Carbis v The King [2023] VSCA 38

This was an expansive redefining of the term which substantially raised the threshold for serious injury. The short point raised by the applicant is that his doubtless highly criminal actions were completely captured by his plea and it was not open to the judge to treat his intention as an aggravating feature. His intention was inherent in his plea of guilty to the offending conduct.
The respondent contends that the sentencing exercise for this type of offending necessarily involves, as it must under the Sentencing Act 1991, an evaluation of an accused's actual intention when considering the objective gravity of the offending and the judge here was simply doing that. It was not a finding of an aggravating feature but simply a factual finding adverse to the applicant on the objective gravity of the offence charged. Put another way, the respondent says if the judge was saying no more than this was a serious example of this type of offence, he was correct in saying so.
In my view it is unclear from his Honour's language as to whether he was using his finding of an intention to cause really serious injury as an aggravating feature; if he was, I consider it to be arguable that his Honour impermissibly used it to increase the applicant's moral culpability in his evaluation of the objective gravity of the offending beyond what was contained within the ambit of his plea of guilty.
In those circumstances I propose to grant leave to appeal. In granting leave I ought not be taken to have reached any conclusion on whether a different sentence ought be passed. The order of the Court will be that leave to appeal is granted.

Carbis v The King [2023] VSCA 38 | Case summary | Zoe

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Cases Cited (2)

Carbis v The King [2023] VSCA 38 (3 March 2023)