JUDGES:	OSBORN and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF JUDGMENT:	29 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 289
JUDGMENT APPEALED FROM:	[2022] VCC 2033 (Judge Tinney)

---

CRIMINAL LAW – Leave to appeal – Sentence – Intentionally causing serious injury – Whether judge erred by finding premeditation – Whether judge erred in finding intention to cause really serious injury – Whether judge gave insufficient weight to applicant’s childhood deprivation – Whether sentence manifestly excessive – Leave to appeal refused.

Crimes Act 1958 s 16.

Bugmy v The Queen (2013) 249 CLR 571; Carbis v The King [2023] VSCA 285; DPP v Herrmann [2021] VSCA 160; Lukudu v The Queen [2019] VSCA 248; Packard (a pseudonym) v The Queen [2021] VSCA 56; Sabbatucci v The Queen [2021] VSCA 340; Smith v The Queen [2020] VSCA 159.

---

Counsel
Applicant:		Ms K Farrell
Respondent:		Ms J Warren
Solicitors
Applicant:	Nelson Brown Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

OSBORN JA
WHELAN JA:

On 10 November 2022, the applicant pleaded guilty in the County Court to one charge of intentionally causing serious injury; one charge of recklessly causing injury; and two summary charges, namely, committing an indictable offence whilst on bail and possessing a controlled weapon.
The applicant was sentenced on 21 November 2022 as follows:

Charge Offence Maximum Sentence Cumulation

1 Intentionally causing serious injury[1] 20 years’ imprisonment 11 years Base

2 Recklessly causing injury[2] 5 years’ imprisonment 2 years and 6 months 12 months

Summary Charge 11 Commit indictable offence whilst on bail[3] 30 penalty
units or 3
months’
imprisonment 7 days Nil

Summary Charge 6 Possess a controlled weapon without lawful excuse[4] 120 penalty
units or 12
months’
imprisonment 3 days Nil

Total Effective Sentence: 12 years’ imprisonment

Non-Parole Period: 8 years and 6 months’ imprisonment

Section 6AAA Statement: 14 years and 6 months’ imprisonment with a non-parole period of 11 years
[1]Contrary to s 16 of the Crimes Act 1958.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to s 30B of the Bail Act 1977.
[4]Contrary to s 6(1) of the Control of Weapons Act 1990.

Grounds of appeal

The applicant seeks leave to appeal against sentence on the following proposed grounds:[5]
1.The Learned Sentencing Judge erred in finding that the offending was premeditated, and that the applicant intended to cause really serious injury.
2.The Learned Sentencing Judge did not give sufficient weight to the Applicant’s deprived upbringing and the application of the Bugmy principles.
3.The sentences imposed on charges 1 and 2, the total effective sentence of imprisonment and non-parole period are manifestly excessive and outside the range of sentences reasonably open in the circumstances.
[5]For ease of reference we will hereafter refer to the proposed grounds as grounds.

Circumstances of the offending

The victim…

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 Dhal v The King

Details

AGLC: Dhal v The King [2023] VSCA 289
Case: [2023] VSCA 289
Decision Date: 29 November 2023

CaseChat Overview and Summary

Dhal was convicted for intentionally causing serious injury to another person, and the matter is now before the court for a decision on leave to appeal. The central issue in this case is whether the trial judge erred in several respects during the sentencing process. Specifically, the applicant contends that the trial judge was incorrect in finding that the applicant had premeditated the crime, in finding that the applicant intended to cause really serious injury, and in not adequately considering the impact of the applicant's deprived childhood on his actions. Furthermore, the applicant argues that the sentence imposed is manifestly excessive.

The court, in reviewing the case, found that the trial judge had carefully considered the evidence and the sentencing principles applicable to this case. The court held that the judge was correct in finding premeditation and intention to cause serious injury, based on the clear evidence presented. Regarding the applicant's childhood deprivation, the court noted that while it was a mitigating factor, it did not negate the seriousness of the crime. The court also found that the sentence was proportionate to the severity of the crime and the need to protect society, and was not manifestly excessive. Consequently, the application for leave to appeal was refused.

Orders