New South Wales Supreme Court CITATION : Regina v Trocio [2005] NSWSC 563 HEARING DATE(S) : 31/03/05, 26/05/05 JUDGMENT DATE : 17 June 2005 JUDGMENT OF : James J at 1 DECISION : Sentence - 12 years - non-parole period of 8 years CATCHWORDS : CRIMINAL LAW - sentence - murder - plea of guilty as being a principal in the second degree LEGISLATION CITED : Crimes (Sentencing Procedure) Act CASES CITED : R v Stokes & Difford (1990) 51 A Crim R 25 PARTIES : REGINA v Prehector Keith TROCIO FILE NUMBER(S) : SC 2004/10 Ms L Wells - Crown COUNSEL : JS Stratton SC - Prisoner Ms C Howard - Crown SOLICITORS : M Marshall - Prisoner LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION JAMES J Friday 17 June 2005 2004/10 REGINA v Prehector Keith TROCIO SENTENCE 1 HIS HONOUR: On 31 March 2005 the prisoner Prehector Trocio pleaded guilty, when arraigned before me on a charge that on 15 December 2002 at Regents Park in the State of New South Wales he murdered Palatavake Tauveli. On 31 March 2005 the proceedings for the sentencing of the prisoner were adjourned to 26 May, when a sentence hearing was conducted. During the adjournment of the proceedings on sentence a report about the prisoner by a psychologist Suzanne Freeman was obtained by the prisoner's legal representatives. 2 A joint trial of the prisoner and another man Angelito Almirol on a charge of murdering Mr Tauveli had been fixed to commence on 7 March 2005 but the trial did not proceed, because of the absence overseas of a witness the Crown wished to call. Almirol has maintained a plea of not guilty to the charge of murdering Mr Tauveli and a separate trial of Almirol on that charge has now been fixed to commence on 4 October 2005. 3 In these proceedings for the sentencing of the prisoner a document setting out facts which were agreed was admitted into evidence. The agreed facts were in the following terms:- "On 30 December 2002 human remains were located in two separate garbage bags in bushland near Hepburn Road, Linden in the Blue Mountains. Examination of these remains revealed that they were the upper torso and lower torso of a male person. The head and lower legs of the body were not located. The remains were identified by way of fingerprints as that of Palatavake Tauveli, a Tongan male who had been residing at the Angus Yagoona Lodge, Yagoona. Also located on one of the garbage bags was a pharmaceutical sticker. This sticker was in the name of Herbert Davis of 164 John Street, Lidcombe. On 31 December 2002 further human remains were located in bushland near Weemala Avenue, Faulconbridge. Examination of this scene revealed the head of the victim and a number of other blood stained items, including a bed sheet, a cushion cover and the seat of a chair. On 4 January 2003 further human remains were located in bushland off the side of The Great Western Highway, Medlow Bath. These were identified as the lower legs of the victim. Background enquiries on the victim revealed that he was employed as a factory hand at Brancourts Cheese Factory, Yagoona. He had no apparent enemies. Management informed police that two employees from the factory who used to be friends of the victim had ceased employment around the same time as the victim disappeared, that being about 16 December 2002. The names of these two employees were supplied to police as 'Hector' and'Lito'. Enquiries by police identified these persons as the accused Prehector Trocio (Hector) and Angelito Almirol (Lito). During investigations police discovered that Almirol resided at 1 Maunder Street, Regents Park. These premises were also occupied by Rodney Davis. Rodney Davis is the son of Herbert Davis, whose pharmaceutical label was discovered on the garbage bag containing the torso of the victim. On 5 April 2003, Trocio was spoken to at his home address. He claimed that he knew Almirol, but did not know him well. He stated that he assisted Almirol leave the country urgently as his father was sick in the Philippines. On 15 April 2003 a search warrant was executed on the premises at 1 Maunder Street, Regents Park. Scientific examination showed a significant amount of blood throughout the premises. Cushion covers exactly the same as the cushion cover located at the Faulconbridge crime scene were located in a linen press at the premises. A seat with exactly the same cushion as that located at the Faulconbridge crime scene was also located. Police discovered that Almirol had left Australia suddenly on 19 December 2002, four days after the suspected murder of the victim. Rodney and Corazon Davis had been living at 1 Maunder Street during December 2002 and Almirol was staying with them as a friend and tenant. Trocio was also a friend of Rodney and Corazon. Rodney and Corazon Davis went for a holiday to the Philippines on Sunday 15 December 2002, leaving Almirol in charge of the house. On or about 16 December 2002 Corazon received a telephone call from Trocio and Almirol. Both men told her about killing someone in her house but she can't say with certainty who told her what. When they returned from the Philippines Rodney and Corazon noticed that furniture had been moved around the house. They noticed various pieces of carpet had been removed and they could see staining on the floorboards. On 24 April 2003 Trocio was again spoken to by police and taken to Bankstown Police station. Trocio said, "I know everything, I was there but it wasn't me, it was Lito, but I'm just as bad, I was there and I helped with the body." He then participated in an ERISP and gave the following version of events [as summarized]: - He was present at 1 Maunder Street, Regents Park on a Sunday in the middle of December 2002. When he arrived at the premises that day Almirol and the victim were present and both persons were intoxicated. Trocio stated that the deceased was drunk as he saw him staggering to the toilet before he was killed. Shortly after Trocio arrived he alleges that Almirol and the victim became involved in a heated argument, he was not aware how the argument started or what it was over. During the argument, the deceased said to Trocio 'I kill you, I kill you.' At that stage, Trocio feared for his safety. Because of this [argument] Trocio claims he left the house. He alleges that shortly after leaving Almirol rang him on his mobile phone four or five times and asked him to return. Trocio claims he didn't want to go back but decided he should. Trocio states that as he walked in the backdoor of the house Almirol raised a chair and struck the victim over the head with it. The victim fell to the ground and was unable to regain his feet. Whilst the victim was on the ground he attempted to pull Almirol to the ground with him. Almirol went to the kitchen and obtained a machete type knife. Almirol walked back to the victim, who had still been unable to regain his feet after being struck with the chair, and cut his throat using the machete. The victim looked at Almirol and said, "It was only a joke, it was only a joke." Almirol cut the victim's throat a number of times using a sawing motion. While this occurred Trocio stood at the door watching out for someone coming in because Almirol told him to. Almirol then asked him to check the victim for a pulse. Trocio did this and could find no pulse. When Trocio informed Almirol of this he allegedly replied "So what?" Almirol and Trocio then wrapped the victim in a bed sheet and left him where he was. Trocio claims he went home shortly after wrapping the victim in the sheet. He was at home for a short time when Almirol rang him and asked him to come back. He discussed this with his wife who told him not to, however he decided to return. Upon his return to the premises he assisted Almirol dragging the body into a bedroom at the front of the premises. Almirol and Trocio then slept at the house for a while before Trocio returned home in early hours of the morning. The next day Almirol and Trocio both attended work. At the completion of work they returned to 1 Maunder Street, Regents Park. Shortly after arriving at the premises they moved the body from the bedroom to the bathroom. Trocio alleges that at this point Almirol used a hacksaw to cut up the victim; he claims that it was too gruesome for him and he kept a watch at the front door. After the body had been cut up they placed the body pieces into garbage bags and carried them out to a car in the garage. Trocio then drove the vehicle with Almirol as a passenger to the Blue Mountains where they disposed of the body parts in the locations they were later discovered. When questioned about the reason for cutting the body up Trocio stated that they did this as once the victim was dead they needed to move the body and it was too heavy for them to carry as a whole. He also stated that he knew what he had done was very bad and had wanted to report it to police but he was too weak a character to do so. Trocio said that he had known Almirol since 1998 and they were close friends. He admitted helping Almirol get his passport fixed so that he could leave the country and he says that he gave Almirol $250 and took him to the airport. Telephone records confirm that during the afternoon of 15 December 2002, the day on which it appears that the deceased was killed, Almirol telephoned Trocio. On 8th May 2003, an information was laid and a first instance warrant issued for Almirol for the murder of Tauveli. On 25th May 2003, a work-mate of both accused, Edgardo Manalaysay, provided police with a statement. He says that he was at 1 Maunder Street on the afternoon of Sunday 15th December 2002 with Trocio, Almirol and Tauveli, (who was often called `Mr T'). He left about 3 or 4 pm and received a call from Almirol at about 10 pm. He says Almirol put Trocio on the phone and Trocio told him, in Tagalog, words that meant they that they had either 'killed' or `got rid of' Tauveli. At a later stage Almirol told Manalaysay that he was the one who actually killed the deceased, and that he (Almirol) was the one who actually cut up the body. On 5th August 2003, the police submitted a report requesting approval for the extradition of Almirol from the Philippines. On 6th May 2004 confirmation was received from the Australian Federal Police confirming that Almirol was in custody in the Philippines. On 21st June 2004 he, having agreed to voluntary extradition, was accompanied by NSW police officers on a flight back to Australia. In March, 2005, Jigger Labang and Alexander Macapagal, associates of Trocio's, gave statements (In 2003, Labang had made denials to police that he had gone to the house, stating that Trocio had phoned him but he had declined to go to the house) indicating that they attended 1 Maunder Street on the evening of the murder (presumably not long before it occurred) with a third person, Theo Lo, at the request of Trocio. Trocio claimed that an Islander was threatening to kill him, had pointed his finger at him and threatened him. Trocio wanted to kill the Islander. Labang told Trocio not to do this because he had a wife and a child but Trocio replied that he didn't care. Labang and Lo went inside with Trocio when they arrived and Macapagal stayed outside near the car. They say that they believed there was a party on but when they went inside they saw a big Islander guy who was lying on the floor being struck with a chair wielded by Almirol. Almirol hit the islander guy with the chair 3 or 4 times. The Islander guy was putting his hands up in front of his face. In the kitchen Trocio kept looking in the kitchen drawers for something. Labang asked him what he was doing and Trocio just ignored him. Labang states that at that time Trocio seemed to be sobering up. He seemed stressed and angry. Theo Lo took the chair from Almirol. Labang grabbed Trocio and tried to take him away but Almirol told them to leave and that they didn't need him. When they left the victim was lying on the floor and moaning. He saw no blood. As they left Trocio told them not to tell anyone. Then Almirol told them the same but threatened to involve them if they told anyone. A post mortem examination of the deceased was performed by Dr Neil Langlois, a forensic pathologist. He concluded that the dismemberment of the deceased had occurred after death . On 2 March 2005 the accused offered to plead guilty to murder as a principal in the second degree, and to give evidence for the Crown against Almirol. The accused was born on 8 January 1973 and so is 32 years old. He is a married man with a daughter, Precious, who is aged 4. He has no prior criminal convictions. The accused Trocio has been in custody for this matter only since 24 April 2003." 4 The way in which many parts of the agreed facts are expressed raised the question of whether, when it is stated that the prisoner or some other person said or stated or claimed or gave a version that something had happened or was the case, I should proceed on the basis that that thing had in fact happened or was in fact the case. I raised this question with counsel in the proceedings on sentence and was asked to proceed, in general, on such a basis. For example, I should accept, as a statement of what in fact happened, the summary of the version of events the prisoner gave to police on 24 April 2003, which is set out in the agreed facts. However, it was submitted by one or other of the Crown prosecutor or counsel for the prisoner that there were occasional assertions set out in the agreed facts which I should not accept as stating the true facts, for example, the claim made by the prisoner to police on 5 April 2003 that he did not know Almirol well and that the reason why he had assisted Almirol to leave Australia and go to the Philippines was that Almirol's father was sick in the Philippines. Although the position is not entirely satisfactory, I have proceeded, in general, on the basis on which counsel asked me to proceed and, in particular, I have accepted as a statement of what in fact happened, the summary of the version of events given by the prisoner to police on 24 April 2003. 5 The prisoner pleaded guilty to the charge of murdering Mr Tauveli as being a principal in the second degree, Almirol being the principal in the first degree. By pleading guilty as being a principal in the second degree to the murder of Mr Tauveli, the prisoner necessarily admitted all the elements of the offence of being a principal in the second degree in a crime of murder. The elements of this offence are:- 1. The principal in the first degree committed the crime of murder. 2. The prisoner was present at the time the principal in the first degree committed the crime of murder. 3. The prisoner knew all the facts which the Crown would have to establish to show that the principal in the first degree was guilty of murder. 4. Having that knowledge, the prisoner intentionally assisted or encouraged the principal in the first degree to commit the murder. (See R v Stokes & Difford (1990) 51 A Crim R 25 at 37-38) 6 In the present case, on the agreed facts, the only way in which the prisoner assisted or encouraged Almirol to murder Mr Tauveli was in standing at the door watching for anyone coming, that is in acting as a lookout, while Almirol cut Mr Tauveli's throat a number of times with the machete. The prisoner acted as a lookout, because Almirol had told him to do so. 7 However, although the prisoner's only participation in the murdering of Mr Tauveli was to act as a lookout while Almirol cut the victim's throat, the prisoner, after the murder was committed, did a number of acts which, I am satisfied to the requisite standard, were done by him with the intention of concealing the commission of the crime of murder and enabling him and Almirol to avoid detection and prosecution. In the proceedings on sentence counsel for the prisoner accepted that these further acts should properly be taken into account in sentencing the prisoner for the murder of Mr Tauveli. 8 These further acts included:- on the Sunday, joining Almirol in wrapping the body in a sheet and dragging the body into a bedroom; on the Monday, joining Almirol in moving the body from the bedroom to a bathroom, keeping watch while Almirol dismembered the victim's body with a hacksaw, joining Almirol in placing the parts of the body in garbage bags and carrying the bags to a vehicle, driving the vehicle with Almirol and the garbage bags to the Blue Mountains and jointly with Almirol disposing of the parts of the body at three different locations. 9 I do not accept that the victim's body was dismembered, merely because the body was too heavy for the prisoner and Almirol to carry. I am satisfied beyond reasonable doubt that at least one reason for the dismembering of the body was to hinder any investigation of the murder of Mr Tauveli. If the reason for dismembering the body had merely been that the body was too heavy for Almirol and the prisoner to carry, there would have been no need to dispose of the various parts of the body at widely separated locations. 10 The further acts by the prisoner also included his acts in assisting Almirol to leave Australia, which, I am satisfied to the requisite degree, were done by the prisoner with the intention of assisting Almirol to avoid prosecution. 11 The prisoner did not give evidence in the proceedings on sentence and the only evidence tendered on his behalf was a report by Suzanne Freeman psychologist. The information before me about the prisoner is almost entirely limited to what is set out in Ms Freeman's report. 12 The prisoner was born in the Philippines on 8 January 1973. Part of Ms Freeman's report is as follows:- "As the first male grandchild in his Filipino family, Prehector was expected to be responsible, competent and successful. During his first year of high school, he failed to achieve academically, whilst his brother, less than a year younger, performed with outstanding success. Prehector then began socializing with a peer group involved in drinking and drug taking. After his brother's death from lung cancer when Prehector was 18, he increased his substance abuse as a means of lessening his grief, and as a means of sidestepping the perceived expectations of his family." 13 The prisoner completed high school in the Philippines and commenced but did not complete a university course. 14 In 1996 the prisoner came to Australia. He told Ms Freeman that he had made a conscious decision to change his life. He ceased taking drugs and lessened his consumption of alcohol. He completed a six months TAFE course in book keeping. In Australia he obtained work as a labourer, as a car detailer and as a process worker. 15 Part of Ms Freeman's report is as follows:- "Personality testing indicates Prehector is eccentric, disorganized, anxious and apprehensive. He feels inadequate, insecure, has low self-esteem, and he feels incapable of functioning independently of others. He will identify with stronger people, and define himself in terms of them. He wants others to care for him, dislikes conflicts, and is often submissive, but at times feels resentful, angry and pessimistic. He can be perceived by others as loyal, passive, timid and gullible. Until he came to Australia, Prehector expected to be directed by his father as to where he would live, even as he continued to resist his father's expectations with his drug usage. He has few strategies to reduce tensions and stress, and he is currently suffering from symptoms of anxiety". 16 I accept the parts of Ms Freeman's report which I have quoted or referred to. 17 In 1998 the prisoner met a young woman, whom he married in 2000. They have a child now aged four. The prisoner's wife is a committed evangelical Christian and after their marriage the prisoner attended church every week with his wife. The prisoner's wife attended Court at the sentence hearing. 18 The prisoner has not previously been convicted of any criminal offence. 19 The prisoner was arrested on 24 April 2003 and has remained in custody ever since. While he has been in custody, his wife, who is the manager of a Starbucks outlet in the city, has visited him twice weekly and he has also been visited by other members of his church. While in custody the prisoner has attended weekly church services. In more than two years in custody he has not committed any prison offence. 20 In the proceedings on sentence the Court received a combined victim impact statement from some relatives of Mr Tauveli, expressing their pain and distress at the death of Mr Tauveli. 21 In sentencing the prisoner I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act, including s 3A and s 21A. 22 The objective facts of the offence are stated in, or can be ascertained from, the agreed facts. The offence of murder was a serious offence, involving the cutting of the victim's throat a number of times with a machete. However, I accept that the commission of the offence was unplanned and unpremeditated on the part of both Almirol and the prisoner. I also accept that the victim, Almirol and the prisoner were all affected by the consumption of alcohol. According to the agreed facts, Jigger Labang told police that on the Sunday the prisoner "wanted to kill the Islander" and I find that the prisoner formed such a desire, although, by himself, he would not have done anything to fulfil that desire. 23 The prisoner's participation in the killing of the victim was limited to acting as a lookout, while Almirol as the principal in the first degree cut the victim's throat a number of times with the machete. The prisoner acted as a lookout, because he had been told to do so by Almirol. While he was acting as a lookout, the prisoner realised that Almirol in cutting the victim's throat with the machete had the intention of killing the victim and not merely the intention of inflicting grievous bodily harm. 24 After the killing of the victim the prisoner participated in the further acts of moving the body of the victim within the house, keeping watch while Almirol cut up the victim's body and joining Almirol in disposing of the parts of the victim's body. 25 I accept submissions made by counsel for the prisoner that the victim was already dead when his body was dismembered, that the prisoner did not himself take part in the actual dismembering of the victim's body and that the dismembering of the body was not undertaken out of any macabre motive. I have, however, found that the dismembering of the body was done at least partly in an endeavour to hinder any police investigation. 26 I accept that there is no universal principle that the culpability of a principal in the second degree should be regarded as less than the culpability of a principal in the first degree. However, in the present case, on the agreed facts, I would regard the criminality of the prisoner as significantly less than the criminality of Almirol as the principal in the first degree. 27 The prisoner made his plea of guilty on 31 March 2005. This plea of guilty was made after a joint trial of the prisoner and Almirol had been fixed to commence. However, in assessing the timing of the plea of guilty, it is necessary to take into account some earlier events in the criminal proceedings against the prisoner. 28 At an arraignment on 7 May 2004 the prisoner pleaded not guilty to a charge of murdering Mr Tauveli but pleaded guilty to a charge of being an accessory after the fact to the murder of Mr Tauveli by Almirol. The Crown was not prepared to accept the plea of guilty to the charge of being an accessory and a date for a trial of the prisoner on the charge of murder was fixed for 22 November 2004. It was estimated that the trial would last four weeks. 29 On 13 August 2004, Almirol having been extradited from the Philippines, the trial date of 22 November 2004 was vacated and a new trial date of 7 March 2005 was fixed, in the expectation that the trial which would commence then would be a joint trial of the prisoner and Almirol. Subsequently, Almirol was committed for trial and his trial fixed for 7 March 2005. 30 On 2 March 2005 the prisoner offered to plead guilty to a charge of murder as being a principal in the second degree and the Crown accepted this offer. 31 As was submitted by counsel for the prisoner, the agreed facts on which I am sentencing the prisoner are largely based on admissions made by him in the interview by police conducted as long ago as 24 April 2003. 32 I take the prisoner's plea of guilty into account in sentencing the prisoner and have decided that I should allow a discount of between 15 percent and 20 percent for its utilitarian value. 33 I find that the prisoner has shown contrition for his offence. It is true that the prisoner did not give evidence in the proceedings on sentence and, hence, there is no direct evidence from him of his contrition. However, he pleaded guilty to the charge; according to the agreed facts, he told police on 24 April 2003 that he was "just as bad" as Almirol and on that day he made extensive admissions to the police; and Ms Freeman recorded in her report that the prisoner had expressed remorse to her. 34 The question arises of what, if any, discount should be allowed in the sentencing of the prisoner for any assistance provided or to be provided or offered to be provided by him. 35 The prisoner has not so far provided any assistance, except to the extent of admitting his own guilt and giving an account of events which implicated Almirol. 36 The prisoner has offered to give evidence at Almirol's trial and for that purpose, has offered to make a statement to police but, so far, only by way of an induced statement. The Crown has declined this offer from the prisoner to make an induced statement. What was described in the proceedings on sentence as an impasse or stalemate has developed with regard to the prisoner making a statement. The prisoner has not given any undertaking to assist law enforcement authorities in the prosecution of Almirol. 37 I was informed by the Crown prosecutor that the Crown's current view is that it has sufficient other evidence to establish that Almirol is guilty of murdering Mr Tauveli, without the Crown needing to call the prisoner as a witness. I have only very limited information about what other evidence which might establish Almirol's guilt is available to the Crown. 38 Counsel for the prisoner contended that the Crown will virtually be forced to call the prisoner as a witness at Almirol's trial, because otherwise Almirol might be able to successfully blame the killing on the prisoner. 39 In the proceedings on sentence the Crown conceded that some discount should be made for the prisoner's willingness to give evidence at the trial of Almirol. In the circumstances, it is difficult to make any assessment of many of the factors in s 23(2) of the Crimes (Sentencing Procedure) Act. I have concluded that I should allow a small discount on account of assistance already provided and on account of the prisoner's willingness to provide assistance in the prosecution of Almirol. 40 I accept that the prisoner has no previous criminal history, that he has committed no prison offence during more than two years in custody, that he is unlikely to re-offend and that he has good prospects of rehabilitation. 41 As the offence was committed prior to 1 February 2003 I am to apply the repealed, and not the present, s 44 of the Crimes (Sentencing Procedure) Act. 42 I consider that I should find special circumstances in the prisoner not having any previous criminal history, in the prisoner's good prospects of rehabilitation and in the prisoner's need for a larger than usual period of supervised liberty in which to address residual problems from drug and alcohol abuse referred to in Ms Freeman's report. 43 The sentence will commence from 24 April 2003, the date the prisoner went into custody. 44 Prehector Keith Trocio, I sentence you to imprisonment for twelve years, commencing on 24 April 2003 and expiring on 23 April 2015. I set a non-parole period of eight years, commencing on 24 April 2003 and expiring on 23 April 2011. The earliest date on which you will be eligible to be released on parole will be 23 April 2011. ********** 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.