R v Gil Tavares Peres

[2000] NSWCCA 353

CITATION:	R v Gil Tavares Peres [2000] NSWCCA 353
FILE NUMBER(S):	CCA 60282/00
HEARING DATE(S):	07/08/00
JUDGMENT DATE:	7 August 2000
PARTIES :	Regina Gil Tavares Peres
JUDGMENT OF:	Dowd J at 1; James J at 23

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0367
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

COUNSEL :	AM Blackmore- Crown R Burgess- Applicant
SOLICITORS:	SE O'Connor- Crown DJ Humphreys- Applicant
CATCHWORDS:	Severity appeal - Assault occasioning actual bodily harm - Special circumstances - Attack not premeditated
LEGISLATION CITED:	Crimes Act 1900 Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999
DECISION:	1. Leave granted; 2. Appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

BRUCE JAMES J
DOWD J

Monday 7th August 2000

N60282/00

REGINA v GIL TAVARES PERES

JUDGMENT

1 DOWD J: This is an application by Gil Tavares Peres for leave to appeal against a sentence imposed by Woods DCJ, on a conviction for a charge of assault occasioning actual bodily harm, contrary to s59 of the Crimes Act 1900 (the “Act”). The maximum penalty for this offence is five years imprisonment.

2 The applicant had been charged additionally with maliciously inflicting grievous bodily harm under s35 of the Act, which carries a sentence of seven years imprisonment. The applicant pleaded not guilty to that latter count, but pleaded guilty to the charge of which he was convicted, which was accepted in full satisfaction of the indictment.

3 The applicant was sentenced to a minimum of two years imprisonment, to commence on 20 May 1999 and to expire on 19 May 2001, and an additional term of eight months to commence on 20 May 2001 and to expire on 19 January 2002.

4 The applicant was bailed at the time of his arrest on 10 February 1999, and remained on bail until 20 May 1999, when he was taken into custody. The applicant had previous convictions for larceny and possessing a prohibited drug, which are of limited relevance to this application.

5 The applicant himself pleaded guilty, but more unusually in this case, provided most of the evidence on which he was convicted. He frankly provided information to the police which enabled the seriousness of this offence to be examined.

6 The facts are that at about 2 o'clock on the morning of 3 February, the applicant and a man called Blake were drinking together at a hotel in Surry Hills. After they left, about fifty metres from the hotel, the applicant assaulted Blake, who was knocked unconscious. The assault was in the nature of a number of obviously very hard punches. Blake was knocked to the ground. The applicant “put the boot in”, using His Honour's expression, kicking him savagely in the neck which caused damage to one of the cervical vertebra, and it was quite extraordinary that more serious injuries were not inflicted.

7 It is clear, however, that it was a very savage attack and a lot of blood ensued from it. The applicant decamped at some speed when he realised what he had done.

8 The victim was taken to hospital, incubated, ventilated and he had extensive bruising and swelling. X-rays showed a chipped fracture through the third cervical vertebra caused by the kicking. He had sustained no brain injury, but there were several chipped teeth and pain in the jaw.

9 In providing evidence, the applicant said that he had been at a friend's twenty-first, he was drunk and that he accepted an invitation from the victim to go and consume some marijuana at the victim's home. The victim touched the back of or began to play with the back of the applicant's head, and a discussion occurred about whether the victim was homosexual. The applicant became very angry and started punching. The applicant alleged that the victim had punched at him, but the victim has no recollection of the events, he also being affected by alcohol. The applicant ended up with blood on him.

10 The applicant had had some experience as a boxer, which was quite some years earlier. He used to train, and in my view His Honour quite correctly took this into account as a matter in assessing the seriousness of the events.

11 As His Honour pointed out, the extent of the injuries inflicted show that it was - to use my words not His Honour's - a very savage attack. The attack occurred, however, without pre-planning and there was no premeditation. It was a spontaneous attack as a reaction to the perceived homosexual approach.

12 The applicant has submitted that His Honour did not give adequate weight to the fact that the offence was not premeditated. It was, however, a serious attack, and His Honour correctly described it as such.

13 The applicant further submitted that His Honour did not give sufficient weight to the fact that the applicant had been on bail for two years without re-offending, which was relevant to his prospects for rehabilitation. But His Honour did refer to that fact. However, in my view, the objective gravity of the offence outweighs any consideration that should have been given for that delay.

14 It is submitted that the sentence is at the top of the range, and this is clearly so. The further ground is that His Honour failed to find special circumstances. The fact that this is a relatively young man and that it is his first time in imprisonment and the fact that he has not a serious previous record, does not in my view automatically entitle a finding of special circumstances. I do not think that a case has been made out for the application applied as then, of s5(2) to the Sentencing Act 1989.

15 In a very careful judgment, His Honour did in fact take into account the serious nature of the offence, and he covered very thoroughly the serious nature of the offence. In my view, however, His Honour erred in referring to the starting point when His Honour said that he would contemplate imposing a sentence of four years penal servitude.

16 In the range of penalties for this offence, and clearly the facts and circumstances might have entitled the Crown to proceed on a more serious offence of grievous bodily harm, but on that offence this is well towards the top of the range.

17 Whereas the top of the range is five years, in my view it is, in determining the objective seriousness of the offence, as His Honour said, it is always possible to imagine a worst case. However, in this particular case His Honour, in assessing its seriousness, did take into account that it was not premeditated, that it was clearly a spontaneous immediate response, that it was a grossly inappropriate response. Nevertheless, the maximum period does take into account much more serious objective circumstances than are in fact encompassed in this. The applicant did plead guilty, he did set out the facts and circumstances to enable himself to be sentenced, but in my view, His Honour, in looking at the subjective material, clearly took into account quite appropriately the reduction of fourteen months from that four year starting point. In my view, the error is that the starting point of four years is too high for an unplanned, unpremeditated attack.

18 The applicant was of good character, a hard worker, and he has had a dysfunctional family background. His Honour took those matters into account.

19 In my view, therefore, in the light of the error demonstrated, I would grant leave and allow the appeal. That, therefore, obliges the Court to re-sentence under the Crimes (Sentencing Procedure) Act 1999. In that respect, I take into account the fact of the circumstances under which the applicant has been held. After an assault, he was hospitalised and he has spent his time in protection, which is of itself a very hard way to do his time.

20 I accept that he is ashamed of his actions and is contrite, and that his rehabilitation has proceeded impressively in terms of the work reports he has set out, and the manner in which he has conducted himself whilst in custody.

21 I am, however, in terms of the Crimes (Sentencing Procedure) Act 1999, satisfied that no penalty other than imprisonment is appropriate. I would therefore re-sentence the applicant to a term of twenty months imprisonment and would specify, there being as I have indicated, no special circumstances as a basis for reducing the total penalty by more than one quarter. And in my view an appropriate non-parole period of imprisonment is a period of fifteen months and five months parole.

22 Accordingly, I would sentence the applicant to a non-parole period of fifteen months, commencing on 20 May 1999 and concluding on 19 August 2000, and to a parole period of five months, commencing on 20 August 2000 to conclude on 19 January 2001. I would further direct that at the end of the non-parole period the applicant be released to parole.

23 BRUCE JAMES J: I agree with the judgment of Dowd J, and the orders of the Court will be in accordance with the orders proposed by His Honour.

24 The earliest date on which the applicant would be eligible for release on parole would be 20 August 2000. The Court shall make an order directing the release of the applicant on parole at the end of the non-parole period.

oOo