R v Filihia

Facts 6Mr Gaudry worked as a receptionist for a brothel in George Street, Clyde. The brothel was open 24 hours a day. 7In October 2012 Mr Filihia lived with his partner and their four children at Carss Park Motel, a facility used by the Department of Housing. Mr Filihia was addicted to methylamphetamine, commonly known as ice. In the early hours of Wednesday 24 October 2012, Daniel Sio and Sarah Coffison, both of whom were known to Mr Filihia, drove to Carss Park, where Mr Filihia met them outside the hotel. Ice was supplied to Mr Filihia, who smoked it, as did Mr Sio and Ms Coffison. 8While they were smoking ice in the car, Mr Sio told Mr Filihia that he was under financial pressure and that he was going to drop Ms Coffison home and pick up someone in Cronulla to rob a brothel. Mr Sio commented that it would be a relatively easy job as one of the sex-workers was helping and the receptionist would not offer resistance. Mr Filihia, who also needed money to support both his family and his ice habit, volunteered to be involved in the robbery. 9After this discussion, Mr Sio drove Ms Coffison and Mr Filihia to a park where he let them out of the car and drove off. When he returned a short time later he handed some clothes to Mr Filihia for him to put on over what he was wearing. Mr Sio described the layout of the brothel and told him that the receptionist kept the takings in his back pocket in a pencil case. 10When they reached George Street, Clyde at 5.08am Mr Sio gave Mr Filihia a large 'Crocodile Dundee-style' knife. The knife belonged to Mr O'Hare, a temporary lodger at Ms Coffison's house. Mr Sio reversed his car into a driveway in George Street some distance away from the brothel. He and Ms Coffison remained in the car, leaving it to Mr Filihia to commit the robbery. 11Mr Filihia pressed the doorbell and was allowed to enter by Mr Gaudry. Mr Filihia waited in the reception area and spoke with Mr Gaudry. He also spoke with a sex worker. After she had left the room, Mr Filihia spoke again with Mr Gaudry. The sex worker returned to the room and spoke with Mr Filihia before leaving again. 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 advanced towards Mr Gaudry. They moved into the office area off the hallway. 12Mr 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. He 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. 13Mr Gaudry tried to follow Mr Filihia who was heading to the exit. He collapsed on the way. When Mr Filihia turned and saw Mr Gaudry on the floor he ran back and ripped the pencil case from his back pocket. The pencil case contained the cash takings of the brothel. The amount is unknown but is believed to be $500. 14Mr Filihia ran out of the brothel and straight past Mr Sio's car. Mr Sio started the car and caught up with the offender. Once Mr Filihia was inside the car, Mr Sio accelerated sharply away from the scene. On the way back to Carss Park Motel they stopped at a park where Mr Filihia disposed of the clothes Mr Sio had given him to wear for the robbery. 15A witness called Triple-0 and attempted to resuscitate Mr Gaudry. Ambulance officers arrived and took him to Westmead Hospital. Soon after his arrival his life was pronounced extinct. 16A post mortem examination confirmed that Mr Gaudry died of a single stab wound to the left side of his ribs that penetrated his left lung, heart and the pulmonary artery. 17CCTV footage from the brothel and its surrounds was downloaded. Images of Mr Filihia were obtained and circulated to police around New South Wales. When Mr Filihia reported to Hurstville Police Station at 6.45pm that evening, in compliance with his bail conditions for an unrelated offence, he was arrested. 18That evening police interviewed Mr Filihia. He made detailed admissions, including that he went to the brothel with the intention of committing an armed robbery and that he had stabbed the deceased. Although he initially referred to Mr Sio as "Jacob" in the interview, he later, inadvertently, mentioned 'Dan' or 'Danny' as the person who had arranged the robbery. He disclosed Mr Sio's mobile phone number to police and told them that he was the person who had provided the knife, driven him to the brothel, informed him of the layout of the brothel and the location of the cash. The following day he identified Mr Sio in a photograph identification parade and gave his correct name. 19On Friday 26 October 2012 Mr Sio was arrested and charged.

Factors relevant to sentence 20The purposes of sentencing include punishment, specific and general deterrence, protection of the community, rehabilitation of the offender and recognition of the harm done to the victim and to the community.

Objective seriousness 21The offence of murder carries a maximum sentence of life imprisonment. The applicable standard non-parole period (SNPP) is 20 years. The offence of armed robbery with wounding carries a maximum penalty of 25 years' imprisonment and a SNPP of 7 years. The SNPP and the maximum sentence are relevant considerations in the exercise of the sentencing discretion: Muldrock v The Queen (Muldrock) [2011] HCA 39; 244 CLR 120, at [27]. 22The sanctity of human life is of great significance. The unlawful taking of a human life is a heinous crime. 23Mr Filihia's plea has the effect that he admits, at least, that when he killed the deceased he either intended to cause him grievous bodily harm or acted with reckless indifference to human life or that he killed him in the course of an armed robbery. 24Armed robbery is an offence that is commonly committed by young offenders with drug habits and a concomitant need for cash. When death ensues as a result, a terrible disparity arises between the loss of life of an innocent person and the paltry sum for which the crime was committed. General deterrence is of particular significance. 25I accept that Mr Filihia hoped that disclosing the knife would engender sufficient fear in Mr Gaudry to make him hand over the cash. However, I am satisfied that, at the moment Mr Filihia stabbed Mr Gaudry, he intended to cause him grievous bodily harm so as to disable him from fighting back and render him unable to protect the cash in his back pocket. 26Mr Gaudry was particularly vulnerable to the type of attack that occurred. He was virtually alone in premises that were open 24-hours a day to provide services in an industrial area, in circumstances where it would reasonably be inferred that there was cash on the premises. The women on the premises were not able to save him. Nor were the numerous CCTV cameras that recorded his demise of any use in protecting him from attack. 27I accept that Mr Filihia committed the murder in a state of panic when he stabbed Mr Gaudry. However, there was a degree of planning associated with the armed robbery in that Mr Filihia volunteered to take part in it when Mr Sio first mentioned the proposal in the car outside the Carss Park Motel. He knew when he got out of the car in George Street that his task was to steal the available cash from the brothel. 28That the offence involved the use of a dangerous weapon, a substantial hunting knife, is an aggravating factor in the murder. Although I am not satisfied that Mr Filihia was provided with the knife before they arrived in George Street, he must have realised when he saw it that it was a serious weapon that could do considerable harm if the victim resisted handing over the money and he was required to use it rather than merely threaten its use. His belief that he could obtain easy money by committing an armed robbery to support his drug habit proved to be mistaken when Mr Gaudry resisted his attack to protect the cash takings. 29Mr Winch submitted that the aggravating effect of the use of the knife was outweighed by the circumstance that there was a single stab wound. I do not see it that way. That a single stab wound was sufficient to kill Mr Gaudry demonstrates what dangerous weapons knives, and particularly this one, can be and the seriousness of an armed robbery with such a weapon.

Other matters relevant to sentencing including the offender's moral culpability and his subjective circumstances 30As 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 Filihia's motive in committing the armed robbery, but not the murder, was financial. He urgently needed cash to support his ice habit, including to pay for the ice he and his partner had smoked in Mr Sio's car that morning. This explains, but does not mitigate, his criminal conduct. 31I accept that he also wanted money to house his family because he felt ashamed that they were living in a welfare hotel rather than in their own house. However, I do not consider that providing for his family, rather than paying for drugs, was a substantial incentive for the robbery. 32His record of prior offending is an aggravating factor, although most of it occurred when he was a juvenile and reflects the difficulty he was having with drugs and alcohol at a young age arising from the departure of his father from the family home. He was first before the Children's Court in 2004 when he was 14. Justice demands that some allowance be made for life's adversities, particularly when they arose from occurrences in his youth over which he had no control. 33It is an aggravating factor that the offence was committed while the offender was on conditional liberty. He was on bail from 2 August 2012 for the offence of intimidate police officer. He was also subject to the following three bonds under the Crimes (Sentencing Procedure) Act 1999 imposed on 10 July 2012: (1)Section 12 bond following a 10-month suspended sentence for receive stolen property and dispose of stolen property; (2)Section 12 bond imposed after call up on s 9 bond imposed following a six-month suspended sentence for custody of an offensive implement in a public place; and (3)12-month s 9 bond imposed for possess prohibited drug.

Remorse 34Remorse shown by the offender for the offence is a mitigating factor. Mr Filihia gave evidence at the sentence hearing. He read a letter of apology to Mr Gaudry's family in open court. A copy was tendered and the original and copies given to those members of Mr Gaudry's family who were present. I am satisfied that the remorse shown by Mr Filihia in the recorded interview on 24 October 2012 and in his evidence at the sentence hearing is genuine. I am satisfied that he has accepted full responsibility for his actions and acknowledged the loss he has caused. I accept that the contents of the letter reproduced below are true: To the Family of Brian, First and foremost my intention to write to you was to express my deepest condolences. I cowardly, tragically took a life in my drug induced way. There is not a day that goes by that I don't think of Brian, he didn't deserve what I done to him. Every night, I think to myself why, why if I could take his place I would. I am sorry for all the pain and heartache I have caused to all Brian's family. I accept full responsibility for what I have done. I am the father of 6 children, 7 yrs ago I lost my 1th [sic, 1st] child and that crushed me to the point of depression. Even today I still try and ask God why he took my child away, so I can relate to the pain and heartache you all must be feeling. I no [sic] my apology won't bring him back. I just needed to say I'm sorry. If you are willing to confront me threw [sic] a meeting that could be organized [sic] threw [sic] corrective services. I would be willing to answer any questions you may have for me. If I could help ease the pain in any way possible I would gladly be of any assistance. I made the biggest mistake of my life, I know that I will now pay for what I have done. My kids will suffer for my actions, so I'm still living with regreat, [sic] heartache, and this pain I have that I can't describe. I don't think the pain will subside any time now, I will have to live with all the nightmares. I have, and all this I deserve. I hope you can accept my apology, I will understand if you don't. To all Brian's family and loves ones I am truly sorry for taking Brian away from you. Thank you for listening to my letter. It's much appreciated, may God Bless You All. Yours Sincerely. Richie 35I am satisfied that, as long as he can overcome his drug addiction, Mr Filihia has good prospects of rehabilitation. His guilt and remorse for killing Mr Gaudry will be a powerful incentive. However, he has been taking drugs since his early teens, and it is likely to be difficult for him on release to resist the temptation of resorting to drugs since his habit is of such long-standing. During his time in custody he has completed courses in acquiring skills for work and training, developing positive attitudes and motivation, hospitality, maintaining workplace hygiene and preparing and serving espresso coffee. He has also completed a course in visual arts. 36I accept that Mr Filihia genuinely intends to qualify himself in whatever ways are available to him in gaol and that he is willing to undertake drug rehabilitation.

Assistance to authorities 37Where an offender has assisted law enforcement authorities in the detection or investigation of an offence or offences I am entitled to impose a lesser sentence than I would otherwise have imposed as long as the sentence is not thereby rendered unreasonably disproportionate to the nature and circumstances of the offence. 38Mr Winch submitted that the sentence to be imposed ought take account of the assistance that Mr Filihia provided to police. In his ERISP he gave a detailed version of what occurred. Although he did not disclose the presence of Ms Coffison, he gave police Mr Sio's mobile phone number and identified him on the following day in a photograph and by name. His initial attempts to give a false name for Mr Sio were clumsy and easily detected by the police. At the time he was interviewed he could not have appreciated the extent to which what he was describing was visible from the numerous CCTV cameras in and surrounding the brothel and along George Street. 39In my view the assistance Mr Filihia gave on the day of the offence and the following day was significant and useful. It enabled the police to find Mr Sio quickly and obtain his mobile phone, which in turn led to other witnesses, including Ms Coffison, being interviewed. Apart from Mr Sio's name, his evidence was truthful and reliable. It was complete in that he endeavoured to answer every question asked of him in a lengthy interview. 40However, the assistance that Mr Filihia gave to the authorities did not extend to giving evidence for the Crown at the trial of Mr Sio, in respect of which Mr Filihia was a compellable witness. He refused on 9 September 2013 in a voir dire to answer questions as a Crown witness. He was required to attend court again on 11 September 2013 since Mr Sio's counsel contended that Mr Filihia was prepared to give evidence for the defence. However it was clear from his responses that he would not answer questions put by the Crown, whether in examination-in-chief or cross-examination. He gave his concern for his family as the reason for his refusal. This does not overcome the fact that his assistance was limited to the past assistance he had given. 41I consider there should be a discount for the assistance that Mr Filihia has provided to the authorities. In my view the appropriate discount for such assistance is 10%. But for this discount, and the discount I propose to allow for his plea of guilty which will be addressed below, I would have imposed a sentence of a total term of 22 years with a non-parole period of 16 years and 6 months for murder and a sentence of a total term of 10 years with a non-parole period of 7 years and 6 months for armed robbery with wounding.

Plea of guilty 42I am required to take into account the fact that the offender has pleaded guilty as well as the time and circumstances in which he did so. A plea of guilty entitles me to impose a lesser sentence than I would otherwise have imposed as long as the sentence is not thereby rendered unreasonably disproportionate to the nature and circumstances of the offence. The discount for the utilitarian value of the plea is largely determined by its timing. 43The Crown accepts that the offender ought be regarded as having pleaded at the earliest available opportunity. 44In my view, the appropriate discount for the utilitarian value of the plea is 25%. But for this discount, and the discount I allow for his assistance to authorities which is referred to above, I would have imposed a sentence of a total term of 22 years with a non-parole period of 16 years and 6 months for murder and a sentence of a total term of 10 years with a non-parole period of 7 years and 6 months for armed robbery with wounding.

Time in custody, concurrence and accumulation 45It is accepted by the Crown that the sentence for armed robbery with wounding should be wholly concurrent with the sentence for murder. 46On 18 December 2012 Mr Filihia was sentenced to 6 months' imprisonment for intimidate police officer in the execution of his duty (the offence for which he was on bail at the time of the murder). The sentences that had earlier been suspended gave rise to an effective sentence of 10 months that commenced on 18 December 2012 and expired on 17 October 2013, with a 6 month non-parole period that expired on 17 June 2013. Accordingly, the time he has spent in custody referable to the offences of murder and armed robbery is in the order of 8 months: 55 days from 24 October 2012 until 18 December 2012 and 179 days from 18 June 2013 to date, being a total of 234 days. 47The Crown submitted that the sentences for the present offences ought commence on 18 June 2013, being the day after the expiry of the non-parole period for the offences for which the sentences commenced on 18 December 2012, less the time served between the offender's arrest on 24 October 2012 and 17 December 2012 inclusive, which is referable to the offences for which I am to sentence him. This would give an effective commencement date of 13 April 2013. 48Mr Winch submitted that the sentence for the present offences ought commence on the date of arrest, 24 October 2012. 49There is no general rule that determines whether sentences ought be dealt with concurrently or consecutively. The principle of totality is an overriding principle by reference to which sentences are to be measured. It requires the sentencing judge to consider the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender has already been sentenced: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 308 per McHugh J. 50The criminality involved in the offences for which Mr Filihia was in custody from 18 December 2012 until 17 June 2013 was separate from the criminality involved in the present offences, although the underlying cause of the criminality, his drug addiction, may have been the same. 51In my view, the principle of totality is best advanced by allowing a degree of concurrence between the sentences for the present offences and the earlier offences. I propose to commence the current sentence on 13 March 2013. The sentences for murder and armed robbery will be wholly concurrent.

Subjective circumstances 52Mr Filihia is 22 years old. His parents came from Tonga to New Zealand where he was born. In his formative years, the home was an unhappy place due to his father's heavy drinking and violence towards Mr Filihia's mother. The offender's position as the eldest in a family of 5 boys and 2 girls made him feel responsible for his siblings. Following violent attacks he would take his siblings to his maternal grandmother's house nearby. For a time, his parents reconciled after these episodes. When Mr Filihia was 12 his father left again. This time his mother packed up her husband's belongings and announced that she was divorcing him, which she did. 53In the absence of his father, Mr Filihia stepped into the role of carer for his younger siblings while his mother was at work at Woolworths, East Gardens. He felt aggrieved by his greater responsibilities and became resentful. He was expelled from Randwick Boys High School in Year 7. He was then enrolled at Edgware in Hurlstone Park, a school for children with behavioural disorders. He attended only for a short time, preferring to associate with his peers in the streets. He had no further formal education or vocational training until he was taken into custody. He started smoking cannabis at 13 and committed crime so that he could afford it. He took ice from the age of 14 and continued to take it until October 2012. 54At the age of 14, Mr Filihia met Tara-Lee, who is still his partner. When he was about 16, Tara-Lee gave birth to their first child, who died at 8 weeks of cot death. They have 5 living children: boys aged 6, 5, 3 and 2 and a daughter aged 4 months. Throughout their relationship, they have lived with Tara-Lee's parents, except for the period about a month prior to the present offences when the young family lived in a motel room at Blakehurst and then at Carss Park Motel. There have, however, been periods when Mr Filihia has lived separately because of his drug taking. 55After his parents' divorce he had little contact with his father until, at 16, he renewed contact. He worked with his father in an equipment hire company from the age of 16 until he was 20. During this period their relationship repaired. In 2011 he obtained employment as a wharf labourer at Port Botany, where he worked for almost a year. He resigned in December 2011 and did not seek subsequent employment because his second youngest son was born with a cleft palate and he felt his wife needed support. The family managed on benefits and some savings. 56Both his father and his mother have visited him in gaol. Although they are disappointed in him, they remain supportive. 57I accept Ms Robilliard's opinion that his symptoms are consistent with post-traumatic stress disorder and associated depression. She noted the offender's positive attitude towards professional intervention.

Special circumstances 58It was submitted on behalf of the offender that there were special circumstances. I am not persuaded that Mr Filihia's circumstances are special. 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. The length of the overall sentence accommodates the desirability of having a parole period of some length to assist the offender to adjust to life in the community. 59I do not propose to factor in the time in custody prior to the effective date of commencement of 13 March 2013 in calculating the non-parole period for the current offences. Such calculation is not required by s 44(2) or s 44(2B) of the Act.

Loss of the deceased 60The deceased's wife and children provided statements to the Court in which they told of the effect on them of the deceased's death. Such statements bear witness to the grief, pain and loss suffered by those who survive the deceased. 61Under the law, the loss suffered by the deceased and his loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Brian Gaudry to his wife, his children and to the other members of his family and to his friends. I take this opportunity to extend, on behalf of the Court, my condolences to them. I hope that they feel some benefit in having their loss acknowledged in a public way. 62Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, under laws that have been in existence for a long time now, the loss suffered by the deceased and his family cannot be reflected by any sentence I impose: R v Previtera (1997) 94 A Crim R 76 at 87-88 per Hunt CJ at CL.

Sentence 63Richard Filihia: (1)For the offence of armed robbery with wounding, I sentence you to a term of imprisonment for 6 years and 6 months, commencing on 13 March 2013, with a non-parole period of 4 years and 10 months. (2)For the murder of Brian Gaudry, I sentence you to a term of imprisonment of 14 years and 3 months, commencing 13 March 2013, with a non-parole period of 10 years and 8 months. The earliest date upon which you are eligible for release on parole is 13 November 2023.

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. Decision last updated: 13 December 2013