R v Gil Tavares Peres [2000] NSWCCA 353

R v Gil Tavares Peres [2000] NSWCCA 353

Although the assault was serious and savage, it was unplanned and unpremeditated. The sentencing judge erred by adopting a starting point of four years penal servitude, which was too high for an unplanned, unpremeditated attack. Leave was granted, the appeal allowed, and the applicant was re-sentenced to a total term of twenty months imprisonment with a non-parole period of fifteen months and a parole period of five months.

Jurisdiction
Australia
Judgment Date
07 August 2000
Procedural Posture
Severity Appeal Assault Occasioning Actual Bodily Harm / Application for Leave to Appeal Against Sentence
Outcome
Leave granted; appeal allowed; applicant re-sentenced.
Legal Topics
['assault Occasioning Actual Bodily Harm' 'severity Appeal' 'special Circumstances' 'non Premeditated Attack' 'imprisonment' 'parole']
['criminal Law' 'sentencing' 'criminal Procedure'] ['assault Occasioning Actual Bodily Harm' 'severity Appeal' 'special Circumstances' 'non Premeditated Attack' 'imprisonment' 'parole']

Case Brief

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Procedural Posture

Severity Appeal Assault Occasioning Actual Bodily Harm / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge gave adequate weight to the fact that the offence was not premeditated.' "Whether the sentencing judge gave sufficient weight to the applicant's period on bail without re-offending as relevant to rehabilitation." 'Whether the sentence was at the top of the range and excessive.' 'Whether special circumstances should have been found.' "Whether the sentencing judge's starting point of four years penal servitude was too high."]

Ratio Decidendi

Although the assault was serious and savage, it was unplanned and unpremeditated. The sentencing judge erred by adopting a starting point of four years penal servitude, which was too high for an unplanned, unpremeditated attack. Leave was granted, the appeal allowed, and the applicant was re-sentenced to a total term of twenty months imprisonment with a non-parole period of fifteen months and a parole period of five months.

Court Disposition

Leave granted; appeal allowed; applicant re-sentenced.

Orders

  • ['Leave granted.' 'Appeal allowed.' 'The applicant is sentenced to a non-parole period of fifteen months, commencing on 20 May 1999 and concluding on 19 August 2000.' 'The applicant is sentenced to a parole period of five months, commencing on 20 August 2000 to conclude on 19 January 2001.' 'The applicant is to be...