Carbis v The King

[2023] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0101

DAVID SAMUEL CARBIS	Applicant
v
THE KING	Respondent

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JUDGES:	T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2023
DATE OF JUDGMENT:	3 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 38
JUDGMENT APPEALED FROM:	[2022] VCC 1075 (Judge Tinney)

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CRIMINAL LAW – Application for leave to appeal – Intentionally causing serious injury – Whether sentencing judge treated intention as aggravating feature of offence – Unclear whether judge treated intention as aggravating feature of offence – Leave to appeal granted.

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Counsel
Applicant:		Mr P J Smallwood and Mr J Barrera
Respondent:		Mr J C J McWilliams
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

1. I propose to grant leave in this matter. The sentencing judge in passing sentence for an offence of intentionally causing serious injury made the following statement:

   This was a deliberate, ruthless, armed attack. I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.[1]

   [1]DPP v David Samuel Carbis [2022] VCC 1075, [122] (Tinney J).

2. The applicant contends, amongst other things, that by adopting this language it is clear that the judge treated this intention as an aggravating feature of the offence of intentionally causing serious injury. He points to an intention that was, according to the judge above, more criminally culpable, and beyond the statutory intention inherent in the applicant’s plea of guilty to the offence.

3. The offence of intentionally causing serious injury is committed where an applicant causes serious injury and intends to do so. Since 2013, ‘serious injury’ has been defined relevantly in s 15 of the Crimes Act 1958 as follows:

   (a)an injury (including the cumulative effect of more than one injury) that

   (i)       endangers life; or

   (ii)      is substantial and protracted.

4. This was an expansive redefining of the term which substantially raised the threshold for serious injury. The short point raised by the applicant is that his doubtless highly criminal actions were completely captured by his plea and it was not open to the judge to treat his intention as an aggravating feature. His intention was inherent in his plea of guilty to the offending conduct.

5. The respondent contends that the sentencing exercise for this type of offending necessarily involves, as it must under the Sentencing Act 1991, an evaluation of an accused’s actual intention when considering the objective gravity of the offending and the judge here was simply doing that. It was not a finding of an aggravating feature but simply a factual finding adverse to the applicant on the objective gravity of the offence charged. Put another way, the respondent says if the judge was saying no more than this was a serious example of this type of offence, he was correct in saying so.

6. In my view it is unclear from his Honour’s language as to whether he was using his finding of an intention to cause really serious injury as an aggravating feature; if he was, I consider it to be arguable that his Honour impermissibly used it to increase the applicant’s moral culpability in his evaluation of the objective gravity of the offending beyond what was contained within the ambit of his plea of guilty.

7. In those circumstances I propose to grant leave to appeal. In granting leave I ought not be taken to have reached any conclusion on whether a different sentence ought be passed. The order of the Court will be that leave to appeal is granted.

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