| 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…
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- Carbis v The King [2023] VSCA 285
- Case
- [2023] VSCA 285
- Decision Date
CaseChat Overview and Summary
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.
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