Gilbert v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0126

MARK GILBERT	Applicant
v
THE KING	Respondent

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JUDGE:	Taylor JA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2025
DATE OF JUDGMENT:	28 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 83
JUDGMENT APPEALED FROM:	[2024] VCC 347 (Judge Tinney)

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APPLICATION FOR EXTENSION OF TIME IN WHICH TO SEEK LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Theft, dangerous driving causing serious injury and fail to render assistance – Whether judge unilaterally aggravated the factual basis of the plea by going behind the agreed summary – Whether judge impermissibly relied upon opinion evidence – No error – Leave for extension of time refused.

Madafferi v The Queen [2017] VSCA 302, applied.

Weininger v R (2002) 212 CLR 629; Ristevski v The Queen (2011) 31 VR 93; R v Bunning [2007] VSCA 205; R v Lowe [2009] VSCA 268; DPP v Walsh (a pseudonym) [2018] VSCA 172; Qayyum v The King [2025] VSCA 14, referred to.

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Counsel
Applicant:		Mr D Rofe
Respondent:		Mr J Dickie
Solicitors
Applicant:	Chester Metcalfe & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

An indictment filed in the County Court charged the applicant with theft, dangerous driving causing serious injury and fail to render assistance. On 5 December 2023 the applicant entered a plea of guilty to the related summary offence of unlicensed driving. On 15 March 2024 he entered a plea of guilty to each of the charges on the indictment. On 21 March 2024 he was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft[1]	10 years	12 months	4 months
2	Dangerous driving causing serious injury[2]	5 years	3 years 6 months	2 years
3	Fail to render assistance[3]	1200 penalty units or 10 years	4 years 3 months	Base
Related Summary Offences
5	Drive a motor vehicle without holding a driver licence[4]	60 penalty units or 6 months	3 months	N/A
Total Effective Sentence:		6 years 8 months
Non-Parole Period:		5 years 2 months
Pre-sentence Detention Declared:		716 days
Section 6AAA Statement:		Total Effective Sentence 8 years Non Parole-Period 6 years 6 months
Other Relevant Orders: With conviction order that all Victorian licences and/or permits held by the offender be cancelled and that the offender be disqualified from obtaining any such licence or permit for a period of: 1. 1 year (charge 1) 2. 4 years (charge 2) 3. 8 years (charge 3) from 21/03/2024.

[1]Contrary to s 74(1) of the Crimes Act 1958.

[2]Contrary to s 319(1A) of the Crimes Act 1958.

[3]Contrary to ss 61(1)(b), 61(3) of the Road Safety Act 1986.

[4]Contrary to s 18(1)(a) of the Road Safety Act 1986.

The applicant now seeks leave for an extension of time in which to file an application for leave to appeal against sentence on the following proposed ground:
Ground 1:The learned sentencing judge went behind the agreed summary and unilaterally aggravated the factual basis for the plea.
Particulars:
(i)The learned sentencing judge inserted the opinion/s of Mr Kazantziois into the factual basis of the plea.
The principles governing an application for an extension of time are well known.[5] The reasons for the delay and, particularly, the merits of the proposed appeal are examined to determine whether a grant of leave is in the interests of justice. Here the applicant relies upon an affidavit of his solicitor, Emily Maree Metcalfe, sworn 16 July 2024 to explain why the application for leave to appeal against sentence was filed some 90 days out of time. Notwithstanding those matters I have, for the reasons below, determined that the application for leave to appeal enjoys no prospect of success. Accordingly, leave for an extension of time in which to file an application for leave to appeal should be refused.
[5]Madafferi v The Queen [2017] VSCA 302 (Priest, Hansen and Coghlan JJA).

Summary of offending

The offending all occurred on 28 February 2022.
The applicant did not hold – and had never held – a Victorian driver licence.
At about 4:30 pm the applicant was driving a stolen 2020 Toyota CHR Wagon with fraudulent registration plates affixed.[6] He was the sole occupant of the Toyota which travelled south on Chenies Street, Kingsbury.
[6]The Toyota had been stolen in February 2022. It was not alleged that the applicant was responsible for that theft or fitting the vehicle with fraudulent registration plates.
Also at about that time Sian Radi was jogging on the footpath on Chenies Street.
Chenies Street is a two lane highway in a built up residential area. It has a 50 kmph speed limit. At the site of the collision, Chenies Street curves slightly to the left and has a traffic island separating opposing traffic. The footpath becomes a bridge with a metal side railing over Darebin Creek.
The applicant drove onto the incorrect side of Chenies Street and mounted the footpath. The Toyota collided with Ms Radi on the section of the footpath over Darebin Creek. The Toyota came to a complete stop after hitting the metal railing and sustained extensive front and side damage. A piece of its panel was caught between the damaged bars of the metal railing. Later reconstruction of the scene established that 4.6 seconds before impact the Toyota was 57 metres away. It travelled without any driver input until 0.6 seconds before the crash, when a sudden steering input to the right was applied about one metre from the bridge. The Toyota was travelling at 25 to 34 kmph when it hit Ms Radi. There was no evidence of braking prior to the collision.
The applicant exited the Toyota. He tried to pick up Ms Radi – then lying seriously and visibly injured on the footpath. This was not done to help her, but simply to move her to facilitate him to drive from the scene. The applicant tried to both push the Toyota and start it. At one point he tried to reverse it, producing smoke and shattering the mudguard. The applicant paced around the Toyota, yelling and swearing. He asked one of the persons on the scene then assisting Ms Radi – a Mr Kazantziois – to help him move his car.
The applicant rendered no assistance to Ms Radi.
Instead he collected items from the Toyota and walked from the scene.
In response to numerous 000 calls, Ambulance Victoria paramedics and Victoria Police members arrived at the scene. Ms Radi was transported to Royal Melbourne Hospital. There she was treated for multiple system trauma. Ms Radi had fractures to her left and right acetabular (hip), left L5 sacral alar (spine), right pubic bone and left pelvis. Her right hand had nailbed injuries. She had a left ankle abrasion, a graze to the left abdominal flank and a large (eight centimetre) right posterior scalp laceration. Ms Radi remined in hospital for 21 days. Her extensive medical treatment included surgery on her pelvis and hand.
Ms Radi suffers ongoing injury, including pelvic floor dysfunction. She has constant pain. Her tolerance for sitting and walking is limited. She is unable to work.
The applicant was arrested and remanded in custody on 5 April 2022.

The plea hearing

In advance of the plea hearing the prosecution filed a document entitled ‘Agreed Summary of Prosecution Opening for Plea Hearing’.[7] Prior to reading that document at the hearing, the prosecutor asked the judge to note that it was ‘an agreed summary’ and had ‘been the subject of some discussion and settling as between the parties’. Other documents filed prior to the plea were ‘Prosecution Submissions for Plea Hearing’ and defence ‘Written Submissions for Plea’.
[7]Criminal Procedure Act 2009, s 182.
At the commencement of the hearing the judge said that he had read the depositions. The judge said that, having done so, he thought that each party had ‘stumbled’ with respect to the expert report. This was a reference to the statement of Detective Senior Constable (‘DSC’) Yuxing Zhao of the Victoria Police Collision Reconstruction Unit. The page reference of the statement in the depositions was given in a footnote in the Agreed Summary. The relevant part of that summary read that
… at approximately 4.6 seconds before the collision, the vehicle was approximately 57 metres away from the collision scene on Chenies Street. The Toyota CHR Wagon travelled without any driver input for between 0.6 seconds and 4.6 seconds prior to the collision. (emphasis added)
Based upon that summary, the defence Written Submissions said
·    There was a lack of driver input from the Accused for a period of between 0.6 and 4.5 seconds;
·    The circumstances of the offending are a period of inattention followed by a disastrous ‘mis-correction’ (the sharp turn to the right);
·    Where the range is proposed in that manner, the Crown cannot establish that the inattention was more than 0.6 of a second, and consequently, the Court ought to sentence on the basis of that period.
The judge was correct that both parties had ‘stumbled’.
The expert report did not give a range of the period for which there might have been a lack of driver input, but rather the period for which that had actually been the case. That is, from 4.6 seconds to 0.6 seconds before impact. In other words, the applicant did not actively drive the car for 4 seconds leading up to the collision, during which the Toyota travelled 56 metres to a point one metre from the collision.
The prosecution accepted its error. Initially defence counsel was not minded to do so absent instructions and ‘given the way the matter resolved and was framed’. The judge allowed counsel to obtain instructions. The following exchange occurred.
His Honour: … They [the prosecution] have placed before me – I’ve read the depositional material and I’ll put you on notice that I have, all right. Now they have put before me the summary describing the event. It footnotes various things including the expert statement, doesn’t it?
Counsel:It does.
His Honour: So it’s incorporated into the document. There’s a – even the diagram within it – is reproduced from the expert statement that shows the line of travel and that we know the distance and we know the speed. It’s – if you’re asking me to sentence on the strength of a inattention for 0.6 seconds, how is it possible? On what is it founded, all right, on a non-existent range that has come into being, which isn’t a range. Does that sound a sensible way for me to sentence in this case. Because I won’t.
After further exchange, the judge allowed counsel to speak to the applicant. Upon court resuming counsel said that he did not rely on the parts of his Written Submissions reproduced at paragraph [18] above.[8]
[8]See also DPP v Gilbert [2024] VCC 347 (‘Reasons’) at [4], [18]–[22] in which the judge explained that the applicant was not sentenced on the basis of momentary inattention or a disastrous mis-correction.
It is not part of this application that the judge erred with respect to his correction of the parties’ ‘stumble’ over the import of the expert report by reference to the depositions.
Later during the plea hearing, defence counsel made submissions as to the date on which the applicant indicated an intention to plead guilty. Counsel said that certain witnesses were cross-examined at committal because initially the applicant denied that he was the driver of the Toyota. The following exchange occurred, with reference to certain matters in the depositions:
His Honour:    … there’s cross-examination of all these other witnesses who are actually going about the job and doing what your client should have done, actually assisting at the scene.
…
… so Mr Karantziois was cross-examined, and he’s the person who was assisting, as best he could, to – he thought Ms Radi had been killed, and then she was screaming on the footpath and he describes your client trying to push the car off the pathway, to take off.
Counsel:        Yes.
His Honour:    At 643: ‘So you saw somebody jumping in and out. When you say ‘jumping’ out of the vehicle, can you maybe take that step by step?’ ‘The door was open, he was getting back in the driver’s seat to put it in reverse to try and drive off and that wasn’t working’ and the agreed summary describes the, I think the smoke and spinning of the wheels.
Counsel:        Yes.
His Honour:    ‘He asked me to help him to push the car’ so this is your client.
Counsel:        Yes.
His Honour:    Whose duty it was to assist someone who’s on the ground asking the person who’s assisting to assist him remove the vehicle.
Counsel:        Yes.
His Honour:    I thought I’d seen everything in my 14 years as a judge, but I’m mistaken. And he went on to say, ‘The door was open, he was getting back in the driver’s seat to put it in reverse to try and drive off and that wasn’t working, so he asked me to help to push the car. I just want to state he did not give a single shit about the woman that was on the ground.’ He then described, at 645, ‘Putting it in reverse, revving the car, it wasn’t going anywhere, the lady was right next to the car. He was trying to accelerate out, trying to get out of the car, trying to push the car, trying to get it off the kerb.’ I mean it’s – and he described his – what he’s doing is attending to someone he thinks is in peril of dying and he says at 646 ‘I honestly thought, like her life was ending there and then, but with him trying to move the car and her screaming on the ground, I wasn’t paying too much attention to my surroundings’. What can possess someone to behave in the way your client did? It’s self-preservation, there’s nothing else that – but how can anyone behave in that way. It’s not someone just running from the scene, this is someone who, he’s dithering around on the phone, talking to someone that can’t be his brother, but whoever it is, he’s on the phone. He’s trying to move the car. He tried to actually move the person who’s been seriously injured. She’s got a spinal fracture, hasn’t she.
Counsel:        Yes.
His Honour:    And he’s trying to move her, so he can – what – get the car away, a stolen car. It’s incredible. And then trying to engage with someone who’s assisting her to get him to stop doing what he’s doing, to assist him to remove what he knows to be a stolen car. What’s going through his mind?
Counsel:        Beyond the concession that I made in written form, that he was seeking to engage in self-preservation and avoid apprehension and punishment, I can’t really add to that, your Honour.
(emphasis added)
The judge then observed that the plea of guilty was a ‘positive’ among the ‘fair few negatives’ and then said that he would ‘try and shut up’ to let counsel develop the plea. Counsel replied that he was ‘assisted by’ the judge raising issues that needed to be addressed. Counsel added that he made no submission that the applicant was genuinely remorseful.

Reasons

It is unnecessary for the purposes of this application to summarise the entirety of the Reasons. Rather, it is most convenient to reproduce the following passages.
First, the part of the Reasons where the judge described the applicant’s behaviour relevant to charge 3.
[6]By way then of brief summary, on 31 March 2022, you had no business being behind the wheel of any motor car. You were unlicensed. You always have been. Yet again, you ignored that clear impediment to driving. Yet again, you drove in such a manner as to place others at risk. Earlier that very day at Heidelberg Magistrates’ Court, you had been admitted to an adjourned undertaking for an offence of receiving stolen goods. That adjourned undertaking had conditions, including to be of good behaviour. Within hours, you were yet again behind the wheel of a stolen car. Regrettably on this occasions, it was not just the creation of some hypothetical or even actual risk posed by your driving. You ran completely off the road in broad daylight, crossing onto the wrong side of the road where you struck a young woman who was completing a charity run in aid of Oxfam. It was broad daylight about 4:23 pm. Dry, sunny, perfect conditions. There was nothing in the road design or the vehicle condition or the conduct of any other road user or the victim contributing to your conduct.
[7]This all occurred in a 50 kilometre per hour zone in Chenies Street in Kingsbury. This was a built-up residential zone. The road you were travelling on curved slightly to the left and there was a traffic island separating the two lanes. The collision scene was on a section of Chenies Road where the footpath becomes a bridge, with a metal railing spanning the Darebin Creek. You completely failed to take that left-hand bend. As I have said, you drove onto the incorrect side of the road and mounted the footpath and struck your victim, Ms Radi, who was jogging on the footpath. You hit her square on . Your vehicle collided into the metal railing.
[8]Ms Radi was seriously injured and obviously so. It is really quite amazing you did not kill her. Other drivers and some local residents came to assist. Your reaction at the scene almost defies description. You did not just slink off. You got out of the car and displayed no interest at all in your victim’s predicament. None. Incredibly, you showed more interest in removing ‘your’ car from the scene. I say ‘your’ car, but it was a stolen one.
[9]Unbelievably, you tried to pick her up, but this was not by way of providing assistance to her. You were trying to move her. You admit, by your plea, not providing any assistance. As we know now, she had a number of fractures, including a lumbar spinal fracture.
[10]You were trying to start the car, which you did and then endeavouring to reverse it off the footpath. You looked spaced out. At one point, you pestered one of those who was assisting your seriously injured victim, asking that person, Mr Kazantziois, to assist you to move your car. He described at the committal the state of play, how he thought her life was ending and the chaos at the scene with her screaming and you trying to get him to help you move the car. He described your lack of interest in Ms Radi’s predicament, though in a far brief and more direct manner saying at page 642 of the depositions, this is at the committal, ‘I just want to state that he did not give a single shit about the woman that (sic) was on the ground’. See pages 643, 645 and 647.
[11]This was really quite incredible behaviour. As I say, it was not even your car, Mr Gilbert. It was a stolen one. You were half in and out of the car at one point, trying to back it away. At another point, you tried to lift it from the front bumper bar. When in the car, at one point, you were accelerating the engine as such a rate as to produce smoke and move it back slightly and you shattered the mudguard into pieces doing so. At the scene you were swearing and yelling and looking frantic, panicked and agitated. You were seen to be talking on the phone and repeatedly mentioning your brother. I interpose, you do not have a brother. You collected some items and walked away whilst talking on your mobile phone.
[12]People were screaming out for you not to leave the scene. You ignored them and left, with Ms Radi, your victim, lying on the footpath seriously injured. You had done nothing at all to in any way assist her or those who were assisting her. Your conduct at the scene in the wake of an obviously seriously injured pedestrian, injured as a result of your conduct, simply beggars belief.
(emphases in original)
Second, the part of the Reasons where the judge considered the seriousness of that conduct and the applicant’s moral culpability for it.
[117]Your conduct in failing to render assistance was really quite extraordinary, as I said earlier in my remarks. Your moral culpability for that offence is high indeed. It is not mitigatory that others provided assistance for your victim (see the case of Bankal[9]). It was your duty to do what you could to assist. You knew that you had struck a pedestrian. You must have known she was seriously injured or likely to be. You got out. You could see her. You did not just silently slink away. You tried to pick her up but that was not to assist her. You tried to reverse the car away repeatedly. Rather than assisting her, you were focusing on self-protection and saving your own skin. Rather than assisting her in any way, you even distracted one of those who was trying to assist her, asking for her helper to stop doing what he was doing and assist you free up your stolen car. It really was incredible conduct.
[118]As Mr Kazantziois said, though not with these words, you really could not have cared less about her. You were on the phone, trying to move the car, and then moving items from the car and then leaving despite requests that you remain at the scene. This conduct was that of the man who had driven so dangerously. The mature man who was unlicensed and driving a stolen car. The mature adult with a terrible driving history including for failing to stop after an accident on no less than two occasions. You really had no regard at all for your victim’s welfare. You were only concerned as to your own predicament and you left to avoid apprehension and liability for your crimes.
[9]Bankal v The Queen [2019] VSCA 171.

Applicant’s contentions

The applicant contends that the opinion of Mr Karantziois expressed at committal – ‘I just want to state that he did not give a single shit about the woman that (sic) was on the ground’ – did not form any part of the Agreed Summary. None the less the judge quoted it in the Reasons[10] and referred to it a second time.[11]
[10]Reasons, [10].
[11]Reasons, [118].
It is argued in the applicant’s written case that in doing so, the judge ‘upset the agreed basis’[12] of the plea of guilty or impermissibly trespassed[13] beyond the boundaries created by the Agreed Summary. The applicant further argues that there was no factual dispute between the parties on the issue requiring resolution by the judge, therefore the judge should not have used material extraneous to the Agreed Summary.[14]
[12]Ristevski v The Queen (2011) 31 VR 93; [2011] VSCA 53 [9] (Maxwell P, Buchanan JA agreeing at [26], Bongiorno JA agreeing at [27]) (‘Ristevski’).
[13]R v Bunning [2007] VSCA 205 [3] (Kellam JA, Maxwell P agreeing at [1], Whelan JA agreeing at [58])(‘Bunning’).
[14]The applicant referred to R v Lowe [2009] VSCA 268 [14]–[18] (Neave and Redlich JJA and Hollingworth AJA) (‘Lowe’).
The argument made eschews any complaint of procedural unfairness. Rather the submission is that the judge, by referring to the opinion of Mr Karantziois, failed to follow the ‘correct’ approach to an agreed summary of facts and, accordingly, the applicant suffered substantial unfairness. That unfairness is contended to be the impermissible use of the opinion as an aggravating feature of the applicant’s conduct. At the hearing of the application, this argument was developed.
It was put that while it was open – on the agreed facts – for the judge to form a view of the applicant’s behaviour consistent with that expressed by Mr Karantziois at the committal, that was not what had occurred. The judge had not come to his own independent opinion. Rather, the judge had taken the opinion of Mr Karantziois and treated it as a fact that the applicant did ‘not give a shit’ and, further, used it as a lens through which his assessment of the facts were made. It was contended that in doing so, the judge impermissibly used Mr Karantziois’ opinion to ‘bump up’ the seriousness of the offending on charge 3.
The applicant further contends that had the opinion of Mr Karantziois not been considered, a different sentence would have been imposed. Alternatively, it is submitted that even if consideration of the opinion was not an aggravating feature, it was nonetheless erroneous and a different sentence should be imposed in all the circumstances.

Respondent’s contentions

The respondent contends that the judge did not go behind the agreed summary. Alternatively it is submitted that if the judge did, he did not do so unilaterally.
It is argued that the Agreed Summary was a summary only. The evidence of Mr Karintziois was included within it. In any event, the Agreed Summary is not the only basis upon which the judge was entitled to sentence the applicant. The judge made it plain that he had read the depositions and, during the plea hearing, clearly identified to defence counsel his view that the committal evidence of Mr Karantziois was relevant to the circumstances of the fail to render assistance charge.[15]
[15]DPP v Walsh (a pseudonym) [2018] VSCA 172 [72]–[73] (Maxwell P and McLeish JA) (‘Walsh’).
The respondent further contends that there is a logical inconsistency between the applicant’s complaint regarding the judge’s use of the depositional material of Mr Karantziois but not that of the expert report of DSC Yuxing Zhao.
As defence counsel did not dispute that the applicant had a ‘lack of interest in Ms Radi’s predicament’[16] the judge’s reference to Mr Karantziois’ opinion was only one particular expression of the applicant’s conduct relevant to the assessment of the gravity of the offending and his moral culpability for it. The judge did not impermissibly use that opinion to aggravate the seriousness of the offending.
[16]Reasons, [10].
Finally, the respondent submits that even if error is demonstrated, no different sentence should be imposed.

Consideration

By reference to authority, the applicant seeks to develop an argument as to the correct approach to be adopted by a sentencing judge when presented with agreed summary of facts. The applicant accepts that the judge afforded him procedural fairness. The argument is focussed solely upon substantial fairness. While the applicant contends that his argument is supported by High Court authority,[17] he relied primarily upon two decisions of this Court, namely Ristevski and Bunning. In both cases the Crown conceded an error which vitiated the exercise of the sentencing discretion.
[17]Particularly, Weininger v R (2002) 212 CLR 629 [23] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2023] HCA 14; and GAS v The Queen (2004) 217 CLR 198 [30], [42]–[44] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); [2004] HCA 22.
In Ristevski the judge concluded, contrary to the agreement between the parties, that a gun had been used to threaten a Mr Morgan and that action was an aggravating feature of the offending. Maxwell P said that a Crown summary was ‘almost invariably an agreed or negotiated factual basis’[18] for the pleas of guilty entered. Of three ‘significant considerations’ his Honour gave as standing against a sentencing judge departing from a Crown summary, the final consideration was that doing so would effectively upset the agreed basis of the plea of guilty. This, the applicant contends, is a caution against substantive – as opposed to procedural – unfairness. Maxwell P continued
It must, I think, be a rare case in which a judge will be entitled to question the basis upon which the Crown has decided to accept pleas of guilty. That is a matter for the prosecuting authority, not for the court. If, as this judge was told, the matter of the gun was not relied on as an aggravating factor, and on that basis pleas of guilty had been entered, with great respect I am unable to see why it was thought that there was any scope for that matter to be further investigated by the judge. The process of negotiating Crown summaries is conducive to the interests of justice, by facilitating the resolution of matters by guilty pleas rather than by trials.[19]
[18]Ristevski, [9].
[19]Ristevski, [10].
In Bunning the sentencing judge erred by having regard to unproven allegations which went beyond the circumstances of the offence to which the appellant had pleaded guilty. These allegations were not part of the statements of facts tendered on the plea hearing. The judge, who had not been told that that summary was an agreed statement of facts, used those allegations as aggravating matters of fact.[20]
[20]Bunning, [3],[5].
By analogy the applicant here characterises the judge’s reference to the impugned opinion of Mr Karantziois as a finding of fact that the applicant did not care about Ms Radi and/or a lens through which to come to his own view of the facts. Thereby the judge impermissibly ‘went beyond’ the agreed factual basis of the Agreed Summary and used an extraneous matter to aggravate the seriousness of the applicant’s offending.
The applicant’s argument cannot be accepted.
First, a judge is not inflexibly bound by an agreed statement of facts. The three ‘significant considerations’ identified by Maxwell P in Risteviski were expressed not in absolute terms but as matters ‘which stand against a sentencing judge departing from’[21] the Crown summary. Each case is fact specific. It is to be recalled that in that case, the judge’s use of the matter of the gun in sentencing was despite the prosecutor having explicitly informed her that the Crown did not contend that the seriousness of the offending was aggravated by the use of a gun in relation to Mr Morgan. Thus the first ‘significant consideration’ identified by Maxwell P was of procedural fairness. The second was an observation that where a fact in issue is contested, a finding beyond reasonable doubt is not open in the absence of cross examination.
[21]Ristevski, [9].
Further, as this Court in Lowe made plain,
In sentencing, the judge is not fettered by the facts upon which the parties rely. The judge may seek further facts from either party or may indicate that he or she intends to rely upon facts additional to those which the parties have put the court so long as it is done in accordance with ordinary legal principles appropriate to a criminal trial.[22]
[22]Lowe, [16] (footnotes omitted).
And, to reiterate, the applicant does not contend that he was denied procedural fairness.
Very recently this Court observed that
Lowe does not stand for a universal and inflexible principle that the judge is bound only by the facts contained in the indictment and prosecution opening. As is made clear in Lowe, the material available to a judge in determining an appropriate sentence varies depending on the circumstances of the case. If it becomes an issue, it is necessary to examine all the circumstances in which the plea of guilty was entered.[23]
[23]Qayyum v The King [2025] VSCA 14, [74] (Emerton P and J Forrest AJA).
Secondly, the argument that the footnotes to the evidence of Mr Karantziois in the Agreed Summary lacked a pinpoint reference to the impugned opinion – in contradistinction to the footnote to the period without driver input in DSC Zhao’s report – is a submission of form over substance.
Thirdly, the judge did not use the opinion of Mr Karantziois as an aggravating feature of the applicant’s offending. The judge was obliged to form an assessment of the gravity of the applicant’s conduct on charge 3. The applicant accepts that given his behaviour the judge could do little else than form the view that at the scene he gave absolutely no consideration to the welfare of Ms Kadi at all. That undoubtedly correct opinion is the same as that expressed by Mr Karantziois, it simply lacks the immediacy and punch of the vernacular used by him.
Both in discussion with defence counsel (reproduced in paragraph [24] above) and by its inclusion in the Reasons (reproduced in paragraphs [27] and [28] above), the judge was doing no more than using the apt, non-judicial words expressed by Mr Karantiziois to best convey the unfathomable callousness of the applicant’s behaviour. In doing so those words were not transmogrified from an extraneous opinion into a fact or substituted for the judge’s own opinion absent proper consideration of the facts.
Nor were those words used as a lens through which the judge made an assessment of the facts relevant to the offending. At the risk of repetition, in the exercise of his sentencing discretion it was necessary for the judge to consider the seriousness of the offending, including the applicant’s moral culpability. The applicant not only did nothing himself to assist Ms Kadi, he tried to divert Ms Karantiziois from assisting her to assist himself in order that he could flee the scene in the stolen car. If Mr Karantiziois had not expressed his opinion of the applicant’s attitude towards Ms Kadi, the judge inevitably would have come to the same opinion. Defence counsel did not seek to persuade the judge otherwise. The applicant’s counsel at the hearing of this application adopted the same position. No other opinion was reasonably open.
The judge did not go behind the Agreed Summary. He did not unilaterally aggravate the factual basis of the plea. The error contended is not made out.

Conclusion

The application for an extension of time in which to file an application for leave to appeal against sentence is refused.

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[2025] VSCA 83

28 April 2025