R v Cardoso

[2003] NSWCCA 15

Reported Decision: 137 A Crim R 535

New South Wales

Court of Criminal Appeal

CITATION:	R v Cardoso [2003] NSWCCA 15
HEARING DATE(S):	21/11/02
JUDGMENT DATE:	20 February 2003
JUDGMENT OF:	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.
LEGISLATION CITED:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson and Houlten (2000) 49 NSWLR 383 R v Oinonen [1999] NSWCCA 301 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] NSW CCA 326
PARTIES :	Regina Calisto Cardoso
FILE NUMBER(S):	CCA 60631/2001
COUNSEL:	E Wilkins - Crown TA Game SC - Applicant
SOLICITORS:	SE O'Connor - Crown D J Humphreys - Applicant

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70078/00
LOWER COURT JUDICIAL OFFICER :	Hulme J

60631/2001

MEAGHER JA
HIDDEN J
GREG JAMES J

Thursday, 20 February, 2003

REGINA v Calisto CARDOSO

judgment

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 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.
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.
Some of the refugees had previously returned to the area of the earlier confrontation. I am satisfied that in the case of the deceased and Mr Bergvall-Williams their revisiting the area was not with a view to trouble and I think the same can be said of the refugees. Be that as it may, the deceased and Mr Bergvall-Williams came to be walking towards them. The deceased seems still or again to have been angry. He stared at the refugees and made remarks under his breath to the effect that the refugees were “dogs”. As the deceased and Mr Bergvall-Williams came close to the refugees, the two turned away and walked past. The refugees, or about 6 of them, followed. After a short distance, about 5 or 6 steps, the deceased stopped and turned around and he and the group of about 6 confronted one another. A fist fight started. I do not think it matters who threw the first punch. I am not prepared to find it was the Prisoner but once the deceased and Mr Williams were being pursued by a group of others, their situation was invidious. Both the deceased and at least some of the refugees were equally willing, if not eager, to fight.
Mr Bergvall-Williams said that prior to the fight starting he saw and remarked on the fact that one of the refugees had a knife and on one view of his evidence this led to him and the deceased moving and being pursued by the 6 or so refugees about twice the distance I have indicated above. Again, I do not think this matters.
The fight went on for a little time. It was about 6 against one though I am satisfied that it was commonly one or two and perhaps three against one at any moment of time. The refugees seem to have fought in turn or in waves and not in an all in assault. The deceased seems to have held his own, more than one witness saying that he was winning the fight. I am satisfied that during its course he ran away at times. Whether this was with a view to the fight stopping or merely on tactical grounds I am unable to say. I am however satisfied that while the deceased was willing to fight, the refugees were more the aggressor in it. I reject evidence to the effect he chased the refugees onto a grass area where the fight concluded.
While the fight continued on the grass area, the Prisoner removed himself a little from it, acquired possession of a knife from one of the other refugees and returned to the fight with it. There he attacked the deceased. The Prisoner made at least 2 swings with the knife using an overarm action commencing with the knife in a fist held near the Prisoner’s ear, his forearm being vertical or nearly so and the knife blade protruding from near the Prisoner’s little finger. The deceased blocked at least one blow but the last penetrated his skull, damaging blood vessels on the covering of the brain. The knife itself is a common table knife with a rounded end and in the opinion of Dr Skirving which I accept, a great deal of force would have been required to effect the injury that occurred.
There is no reason to think that the Prisoner’s use of the knife was premeditated for more than a minute or so. However, within that short time it was a deliberate decision to arm himself with the knife and use it. In evidence he contended that he had held the knife to scare the deceased and used it in self defence. The jury, properly in my view, rejected the latter proposition and I reject the former. I am prepared to accept that the Prisoner’s use of the knife was, as is suggested in his ERISP, “in the heat” (of the fight).
The deceased fell and the East Timorese refugees ran off. They were pursued and whether accidentally or not, finished up in the local police station. Later that day the Prisoner participated in an electronically recorded interview. Although blaming the deceased and, possibly, Mr Williams for insulting words and starting the fight, he acknowledged he had done the stabbing.”

Subjective case

5 The applicant made out a quite exceptional subjective case. He was twenty-two years old at the time of the offence and is now twenty-five. He has no prior convictions.

6 He was born and brought up in the mountains of East Timor. When he was thirteen his father was captured by Indonesian troops and he never saw him again. He heard that he had been killed, probably because he had been supplying food to the Fretilin forces. The applicant left school to help support his family. He was scared of the Indonesian troops and experienced life, as he put it, “at gunpoint.”

7 At the age of nineteen or twenty he went to live in Dili, where he eventually found work. He returned to his family in the mountains from time to time to give them money which he had earned. In the lead up to the referendum he was threatened by the militia if the result of the referendum favoured independence. Two people he lived with were arrested and beaten and, when he took them food, he himself was beaten but sent home. He was in constant fear from the violence after the referendum, and he did not trust anyone. There was gunfire and houses were burnt. He moved to the UNAMET compound, and after some weeks he and others at the compound were evacuated to Australia, arriving in September 1999.

8 He has experienced recurrent dreams about the militia, including an incident in which he saw militia stab a friend of his. Evidence was given at the trial by the well known forensic psychiatrist, Dr Bruce Westmore, who said that the applicant’s experiences in East Timor were relevant to his behaviour on the occasion in question as they may have “hyper-sensitised” him to acts of aggression directed towards him.

9 In evidence in the sentence proceedings the applicant expressed remorse for his crime, which his Honour accepted as genuine. Since being in custody his mother, grandmother and other family members have died. His Honour noted that his isolation in the prison system would be exacerbated by his limited command of English.

Sentencing factors

10 His Honour referred to the familiar discussion of the approach to sentence for provocation manslaughter by Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 and, in particular, to the three factors said (at 144) to bear upon the assessment of the objective gravity of the crime: the degree of provocation, the time between the provocation and the loss of self-control, and the degree of violence displayed by the offender. In the present case, although he referred to the applicant’s sensitivity to provocative conduct as a result of his background, his Honour found the degree of provocation as no more than “moderate”. He saw the loss of self-control following the provocation as “reasonably immediate”, but characterised the degree of violence inflicted by the applicant as “high”.

11 His Honour referred to the Judicial Commission sentencing statistics for manslaughter. He also had regard to decisions of this Court dealing with provocation manslaughter, both by the Court of Criminal Appeal and by individual sentencing judges, details of which he attached to his remarks. He concluded that, “…while making all allowance for the features of this case favouring leniency, the deliberate taking of a knife into a fight with a view to attacking someone with it in my view places an offence of manslaughter which results well up the bottom half of the scale of manslaughter offences”. Notwithstanding the applicant’s subjective case, his Honour considered that the need for general deterrence and retribution required no lesser sentence than that which he imposed.

12 His Honour noted that in the week before the trial commenced, and in the course of the trial itself, the applicant offered to plead guilty to manslaughter in satisfaction of the indictment for murder but the Crown had rejected that offer. In his remarks his Honour continued:

Such a plea was not entered in front of the jury and in fact the issue of self-defence was raised. In these circumstances, it does not seem to me that the prisoner is entitled to any discount on account of any utilitarian value. There was none. I do not regard Thomson and Houlten … as requiring any different conclusion.

13 Whether his Honour was correct in his approach to the applicant’s offer to plead guilty to manslaughter is an important question, central to the argument in this application.

The application

14 Before us, his Honour’s sentencing exercise was challenged on a number of bases, but it is convenient to deal firstly with the significance of the offer to plead guilty to manslaughter. Counsel for the applicant at trial had argued that he was entitled to a measure of leniency on that account and, indeed, the Crown prosecutor had conceded in written submissions that it entitled him to “an appropriate discount.” Both the applicant and the Crown were represented by different counsel in this Court.

15 While his Honour was referred to R v Thomson and Houlten (2000) 49 NSWLR 383, it would seem that his attention was not drawn to this Court’s decision in R v Oinonen [1999] NSWCCA 310. The offender in that case had faced trial for murder by shooting. He was affected by liquor at the time and it would seem that he raised an issue whether the discharge of the gun was accidental, in the sense that it was not the result of his voluntary act. Prior to his arraignment he had offered to plead guilty to manslaughter but the Crown had declined to accept the plea. He did not plead guilty to that offence when arraigned. It seems that the sentencing judge saw the offer of the plea as of no significance, noting that it was still open to him to have formally entered the plea upon arraignment.

16 The Court of Criminal Appeal held that he was entitled to a measure of leniency for the offer of the plea, analogous to that earned by a plea of guilty actually entered. Grove J, with whom Spigelman CJ and Sully J agreed, had this to say (at paras 15-18):

“It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of section 439 of the Crimes Act . There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted.
The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the relief to the various witnesses of the burden of having to give evidence and potentially being cross-examined.
In the instant case his Honour found otherwise that the appellant was in any event remorseful. He had demonstrated his remorse almost immediately after the crime had been committed. He was however as a result of his Honour’s findings … deprived of any benefit that he might expect for what I have described as the utilitarian value of the offer of his plea.
In my view the appellant should have been given that benefit.”

(Section 439 of the Crimes Act , requiring a court to take into account an offender’s plea of guilty, has since been repealed and replaced by s 22 of the Crimes (Sentencing Procedure) Act 1999.)

17 The Crown prosecutor before us challenged the reasoning in that judgment, submitting that it cannot stand with the later decision of Thomson and Houlten, recently revisited in R v Sharma (2002) 54 NSWLR 300. The affirmation by those cases of the purely utilitarian benefit of a plea of guilty, he argued, was directed only to those cases in which that benefit was realised by the entry of that plea and the avoidance or curtailment of a trial. No such benefit flows from the offer of a plea of guilty to a lesser charge which the Crown does not accept. There is no concept of “notional utility”, the argument continued, whereby the offender who is found guilty of that lesser charge is extended the leniency which he or she might have earned if that offer had been accepted and the matter had not proceeded to trial.

18 The Crown prosecutor acknowledged that the offer of such a plea might attract leniency subjectively, as it might demonstrate remorse or, at least, a willingness to facilitate the course of justice: Cameron v The Queen (2002) 187 ALR 65, in the joint judgment at paragraphs 13-14. However, he observed correctly that Sharma, in which Cameron was considered, maintains a distinction between the subjective considerations raised by a plea of guilty and the utilitarian value of the plea, viewed objectively. Of course, that utilitarian value attaches to a plea of guilty to a crime less serious than that originally charged: R v Morton [1986] VR 863 at 867, cited in Sharma at para 46.

19 Hulme J passed sentence in the present case before the High Court handed down its decision in Cameron, and the notion of a willingness to facilitate the course of justice had not yet been introduced into sentencing law. His Honour expressly took into account the applicant’s remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant’s control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.

20 It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act: see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event.

21 Oinonen was dealing with a special situation to which no reference was made in Thomson and Houlten or Sharma, and I see no inconsistency between the reasoning in Grove J’s judgment and those later important cases. If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown’s attitude. This would be unacceptable.

22 The principle in Oinonen was not questioned in R v Pennisi [2001] NSW CCA 326, decided after Thomson andHoulten, although it does not appear that the Crown raised in that case the issue before us. That applicant had been tried before Bell J for murder but the jury returned a verdict of guilty of manslaughter. In passing sentence, her Honour had specified a discount which included his offer on more than one occasion before the trial to plead guilty to manslaughter. In a joint judgment, Beasley JA, Wood CJ at CL and Carruthers AJ referred to ThomsonandHoulten and continued (at para 27):

“As events turned out there was no utilitarian value in this case as the plea was not accepted. That does not reflect at all on the applicant and his offers to plead guilty to manslaughter were appropriately treated by her Honour upon the same basis as if they had been accepted.”

23 In my view, this matter is sufficient to warrant our intervention in the present case. As I have said, other matters were raised in the application. His Honour’s findings of fact were challenged, in particular, his assessment of the gravity of the provocation to the applicant and the extent of the violence which he inflicted. It was said that any discount on sentence for the offer of a plea of guilty should be inflated to recognise the applicant’s co-operation with police by making relevant admissions in an electronically recorded interview: cf Pennisi. It was also argued that the sentence was in any event excessive, in the light of Judicial Commission statistics and decisions of this Court in comparable cases.

24 Understandably, we have not been supplied with the entire record of the trial. We have the remarks on sentence, together with the transcript of the proceedings on sentence and the sentence exhibits, supplemented by parts of the trial transcript relevant to the applicant’s challenge to his Honour’s findings of fact. I would respectfully observe that, on that material, I might have taken a view of the gravity of the provocation and the degree of violence more favourable to the applicant than his Honour’s. However, we do not have all the available material and this Court would not lightly disturb findings of fact on sentence by a judge who presided over a trial and had the advantage of seeing and hearing the witnesses. I find it unnecessary to decide the other matters raised on this application, because I consider that a fair assessment of the applicant’s culpability calls for no less a sentence than that which I propose.

25 I would grant leave to appeal and allow the appeal. I would quash the sentence passed by Hulme J and, in lieu, I would sentence the applicant to imprisonment for seven years, to date from 16 December 1999, with a non-parole period of four years. He would be eligible for release on parole on 15 December, 2003.

26 GREG JAMES J: I agree with Hidden J that, notwithstanding no error is to be found expressed in the remarks of Hulme J, the sentence was affected by error of law in the result, in consequence of a failure to follow the decision of the court in Regina v Oinonen [1999] NSWCCA 310. Therefore, the ground of appeal asserted is made out.

27 It is entirely regrettable that the trial judge’s attention was not directed to that decision.

28 The sentence passed at first instance was therefore not “warranted in law”. It is the duty of this court in such a case under s 6 of the Criminal Appeal Act 1912 to ensure that the applicable sentence is “warranted in law and should have been passed”.

29 I agree that the appeal should be allowed and that the sentence imposed at first instance should be set aside. I agree with the sentence proposed by Hidden J and, with the addition of these observations, with the reasons he gives.

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Last Modified: 02/26/2003