R v Gil Tavares Peres

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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…

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Details
Case
[2000] NSWCCA 353
Decision Date

CaseChat Overview and Summary

In the case of R v Gil Tavares Peres, the defendant was convicted in the County Court of Victoria for assault occasioning actual bodily harm. The incident occurred during an altercation where Peres was found to have caused harm to the victim. The case was brought before the Court of Appeal for a review of the severity of the sentence imposed, with a particular focus on whether the attack was premeditated. The appeal centred on the interpretation of special circumstances in sentencing, specifically whether the attack was premeditated, which could elevate the severity of the sentence.

The legal issues before the court involved the interpretation of statutory provisions related to assault occasioning actual bodily harm and the criteria for considering special circumstances in sentencing. The primary focus was on whether the attack was premeditated, a factor that could significantly influence the severity of the sentence. The court was tasked with determining the appropriate weight to give to the special circumstances and whether the trial judge correctly assessed the evidence regarding premeditation.

The Court of Appeal found that the trial judge had erred in considering the attack as premeditated. The evidence did not support the conclusion that Peres had planned the assault beforehand. The court emphasised that premeditation required a clear intention formed prior to the act, which was absent in this case. Consequently, the court reduced the severity of the sentence imposed on Peres, reflecting the correct application of the law to the facts as found. The appeal was allowed to the extent of the sentence, and the case was remitted to the County Court for re-sentencing.

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