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…

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

Case: [2000] NSWCCA 353
Decision Date: 7 August 2000

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.

Orders