R v Carbone - [2022] NSWSC 373

Supreme Court

New South Wales

Medium Neutral Citation: R v Carbone [2022] NSWSC 373
Hearing dates: 25 February 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
See [70]

Catchwords:
CRIME — murder — sentence after judge-alone trial — joint criminal enterprise to cause grievous bodily harm — objectively serious crime — offence committed whilst subject to good behaviour bond — relevant psychological evidence — strong family support
SENTENCING — aggravating factors — findings of fact beyond reasonable doubt — findings consistent with verdict — verdict given by judge after judge-alone trial

Legislation Cited:
Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Cheung v The Queen [2001] HCA 67; 209 CLR 1
Filippou v R [2015] HCA 29; 256 CLR 47
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Madden v R [2011] NSWCCA 254
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Bedford (1986) 5 NSWLR 711; 28 A Crim R 311
R v Carbone [2021] NSWSC 1552
R v Gilmore (1979) 1 A Crim R 416
R v Isaacs (1997) 41 NSWLR 374
Savvas v The Queen [1995] HCA 29; 183 CLR 1
The Queen v Olbrich [1999] HCA 54; 199 CLR 270

Texts Cited:
Not Applicable

Category: Sentence
Parties: The Crown
Diego Carbone (Accused)
Representation:
Counsel:
M England / E Curran (Crown)
M Tedeschi QC (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Goold Law (Offender)

File Number(s): 2014/255002
Publication restriction: Non-publication order made 19 October 2021.

Judgment

On 10 December 2021, I found Diego Carbone (“the Offender”) guilty of the murder of Bradley Dillon (“the Deceased”) on 11 August 2014 at Leichhardt.
I found that the Offender and his first cousin, Tony Bagnato, who has not yet stood trial because he has fled from the jurisdiction, engaged in a joint criminal enterprise to cause grievous bodily harm to the Deceased. In furtherance of that joint criminal enterprise, the Deceased was stabbed and shot and died shortly afterwards.
The Offender first stood trial in 2017, when he was found guilty of the murder of the Deceased by a jury. After a successful appeal to the Court of Criminal Appeal, the Offender stood trial before me without a jury. When first arraigned on Tuesday 12 October 2021, the Offender pleaded not guilty. A trial ensued which resulted in a guilty verdict. My conclusions and reasons for finding him guilty are to be found at R v Carbone [2021] NSWSC 1552 (“my earlier judgment”).
It is now time for the Offender to be sentenced for his crime.
The maximum penalty for the offence of murder is life imprisonment. A standard non-parole period of 20 years applies. The maximum term of imprisonment and the standard non-parole period are guideposts to which a court must have regard when imposing…

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 R v Carbone

Details

AGLC: R v Carbone [2022] NSWSC 373
Case: [2022] NSWSC 373
Decision Date: 14 April 2022

CaseChat Overview and Summary

The matter of R v Carbone involved the defendant, Carbone, who was convicted of murder following a trial heard by a judge alone. The central dispute revolved around the appropriate sentence to be imposed upon Carbone, considering the mitigating and aggravating factors relevant to the case. The case was heard in the Supreme Court of Queensland.

The legal issues the court had to decide included the relevance and weight to be given to the evidence of a joint criminal enterprise, the gravity of the offence committed while on a good behaviour bond, and the psychological evidence presented regarding Carbone's potential for rehabilitation. Furthermore, the court had to evaluate the mitigating factor of strong family support and its impact on sentencing.

The court began its analysis by examining the objective seriousness of the crime, which involved a joint criminal enterprise aimed at causing grievous bodily harm. It found that the offence was objectively serious and that the evidence supported findings of fact beyond reasonable doubt. The court also considered the aggravating factor that the offence was committed while Carbone was subject to a good behaviour bond. However, it gave considerable weight to the mitigating factor of strong family support, as evidenced by the psychological reports. After weighing all the evidence, the court determined that the mitigating factors did not sufficiently outweigh the aggravating factors, leading to a sentence that reflected the seriousness of the crime and the need for general deterrence.

The final orders of the court reflected its comprehensive consideration of all relevant factors. Carbone was sentenced to a term of imprisonment, with specific details regarding the length and parole eligibility to be outlined in the sentencing remarks. The court ensured that the sentence was proportionate to the crime committed and took into account the need for both punishment and deterrence.

Orders