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Court of Criminal Appeal 7 August 2000

R v Gil Tavares Peres

[2000] NSWCCA 353

Assault & violence
SEVERITY APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM SPECIAL CIRCUMSTANCES ATTACK NOT PREMEDITATED

Citation: R v Gil Tavares Peres [2000] NSWCCA 353
Court: NSW Court of Criminal Appeal
Date: 7 August 2000
Judge(s): Dowd J; Bruce James J

Background

The applicant pleaded guilty to assault occasioning actual bodily harm under s 59 of the Crimes Act 1900, following a violent late-night attack on an acquaintance in Surry Hills. The two men had been drinking together at a hotel, and after leaving, the applicant punched the victim repeatedly and then kicked him in the neck, causing a chipped fracture to the third cervical vertebra. The victim was rendered unconscious and hospitalised. Notably, the applicant himself provided most of the evidence that established the seriousness of the offence, having spoken frankly to police.

The applicant had previously trained as a boxer, which the sentencing judge (Woods DCJ in the District Court) took into account as a relevant aggravating factor given the force of the attack. The applicant had no prior convictions of a violent nature and, having been on bail for approximately two years before custody commenced, had not re-offended during that period.

Woods DCJ sentenced the applicant to a minimum term of two years and an additional term of eight months. The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was excessive.

  • Whether Woods DCJ erred by adopting too high a starting point when assessing the objective seriousness of the offence
  • Whether insufficient weight was given to the fact that the attack was unplanned and unpremeditated
  • Whether insufficient weight was given to the applicant's period on bail without re-offending, as a rehabilitation consideration
  • Whether special circumstances existed justifying a departure from the standard ratio between minimum and additional terms under the Sentencing Act 1989

Decision

The Court granted leave and allowed the appeal, finding that Woods DCJ had erred by setting a starting point of four years penal servitude before applying reductions for subjective factors. While the sentencing judge had correctly recognised the serious and savage nature of the assault, the Court held that a starting point of four years was too high for an attack that was entirely unplanned and spontaneous, even accepting the significant injuries inflicted.

The Court confirmed that the sentencing judge had appropriately taken into account the applicant's boxing background, the gravity of the injuries, and the applicant's guilty plea and cooperation with police. However, the objective circumstances did not approach the worst-case scenario for this class of offence, and the maximum penalty of five years is reserved for significantly more serious conduct. The reduction of fourteen months applied by the sentencing judge to account for subjective matters did not correct the error introduced by the inflated starting point.

On the question of special circumstances, the Court found no basis for a finding under s 5(2) of the Sentencing Act 1989. The applicant's youth, first period of imprisonment, and limited prior record did not automatically entitle him to such a finding.

Re-sentencing under the Crimes (Sentencing Procedure) Act 1999, the Court imposed a total term of twenty months imprisonment, comprising a non-parole period of fifteen months and a parole period of five months. The Court also noted, as a relevant circumstance of imprisonment, that the applicant had spent his custodial time in protective custody, which it accepted was a particularly difficult way to serve a sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Applicant re-sentenced to a total term of 20 months imprisonment
  • Non-parole period of 15 months, commencing 20 May 1999 and concluding 19 August 2000
  • Parole period of 5 months, commencing 20 August 2000 and concluding 19 January 2001
  • Order made directing release of the applicant on parole at the end of the non-parole period

Key Takeaways

  • A starting point set too high for the objective gravity of an offence constitutes a sentencing error capable of vitiating the sentence on appeal, even where the sentencing judge correctly identified and applied subjective discounts.
  • The Court of Criminal Appeal confirmed that an unplanned, spontaneous assault, however savage, does not occupy the same place on the sentencing spectrum as a premeditated attack, and the starting point must reflect that distinction.
  • Special circumstances under s 5(2) of the Sentencing Act 1989 are not established automatically by a combination of youth, a first custodial sentence, and a limited criminal history; something more is required.
  • Serving time in protective custody was treated by the Court as a relevant circumstance bearing on the conditions of imprisonment when re-sentencing.
  • Where a guilty plea is accompanied by frank disclosure to police that itself enables the Crown to establish the full seriousness of an offence, those subjective matters remain relevant to sentence even though the disclosure also worked against the applicant on objective grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35, 59
- Sentencing Act 1989 (NSW), s 5(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited: None identified in the provided text.