Elton Corbitt (a pseudonym) v The King - [2025] VSCA 73

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0002

ELTON CORBITT (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2025
DATE OF JUDGMENT:	11 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 73
JUDGMENT APPEALED FROM:	[2023] VCC 2416 (Judge Moglia)

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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to family violence offences – Applicant pleaded guilty on second indictment to home invasion, causing injury intentionally and theft – Sentenced on causing injury intentionally to one year and ten months’ imprisonment – Sentenced on second indictment to total effective sentence of five years and 1 months’ imprisonment – Whether judge erred as to factual basis of offence of causing injury intentionally – Whether judge erred as to assessment of applicant’s moral culpability for same – Whether sentences imposed on second indictment are manifestly excessive – Judge made no error – Sentences not manifestly excessive – Application for leave to appeal refused.

R v Miller [1995] 2 VR 348; Berichon v The Queen (2013) 40 VR 490 referrred to.

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Counsel
Applicants:		Mr C Mylonas
Respondent:		Mr R Gibson KC
Solicitors
Applicants:	RLG Legal & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KAYE JA:

The applicant pleaded guilty to numerous offences across two indictments. Following a plea hearing on 17 October 2023, he was sentenced on 8 December 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation	Cumulation on global base sentence
Indictment N11430788
1	Contravention of order intending to cause harm or fear for safety[1]	5 years’ imprisonment and/or 600 penalty units	12 months	4 months	10 months
2	Causing injury recklessly[2]	5 years’ imprisonment	12 months	4 months
3	Contravention of order intending to cause harm or fear for safety[3]	5 years’ imprisonment and/or 600 penalty units	18 months	Base
4	Common Assault[4]	3 months’ imprisonment or 15 penalty units
5	Causing injury intentionally[5]	10 years
6	Contravention of order intending to cause harm or fear for safety[6]	5 years’ imprisonment and/or 600 penalty units	10 months	3 months
7	Causing injury recklessly[7]	5 years	10 months	3 months
8	Contravention of order intending to cause harm or fear for safety[8]	5 years’ imprisonment and/or 600 penalty units	2 months	Nil
9	Common Assault[9]		2 months	Nil
10	Make threat to kill[10]	10 years	3 months	Nil
11	Contravention of order intending to cause harm or fear for safety[11]	5 years’ imprisonment and/or 600 penalty units	8 months	Nil
Total Effective Sentence on Indictment		2 years 1 month			–
Indictment C2215510
1	Home invasion[12]	25 years	4 years 3 months	Base	–
2	Causing injury intentionally[13]	10 years	1 year 10 months	7 months	–
5	Theft[14]	10 years	6 months	Nil	–
6	Theft[15]	10 years	8 months	3 months	–
Total Effective Sentence on Indictment		5 years 1 month			Global base sentence
Related summary charge
27	Contravention of order intending to cause harm or fear for safety[16]	5 years’ imprisonment and/or 600 penalty units

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.

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Details

Case: [2025] VSCA 73
Decision Date: 11 April 2025

CaseChat Overview and Summary

Elton Corbitt, the appellant, appealed against his conviction and sentence imposed by the County Court for various criminal offences. Corbitt had entered a guilty plea to charges of family violence and subsequently to charges of home invasion, causing injury intentionally, and theft. The court sentenced him to one year and ten months’ imprisonment for the offence of causing injury intentionally and a total effective sentence of five years and one month for the second indictment. The primary issues before the court were whether the judge erred in the factual basis of the offence of causing injury intentionally, whether the judge erred in the assessment of Corbitt’s moral culpability for the same offence, and whether the sentences imposed on the second indictment were manifestly excessive.

The court thoroughly examined the evidence and concluded that the judge had not erred in the factual basis or assessment of moral culpability for the offence of causing injury intentionally. It was held that the judge had correctly understood the circumstances and the nature of the offence. Additionally, the court found that the sentences imposed were not manifestly excessive, considering the cumulative effect of the offences and the need for deterrence and denunciation. The court cited previous cases such as R v Miller and Berichon v The Queen to support its reasoning.

In light of the above, the court held that the appeal was without merit. Therefore, the application for leave to appeal was refused. This decision underscores the importance of a detailed examination of the facts and the proportionality of sentences in criminal cases.

Orders