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Carbis v The King

Carbis v The King

Case [2023] VSCA 285 29 November 2023

Appeal

Intentional Causing of Serious Injury

Mens Rea & Intention

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0101

DAVID SAMUEL CARBIS	Appellant
v
THE KING	Respondent

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JUDGES:	MACAULAY, OSBORN, and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF JUDGMENT:	29 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 285
JUDGMENT APPEALED FROM:	[2022] VCC 1075 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – Appellant inflicted multiple deep stab wounds with a knife to the chest of victim – Life-endangering injuries – Whether judge erred in finding appellant intended to cause really serious injuries – Whether judge used finding as an aggravating factor to increase appellant’s moral culpability beyond what was contained within the ambit of the appellant’s plea of guilty – Judge’s finding did not go beyond appellant’s admitted intention to cause serious injuries which endangered life – Appeal dismissed.

Crimes Act 1958 s 16.

R v Westaway (1991) 52 A Crim R 336, DPP v Fevaleaki (2006) 165 A Crim R 524, Royall v The Queen (1991) 172 CLR 378, DPP v Lepoidevin [2003] VSCA 61, applied; DPP v Terrick (2009) 24 VR 457, Nash v The Queen (2013) 40 VR 134, Brown v The Queen [2018] VSCA 328, distinguished.

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Counsel
Appellant:		Mr PJ Smallwood Mr J Barrera
Respondent:		Ms J Warren
Solicitors
Appellant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
OSBORN JA
WHELAN JA:

In July 2022, the appellant pleaded guilty in the County Court to one charge each of causing injury intentionally, aggravated burglary and causing serious injury intentionally.
On 7 July 2022, the appellant was sentenced by his Honour Judge Tinney as follows:

Charge

Offence

Maximum

Sentence

Cumulation

Indictment

1.

Causing Injury Intentionally

contrary to s 18 of the Crimes Act 1958

10 years’

imprisonment

30 months’

imprisonment

15 months’

imprisonment

2.

Aggravated Burglary –

Offensive Weapon contrary to s 77 of the Crimes Act 1958

25 years’

imprisonment

4 years’

imprisonment

15 months’

imprisonment

3.

Causing Serious Injury

Intentionally contrary to s 16 of the Crimes Act 1958

20 years’

imprisonment

8 years’

imprisonment

Base

Related Summary Offence

4.

Commit Indictable Offence whilst on Bail contrary to s 30B of the Bail Act 1977

30 penalty units or 3 months’

imprisonment

7 days’

imprisonment

Nil

Total Effective Sentence

10 years, 6 months’ imprisonment

Non-Parole Period:

7 years, 6 months’ imprisonment

Pre-Sentence Detention declaration

435 days

Section 6AAA Statement:

13 years, 6 months’ imprisonment with a non-parole

period of 10 years, 6 months’ imprisonment

Other relevant orders:

Disposal order (wooden handled fold out knife)

Following the grant of leave by T Forrest JA, the appellant now appeals the head sentence imposed with respect to the offence of intentionally causing serious injury.
The premise of the appellant’s case is that the judge found that the appellant offended with an intention which went beyond the appellant’s admitted intent to cause serious injury and that this finding constituted a finding of an…

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.

Continue reading Carbis v The King

Details

AGLC: Carbis v The King [2023] VSCA 285
Case: [2023] VSCA 285
Decision Date: 29 November 2023

CaseChat Overview and Summary

The appellant, Carbis, appealed against his sentence for intentionally causing serious injury, contending that the trial judge erred in finding he intended to cause really serious injury and that this finding was used as an aggravating factor to increase his moral culpability beyond what was contained within the ambit of his plea of guilty. The case was heard in the Court of Appeal of Victoria. The central issue for the court was whether the trial judge’s finding of intent to cause really serious injury was justified and whether it was appropriately used as an aggravating factor in sentencing. The court considered whether the judge’s finding went beyond the appellant’s admitted intention to cause serious injuries which endangered life.

The Court of Appeal examined the trial judge's sentencing remarks and the evidence presented during the trial. It was noted that the appellant had admitted to intending to cause serious injuries which endangered life. The court held that the judge’s finding that the appellant intended to cause really serious injury did not go beyond the appellant’s admitted intention. The court found that the judge’s consideration of the appellant's intention to cause really serious injury was consistent with the appellant's plea of guilty, and therefore, the finding did not increase the appellant’s moral culpability beyond what was inherent in the plea. The appeal was dismissed, with the court reaffirming the principles from relevant authorities such as DPP v Terrick and Nash v The Queen.

The court concluded that the sentence imposed was appropriate and the trial judge did not err in his sentencing considerations. The appeal was dismissed, and the original sentence stood. The court found no merit in the appellant’s argument that the judge’s finding increased his moral culpability beyond the scope of his plea of guilty.

Orders