Meagher JA at 1; Hidden J at 2; Greg James J at 26
DECISION:
See para 25
CATCHWORDS:
CRIMINAL LAW: Sentence - manslaughter - jury verdict after trial for murder - pre-trial offer of plea to manslaughter - whether offender entitled to utilitarian value as if plea accepted.
1 MEAGHER JA: I have read in draft the judgment of Hidden J in this matter. I disagree with it. I can detect no error in the remarks on sentence of Hulme J. The atrocities committed by the Indonesians in East Timor cannot constitute a ground of appeal. In my view, the application should be dismissed.
2 HIDDEN J: The applicant, Calisto Cardoso, was tried before Hulme J and a jury upon an indictment charging him with the murder of Abilio Nunes on 25 December 1999. The jury found him not guilty of murder but guilty of manslaughter. He was sentenced to imprisonment for eight years, to date from his arrest on 16 December 1999, with a non-parole period of five years. He seeks leave to appeal against that sentence.
3 At the trial the applicant had sought an outright acquittal on the basis of self-defence. Manslaughter had been left to the jury in three alternative ways: provocation, substantial impairment by abnormality of mind, or lack of the intent requisite for murder. His Honour sentenced the applicant upon the basis that he had the intention to inflict grievous bodily harm, rather than to kill, and was acting under provocation.
Facts
4 On 16 December 1999 the applicant inflicted a stab wound to the head of the deceased, from which he died nine days later, on 25 December. In his remarks on sentence his Honour set out his factual findings 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…
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.
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Details
AGLC
R v Cardoso [2003] NSWCCA 15
Case
[2003] NSWCCA 15
Decision Date
CaseChat Overview and Summary
The case of R v Cardoso involved the defendant, Cardoso, who was charged with the murder of a victim. Following a trial, Cardoso was found guilty of manslaughter rather than murder. Prior to the trial, Cardoso had been offered the opportunity to plead guilty to manslaughter, but he opted to proceed to trial. The legal issue before the court was whether Cardoso was entitled to the benefit of the utilitarian value, which is the sentencing discount that would have applied if he had accepted the plea offer to manslaughter prior to the trial.
The court considered the principle of utilitarian value in sentencing and its applicability in cases where the offender had elected to proceed to trial despite a pre-trial plea offer. The court noted that the utilitarian value is intended to encourage offenders to accept plea bargains and reduce the burden on the judicial system. However, the court also recognised that offenders should not be unduly penalised for exercising their right to a trial. The court held that while the principle of utilitarian value generally applies, it is not an absolute rule and must be balanced against the rights of the offender to a fair trial.
In reaching its decision, the court weighed the competing interests and concluded that Cardoso was not entitled to the benefit of the utilitarian value as if he had accepted the plea offer to manslaughter. The court found that Cardoso's decision to proceed to trial was a significant factor that should be taken into account in determining his sentence. The court acknowledged the importance of the right to a trial but emphasised that this right does not entitle an offender to a sentencing advantage if they choose to exercise it. The final orders of the court were that Cardoso was to be sentenced for manslaughter, without the benefit of the utilitarian value.