R v SILVANO [2006] NSWSC 832

New South Wales Supreme Court

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

- 23 - 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 the third and fourth interviews is much to be preferred. I accept also a deal of what is recorded on the walk-around video. 4 The circumstances of the offences and the events leading up to them were as follows. On 27 April 2004 the prisoner and the deceased left the Nowra region in the deceased's car and drove to Sydney where they checked into a room at the Country Comfort Hotel in George St. At some stage in the evening the two left the hotel and went shopping, before returning to the hotel at around 10 o'clock that night. 5 I am satisfied that upon returning to the hotel the accused and the deceased each had a number of alcoholic drinks, and that the deceased consumed a quantity of amphetamine, or speed. The Prisoner may also have partaken of this drug but there is such a degree of inconsistency in what he said on a variety of topics that I am unable to make any finding about this. At some time around midnight the two again left the hotel, this time the Prisoner being in possession of a back-pack which contained, inter alia, a loaded sawn-off double barrel shotgun and a walkie-talkie. Both the deceased and the Prisoner left their mobile phones and identification at the hotel, taking with them the back-pack, money and in the case of the deceased, a walkie-talkie matching the one in the back-pack. The prisoner and the deceased were together for a period of time and then separated. 6 At around 2.13am on 28 April 2004 Mr Horin's motor vehicle was captured on CCTV on George Street. Mr Horin is pictured at 2.17am at or adjacent to a kebab shop near the corner of George and Goulburn streets. At about that time he was accosted by the deceased asking for help. Mr Horin said that he wanted to purchase a kebab first and did so. He was not certain of how events played out, but at about this time he also re-parked his car. The deceased again sought help, probably saying that she did not feel well. The deceased then led Mr Horin into the CKC Car Park which is located behind shops fronting onto George Street, south of Goulburn Street, and which can be accessed via a walkway leading off George Street. Police later recovered a kebab at the car park, near the end of the walkway, it's wrapper bearing the fingerprints of both Mr Horin and the deceased. 7 Upon reaching the car park, the deceased headed towards a small building constituting a pay station, since demolished, which was adjacent to the northern wall of the enclosure. Again "she said she was sick or going to be sick or something of this nature…(and) put her hand up near the wall like she – like a person would, having a bilious attack or vomiting". She leaned against the western wall of the pay station, facing the building. Mr Horin said that he wanted to go and get her some water but that "She was – appeared to want me to pay attention to her, in this direction, so my back was to the rear of the laneway". 8 Mr Horin recalled that as he turned to fetch water "some individual who I don't know – to me I had never met, came running round from the edge of the laneway – the end going into the car park waving something – something, I don't know, I don't understand guns but whatever it was, anyway waving and – like Rambo guy, like a tough Rambo man or something". At this point in his evidence Mr Horin became extremely agitated. However the tenor of his testimony was that the man yelled expletives at him and told him to "Get down – bend down – I'm going to – something like blow your head off". The Crown relied as constituting the offence the subject of the first count, on the evidence of the Prisoner pointing the gun at Mr Horin and telling him to get down, contending that at that time the Prisoner's intention was to commit armed robbery. 9 Mr Horin did not comply with the Prisoner's demands and the latter, now at very close quarters, shoved the shotgun towards Mr Horin's stomach. Mr Horin pushed the shotgun away from his person and in his words the "gun went off". The discharge struck the deceased causing a major wound over the left breast, and minor abrasion to the left arm. The chest injury resulted in a severance of the aorta and perforation of the heart, and lead to Ms Oliver's death. 10 Mr Horin said that he then ran off in the direction of the walkway and that as he did "The gun went off again behind my head". In fact one shotgun pellet lodged in Mr Horin's shoulder. Forensic examination showed that a number of others had impacted on and near a garage door further away from the pay station than where Mr Horin would logically have been while running towards the walkway. 11 There was no significant difference between Mr Horin and the Prisoner's account in his third and fourth interviews as to the order of events and where people were at particular times. In the demonstration or walk-around video recording, the Prisoner is seen demonstrating where he and Mr Horin were at the time of the second shot and where he pointed the shotgun. From that demonstration it is easy to see how a pellet may have lodged in Mr Horin while he was running towards the passageway and how most pellets hit the garage door. 12 In the third interview, which occurred on 30 April 2004 at Silverwater Metropolitan Remand Centre, and at the Prisoner's request, there was the following exchange:- "Basically, we went to take this guy's wallet off him, OK, I got there after Traceys taken him to the alleyway, OK and I got close to him, I did ask him to get down, like he says, and the gun ignite accidentally, like he says. I got really angry after that because my girlfriend dropped on the ground and that's why I turned around and tried to shoot him and that is what happened. I don't think I would've reacted, I don't think I would've done anything like that if I wasn't under the influence of that drug, I never had it before, that was the first time. When you say that drug --- The speed