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31
Court of Criminal Appeal 20 February 2003

R v Cardoso

[2003] NSWCCA 15

Also reported as (2003) 137 A Crim R 535
Homicide
CRIMINAL LAW: SENTENCE MANSLAUGHTER JURY VERDICT AFTER TRIAL FOR MURDER PRE TRIAL OFFER OF PLEA TO MANSLAUGHTER

Citation: R v Cardoso [2003] NSWCCA 15
Court: NSW Court of Criminal Appeal
Date: 20 February 2003
Judges: Meagher JA; Hidden J; Greg James J

Background

The applicant, a young East Timorese refugee in his early twenties, was tried before Hulme J and a jury on a charge of murder. The charge arose from a street altercation in Liverpool on 16 December 1999, during which the applicant stabbed the deceased in the head with a kitchen knife. The deceased died nine days later.

The jury acquitted the applicant of murder but found him guilty of manslaughter. Hulme J sentenced him to eight years' imprisonment with a non-parole period of five years. The sentencing judge proceeded on the basis that the applicant had intended to cause grievous bodily harm and had acted under provocation.

The applicant had, before trial, offered to plead guilty to manslaughter. That offer was not accepted by the Crown, and the matter proceeded to a jury verdict. On appeal, the applicant argued that this pre-trial plea offer entitled him to some utilitarian sentencing discount, and he also raised other grounds including the exceptional circumstances of his upbringing under Indonesian occupation in East Timor.

  • Whether an offender convicted of manslaughter by jury verdict, after having offered to plead guilty to manslaughter before trial, is entitled to a sentencing discount reflecting the utilitarian value of that plea offer.
  • Whether the sentencing judge erred in his factual findings about the gravity of the provocation and the degree of violence involved.
  • Whether the sentence of eight years was excessive having regard to the applicant's subjective circumstances, comparable cases, and Judicial Commission statistics.
  • Whether the sentence should have been further reduced to recognise admissions made by the applicant in an electronically recorded interview with police.

Decision

The court divided two to one on the outcome. Hidden J (with whom Greg James J agreed) held that the sentencing judge had erred in law by failing to apply the principle established in R v Oinonen [1999] NSWCCA 310. Under that principle, an offender who genuinely offered to plead guilty to a charge that reflects their actual criminality, and whose offer was not accepted, retains an entitlement to some credit for the utilitarian value of that offer, even if the matter ultimately proceeds to a jury verdict. The failure to apply this principle meant the sentence was not "warranted in law."

Greg James J noted that no error appeared on the face of the sentencing remarks themselves, but the error arose from the result: the sentence did not reflect the applicable law because Hulme J's attention had not been drawn to Oinonen. His Honour described this as entirely regrettable.

Hidden J observed that, on the available material, he might have assessed the gravity of the provocation and the degree of violence more favourably to the applicant than Hulme J had. However, without the full trial record, the Court of Criminal Appeal was reluctant to disturb findings of fact made by a judge who had presided over the trial and heard the witnesses. Hidden J ultimately proposed a sentence he considered proportionate to a fair assessment of the applicant's culpability.

Meagher JA dissented, finding no error in Hulme J's sentencing remarks and stating the application should be dismissed. The majority prevailed, granting leave to appeal and reducing the sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Hulme J quashed.
  • In lieu, the applicant sentenced to imprisonment for seven years, dating from 16 December 1999, with a non-parole period of four years, making him eligible for release on parole on 15 December 2003.

Key Takeaways

  • A pre-trial offer to plead guilty to a charge that accurately reflects an offender's criminality can attract a sentencing discount for utilitarian value, even where the Crown rejects the offer and the matter proceeds to a jury verdict resulting in conviction on that charge. This principle, drawn from R v Oinonen, applies regardless of whether a formal plea was ever entered.
  • Legal error in a sentencing outcome can arise not from anything stated in the sentencing remarks, but from the omission of an applicable legal principle, particularly where neither party drew the relevant authority to the trial judge's attention.
  • Exceptional subjective circumstances, including serious trauma experienced under authoritarian occupation and the absence of prior criminal history, are relevant to the assessment of an offender's culpability in manslaughter sentencing, though they do not automatically determine the outcome.
  • Appellate courts will be slow to disturb factual findings made by a sentencing judge who presided over the full trial, particularly where the appellate court does not have access to the complete trial record.
  • Under section 6 of the Criminal Appeal Act 1912, where a sentence is not warranted in law, the Court of Criminal Appeal has a duty to substitute the sentence that should have been passed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v Thomson and Houlten (2000) 49 NSWLR 383
- R v Oinonen [1999] NSWCCA 301 (also cited as [1999] NSWCCA 310)
- R v Sharma (2002) 54 NSWLR 300
- Cameron v The Queen (2002) 187 ALR 65
- R v Morton [1986] VR 863
- R v Pennisi [2001] NSWCCA 326