1. On the hearing of the plea, there was no dispute that the wounds were life-endangering or that given the site of the wounds and the seriousness of them this consequence was the deliberate result of the stabbing which the appellant inflicted.

1. The offence of intentionally cause serious injury requires the prosecution to prove:

(a) the victim suffered a 'serious injury';

(b) the accused caused the victim's serious injury;

(c) the accused intended to cause serious injury;

(d) the accused acted without lawful justification or excuse.

1. Since 1 July 2013, s 15 of the Crimes Act 1958 has included the following definitions:

injury means -

(a) physical injury; or

(b) harm to mental health -

whether temporary or permanent;

...

serious injury means -

(a) an injury (including the cumulative effect of more than one injury) that -

(i) endangers life; or

(ii) is substantial and protracted; or

(b) the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm.

1. It is not sufficient that the accused intended to do the act that injured the victim. The accused must have intended to cause serious injury.[5]
2. Likewise, it is not sufficient for an accused to have intended only to cause injury.[6]
3. An accused does not have to intended to cause the precise injuries that ultimately result. It is necessary that the accused intended to cause a serious injury and actually causes a serious injury.[7]
4. In DPP v Lepoidevin,[8] Cummins AJA (with whom Phillips CJ and Vincent JA concurred) said:

In my view the learned sentencing judge fell into error in treating as a mitigatory factor that the respondent had not intended to cause injuries of the actual character or magnitude of those sustained by the victim. The respondent, a strong young man, viciously attacked a 16 year old girl by punching, squeezing, banging her head against a metal seat, kicking her in the head and stomping on her face. He knew what he was doing. It was obvious his actions were likely to cause her very serious injury indeed. He told investigating police he intended to hurt her. His plea admitted that he intentionally caused her serious injury. In the circumstances it does not avail the respondent that he lacked the specificity of medically qualified prescience. He stood for sentence for intentionally causing serious injury, into which offence these circumstances fell. The maximum penalty of 20 years' imprisonment reflects the potentiality of the offence.[9]

1. The 2013 definition of serious injury reflects a material tightening of the concept of serious injury from that which previously applied to the offence in issue. Counsel for the appellant's written submissions summarised the relevant history. The current definition was introduced by the Crimes Amendment (Gross Violence Offences) Act 2013. The explanatory memorandum to the Bill for the Act stated:

The new definition of serious injury is an injury (including the cumulative effect of more than one injury) that endangers life or is substantial and protracted. This replaces the current reference to a serious injury including 'a combination of injuries'. The new definition raises the threshold for 'serious injury'. Under the new definition, an injury need not be permanent to be considered 'serious'. A broken jaw or a broken leg may constitute a 'serious injury' under this definition.

A very short-term life-endangering injury would also constitute a 'serious injury'. However the new definition requires more than the combination of two relatively minor injuries, such as minor abrasions or bruising. The combination of injuries in the cases of R v Welsh & Flynn [1987] VicSC 451 (cuts, a swollen inner lip, bruising of both eyes, bruising to the left forearm and a broken tooth) and R v Ferrari [2002] VSCA 186 (two black eyes with grazes around the top of the head and face) would not constitute a 'serious injury' under the new definition.[10]

1. In his Second Reading Speech, the then Attorney-General stated:

The bill introduces new definitions of 'injury' and 'serious injury' into the Crimes Act to replace the existing definitions in section 15. These definitions will apply to the new gross violence offences and to all other non-fatal offences against the person in the Crimes Act. The definitions derive from work on possible reforms to fatal and non-fatal offences that the Department of Justice has been undertaking for some time.

The Crimes Act currently defines serious injury as including a combination of injuries. This lack of detail has resulted in a very low threshold for offences involving serious injury. The new definition of serious injury will be an injury that endangers life or that is substantial and protracted. The injury need not be permanent to be considered 'serious'. However, it must be more serious than the combination of two relatively minor injuries, such as limited abrasions or bruising, as may currently constitute a serious injury. A broken jaw or a broken leg would constitute a 'serious injury' under the new definition, but two blackeyes would not.

Due to the low threshold for the existing serious injury definition, the Sentencing Advisory Council recommended that the new gross violence offences be based on a new definition of 'severe injury', which should be defined as long-term serious impairment or loss of a body function, long-term serious disfigurement or loss of a foetus. The bill does not adopt this approach. In the interests of clarity and simplicity, the bill introduces a single new definition of 'serious injury' which will apply to all non-fatal offences in the Crimes Act. This will avoid multiple overlapping definitions of 'severe injury', 'serious injury' and 'injury'.[11]

1. It can be seen that the previous definition was inclusive but that the current definition is exhaustive and comprises three alternatives.
2. The breadth of the previous definition of serious injury encouraged sentencing judges to consider the relative gravity of the offender's intention to cause serious injury within the wide range of injuries for which the section provided and by reference to a hierarchy which recognised a difference between 'serious injury' and 'really serious injury'.
3. In DPP v Terrick,[12] the offenders punched the victim to the ground and then repeatedly kicked and stomped on the victim's head causing catastrophic injuries. The Court[13] stated:

In our view, the respondents fell to be sentenced on the basis that they intended to cause (in the case of Marks and Terricks) or foresaw the likelihood of (in the case of Stewart) very serious injuries, if not the injuries that were actually caused. It was conceded during the course of argument on the appeal - rightly in our view - that the respondents intended to cause 'really serious injury', to inflict 'maximum harm' on their victim. In view of the ferocity of the attack and, above all, the persistence of the respondents in attacking the victim after he became unconscious, no other conclusion was reasonably open.

Where (as here) an offender intends to cause (or foresees the likelihood of causing) really serious injury to another person, and does so, the fact that the offender did not foresee the precise nature, or extent, of the injuries actually inflicted will not ordinarily reduce the offender's culpability. Even if it be accepted that the respondents did not contemplate the exact nature of the injuries, or the state of permanent disablement, which they inflicted on Mr Schueth, that circumstance does not mitigate their responsibility for what occurred, given that they intended to cause maximum harm or foresaw the likelihood of that consequence.[14]

1. In Nash v The Queen,[15] the Court was concerned with a case in which the main charge arose from an attack on a woman in which the accused kicked her in the face and punched her repeatedly, causing serious permanent impairment to the victim's hearing. Maxwell P listed a number of 'comparator' cases and observed:

A review of the cases summarised in the table reveals that the following matters are routinely taken into account by sentencing judges in assessing the gravity of particular instances of [intentionally causing serious injury] :

• the offender's proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;

• the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);

• how vulnerable the victim was;

• whether a weapon was used;

• how long the attack on the victim lasted; and

• whether the offender acted alone or in company.[16]

1. Priest JA (with whom Coghlan JA agreed[17]) emphasised the wide variety of circumstances which the offence then embraced:

Experience shows that the circumstances of the commission of the offence of intentionally causing serious injury are almost infinitely variable, and thus the sentences commonly imposed widely vary. There are cases which involve protracted savagery, while others are constituted by one punch. Some involve the use of a variety of weapons. Moreover, the injuries caused widely vary, from gross and permanently disabling injuries to others that barely cross the threshold of 'serious'. Accordingly, sentences widely vary, from suspended sentences of imprisonment at the low end of the spectrum, to head sentences of imprisonment in double figures at the high end.[18]

1. His Honour went on to characterise the offending by reference to the circumstances as a whole as a 'nasty manifestation of the offence which had severe consequences for the victim'.[19] He further described the appellant's attack on the victim as 'vicious and cruel'.[20]
2. The general utility of the distinction between intention to cause serious injury and intention to cause really serious injury was substantially reduced in practical terms by the 2013 redefinition of serious injury. In effect, the redefinition eliminated a range of serious injuries which were not 'really serious' from the ambit of the offence.
3. More particularly, cases (such as the present) in which the admitted intention is one to inflict life-endangering injuries must, as a matter of the ordinary meaning of the phrase, fall within the description of cases in which the intention is to cause really serious injuries. In other words, an intention to inflict life-endangering injuries is an intention to cause really serious injuries. We would add that in each case the ultimate characterisation of an offender's intention must be by reference to the circumstances of the case as a whole rather than by labelling.
4. This said, there will of course be cases where an additional specific intent beyond the intention to cause serious injury can be identified. In a particular case, the evidence may demonstrate an intention to blind, or disfigure permanently, or to maim, cripple, or cause the maximum possible harm. Thus in a case of acid throwing, kneecapping or mutilation which bespeaks an intention to inflict serious injuries of particular savagery, it will be necessary to recognise that fact in assessing the moral culpability of the offender and not simply its consequences.

1. On the plea, the Crown submitted in its written outline that the offending was premeditated and that the gravity of the offending approached the higher end of the scale.
2. The defence written submissions stated:

It is conceded that the offending is serious. In relation to the offending against Mr Burke, it is conceded that there was a degree of planning. It is conceded that upon being challenged by Mr Burke during the assault, Mr Carbis escalated the offending by producing and using the knife. It is conceded that the number of stabs inflicted, being 5, is relevant. The parts of the body attacked, being three stab wounds to Mr Burke's right chest area, one to the left upper arm area and one to his left flank area are also relevant. It is conceded that the dumping of some clothing and concealment of the knife are also relevant. It is conceded that Mr Burke suffered serious injury, the most serious of which was the puncture of his right lung. However, causing serious injury and the intention to do so are elements of the offence itself. They are not aggravating features.

1. During the course of the plea, counsel for the appellant agreed with the judge that the appellant 'had in mind something pretty serious'. As against this, counsel for the appellant emphasised that this was not a case in which the serious injury inflicted in fact resulted in catastrophic consequences or permanent disability. Accordingly, it was submitted that the offending should be seen as in the mid-range in terms of objective gravity.
2. On the appeal hearing, the appellant accepted that the matter proceeded at first instance on the basis that the appellant intended to cause life-endangering injuries and that such injuries were commensurate with the deep stab wounds deliberately inflicted to the chest of the victim.

1. In assessing the objective gravity of the offending it was necessary for the judge to have regard both to the appellant's acts and his proven intention.
2. In the present case, the judge observed that the concept of the relative gravity of the offending did not allow offending to be placed with mathematical precision within a spectrum of seriousness. We endorse this observation.
3. Citing DPP v Weybury,[21] his Honour then said:

It seems to me it is much more valuable to look at what you actually did.

You used a knife, and you used it to repeatedly stab an unarmed and defenceless victim in his own home. Over nothing. There had been no forewarning at all. You shook his hand then launched a physical attack firstly by fist and then by a knife which you had carried offensively at the time of entry, and which at some point you had taken out, unfolded and then used. No hint to your victim that such violence lay ahead. It just exploded upon him. He was for that reason vulnerable. You were armed with a knife. There had been a plan to assault him. The aggravated burglary relates to that armed entry as a trespasser. Nonetheless, of course, the venue is a relevant consideration. He was in his own home. He should have been safe there. Multiple stabs and to dangerous or vital areas of his body, most of them. Deep blows. You came perilously close to killing him. Your offence falls comfortably above mid-level in my view. Plainly, it is a serious example of this serious offence.

Serious injury is defined as, 'injury including the cumulative effect of more than one injury that endangers life or is substantial and protracted'. Well, your victim was left in a critical condition. You just walked away. He had life threatening injuries and would likely have died but for the swift treatment obtained. He had to be evacuated by air ambulance to Melbourne. Very luckily for you, he survived. Very luckily for you, he has made a decent recovery and is not left with any residual physical issues other than some scarring.

As I said a moment ago, when dealing with the wide variation of offences captured by this crime, some can be caused by a single punch. Some with injuries which just barely cross the threshold of the definition of serious injury. That is not what I am dealing with here. I am dealing with multiple knife wounds to vital areas committed upon an unarmed man at night in his own lounge room.

Critical injuries resulted, and unlike a single punch where there can sometimes be a disconnect between the injuries intended and those actually produced, that cannot be said for a man repeatedly stabbing a knife into the chest of another man. There was no disconnect at all between the mechanism that you used and the actual serious injuries caused. Your victim did not fall to the ground, for instance, and sustain a serious injury in that way by a head strike.

This was a deliberate, ruthless, armed attack. I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.

The Court of Appeal had a fair bit to say about the use of a weapon, the context of the offence and the severity of injuries, at paragraph 35 to 40 and 46 of the case of Lukudu, to which I have referred.

As I have said, and as you know, these injuries could so easily have proved fatal but for the prompt medical attention and a fair dose of luck actually. As a Judge of this Court, regrettably, I do see from time-to-time injuries that are far more catastrophic than these in terms of their ultimate physical residual effect. So injuries, if you like, with a much greater lasting impact. We, as judges, see some hapless victims who are reduced to a highly compromised, even a dependent state, as a result of a brain injury. We see some unfortunate victims who have sustained spinal injuries. They might be wheelchair bound for life with all of the massive adjustments to be made in the life that stretches out ahead of them. I am not dealing with those sorts of impacts here. That is obvious.

But the serious injuries which I am dealing with were of a very high level in that they so easily could have proved to be fatal. Well, very luckily, that was not the ultimate fate for Mr Burke. These serious injuries were of a high level, they could so easily have proved fatal, and the mechanism, an unexpected armed attack with multiple stabs to his chest, was pretty extreme. The crime, viewed objectively, is, in my view, a serious example of the crime of intentionally causing serious injury.

Fortunately for you and for Mr Burke, as dangerous as his injuries were on the night, and as serious as the immediate impacts obviously were, this case does not have those catastrophic impacts that I mentioned a short time ago, such as a lifetime of dependence brought about by a serious brain injury or something from which a victim cannot physically recover. Happily, that has not been his fate. You are the lucky beneficiary as well, for it is only for that reason that you avoid the imposition of a sentence travelling into double figures for this offence alone.[22]

1. The appellant submits that the finding that the appellant intended to cause really serious injury constitutes a finding of an aggravating factor which was not fairly and properly foreshadowed to the defence during the plea hearing.
2. The respondent submits that the sentencing judge did no more than describe the admitted gravity of the appellant's intentional acts.

1. As we have said, the appellant's complaint is directed to the sentencing judge's finding:

I am satisfied beyond reasonable doubt that you intended to cause really serious injuries.[23]

1. We are not satisfied that taken in itself, or read in context, the statement complained of sustains the appellant's complaint.
2. Taken in isolation, the reference to really serious injuries embraces the appellant's admitted intention to cause injuries which endangered his victim's life. As a matter of ordinary language, such an intention is an intention to cause really serious injury. The words used by the sentencing judge simply describe that intention in more general everyday language. Subsequently, the judge stated 'the serious injuries which I am dealing with were of a very high level in that they so easily could have proved to be fatal'. The sentencing judge was plainly correct, having regard to the site and depth of the life-endangering stab wounds which were intentionally inflicted, to regard them as reflecting an intention to cause really serious injury.
3. The appellant submits that the use of the phraseology 'I am satisfied beyond reasonable doubt' demonstrates that the sentencing judge must have meant more than this. There are at least two answers to this submission. First, as the respondent submits, the reference to the criminal onus of proof is not surprising in the context of a finding adverse to the appellant. It is not surprising that the judge expressed himself as he did in addressing sentencing remarks to the appellant, even if it was strictly unnecessary to express himself in this way given the appellant's admissions. Secondly, this was not a finding of a specific intention going beyond that admitted, such as an intention to cause maximum harm, an intention to permanently maim or an intention to permanently disfigure. Nor was it a finding that the appellant intended to inflict a greater injury than that sustained by the victim.[24] The sentencing judge simply adopted general words which embraced and reflected the appellant's admitted intention.
4. When the words are read in context, the position is even plainer. In essence, the sentencing judge concluded:

(a) There was no disconnect between the intentional infliction of repeated deep stab wounds with a knife into the chest of the victim and the injuries which resulted;

(b) The deliberate, ruthless, armed attack supported a conclusion that the appellant intended to cause really serious injuries;

(c) The injuries which the appellant intentionally caused were 'serious injuries ... of a very high level in that they so easily could have proved to be fatal', ie precisely because they were proximately life-endangering;[25]

(d) The use of a knife, the context of the offence and the severity of injuries, supported the conclusion that this was a very serious example of the crime of intentionally causing serious injury.

1. There was no error in this reasoning. The use of the phraseology in respect of which the appellant complains did not lead to a false conclusion or a conclusion which was not responsive to the way the case was put on the plea hearing.

[1] See Brown v The Queen [2018] VSCA 328, [72] (Kyrou and Niall JJA)

[2] DPP v Carbis [2022] VCC 1075, [122] (Judge Tinney) ('Reasons').

[3] Carbis v The King [2023] VSCA 38, [6].

[4] Reasons, [12]-[20] (emphasis added).

[5] R v Westaway (1991) 52 A Crim R 336; [1991] VicSC 143.

[6] Ibid; DPP v Fevaleaki (2006) 165 A Crim R 524; [2006] VSCA 212.

[7] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

[8] [2003] VSCA 61.

[9] Ibid [36] (Phillips CJ agreeing at [2], Vincent JA agreeing at [8]).

[10] Explanatory Memorandum, Crimes Amendment (Gross Violence Offences) Bill 2012, 3 (emphasis added).

[11] Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5550 (Robert Clark, Attorney-General) (emphasis added).

[12] [2009] VSCA 220; (2009) 24 VR 457.

[13] Maxwell P, Redlich JA and Robson AJA.

[14] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 466-7 [40]-[41].

[15] [2013] VSCA 172; (2013) 40 VR 134.

[16] Ibid 137 [10] (citations omitted).

[18] Ibid 145-6 [55] (citations omitted).

[21] [2018] VSCA 120 cited in Reasons, [116].

[22] Reasons, [117]-[126] (emphasis added).

[24] Cf Brown v The Queen [2018] VSCA 328, [72] (Kyrou and Niall JJA).