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Supreme Court 17 June 2005

Regina v Trocio

[2005] NSWSC 563

Homicide
CRIMINAL LAW SENTENCE MURDER

Citation: Regina v Trocio [2005] NSWSC 563
Court: Supreme Court of New South Wales
Date: 17 June 2005
Judge(s): James J

Background

The prisoner pleaded guilty to the murder of Palatavake Tauveli, committed on 15 December 2002 at Regents Park, NSW. The victim's dismembered remains were later discovered across three separate locations in the Blue Mountains. The prisoner was charged as a principal in the second degree, meaning he was present and assisted in the offence but did not himself inflict the fatal wounds.

According to agreed facts, a co-accused, Angelito Almirol, struck the victim with a chair and cut his throat with a machete. The prisoner stood watch at the door during the killing on Almirol's instruction, and subsequently helped wrap the body, move it, and dispose of the dismembered remains. The prisoner told police he was present but maintained the killing was Almirol's act.

A joint trial had been listed but did not proceed. At the time of sentencing, Almirol had maintained a not-guilty plea and his separate trial had been fixed for October 2005. The prisoner had not provided an undertaking to assist in prosecuting Almirol, though he indicated willingness to give evidence at that trial.

  • What is the appropriate sentence for the prisoner's role as a principal in the second degree to murder, given a guilty plea?
  • What weight should be given to the prisoner's guilty plea, cooperation with police, and expressed willingness to assist in the prosecution of Almirol?
  • Whether special circumstances existed to justify a non-parole period departing from the standard ratio to the head sentence, under the then-applicable (repealed) version of section 44 of the Crimes (Sentencing Procedure) Act.

Decision

James J accepted that the prisoner played a secondary but still significant role in the murder: he did not inflict the fatal injuries, but he stood watch during the killing, assisted in moving the body, and drove the vehicle used to dispose of the remains. These actions placed his culpability above that of a mere bystander.

On the question of assistance, the Crown conceded some discount was warranted. However, the prisoner had not provided an induced statement and had given no undertaking to testify. The court acknowledged the difficulty in assessing many of the relevant factors under section 23(2) of the Crimes (Sentencing Procedure) Act in these circumstances, and allowed only a small discount for assistance already provided and the prisoner's stated willingness to assist in the Almirol prosecution.

The court found special circumstances existed, based on three factors: the prisoner's lack of any prior criminal history, his good prospects of rehabilitation, and his need for a longer than usual supervised period on parole to address drug and alcohol problems identified in a psychologist's report. The sentence was backdated to 24 April 2003, the date the prisoner entered custody.

The court imposed a head sentence of twelve years with a non-parole period of eight years. The non-parole period was set shorter relative to the head sentence than the standard ratio, reflecting the finding of special circumstances.

Orders Made

  • Total sentence of imprisonment: 12 years, commencing 24 April 2003 and expiring 23 April 2015
  • Non-parole period: 8 years, commencing 24 April 2003 and expiring 23 April 2011
  • Earliest eligible parole date: 23 April 2011

Key Takeaways

  • A principal in the second degree to murder who stands watch during the killing and assists in disposal of the body bears substantial criminal responsibility, even where another person delivers the fatal blows.
  • Where a defendant has indicated willingness to assist in the prosecution of a co-accused but has provided no formal undertaking and no induced statement, the sentencing court may allow only a small discount for that expressed willingness.
  • Special circumstances justifying a departure from the standard non-parole ratio can be established by a combination of factors, including no prior criminal history, good rehabilitation prospects, and a demonstrated need for extended supervised liberty to address substance abuse issues.
  • Under the repealed section 44 of the Crimes (Sentencing Procedure) Act, the applicable provision was determined by the date of the offence, not the date of sentencing. Here, the offence predated 1 February 2003, so the earlier version applied.
  • Sentences for murder are backdated to the date the offender entered custody, meaning the commencement date and the expiry of the non-parole period may fall well before the sentencing date itself.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 23(2) and 44 (repealed version)

Cases:
- R v Stokes & Difford (1990) 51 A Crim R 25