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 1Daniel 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. 2Mr 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. 3It follows that Mr Sio is not to be sentenced on the basis that he was responsible for the death of Mr Gaudry. 4The 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. 5I 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.