R v Cardoso [2003] NSWCCA 15

Reported Decision : 137 A Crim R 535

New South Wales Court of Criminal Appeal

CITATION : R v Cardoso [2003] NSWCCA 15 HEARING DATE(S) : 21/11/02 JUDGMENT DATE : 20 February 2003

JUDGMENT OF : Meagher JA at 1; Hidden J at 2; Greg James J at 26 DECISION : See para 25

CATCHWORDS : CRIMINAL LAW: Sentence - manslaughter - jury verdict after trial for murder - pre-trial offer of plea to manslaughter - whether offender entitled to utilitarian value as if plea accepted. LEGISLATION CITED : Crimes Act, 1900 Crimes (Sentencing Procedure) Act 1999 R v Thomson and Houlten (2000) 49 NSWLR 383 R v Oinonen [1999] NSWCCA 301 CASES CITED : R v Sharma (2002) 54 NSWLR 300 Cameron v The Queen (2002) 187 ALR 65 R v Morton [1986] VR 863 R v Pennisi [2001] NSW CCA 326 PARTIES : Regina Calisto Cardoso FILE NUMBER(S) : CCA 60631/2001 COUNSEL : E Wilkins - Crown TA Game SC - Applicant SOLICITORS : SE O'Connor - Crown D J Humphreys - Applicant

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70078/00 FILE NUMBER(S) : LOWER COURT Hulme J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL

60631/2001

MEAGHER JA HIDDEN J GREG JAMES J

Thursday, 20 February, 2003 REGINA v Calisto CARDOSO judgment 1 MEAGHER JA: I have read in draft the judgment of Hidden J in this matter. I disagree with it. I can detect no error in the remarks on sentence of Hulme J. The atrocities committed by the Indonesians in East Timor cannot constitute a ground of appeal. In my view, the application should be dismissed. 2 HIDDEN J: The applicant, Calisto Cardoso, was tried before Hulme J and a jury upon an indictment charging him with the murder of Abilio Nunes on 25 December 1999. The jury found him not guilty of murder but guilty of manslaughter. He was sentenced to imprisonment for eight years, to date from his arrest on 16 December 1999, with a non-parole period of five years. He seeks leave to appeal against that sentence. 3 At the trial the applicant had sought an outright acquittal on the basis of self-defence. Manslaughter had been left to the jury in three alternative ways: provocation, substantial impairment by abnormality of mind, or lack of the intent requisite for murder. His Honour sentenced the applicant upon the basis that he had the intention to inflict grievous bodily harm, rather than to kill, and was acting under provocation.