Cubillos v The Queen - [2011] VSCA 380

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0185
YACHYN CUBILLOS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2011
DATE OF JUDGMENT/ORDER:	9 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 380
JUDGMENT APPEALED FROM:	County Court at Melbourne, Judge Tinney, 15 July 2011

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CRIMINAL LAW – Sentence – Convicted of causing serious injury recklessly – Acquitted of 5 other charges – Trial judge entitled to determine that all injuries sustained by victim attributable to charge of causing serious injury recklessly – Sentence of 15 months’ imprisonment with 10 months suspended not manifestly excessive – Application for leave to appeal heard together with appeal – Application for leave to appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Wheelahan	James Dowsley and Associates
For the Respondent	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will invite Forrest AJA to deliver the first judgment.

T FORREST AJA:

On 24 May 2011 the applicant was convicted of causing injury recklessly to Ms Salena Salfate on 10 May 2009. He was acquitted by the jury of charges of intentionally causing injury, indecent assault, making a threat to kill Ms Salfate, making a threat to inflict serious injury to her and false imprisonment.

On 15 July 2011 the applicant was sentenced to 15 months’ imprisonment on the causing injury recklessly conviction. Ten months of this sentence was suspended. The applicant will have served the unsuspended portion of his sentence in a little over a month from now. It is for this reason that the application for leave to appeal is to be heard with the substance of the appeal itself.

The applicant seeks leave to appeal against sentence on two grounds:

(a)That the total sentence is manifestly excessive.
(b)That the learned sentencing judge erred in determining that all the injuries sustained by the victim and identified by medical examination were attributable to the conduct covered by the sole charge for which the applicant was found guilty; namely causing injury recklessly.

Factual background

The incidents that gave rise to the applicant’s conviction occurred at around 6.00 am on 10 May 2009. The applicant had encountered Ms Salfate at the Tankerville Arms Hotel at about 3.00 am. They had previously conducted a relationship. They left for the applicant’s nearby flat shortly before 6.00 am. The applicant had invited Ms Salfate to his flat for a coffee. Two other men accompanied them to the flat but left after a few minutes. The applicant initially sat on one couch and Ms Salfate on another. He invited Ms Salfate to sit next to him but she declined.

He grabbed her left arm[1] and he forced her to sit next to him. Ms Salfate sat on the edge of the couch facing away from the applicant. She described being taken in a ‘bear hug’ by the applicant. He said ‘Give me…

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 Cubillos v The Queen

Details

AGLC: Cubillos v The Queen [2011] VSCA 380
Case: [2011] VSCA 380
Decision Date: 9 November 2011

CaseChat Overview and Summary

In the matter of Cubillos v The Queen, the defendant, Cubillos, was convicted of causing serious injury recklessly. The case was heard and determined in the High Court of Australia. Cubillos was acquitted of five other charges, but the court found him guilty of causing serious injury to the victim. The primary legal issue the court had to decide was whether the trial judge was correct in determining that all the injuries sustained by the victim were attributable to the charge of causing serious injury recklessly. Additionally, the court had to consider whether the sentence of 15 months' imprisonment, with 10 months suspended, was manifestly excessive.

The court found that the trial judge's determination that all injuries were attributable to the charge of causing serious injury recklessly was a reasonable conclusion based on the evidence presented. The court further held that the sentence imposed was not manifestly excessive, taking into account the nature and circumstances of the offence and the need for deterrence and rehabilitation. The court noted that the trial judge had considered various factors, including the defendant's background, the impact on the victim, and the principles of sentencing in reaching the decision. As such, the sentence was deemed appropriate and within the range of acceptable punishments for the offence.

Consequently, the court dismissed the application for leave to appeal. The High Court affirmed the conviction and sentence imposed by the trial judge. The court's decision underscores the importance of the trial judge's discretion in assessing the totality of the evidence and the appropriate punishment for the offence. The ruling also highlights the principle that appellate courts will only interfere with a sentence if it is manifestly excessive or inadequate.

Orders