pushed the deceased backwards with his left arm against his face. The deceased grabbed Mr Filihia's left sleeve with his right arm. The deceased stepped back and fell to the ground. Mr Filihia then struck the deceased on the head with the butt of the knife. The deceased managed to stand up and tried to defend himself by pushing and grabbing onto his assailant's clothing. The struggle continued until Mr Filihia stabbed Mr Gaudry in the left side of the chest.
Mr Gaudry tried to follow Mr Filihia to the exit but collapsed on the way. When Mr Filihia turned and saw Mr Gaudry lying on the floor, he ran back to get the pencil case which he ripped from Mr Gaudry's back pocket.
Mr Filihia ran out of the brothel and straight past Mr Sio's car. Mr Sio started the car and caught up with him. Once Mr Filihia was inside the car, Mr Sio accelerated sharply away from the scene. Mr Sio took the pencil case from Mr Filihia. Mr Filihia did not tell Mr Sio or Ms Coffison what had happened because he was so shocked. On the way back to Carss Park Motel they stopped at a park where Mr Filihia disposed of the clothes he had worn over his own clothes for the robbery.
Mr Filihia was apprehended on Wednesday evening at Hurstville Police Station when he reported for bail for an unrelated offence. He made substantial admissions in a recorded interview. He was arrested and charged.
On Wednesday evening Mr Sio collected Ms Coffison from work and drove to Rockdale where he parked the red Commodore a couple of streets away from his cousin's place. They removed items from the car, including the knife with which Mr Gaudry had been killed. Mr Sio's cousin then drove them in another vehicle to Ms Coffison's place in Jannali. Either Ms Coffison or Mr Sio brought the knife inside.
The following day, Thursday 25 October 2012, Mr Sio telephoned Esanda, to try to make an arrangement to repay the arrears on his red Commodore.
On Friday 26 October 2012, when the police interviewed Mr Sio he told them that he had taken Mr Filihia to the brothel so that he could have sex. He maintained this lie throughout the trial, in that, although he did not give evidence at the trial, his defence was conducted on that basis.
Factors relevant to sentence
I turn to the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act). In dealing with the offence I take into account the purposes of sentencing that are set out in s 3A which include punishment, specific and general deterrence, protection of the community, rehabilitation of the offender and a recognition of the harm done to the victim and to the community.
Maximum penalty, standard non-parole periods and guideline judgments
The maximum penalty for armed robbery with wounding is 25 years: s 98 of the Crimes Act. A Standard Non-Parole Period (SNPP) of 7 years is prescribed. These are relevant considerations to sentencing: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
The offender relied on the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) as indicating an appropriate range for the sentence to be imposed.
Henry dealt with armed robbery (s 97) rather than the more serious offence of armed robbery with wounding (s 98). The maximum penalty for armed robbery is 20 years: s 97 of the Crimes Act. Furthermore, subsequent to Henry, the SNPP of 7 years was prescribed for an offence under s 98. There is no SNPP for an offence under s 97. These two matters reduce the relevance of Henry to sentencing for offences against s 98, and in particular those that were committed after the introduction of the SNPP.
In Henry at [162] Spigelman CJ identified the following seven features commonly occurring in cases of armed robbery and considered that sentences for offences of that character should generally fall between four and five years for the full term:
(a) Young offender with no or little criminal history;
(b) Weapon such as a knife, capable of killing or inflicting serious injury;
(c) Limited degree of planning;
(d) Limited, if any, actual violence but a real threat thereof;
(e) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(f) Small amount taken;
(g) Plea of guilty, the significance of which is limited by a strong Crown case.
In the present case, (a) is present since Mr Sio is young and has no relevant criminal history, as is (b) since a large knife capable of killing or inflicting serious injury was used. As to (e), I accept that Mr Gaudry was in a vulnerable position, being in commercial premises in an industrial area in the early hours of the morning. There was, for the reasons given in more detail below, a relatively substantial degree of planning on Mr Sio's part. The actual violence was considerable. The amount taken has not been established. Notwithstanding the strength of the Crown case, there was no plea of guilty, although Mr Sio told Dr Nielssen, when he saw him on 26 November 2013, that he would have pleaded guilty to armed robbery if the Crown had dropped the murder count.
I do not consider that a sentence in the range laid down in Henry would adequately reflect Mr Sio's criminality as established by the jury's verdict and the facts I have set out above.
Objective seriousness of the offence
Although Mr Gaudry in fact died as a result of the armed robbery with wounding, Mr Sio is not, for reasons already given, criminally responsible for his death. Accordingly I may not take into account the actual consequences of the armed robbery in determining Mr Sio's sentence: The Queen v De Simoni [1981] HCA 31; 147 CLR 383.
Although Mr Filihia bears sole responsibility for the killing, it was Mr Sio who masterminded the armed robbery. He conceived and planned it for a period of weeks, if not longer. He investigated the layout of the brothel both through personal inspection and questioning Ms Gaudiosi. He ascertained from her the likely proceeds if the robbery were successful. He, either personally or with Ms Coffison's help, procured the weapon for Mr Filihia to use in the armed robbery, at least to threaten the victim. The acts performed by Mr Sio of supplying ice to Mr Filihia, driving his red Commodore for significant distances through the southern and western suburbs of Sydney, instructing Mr Filihia how to rob the brothel, positioning his vehicle some distance from the brothel and driving away from the scene at speed, when taken together, showed considerable planning, deliberation and, in some respects, foresight.
Although Mr Sio was smoking ice that morning I do not accept that it affected his capacity to devise and execute his plan to any material degree.
While I accept that Mr Sio did not intend the armed robbery to result in any injury, much less death, and may well have instructed Mr Filihia not to hurt Mr Gaudry, I am satisfied that Mr Sio contemplated, when he provided the knife to Mr Filihia, that it would be used in the armed robbery.
As sentencing judge I must assess the moral culpability of the offender, which is a separate matter from the objective seriousness of the offence: McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing. This requires a consideration not only of the facts relating to the commission of the offence, but also those that shed light on why it was committed. Mr Sio's motive was financial. This is an aggravating factor. He urgently needed cash to prevent his car from being repossessed. Even if part of his motivation was to obtain money for ice for his own use this explains, but in no way mitigates, his conduct.
Mr Sio's involvement in the offence of armed robbery was objectively very serious. Mr Sio recruited Mr Filihia to carry out the armed robbery in order to solve his own immediate financial problems. He was prepared to sacrifice Mr Filihia, whom he knew would be filmed on the CCTV cameras within and surrounding the brothel, to his own ends. That he did not enter the brothel himself was a reflection of his capacity to have Mr Filihia bear the substantial risk of the enterprise, including the risk of detection. Mr Sio's criminality was high. I find the objective seriousness of the offence to be above the mid-range for offences under s 98.
Subjective circumstances
Mr Sio was born on 18 July 1991. At the time of the robbery he was 21 years old. He is now 22. He has a partner, Georgina, who is 21, and a son Cortez, who is 4 and a half months old. Georgina visits him twice a week in gaol. Mr Sio has not seen his natural father since he left New Zealand at the age of 7. Otherwise he has a supportive extended family.
Mr Sio started taking drugs at a young age to deal with being bullied at school. When his grandmother became unwell in early 2012 he started smoking ice. He was using marijuana and ice at the time of the robbery. He lost touch with his family because of his drug-taking. While he was taking drugs he rarely saw Georgina although he did see her sometimes. Cortez was conceived at around the time of this offence. During this period he rarely attended St Luke's Catholic Church at Revesby, although he had been a regular member of the congregation in the past.
In his report dated 21 November 2013 Dr Nielssen opined, on the basis of Mr Sio's use of marijuana and methamphetamine, that he had substance abuse disorder but that it was in remission. Dr Nielssen assessed his prospects of rehabilitation as good because of his family support and an absence of anti-social conduct in his adolescence. In evidence at the sentence hearing Mr Sio expressed an intention to undertake drug rehabilitation courses, as well as any suitable vocational courses that are available to him in custody.
Other matters relevant to sentencing
Mr Sio is entitled to have the time spent in custody taken into account in the sentence. He was arrested on 26 October 2012 and granted bail on 27 March 2013. He was remanded in custody following conviction on 23 September 2013 and has remained in custody since. I propose to backdate the sentence to start on 24 April 2013 to take account of the time spent in custody.
That the armed robbery was, as far as Mr Sio was concerned, part of a planned activity is an aggravating factor. That the offender has no material record of previous convictions is a mitigating factor.
Mr Sio has some prospects of rehabilitation in that he is young and has a supportive, loving partner and extended family. I am not, however, satisfied that his prospects of rehabilitation are good given his immaturity and failure to accept responsibility for his involvement in the armed robbery in the evidence to which I will refer below. Much will depend on the extent to which he can overcome his tendency to resort to drug-taking at times of anxiety or stress.
I do not accept Mr Sio's expressions of remorse as genuine. I am not satisfied that he accepts responsibility for his actions. He sought, in my view, to minimise the extent of his responsibility for the armed robbery and to blame others, including Ms Coffison, Mr Filihia and Ms Gaudiosi. For example he said that it was Ms Gaudiosi's idea that he rob the brothel. He gave evidence that he had merely been present when the topic of a robbery came up between Ms Coffison and Mr Filihia. He said in evidence at the sentence hearing:
"Mr Filihia wanted to purchase some more ice but had no money and wanted to do a robbery to get some money to get some more. At the time it was very early in the morning. There wasn't anywhere he could go close by to rob a place, and me and Sarah Coffison had been at the brothel before so she could sell ice and she knew it was opened . . ."
He sought to confine his role to that of a driver. He maintained that he first became aware of the existence of the knife when Mr Filihia came out of the brothel and that he did not know where it came from. He denied that he drew the plans of the brothel. In cross-examination he said that he had seen Ms Gaudiosi draw them but then contradicted himself by denying that he had ever seen them before the trial.
It was only in response to his counsel's leading questions that he admitted that he was under financial pressure at the time of the robbery. Nonetheless he insisted that it was not a "big factor".
One of the few truthful pieces of evidence he gave at the sentence hearing was that he lied when he told the police that he took Mr Filihia to the brothel so that he could have sex.
Mr Watson submitted that I should take into account the formal admissions that Mr Sio made which were, in substance, that Mr Filihia had killed Mr Gaudry in the course of the armed robbery. He submitted that these admissions shortened the trial. Although these admissions were useful in establishing such matters formally, their substance was evident from the CCTV footage that was tendered in the Crown case. I do not consider the formal admissions to have had any substantial effect on the length of the trial or the evidence required to be adduced by the Crown. Accordingly I do not propose to reduce the sentence on that ground.
Special circumstances
Mr Watson submitted that I should make a finding of special circumstances on the grounds of Mr Sio's youth and that it is his first time in custody.
I am not persuaded that there are special circumstances in the instant case. Nor am I persuaded that if I had found special circumstances there would be any proper basis to disturb the ratio. The non-parole period needs to be of sufficient length having regard to the factors referred to above, of which the most significant are the objective seriousness of the offence and the need to protect the public.
Sentence
Daniel Sio:
(1) For the offence of armed robbery with wounding, I sentence you to a term of imprisonment of 10 years, commencing 24 April 2013, with a non-parole period of 7 years and 6 months.
The earliest date upon which you are eligible for release on parole is 24 October 2020.
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Decision last updated: 13 December 2013
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