R v Cardoso - [2001] NSWSC 775

CITATION: R v CARDOSO [2001] NSWSC 775

FILE NUMBER(S): SC 70078/00

HEARING DATE(S): 5 July 2001

JUDGMENT DATE:
7 September 2001

PARTIES :

Regina
Calisto CARDOSO

JUDGMENT OF: Hulme J at 1

COUNSEL : Crown: Mr D Howard
Prisoner: Mr P Boulton

SOLICITORS: Crown: SE O'Connor
Prisoner: Legal Aid Commission NSW

DECISION: See paragraph 33

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70078/00

HULME J

REGINA v CALISTO CARDOSO

REMARKS ON SENTENCE

1 On 12 June last, an indictment was preferred against Calisto Cardoso alleging that on 25 December 1999 he murdered Abilio Nunes. On 29 June the jury returned a verdict of not guilty of murder but guilty of manslaughter. Under s24 of the Crimes Act, the maximum penalty for manslaughter is 25 years. (The maximum penalty for murder is life imprisonment.) It falls now to me to sentence the Prisoner and, in doing so to make any findings of fact necessary in that connection. My findings must be consistent with the verdict of the jury and to the extent to which they are adverse to the Prisoner and not in mitigation, made on the criminal standard of proof.

2 25th December was the date Mr Nunes died. The causes of death were the consequences of a stab wound to his head which occurred on 16 December and which was inflicted by the Prisoner. The events which led to the stabbing were as follows. A few days prior to 16 December 1999 there had been a soccer match arranged between East Timorese refugees at the East Hills Safe Haven and some other East Timorese resident in Australia. A fight had occurred there and the nephew of the deceased was apparently injured. On 16 December the Prisoner, who had not been at the soccer match, was one of a group of refugees from the Safe Haven who went shopping in Liverpool. In the Macquarie Mall the deceased, who was apparently upset at what had occurred to his nephew, accosted some of the group. He said in English something to the effect "You dogs. Why you hitting little kids for." He was angry and his manner was aggressive. I am satisfied that the deceased also said something in Tetum, an East Timorese dialect, understood by the Prisoner. The deceased was prevailed upon by a friend he was with, Mr Bergvall Williams, and an older person to walk away.

3 A little time later, he and Mr Bergvall Williams, returned to the area of the confrontation. What transpired between then and the stabbing was the subject of evidence from numerous witnesses. There was a deal of disagreement between them. Some of this will have been due to the dramatic nature of what occurred, some because witnesses looked away or their vision became obstructed during the course of events and some for other reasons. Undoubtedly some of the witnesses were more impressive than others. I am satisfied of the following.

4 Some of the refugees had previously returned to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cardoso

Details

AGLC: R v Cardoso [2001] NSWSC 775
Case: [2001] NSWSC 775
Decision Date: 7 September 2001

CaseChat Overview and Summary

Calisto Cardoso was charged with the murder of Abilio Nunes, who died from injuries sustained from a stab wound to the head inflicted by Cardoso on 16 December 1999. The incident occurred in the Macquarie Mall, where Nunes confronted a group of East Timorese refugees, including Cardoso, after a previous altercation involving Nunes' nephew. Cardoso was found not guilty of murder but guilty of manslaughter by the jury. The legal issues before the court included determining the basis for sentencing Cardoso for manslaughter, considering whether provocation, substantial impairment by abnormality of mind, or an unlawful and dangerous act led to the offence. The court found that Cardoso's act was unlawful and dangerous, with an intent to cause grievous bodily harm, though not an intent to kill. The court also considered the impact of Cardoso's background, his remorse, and the victim impact on Cardoso's family and Nunes' family.

The court, Hulme J, concluded that while provocation played a role, it did not preclude finding an intent to cause grievous bodily harm. The court assessed the gravity of the offence, considering the degree of provocation, loss of self-control, and the level of violence. It noted that although Cardoso's history suggested a lack of prior violence, the deliberate use of a knife in the fight was highly significant. The court emphasised the importance of deterrence and retribution, recognising that while Cardoso's background warranted some sympathy, the deliberate use of a weapon in a fight was unjustifiable. The maximum penalty for manslaughter is 25 years imprisonment, but considering the circumstances and relevant case law, the court imposed a sentence of 8 years imprisonment, with a non-parole period of 5 years. This decision aimed to balance the need for deterrence, retribution, and the specific circumstances of Cardoso and the victim.

Orders