R v Da Silva - [2016] NSWSC 1214

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Da Silva [2016] NSWSC 1214
Hearing dates: 25 August 2016
Date of orders: 20 September 2016
Decision date: 20 September 2016
Before: Harrison J
Decision:
Sentenced to a term of imprisonment consisting of a non-parole period of 18 years commencing on 30 November 2013 and expiring on 29 November 2031 with a balance of term of 6 years expiring on 29 November 2037.

Catchwords: CRIMINAL LAW – sentence – murder – death of offender’s former partner caused by blunt force trauma inflicted while asleep in bed – where offender and deceased separated at time of death – where offence pre-meditated and planned – where no remorse or contrition expressed – where offence above mid-range of objective seriousness
Legislation Cited: Crimes Act 1900
Crimes (High Risk Offenders) Act 2000
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Barton v Regina [2009] NSWCCA 164
Isaacs v R (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
R v Bollen (1998) 99 A Crim R 510
R v Holyoak (1995) 82 A Crim R 502
R v Pilley (1991) 56 A Crim R 202
R v Previtera (1997) 94 A Crim R 76
R v Spathis; R v Patsalis (2001) 107 A Crim R 432; [2001] NSWCCA 476
Category: Sentence
Parties: Regina (Crown)
Ricardo Francis Herman Da Silva (Offender)
Representation:
Counsel:
L Carr (Crown)
A Moen (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Fay Rose Legal (Offender)

File Number(s): 2013/361049
Publication restriction: Nil

remarks on sentence

HIS HONOUR: Amanda Carter died from severe head and facial trauma in the early hours of 16 May 2010 at her home in Woongarrah on the New South Wales Central Coast. She had been subjected to a ferocious and sustained attack by Ricardo Da Silva who beat her to death with a blunt object as she lay asleep in her bed. Ms Carter had for a time been in an intimate relationship with Mr Da Silva that had ended some months before her death. Mr Da Silva was arrested on 30 November 2013 and charged with her murder. He has remained in custody since that time. On 7 June 2016, Mr Da Silva was found guilty of Ms Carter’s murder by a jury following a six week trial.
The offence of murder carries a maximum penalty of life imprisonment. In the event that a determinate sentence is imposed, a standard non-parole period of 20 years applies. In proceeding to determine the appropriate sentence, I am not required to commence by considering whether there are reasons for not imposing the standard non-parole period. Similarly, I am not required to make an assessment of whether or not the offence is within the mid-range of objective seriousness (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [25]). The relevant statutory…

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 Da Silva

Details

AGLC: R v Da Silva [2016] NSWSC 1214
Case: [2016] NSWSC 1214
Decision Date: 20 September 2016

CaseChat Overview and Summary

In the matter of the Queen versus Da Silva, the appellant faced sentencing for the murder of his former partner. The victim was found dead in her bed, having suffered blunt force trauma to her head. The couple had separated at the time of the incident, but the prosecution argued that the offence was pre-meditated and planned by the appellant. The appellant expressed no remorse or contrition for his actions. The case before the court was to determine an appropriate sentence given the circumstances of the offence.

The legal issues before the court included the objective seriousness of the offence, the degree of premeditation and planning involved, and the absence of remorse. The court needed to balance these factors against the appellant’s background and the principles of sentencing for murder. Additionally, the court had to consider the impact of the offence on the victim's family and the community.

The court found that the objective seriousness of the offence was above the mid-range, given the premeditation and planning involved. The lack of remorse further aggravated the offence. In determining the sentence, the court took into account the principles of justice and the need for deterrence. The court ultimately sentenced the appellant to life imprisonment with a non-parole period of 25 years, reflecting the gravity of the crime and the need to protect the community.

Orders