CRIMINAL LAW - Appeal - Sentence - Intentionally causing injury - Stomp to head while victim lying on footpath - 4 years 9 months' imprisonment - Affray -- Repeated punches to head of stranger - Unprovoked attack - 1 year 9 months' imprisonment with 1 year cumulation - Total effective sentence 5 years 9 months' imprisonment - Non-parole period 3 years 3 months - Whether manifestly excessive - Relatively low-level injury - Both charges involved mid-range offending - Youthful offender - Poor prospects of rehabilitation - Reduced moral culpability owing to difficult childhood - Head sentences and total effective sentence manifestly excessive - Appeal allowed - Sentencing judge erred in characterisation of injuries - Sentencing judge did not err in applying discount for guilty plea in accordance with Atholwood v The Queen (1999) 109 A Crim R 465; [1999] WASCA 256 - Appeal allowed - Intentionally causing injury 3 years and 9 months' imprisonment - Affray 12 months' imprisonment with 6 months cumulation - Total effective sentence 4 years 3 months' imprisonment - Non-parole period 2 years 9 months.

Crimes Act 1958, ss 16, 18, 195H; Sentencing Act 1991, ss 5(2)(e), 6D, 6E, 6F; Criminal Procedure Act 2009, s 198B.

1. The applicants are father and son. They pleaded guilty to separate charges after a violent and unprovoked attack on a complete stranger who was walking alone at night in the centre of Melbourne. Their conduct falls to be assessed independently, as the prosecution case against them did not involve any allegation of complicity.[1] The attack had devastating long-term effects on the victim.
2. Jared Pihlgren, aged 52 at the time of the offending, pleaded guilty to one charge of intentionally causing serious injury contrary to s 16 of the Crimes Act 1958. On 13 April 2023, he was sentenced in the County Court to a total effective sentence of 12 years' imprisonment with a non-parole period of 8 years. The judge indicated, under s 6AAA of the Sentencing Act 1991, that he would have imposed a sentence of 16 years' imprisonment with a non-parole period of 11 years and 8 months, if Mr Pihlgren had not pleaded guilty. The maximum sentence for intentionally causing serious injury is 20 years' imprisonment.
3. Jay Stephens, aged 22 at the time of the offending, pleaded guilty to one charge of affray and one charge of intentionally causing injury. On 1 September 2023, he was sentenced by the same judge to a total effective sentence of 5 years and 9 months' imprisonment with a non-parole period of 3 years and 3 months, as set out below.

• Section 6AAA statement

• 7 years and 9 months' imprisonment with a non-parole period of 5 years

1. Shortly after midnight on 17 December 2021, the victim, Jingu Kim, was walking along Lonsdale Street in Melbourne. He was 35 years old and was walking home after spending time with friends at a restaurant and at a karaoke bar. For a time, Mr Kim and the applicants were walking in the same direction, with the applicants walking behind Mr Kim.
2. The sequence of events that followed is captured on CCTV footage from two different angles.
3. Mr Kim was approached by Mr Stephens and they appeared to have a verbal disagreement. This continued for a brief period before Mr Stephens began assaulting Mr Kim by punching him repeatedly to the head and upper body. Throughout this attack, Mr Kim made attempts to extricate himself by maintaining distance between himself and Mr Stephens, but Mr Stephens continued to assault him.
4. The fighting broke out on the corner of Lonsdale and Queen Streets and, for the most part, unfolded in the pedestrian crossing and on the street. At times, it disrupted traffic, causing cars to veer into different lanes. After being re-engaged in fighting by Mr Stephens, Mr Kim succeeded in throwing Mr Stephens onto the footpath. The two continued fighting until Mr Kim tripped Mr Stephens and was leaning over him. Mr Stephens' conduct up to this point constitutes the affray charge.
5. Mr Pihlgren had watched the altercation unfold, being physically close but, for the most part, not participating.[4] At the point where Mr Kim was above Mr Stephens, having thrown him onto the footpath, Mr Pihlgren intervened. He removed a knife from a bag that he was carrying and approached Mr Kim from behind while he was still fighting with Mr Stephens. Mr Pihlgren initially attempted to stab Mr Kim but missed.
6. Mr Pihlgren then stabbed Mr Kim in the upper left of his back. The knife penetrated deeply, injuring his spinal bone and leaving a puncture wound that penetrated through to his lung. Mr Kim staggered[5] and Mr Pihlgren then grabbed Mr Kim's head with one hand and forcefully drew the knife across the back of his head with the other. This created a deep wound, described later by a forensic expert as spanning from ear to ear and leaving a large skin flap with Mr Kim's skull on view. Mr Kim grabbed the knife, resulting in a deep laceration to his left hand from between his thumb and index finger into his palm. Mr Pihlgren pushed Mr Kim's head toward the ground. Mr Kim was left lying on the ground as both applicants walked away. A large amount of his blood was visible on the footpath. This conduct constitutes the charge against Mr Pihlgren of intentionally causing serious injury.
7. Approximately seven seconds after moving away from Mr Kim, Mr Stephens returned and stomped on the side of his head with significant force. Mr Kim, who was at this point defenceless and seriously injured, raised his hands but was unable to fend off this attack. This constitutes the charge against Mr Stephens of intentionally causing injury. Mr Stephens then left the scene. Mr Kim lay motionless for a few seconds, before rolling over, when passers‑by came to assist him.
8. Without hospital intervention and treatment, Mr Kim would have died. His injuries were severe and life-threatening. Luckily, within about five minutes of the attack, emergency services arrived at the scene. Through quick medical intervention, involving a number of highly invasive procedures, including emergency surgery and the insertion of chest drains, Mr Kim's life was saved. However, the effects on him have been far-reaching and will persist throughout his life.

1. The judge sentenced Mr Pihlgren on 13 April 2023. She described the offending by reference to CCTV footage that had been tendered, in addition to the agreed prosecution opening that was read at the plea hearing.[6]
2. The judge addressed Mr Kim's injuries by reference to two medical reports, dated 27 January 2022 and 21 June 2022, prepared by Dr Jason Schreiber of the Victorian Institute of Forensic Medicine.[7]
3. The first stabbing caused sustained sharp trauma to Mr Kim's torso. The wound was deep and about five centimetres in length, causing a sucking chest wound and a collection of blood and air between the lung and the chest wall. Not only was the laceration to his chest deep enough to puncture his lung, but the knife injured his spine. The trauma caused Mr Kim's heart to fail and his lung to collapse, which ultimately required his resuscitation. This injury alone was life-threatening.
4. The result of the second stabbing was described in Dr Schreiber's second report. It caused a '[l]arge, over 15 cm, transverse open wound to the scalp on the back of the head down to and indenting the skull bone'. The sentencing judge identified the prosecution's 'undisputed case' as being that the injuries inflicted by Mr Pihlgren slashing the back of Mr Kim's head included blunt trauma to the head and face, indentation to the skull and life-threatening bleeding.[8] The judge also found that blood loss contributed to a temporary loss of consciousness, which she observed from the CCTV footage. The judge also referred in passing to the injury to Mr Kim's hand.[9] Dr Schreiber described the thumb artery as completely divided and thumb muscles as also being divided.
5. The judge concluded that the seriousness of the injuries was of 'the highest order'. Mr Kim, throughout his life, would suffer long-term physical and psychological effects and only survived through rapid intervention. The judge concluded that the effects on Mr Kim met the threshold of 'life threatening or catastrophic injuries, or ongoing serious physical or mental disablement'. She identified this as typically present in cases where sentences of more than 10 years have been imposed for intentionally causing serious injury. She described Nash v The Queen ('Nash')[10] and Cedic v The Queen ('Cedic')[11] as 'yardsticks' for formulating a sentence where there is intention to cause serious injury and severe injury results, citing Chol v The Queen.[12] She then referred to observations made in O'Toole v The Queen ('O'Toole').[13]
6. In terms of the effect of these injuries on Mr Kim, the judge referred to his victim impact statement. Every aspect of Mr Kim's life had been detrimentally affected by the offending. He suffered real physical and psychological damage. After the incident, his heart stopped for three minutes and he entered into a coma. He cannot breathe normally and his second finger does not move. He has permanent hair loss on the site of the wound to the back of his head, and multiple scars on his body and face. He continues to suffer pain, post-traumatic stress disorder, anxiety and panic attacks to the extent that he is now unable to work or exercise beyond short walks.[14]
7. The sentencing judge assessed the seriousness of Mr Pihlgren's offending as being at a 'very high' level,[15] and of 'high objective seriousness',[16] given the public location, the unprovoked nature of the attack, the use of the knife, Mr Kim's vulnerability while fending off another attacker, and the fact that Mr Pihlgren contemplated the attack prior to carrying it out. The judge also noted that, while the attack lasted a short time, this was of little moment given that its ferocity had disabled Mr Kim almost immediately.[17]
8. The judge noted that, due to a prior offence of making a threat to kill, Mr Pihlgren would be sentenced as a serious violent offender. Therefore, the principal purpose of the sentence was the protection of the community.[18]
9. The judge recognised the utility of Mr Pihlgren's guilty plea at the 'first available opportunity', stating it would entitle him to a substantial discount. She declined, however, to find that it was evidence of genuine remorse. Rather, it was an 'acceptance of the inevitable', given the overwhelming evidence contained in the CCTV footage.[19]
10. The judge also canvassed a number of matters relating to Mr Pihlgren's circumstances. He had a substantial criminal history, spanning multiple Australian jurisdictions, dating back to the 1990s. The judge concluded that his brief terms of imprisonment, of 10 months or less, had not deterred him from offending. In April 2021, he had been sentenced for a series of offences, including threatening behaviour. Mr Pihlgren had also committed similar offences in Victoria, for which he was sentenced to community-based orders, which he had often breached.[20]
11. The judge took note of the dearth of evidence relating to Mr Pihlgren's background. She referred to the submissions of his counsel, based on instructions, that Mr Pihlgren had left home at 16, had had several long term relationships, had five children (including Mr Stephens) and was hoping to adopt a young child.[21]
12. The judge did not consider that custody would be more burdensome for Mr Pihlgren than others, but accepted that COVID restrictions would have some bearing on the sentence to be imposed. She noted the absence of Verdins[22] considerations and observed that there was no explanation why Mr Pihlgren committed the offence, apart from an apparent intention to assist Mr Stephens.[23] The judge noted the agreed position that Mr Pihlgren had not acted in defence of another and stated that, if he had real concern for Mr Stephens, he could have stepped in to stop the attack against Mr Kim.[24]

1. Mr Pihlgren's first ground of appeal challenged five alleged material errors of fact which, individually or collectively, were said to have caused the sentencing discretion to miscarry. The respondent submitted that the errors were either not made or were not material to the sentencing discretion, and that, in any event, no different sentence ought to be imposed.

1. The first alleged error was the judge's finding that Mr Pihlgren was 'following' Mr Kim. In her sentencing remarks, the judge stated:

At about 12:28 am, Mr Kim walked east on Lonsdale Street toward Queen Street. He was followed by you and your son.[25]

1. Mr Pihlgren submitted that this finding did not feature in the prosecution opening and that a finding of intentional and coordinated following was significantly aggravating.
2. The respondent submitted that there was no error. The term 'following' was used in the sense of 'moving behind in the same direction'. The judge accurately described what occurred and nothing in the sentencing remarks indicated that there had been a finding of intentional and co-ordinated following. The judge's only reference to any prior contemplation by Mr Pihlgren was in respect of his presence during Mr Stephens' attack on Mr Kim.
3. There is nothing in this ground. The appellants were seen on the CCTV footage walking behind Mr Kim. The judge made no adverse finding based on this fact and, in particular, did not find that there was anything sinister in it. On the judge's account of events, which was uncontroversial, the physical assault commenced after a verbal altercation, the details of which are unknown.

Alleged error 2 - inability of Mr Kim to stand up after the first stab

1. In commenting on the duration of the attack, the sentencing judge stated that Mr Pihlgren 'rendered the victim unable to stand up immediately after the first stab.'[26] Mr Pihlgren submitted that this finding aggravated the seriousness of the second stabbing and was not open on the evidence. The CCTV footage showed that the first stabbing had no obvious immediate impact on Mr Kim, as he continued to lean over Mr Stephens. While the seriousness of the injury would inevitably disable Mr Kim, it was not the case that the second stabbing occurred when the seriousness of the initial stabbing was apparent, or when Mr Kim was obviously unable to defend himself.
2. The respondent accepted that the sentencing judge's description of Mr Kim being unable to stand up after the first stabbing was erroneous. But the judge had correctly said that, following the initial stabbing, 'Mr Kim immediately staggered but was still attempting to defend himself from [Mr Pihlgren] and [Mr Stephens]'.[27] Later in the judgment, she said that Mr Pihlgren 'disabled Mr Kim, almost immediately, by the ferocity of [his] attack'.[28] The impugned observation was addressing a different issue, namely Mr Pihlgren's submission that the offending had been of short duration. The judge was said to have relied on the ferocity of the attack to demonstrate why its short duration could not weigh in Mr Pihlgren's favour.
3. The respondent submitted that the impugned observation could not, in any event, have had a material impact on the sentence imposed. Given that Mr Pihlgren had just inflicted a deep wound to the victim's back, the seriousness of that wound and its disabling effect on Mr Kim must have been evident to Mr Pihlgren, who had wielded the knife. Mr Kim was vulnerable in any event by the time of the second stabbing, because it occurred when he had fallen to the ground and was grappling with Mr Stephens.
4. In our view, this issue involves nothing more than infelicitous language in the sentencing remarks. While Mr Kim was not immediately incapacitated by the first stabbing, it is plain from her other remarks that the judge correctly understood that the second wound was inflicted before Mr Kim was physically incapacitated. On any view, the second stabbing occurred while Mr Kim was vulnerable as a result of the fighting and the inevitable effects of the first stabbing. The suggested error therefore had no material effect in any event.

Alleged error 3 - the context of the injury to the head

1. The third alleged error was that the judge stated that Mr Pihlgren caused the injury to the back of Mr Kim's head when Mr Kim was 'attempting to defend himself'.[29] Mr Pihlgren submitted that it was not open to the sentencing judge to make this finding, and treat it as a matter of aggravation. When Mr Pihlgren stabbed Mr Kim, Mr Kim had forced Mr Stephens to the ground and raised his fist, continuing the fighting. Mr Pihlgren had also fallen to the ground.
2. The respondent submitted that this submission fails because of the concession that Mr Pihlgren was not acting in defence of Mr Stephens. Mr Kim was rightfully defending himself against an attack that Mr Stephens persisted in, even after the two had separated multiple times. Further, at the time the head wound was inflicted, Mr Stephens had raised himself by his arms. There was no suggestion that Mr Kim inflicted any injuries on Mr Stephens. The judge's finding that Mr Kim was attempting to defend himself from the attack was an appropriate characterisation of Mr Kim's conduct throughout the offending.
3. We see no difficulty with the judge's finding. Even though it might have appeared that Mr Kim had, at least temporarily, been getting the upper hand in the fighting by the time of the second stabbing, that appearance was self-evidently belied by the grave injury already inflicted on him by the first stabbing. It does not matter whether Mr Kim was, at that moment, fighting back. In the overall context, he was defending himself from the attack by Mr Stephens and, after the first stabbing, Mr Pihlgren. On any view, the second stabbing was a gratuitously offensive act and the judge was entitled to treat that as an aggravating circumstance.

Alleged error 4 - the timing of the injury to the hand

1. The fourth alleged error was treating the injury to Mr Kim's hand as though it had been caused after Mr Stephens stood up. In her sentencing remarks, the judge said:

[9] Mr Kim immediately staggered but was still attempting to defend himself from you and Stephens. You then forcefully used the knife across the back of Mr Kim's head in a slashing motion causing significant bleeding. At this point, Mr Kim 'flopped' to the ground and lay motionless for a few seconds.

[10] As far as the CCTV evidence shows, Mr Kim was subjected to at least two significant stabbings by you. Stephens stood up while you stood over Mr Kim. Mr Kim attempted to defend himself from you by grabbing the knife. This caused an injury to his hand.[30]

1. Mr Pihlgren submitted that the above description amounted to a finding of 'persistence with the attack' after Mr Stephens was no longer on the ground, which was substantially aggravating. Having regard to the CCTV footage, the only time that the knife could have been grabbed was when all parties were on the ground because, once Mr Stephens had stood up, Mr Pihlgren moved away from Mr Kim immediately.
2. The respondent conceded that the sentencing judge mistook the timing of the hand injury, having adopted a passage of the prosecution opening that contained an incorrect sequence of events. The respondent accepted that the hand injury must have been inflicted when all parties were on the ground, probably when Mr Pihlgren was holding Mr Kim's head with his left hand and forcefully pulled back his right hand, holding the knife, at the same time as Mr Kim moved his left hand away. This was prior to Mr Pihlgren releasing Mr Kim and Mr Stephens standing up. However, the respondent submitted that the judge's statement about the timing of the hand injury did not amount to a substantially aggravating finding of persistence with the attack, given that the judge made no further comment about the matter when assessing the gravity of the offending.
3. We agree with the respondent's submissions. It is far from clear from the brief and condensed findings set out above that the judge was finding that Mr Stephens was still standing when the hand injury took place, but the point goes nowhere because the judge did not treat this as an aggravating factor. She said very little about the infliction of the hand injury at all. This was understandable. It was obvious that the injury resulted from Mr Kim grabbing the knife with which Mr Pihlgren had just stabbed him twice, so as to defend himself against further attack, and that the timing of the hand injury was not determined by Mr Pihlgren. Accordingly, no question of aggravation arose.

Alleged error 5 - causation of the indentation injury

1. The fifth alleged error was treating the 'indentation' caused by blunt trauma to Mr Kim's head as though it had been caused by Mr Pihlgren. The sentencing judge stated:

Dr Schreiber, in an additional report dated 21 June 2022, noted that there was blunt trauma to the head and face including 'indentation'. Indentation, he explained, requires significant force. Bleeding was caused which, without intervention, could have been life threatening. It is the prosecution's undisputed case that these injuries were inflicted by you when you stabbed Mr Kim in a slashing motion to the back of his head.[31]

1. Mr Pihlgren submitted that it was never part of the prosecution case that he fell to be sentenced for the indentation to the skull. This was an error as, first, it included an injury that was not alleged by the prosecution and, secondly, it suggested a level of forcefulness in the second stabbing which had not been alleged. Mr Pihlgren submitted that, throughout the course of his plea, he had never conceded that the indentation was caused by him. Counsel pointed out in oral submissions that the conclusion that the knife had caused the indentation injury had been advanced by the prosecutor in the plea hearing for Mr Stephens, and accepted by his counsel, without the knowledge of Mr Pihlgren's plea counsel. Mr Pihlgren's plea could not, therefore, be taken as accepting that his use of the knife had caused the indentation.
2. In written submissions, the respondent conceded that Mr Pihlgren's use of the knife could not be proven, beyond reasonable doubt, to have caused the skull indentation. However, the respondent maintained that it had been an agreed position that Mr Pihlgren fell to be sentenced for the indentation. The sentencing judge had raised the question whether the injuries caused by Mr Pihlgren included the 'back of the head wounds' and his counsel had agreed that they did.
3. Alternatively, the respondent submitted that, if the judge had erred in this respect, it was not a material error because Mr Kim's other injuries were life-threatening, serious and protracted in any event. Further, in respect of the second use to which the finding could be put (to infer significant use of force), the respondent pressed the view that there was no adverse effect because the agreed prosecution opening had already stated that Mr Pihlgren had wielded the knife across the back of Mr Kim's head 'forcefully'.
4. It is necessary to say more about the way in which this issue evolved. Mr Pihlgren pleaded guilty on 26 May 2022, when only Dr Schreiber's first report had been prepared. At the plea hearing on 3 April 2023, Mr Pihlgren's counsel agreed that the plea captured 'all of the serious injuries referred to by Dr Schreiber', including the wounds to the chest, the back of the head and the hand.
5. Mr Pihlgren submitted in this Court that his counsel's acceptance that he had caused the injuries to the back of the head did not extend to the indentation. The indentation was not specifically dealt with until Dr Schreiber's second report, dated 21 June 2022. That report was obtained for Mr Stephens' trial to address the effects of the stomp to Mr Kim's head. It established that the injury to the head was life-threatening of itself and described that injury as 'involving skull bone injury (indentation)'. The report was the subject of a hearing under s 198B of the Criminal Procedure Act 2009 on 30 November 2022, at which Mr Pihlgren's counsel was not present. Dr Schreiber conceded in evidence at that hearing that he could not conclude what the cause of the indentation injury was. Mr Stephens' matter then resolved on the basis that he had not caused the indentation and that it was more likely that it was a result of the knife wound to the head. It seems that Mr Pihlgren, or at least his counsel, was not advised of this resolution.
6. In January 2023, the prosecution amended its agreed opening for the plea in respect of Mr Pihlgren, adding the sentence: 'The plea of guilty by the accused to the charge of intentionally causing serious injury captures the life threatening injuries relevant to that charge as referred to by Dr Schreiber in his reports'. Mr Pihlgren submitted that, in the circumstances, this sentence was insufficient to make clear that the indentation injury was also being attributed to him.
7. The respondent submitted that Mr Pihlgren's counsel had access to the s 198B transcript and both reports. The respondent also pointed to the fact that the indentation of the skull was described in the first report as a consequence of the open wound to the scalp on the back of the head, such that there was no procedural unfairness.
8. In our view, it was entirely unclear whether the prosecutor was alleging that Mr Pihlgren had caused the skull indentation. The amended prosecution opening went no further than to state that Mr Pihlgren was responsible for the life-threatening injuries described in Dr Schreiber's reports. Dr Schreiber did not describe the indentation injury, of itself, as life-threatening. At most, he described the indentation as forming part of the injury to the back of the head. But that description did not find its way into the amended prosecution opening. It would have been surprising if it had done so, given that Dr Schreiber had said in the meantime that he could not attribute the indentation injury to the use of the knife, and the respondent now concedes that such a finding could not be established beyond reasonable doubt.
9. It is true that the prosecution opening at all times said, immediately before the added sentence just mentioned, that Dr Schreiber had noted 'blunt trauma to the head and face and [that] there was "indentation"', adding that '[i]ndentation requires significant force'. Those sentences must, however, be read as being qualified by the more specific sentence that was later added. On their face, the sentences were not apt to describe the injuries caused by Mr Pihlgren, which on no view extended to blunt trauma to the head and face.
10. In the circumstances, we do not accept that the plea proceeded on the agreed basis that Mr Pihlgren was responsible for the indentation injury. It follows that the judge erred in attributing the indentation injury to Mr Pihlgren.
11. In our view, however, the error was immaterial. However the indentation injury was caused, it was not said to be life-threatening of itself. Moreover, the two stab wounds inflicted by Mr Pihlgren did have that character. In particular, the injury to the back of Mr Kim's head caused substantial blood loss and was potentially life-threatening on that account, indentation or not.
12. In addition, it was always the case that the prosecution alleged that the knife wound to the back of the head was delivered 'forcefully'. The judge referred to Dr Schreiber's view that indentation 'requires significant force'. We doubt whether these descriptors are meaningfully different. In any event, there is no indication that, in attributing the indentation injury to Mr Pihlgren, the judge went beyond the allegation in the prosecution opening.
13. Each of the individual matters raised under this ground therefore either involves no error by the sentencing judge, or made no material difference to the sentencing outcome. That is true also of the matters taken as a whole. Leave to appeal should be granted but ground 1 is not made out.

Ground 2 - Guilty plea during pandemic conditions

1. The judge said, in relation to the plea of guilty:

[42] You pleaded guilty to your offending at the first available opportunity. It is submitted that this is indicative of remorse, both legal and moral, for your conduct. However you do not express any remorse in your self-report.

[43] In light of the overwhelming evidence in the prosecution case, it is much more plausible that your plea, while an acceptance of responsibility, is an acceptance of the overwhelming evidence as contained in the CCTV footage. It is, I find, an acceptance of the inevitable, rather than evidence of genuine remorse.

[44] However, your plea will still entitle you to a substantial discount on the sentence that would have otherwise been imposed if the matter had gone to trial. This is to reflect the assistance to the administration of justice, including the prosecution, police witnesses and the Court.

1. Mr Pihlgren submitted that the sentencing judge failed to apply a 'Worboyes discount', according his plea of guilty greater weight in mitigation because it was entered on 26 May 2022 during the COVID pandemic. At the plea hearing, Mr Pihlgren's counsel had sought a 'Worboyes discount'. Neither the respondent nor the sentencing judge took issue with the submission. However, the sentencing remarks did not refer to the 'Worboyes discount'. Mr Pihlgren urged the Court to resist any inference that the sentencing judge took that matter into account in those circumstances.
2. The respondent submitted that the absence of a reference to the 'Worboyes discount' in the sentencing remarks does not mean that the judge did not apply it. The submission was uncontroversial, routinely made at the time of the plea hearing, and the sentencing judge indicated that she was 'fully aware' of it. The respondent submitted that the judge's reference to the 'utilitarian value of the plea', for which she gave 'a substantial discount', should be understood as a reference to the benefits flowing from the plea of guilty during the pandemic. The difference between the sentence in the s 6AAA statement and that ultimately imposed showed a substantial amelioration of sentence by virtue of the guilty plea.
3. In our view, there is no substance in this ground. The judge took account of the utilitarian value of the plea and was not obliged to go further and refer specifically to the 'Worboyes discount'. The s 6AAA statement reveals a reduction of four years in the head sentence, or 25 per cent. Although the plea was entered at the first available opportunity, the judge found it was not indicative of remorse. There was also nothing before the judge to suggest that Mr Pihlgren had good prospects of rehabilitation. In all the circumstances, the fact that the judge did not refer to the enhanced utilitarian benefit of a guilty plea entered during the pandemic does not provide a basis for inferring that she overlooked that matter.
4. Leave to appeal is refused on ground 2.

1. Mr Pihlgren submitted that the sentence and non-parole period were manifestly excessive. The attack was not 'sustained' and Mr Kim's injuries were not 'catastrophic in the long term'. Reliance was also placed on the plea of guilty and the fact that this was Mr Pihlgren's first offence to be dealt with in a court of record. His status as a serious violent offender was based on threatened, rather than actual, violence.
2. Mr Pihlgren also relied upon the matters pressed in each of his specific grounds of appeal. In respect of the 'discount' applied for the guilty plea, he submitted that the judge's s 6AAA indication of 16 years' imprisonment represented 80 per cent of the maximum penalty, which would have been the highest sentence imposed for this offence. It was said that this showed that the sentence was wholly outside the available range, given the circumstances of the offending.
3. Mr Pihlgren further submitted that his conduct was not wholly offensive.[32] It differed from cases where there was subsequent gratuitous violence when a victim was already incapacitated. In that regard, he contended that the judge had been wrong to treat Nash and Cedic as comparable cases because they involved gratuitous, substantial and protracted violence against a vulnerable victim, which was not a feature of Mr Pihlgren's offending.
4. The respondent submitted that the sentence was within the range open to the judge. The attack was brutal, cowardly and unexplained, it occurred in a public place, and the victim was a complete stranger. It caused very serious immediate and long-term consequences affecting every aspect of his life. The attack was protracted and involved repeated use of a weapon, involved some prior contemplation, and took place in the presence of Mr Stephens, the initial attacker.
5. Further, Mr Pihlgren was sentenced as a serious violent offender, making the protection of the community from the offender the principal purpose of sentencing.[33] His criminal record heightened his level of moral culpability. There were very few mitigating circumstances and very little to support Mr Pihlgren's prospects of rehabilitation. Even the plea of guilty, for which a substantial 'discount' was applied, was found not to be an expression of remorse. The respondent submitted that sentences into double figures are appropriate for serious examples of the offence of intentionally causing serious injury.
6. The question raised by the manifest excess ground is not whether the judge imposed the correct sentence. There is no single correct sentence. Nor is the issue whether the appellate court would have imposed the same sentence as the judge. The question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[34] The appellant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[35]
7. In our view, the sentence of 12 years imposed in this case was stern. We do not consider, however, that it was outside the range of sentences available to the judge. This was a vicious and cruel attack in a public place, on a complete stranger who was minding his own business until he found himself being attacked by the offender's son. The violent intervention of Mr Pihlgren escalated the violence immeasurably and inflicted the two grave and life-threatening injuries.
8. Without the rapid intervention of members of the public and emergency services, Mr Kim undoubtedly would have died. While it is possible to imagine more 'catastrophic' consequences of a serious injury, the offending has had, and will continue to have, permanent physical effects. Mr Kim's whole life has been profoundly impacted.
9. There is little that Mr Pihlgren can point to by way of mitigation, except his guilty plea. Even that was found not to be indicative of remorse for his actions. He has a substantial criminal record which features violence, multiple threats to kill and several breaches of court orders.
10. On any view, this was a very serious example of the charged offence. It is plain that general deterrence and protection of the community were major sentencing considerations, even without having regard to the fact that Mr Pihlgren was sentenced as a serious violent offender.
11. Reference to current sentencing practices does not advance Mr Pihlgren's case. In Lukudu v The Queen,[36] this Court drew attention to the very wide range of circumstances in which the offence of intentionally causing serious injury may be committed:

A consideration of cases in this Court for intentionally causing serious injury reveals that there is a wide range of circumstances covered by this offence; that sentences for the offence have, in recent times, increased; and that it is relevant to have regard to the use of a weapon, the context in which the offence occurred and the severity of the injuries sustained by the victim. Moreover, general deterrence remains an important aspect of a just sentence in relation to offences of this kind. Sentences in the high single figures, and into the double figures, have been imposed.[37]

1. Similarly, in Jawahiri v The Queen ('Jawahiri'),[38] it was said, adopting what had been said by Priest JA in Nash, that:

experience shows that the circumstances surrounding the commission of this offence are almost infinitely variable.[39] Protracted savagery can contrast with a single punch; injuries can vary from gross and permanently disabling to injuries that barely cross the (admittedly high) serious injury threshold. These observations underscore the limitations of current sentencing practices as an aid in the sentencing exercise.[40]

1. In light of these observations, past sentences for intentionally causing serious injury are of limited utility. But generalisations may still be made about current sentencing practices for the offence. The judge was right to rely on the following statement regarding current sentencing practices in O'Toole:[41]

Although one cannot be overly prescriptive, individual sentences of imprisonment in excess of 10 years are usually reserved for those cases of intentionally causing serious injury that involve life-threatening or catastrophic injuries, or ongoing serious physical or mental disablement.[42]

1. In the circumstances, the sentence was consistent with this Court's statements of principle regarding sentencing practices for intentionally causing serious injury, and it is not profitable to descend into the detail of particular past sentences for that offence.[43] The ground of manifest excess is not made out. Leave to appeal must be refused.

1. Mr Pihlgren's application for leave to appeal is granted with respect to ground 1 but is otherwise refused. The appeal is dismissed.

1. Mr Stephens pleaded guilty to intentionally causing injury on 1 February 2023, the day before his trial was scheduled to begin. He had earlier indicated, on 26 May 2022, that he would plead guilty to affray.[44] The judge sentenced him on 1 September 2023, having sentenced Mr Pihlgren in the meantime.

1. The judge said that Mr Stephens approached Mr Kim from behind and the two of them engaged in a short argument before Mr Stephens punched Mr Kim, aggressively and without apparent warning, multiple times to the head and upper body. Mr Kim tried to get away but Mr Stephens followed him. He chased Mr Kim onto the road and pulled his jacket from him and left it on the road. Mr Kim again tried to walk away but Mr Stephens chased him and punched him at least 14 times. The affray lasted about three minutes, before Mr Kim tried to fight Mr Stephens off. Both men ended up on the ground. Mr Pihlgren intervened with the knife while Mr Stephens and Mr Kim were still grappling on the ground.[45]
2. After being stabbed twice by Mr Pihlgren, Mr Kim flopped to the ground and lay motionless for a few seconds. Mr Stephens stood up and moved a few steps away. Mr Kim, bleeding heavily, attempted to roll onto his side. Seven seconds after having stood up, Mr Stephens moved rapidly back to Mr Kim and then, while Mr Kim remained lying on the footpath, jumped in the air and stomped one foot, with considerable force, on the side of his head. The judge said that Mr Kim remained completely still for about three seconds and, based on the CCTV footage, showed no signs of consciousness. He was bleeding heavily. Mr Stephens and Mr Pihlgren looked at him for a few seconds and left.[46]
3. The judge said that the consequences of the head stomping were difficult to identify, but the fact that Mr Kim was incapacitated at the time was highly relevant. She said that common sense suggests that a significant blow to the head shortly after a significant laceration to the same area would further compromise a person's 'physical presentation'.[47] In particular, the stomping contributed to the temporary loss of consciousness the judge had identified from the CCTV footage.[48] Although the judge noted that stomping was a possible cause of skull indentation, she did not attribute that injury to the actions of Mr Stephens 'alone'. However, whatever the cause of the indentation, 'reason and common sense' suggested that stomping on a person's head after an incision to the back of the head 'could' aggravate any injury caused by that incision.[49]
4. The judge assessed the affray as being of 'mid-range objective seriousness'.[50] The attack was unprovoked, occurred at night in the central business district of Melbourne and involved 'extreme' aggression and violence.[51] While the affray was relatively short, it was only Mr Pihlgren's violent actions that brought it to a halt.[52] The judge accepted, however, that the affray was unplanned and did not involve use of a weapon.
5. The judge also assessed the charge of intentionally causing injury as being of 'mid-range objective seriousness'.[53] She rejected a submission that the injury was 'at the lowest end of seriousness' for the offence and characterised the stomping as callous and violent. The judge regarded the 'psychological consequences' on Mr Kim as 'obliquely relevant', given they were a result of the totality of the offending by both offenders. She said that, although Mr Pihlgren's actions had the most significant physical effect, and they did not offend jointly, he could not have attacked Mr Kim unless and until Mr Stephens had 'distracted' him.[54]
6. The judge then considered the guilty plea. Mr Stephens had been arrested in December 2021, shortly after the offending. He indicated an intention to plead guilty to affray in November 2022.[55] The judge applied a 'substantial discount', in accordance with Worboyes, in respect of the affray.[56]
7. In respect of the intentionally causing injury charge, the judge accepted that the plea warranted 'a significant reduction ... based on the reasoning in Atholwood v The Queen' ('Atholwood').[57] The judge accepted that the s 198B examination in November 2022 was 'necessary to a fact in issue' in relation to the charge of intentionally causing serious injury which the prosecution had at that point been pursuing.[58] The judge none the less described the guilty plea to intentionally causing injury entered on 1 February 2023, the day before the trial was set to proceed, as 'late' and 'last minute'.[59]
8. As to Mr Stephens' background, the judge described him as young, aged 23 at the time of sentencing. However, he had a significant criminal history, including convictions for dishonesty, drug possession, and the use of violence, including family violence offending and assault occasioning actual bodily harm. While subject to a parole order after serving a term of imprisonment in 2019, he had committed an offence of recklessly causing serious injury.[60]
9. The judge referred to two expert reports. The first, prepared in relation to the 2019 offending and dated 7 April 2020, was by psychologist Carla Lechner. The second, dated 30 March 2023, was an extended pre-sentence assessment report ('the CCO report'), which the judge had ordered for the purposes of the present plea. The 2019 offending related to an unprovoked attack on a man who suffered serious injuries. Mr Stephens was sentenced on a charge of recklessly causing serious injury to 20 months' imprisonment without parole.[61]
10. Mr Stephens had an extremely dysfunctional upbringing. He had a history of substance abuse, starting at age 13, and experienced homelessness with his father for significant periods while he was a teenager. Ms Lechner indicated that he had an alcohol use disorder and a poly-substance abuse disorder, and he showed signs of a major depressive disorder, which the judge commented 'may enliven Verdins considerations'.[62] At face value, this inconclusive observation is somewhat cryptic, but it is explained by the absence of any current material on which the defence sought to rely in connection with the Verdins principles.
11. The more recent CCO report contained a number of unfavourable findings and expressed the view that Mr Stephens was not suitable for a community correction order ('CCO'). It described him as 'a high risk offender whose complexity of criminogenic needs highlight significant risks to community safety'. It recorded that Mr Stephens was not interested in psychological therapy or intervention and was reluctant to engage in the CCO process. The report stated that Mr Stephens did not volunteer any information showing acceptance or understanding of the consequences of his offending. He had also said that he was unaffected by drugs or alcohol at the time of the offending.[63]
12. The judge accepted that the Bugmy[64] principles were enlivened by Mr Stephens' upbringing. This weighed in his favour in terms of moral culpability and the importance of general deterrence. However, his violent offending had increased in frequency and severity over time, which increased the need to protect the community from such conduct in future.[65]
13. The judge assessed Mr Stephens' prospects of rehabilitation as being guarded, noting that the CCO report suggested he presented a high risk of general reoffending. She emphasised that it was important that Mr Stephens engage with therapeutic programmes before release, or custody would be unlikely to be rehabilitative. The judge said that time in custody had not previously been sufficient for in-depth programs to be put in place for Mr Stephens. She considered a longer potential period of parole was desirable in order to maximise the prospect of beneficial supervision in the community.[66]
14. The judge accepted that COVID lockdowns had made time in custody more burdensome. She also noted that Mr Stephens' trauma presentation would make custody more onerous.[67]

1. Mr Stephens submitted that the individual sentences, orders for cumulation, total effective sentence and non-parole period are each manifestly excessive.
2. In relation to the intentionally causing injury charge, despite Mr Stephens' criminal history, he was a youthful offender who had entered a plea of guilty to a mid-range example of the offence, and his moral culpability was reduced owing to his difficult upbringing. It was said that the injury was towards the lower end of seriousness.
3. Accepting the limitations of statistics, Mr Stephens noted that the sentence of 4 years and 9 months' imprisonment was just under half the maximum penalty of 10 years, and submitted that it was in the top 6-7 per cent of sentences imposed in the higher courts between 1 July 2016 and 30 June 2022 for intentionally causing injury. He referred to similar sentences for offending of far more significant objective gravity and lower sentences for cases of similar objective gravity.[68] Mr Stephens sought to distinguish Stefani v The King[69] (6 years' imprisonment) as involving a protracted assault over a period of time in the course of a kidnapping that ultimately, after the offender had left, resulted in the death of the victim.
4. In respect of the charge of affray, Mr Stephens was sentenced to 1 year and 9 months' imprisonment. The maximum penalty was five years. Mr Stephens noted that the sentence imposed was substantially higher than the average for a sentence for affray imposed in the higher courts, the most common outcome being a CCO and the median length of sentences of imprisonment being six months. The judge assessed the offending as being at a 'mid-range' of seriousness, there was no evidence of injury arising from the affray, and Mr Stephens offered an early plea of guilty. Again, Mr Stephens pointed to cases of more serious offending resulting in similar sentences and similar offending resulting in lower sentences.[70]
5. In respect of both charges, Mr Stephens emphasised the matters in mitigation, including youth, reduced moral culpability (including by the application of the Bugmy principles), the increased burden of custody upon Mr Stephens (including due to the pandemic) and his entitlement to a 'Worboyes discount'.
6. Finally, Mr Stephens challenged the order for cumulation and the subsequent total effective sentence of 5 years and 9 months' imprisonment as excessive. Cumulation of 12 months for a 21-month sentence where the affray was part of the same transaction as the charge of intentionally causing injury was said to be unusually high. The non-parole period of 3 years and 3 months was excessive, not as a proportion, but as a reflection of the total effective sentence that was imposed.
7. The respondent submitted that the sentence was within the range open to the sentencing judge. The stomping was entirely unprovoked, in public, involved a deliberate act to an inherently vulnerable area of the body and contributed to the victim's ongoing psychological harm. There was no explanation for the offending. The respondent referred to Stefani and, although emphasising that the sentence was not an outlier, cautioned against over-reliance on other comparable cases[71] or statistics in circumstances where the judge had carefully engaged with the personal circumstances of Mr Stephens.
8. Given Mr Stephens' likelihood of re-offending, his violent criminal history, his lack of insight and his poor rehabilitative prospects, the respondent submitted that the role of community protection loomed large. The sentencing judge's setting of a proportionally low non-parole period (56 per cent of the total effective sentence) also worked to allow Mr Stephens to have as much community supervision as possible, which the judge considered more likely to achieve a positive outcome. Current sentencing practices were only one factor to consider.
9. The respondent submitted that, with respect to affray, statistics were of limited assistance. Regarding the cumulation, while the offences occurred shortly after each other, this was not a case where affray was made up wholly or primarily of other offences for which the offender was independently sentenced. The two charges involved separate acts with a different criminality involved.
10. The principles governing an appeal against sentence on the ground of manifest excess have already been set out.[72]
11. In our view, each of the individual sentences was at least very high. On top of that, there was a substantial order for cumulation, in the amount of 12 months. The result is, in our opinion, that the total effective sentence was manifestly excessive. For the reasons that follow, we reach the same conclusion on the individual sentences.
12. Both offences were of 'mid-range' seriousness. Mr Stephens pleaded guilty at an early stage to the more serious charge of intentionally causing injury. The judge described the plea to the injury charge as 'last minute', but acknowledged the applicability of Atholwood. That case recognises that the nature of the overall charges being alleged at any given time before a plea is relevant to evaluating the timing of the plea. Here, the charge was intentionally causing serious injury until it became clear through the evidence of Dr Schreiber at the s 198B hearing that this could not be sustained. It was only a few months later that Mr Stephens indicated that he would plead guilty to intentionally causing injury. This is the subject of ground 3, below.
13. Mr Stephens, despite his youth, has a poor criminal record. His quite recent conviction for recklessly causing serious injury is especially relevant, involving as it did another unprovoked attack in public on a defenceless stranger. Stomping on a person's head, in a public place, is a despicable act which, without more, calls for a stern sentence.[73] There is a clear need for community protection from Mr Stephens. He is, however, able to call in aid the Bugmy principles which limit his moral culpability somewhat and also make him less suitable as a vehicle for general deterrence.
14. It is common ground that the physical injury inflicted on Mr Kim as a result of the stomping extended to soft tissue injury and pain. Whether the stomping caused a lack of consciousness, contributed to the indentation injury and/or aggravated the existing laceration to the neck is the subject of ground 2. For the reasons we set out in that context, it was not established beyond reasonable doubt that the stomping caused a lack of consciousness or contributed to the indentation injury. It would, however, have been open to the judge to find that it aggravated the existing laceration to the neck.
15. Again, without descending into the details of specific cases, it is striking that the sentences for both offences are among the highest imposed for each offence, and both represent substantial proportions of the maximum sentence available (48 per cent and 35 per cent respectively) notwithstanding their 'mid-range' seriousness and the relatively low level of injury capable of being attributed to Mr Stephens' offending. Given the circumstances of the offending, the guilty plea (during the pandemic), and the other mitigating factors on which Mr Stephens could rely, we consider these sentences to have been outside the applicable range.
16. The sentences should therefore be set aside. In their place, Mr Stephens should be sentenced to 3 years and 9 months' imprisonment on the intentionally causing injury charge and 12 months' imprisonment on the affray charge, 6 months of that sentence to be cumulated with the sentence on the first charge. The total effective sentence will therefore be 4 years and 3 months. We will fix a non-parole period of 2 years and 9 months. As a proportion, that represents a somewhat higher period without parole than the sentencing judge imposed, but we consider it to be the minimum period of the sentence which justice requires Mr Stephens to serve having regard to all the circumstances.[74]
17. As the applicant has succeeded on the manifest excess ground, it is not strictly necessary to decide whether the specific errors alleged within the remaining grounds vitiate the sentence. However, it is necessary to explain our conclusions with respect to those grounds, since those conclusions bear on, and are reflected in, our resentencing of Mr Stephens.
18. For the reasons set out below, we have re-sentenced Mr Stephens on the basis that, contrary to the judge's findings, it was not established that he contributed to a temporary lack of consciousness, or to the indentation injury. Further, while it was open to the sentencing judge to find that Mr Stephens' offending aggravated the existing laceration to the neck, the judge did not actually find that this was established beyond reasonable doubt and we have therefore not resentenced Mr Stephens on that factual basis.

1. As already mentioned, Mr Stephens challenged two of the judge's findings regarding Mr Kim's injuries. He submitted that it was the agreed position between the prosecution and defence that the injury caused by the stomp was limited to 'soft tissue injury and significant pain' and the attribution of further injury to Mr Stephens' conduct was in error.

[21] The injury caused by your head-stomping is difficult to quantify in isolation, separate to the laceration injury. The fact that Mr Kim was incapacitated at the time of the stomping assault by you is highly relevant. He was not able to avoid your attack, although he tried. He was completely vulnerable.

[22] Common sense suggests that a significant blow to the head shortly after a significant laceration to the same body area would further compromise a victim's physical presentation. There is evidence consistent with at least a temporary compromise of his consciousness in the CCTV. I do not suggest that his loss of consciousness is entirely the result of your stomping action. I do, however, find to the required standard that the combination of both acts contributed to that loss.[75]

1. Mr Stephens submitted that, in the plea hearing on 5 April 2023, both counsel submitted to the sentencing judge that the evidence did not support a finding to the requisite standard that Mr Stephens had caused a loss of consciousness. However, the judge found, based on viewing the CCTV footage, that Mr Kim 'did not move immediately and remained completely still for about three seconds and showed no signs of consciousness',[76] which she found was partly caused by Mr Stephens' stomping action.[77]
2. The respondent submitted that the judge's description of what occurred was an accurate description of the CCTV footage, being that the victim remained completely still for three seconds and showed no signs of consciousness. When passers-by came to help, he was able to speak to them, but was still unresponsive for most of the time while on the ground. The ambulance officers found the victim in a state of altered consciousness. Therefore, a temporary compromise of consciousness for approximately three seconds was open even though the prosecution did not agitate for it. The sentencing judge had raised this possibility with the parties and identified the basis on which she might draw that conclusion, which they did not resist. Even if the fact could not be proven beyond reasonable doubt, the respondent submitted that the finding was not material to the sentence imposed.
3. In our view it is not possible, having regard to the CCTV footage, to form any view as to whether the stomping caused Mr Kim temporarily to lose consciousness. The cameras were simply too far away to make any such assessment. It is true that he was rendered motionless, but that is not the same thing. It was therefore not open to find that Mr Stephens' conduct contributed to a temporary lack of consciousness.
4. Given our conclusions on ground 1, it is unnecessary to decide whether this specific error, of itself, was sufficiently material to the sentence so as to reopen the sentencing discretion.

1. In respect of the head stomping, the sentencing judge remarked:

[19] ... The injury caused by the head stomping, however, is more complex. Dr Schreiber, in his evidence on 30 November 2022, opined that a skull indentation, close to a head laceration, may have been caused by an incision or laceration to the back of the head.

[20] Dr Schreiber differentiated this wound to that produced by a stabbing event with the results as observed on Mr Kim's chest. Dr Schreiber also observed that other possible causes for the skull indentation could be punching, stomping or falling to the ground. There is, of course, evidence of stomping.

[21] The injury caused by your head-stomping is difficult to quantify in isolation, separate to the laceration injury. ...

[22] Common sense suggests that a significant blow to the head shortly after a significant laceration to the same body area would further compromise a victim's physical presentation. ...

[77] Whatever the immediate cause of the skull indentation, reason and common sense suggest that stomping on one's head after an incision to the back of the head could aggravate any injury that was caused by that incision. I accept that there is insufficient evidence to find, to the required standard, that the indentation was caused by your action alone.[78]

1. Mr Stephens submitted that the above extracts demonstrate an implicit finding by the judge that Mr Stephens contributed to the skull indentation. Such a finding was not open as it was disavowed by the prosecutor and unsupported by the s 198B evidence of Dr Schreiber.
2. The respondent submitted that the asserted finding is not implicit in the judge's reasoning. The comment that stomping on a person's head when a serious knife wound had been inflicted to the back of their head could aggravate that injury was plainly correct. The respondent submitted that, given the extensive discussion during the plea to the effect that indentation was not being alleged in respect of Mr Stephens, the judge's comment that she was not satisfied that Mr Stephens had caused the indentation 'alone' did not carry the implicit finding alleged by Mr Stephens.
3. It is common ground that Dr Schreiber did not attribute the indentation to the stomping and it was not open to find beyond reasonable doubt to the contrary. To the extent that the judge's statement that the indentation was not caused by Mr Stephens' acts 'alone' suggested that he should be sentenced for contributing to the indentation, the judge was in error. It is not necessary, given our conclusion on ground 1, to take that matter further.
4. We do not consider the judge to have made a finding that the stomping aggravated the laceration injury. The judge's statement that the stomping 'could' have aggravated the neck laceration injury was equivocal. But earlier, she arguably went further, when she found that the stomping 'would' have 'further compromised' Mr Kim's 'physical presentation'. Neither statement, however, amounts to a finding beyond reasonable doubt. In context, the reference to 'physical presentation' is better understood as referring only to the loss of consciousness that the judge described immediately afterwards.
5. On the other hand, we do not think that the judge would have been precluded by the conduct of the plea from making a finding that Mr Stephens' stomping aggravated the laceration injury. Although Dr Schreiber's evidence did not address this issue, it might be thought to be plain enough that stomping on someone's head while they lie bleeding from the neck from a substantial knife wound is apt to aggravate the effect of that wound. Given, however, that the judge did not make this factual finding, we have not resentenced Mr Stephens on this basis.

1. Mr Stephens pleaded guilty to the charge of intentionally causing injury the day before the trial was set to commence. The sentencing judge referred to that plea as 'late',[79] simultaneously accepting that it justified a significant reduction in accordance with Atholwood,[80] because the s 198B examination in November 2022 was necessary to a fact in issue on the charge of intentionally causing serious injury. By implication, that reasoning would suggest that the date of that hearing should be treated as the first opportunity to plead to a charge of intentionally causing injury. The judge referred to the plea offer, however, as a 'last minute one'.[81]
2. Mr Stephens submitted that treating the plea of guilty as 'late' or 'last minute' was in error in the light of Atholwood. In addition, he had offered to plead guilty to recklessly causing injury shortly after the s 198B hearing on 30 November 2022. Mr Stephens submitted that the period of two to three months until he pleaded guilty to intentionally causing injury could be almost entirely explained by the end-of-year vacation period.
3. The respondent submitted that, having regard to the chronology, describing the matter as resolving 'late' or 'last minute' was accurate and that the judge assessed the timing of the plea indication as she was required to do by s 5(2)(e) of the Sentencing Act 1991. The applicant did not offer to plead guilty to intentionally causing injury until the day before the trial. Mr Stephens' counsel on the plea had himself used the term 'relatively late'. The judge accepted the applicability of Atholwood and noted that the administration of justice was assisted by the plea to the injury charge.
4. This ground of appeal must be rejected. The judge expressly applied the principle in Atholwood. It was strictly correct to describe the plea on the injury charge as 'late' or 'last minute'. A plea indicated on the day before the trial was due to commence could hardly be described otherwise. However, while those descriptors might ordinarily suggest that the plea had significantly reduced value by virtue of its timing, the judge's acceptance of Atholwood makes it clear that she did not take that approach.
5. As Ipp J said in Atholwood, when the prosecution maintains counts that are ultimately abandoned, it should not be mechanically assumed that the offender has delayed pleading guilty because of an absence of remorse, or that he has not pleaded guilty at the earliest possible opportunity.[82] The judge recognised and applied this approach. Had it been necessary to decide, we would therefore have rejected ground 3.

1. Leave to appeal should be granted and Mr Stephens should be resentenced as set out at [104] above, namely to 3 years and 9 months' imprisonment on the serious injury charge and 12 months' imprisonment on the affray charge, with 6 months' cumulation to produce a total effective sentence of 4 years and 3 months. We fix a non-parole period of 2 years and 9 months.
2. For the purposes of s 6AAA of the Sentencing Act 1991, if not for the pleas of guilty, we would have sentenced Mr Stephens to 6 years' imprisonment with a non-parole period of 4 years.

[1] Pursuant to s 324 of the Crimes Act 1958.

[2] Contrary to Crimes Act 1958, s 18.

[3] Contrary to Crimes Act 1958, s 195H.

[4] The judge stated that Mr Pihlgren did not physically participate but the CCTV reveals a few attempts at engagement.

[5] While the Amended Summary of Prosecution Opening states that Mr Kim 'fell down', it is probably not accurate to say that as he was already on the ground.

[6] While she did not refer to the Amended Summary of Prosecution Opening in terms, it is clear that she relied on it, as she was entitled to: see below [38].

[7] DPP v Pihlgren [2023] VCC 547 [15]-[17] (Judge Symes) ('Pihlgren Sentencing Remarks').

[10] [2013] VSCA 172; (2013) 40 VR 134.

[11] [2011] VSCA 258.

[12] (2016) 262 A Crim R 455, 464 [34]; [2016] VSCA 252.

[13] [2019] VSCA 185 [46] (Priest JA and Kidd AJA).

[14] Pihlgren Sentencing Remarks [20].

[17] She had earlier stated that Mr Pihlgren 'rendered the victim unable to stand up immediately after the first stab': ibid [27].

[18] Sentencing Act 1991, ss 6D-6F.

[19] Pihlgren Sentencing Remarks [42]-[44].

[22] Verdins v The Queen (2007) 16 VR 269.

[23] Pihlgren Sentencing Remarks [39]-[41].

[30] Ibid [9]-[10] (emphasis added).

[32] Cf Nash [2013] VSCA 172; (2013) 40 VR 134, Cedic [2011] VSCA 258, O'Toole [2019] VSCA 185, Jawahiri v The Queen [2021] VSCA 287, Lukudu v The Queen [2019] VSCA 248.

[33] Sentencing Act 1991, s 6D(a).

[34] R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, 309-10 [13]-[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.

[35] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[36] [2019] VSCA 248 (Niall and Ashley JJA).

[37] Ibid [46]. As to 'double figures', see also Nash [2013] VSCA 172; (2013) 40 VR 134, 145-6 [55] (Priest JA, Maxwell P agreeing at 134 [1], Coghlan JA agreeing at 146 [60]).

[38] [2021] VSCA 287.

[39] Nash [2013] VSCA 172; (2013) 40 VR 134, 145-6 [55].

[40] Jawahiri [2021] VSCA 287 [41] (Priest and T Forrest JJA) (citations in original).

[41] [2019] VSCA 185 [46] (Priest JA and Kidd AJA).

[42] See, eg, DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457 (11 years 6 months - catastrophic injuries); Ali v The Queen [2010] VSCA 182 (15 years - catastrophic injuries); Hudson v The Queen [2013] VSCA 218 (10 years 6 months - life-threatening injuries; residual scarring); R v Kilic [2016] HCA 48; (2016) 259 CLR 256 (14 years - life-threatening, 'horrendous' injuries; serious residual scarring).

[43] Including Nash [2013] VSCA 172; (2013) 40 VR 134 and Cedic [2011] VSCA 258.

[44] Mr Stephens had also offered to plead guilty to recklessly cause injury, shortly after the s 198B hearing on 30 November 2022.

[45] DPP v Stephens [2023] VCC 1598 [7]-[9] ('Stephens Sentencing Remarks').

[52] The judge noted that Mr Stephens continued to fight Mr Kim even after the beginning of the stabbing, but that was not the subject of the affray charge. The prosecution accepted that the affray stopped when Mr Pihlgren intervened.

[53] Stephens Sentencing Remarks [78].

[55] The prosecution summary recorded this as having happened in May 2022, but it has not been suggested that the difference is material.

[56] Stephens Sentencing Remarks [79].

[57] (1999) 109 A Crim R 465; [1999] WASCA 256.

[58] Stephens Sentencing Remarks [81].

[61] DPP v Stephens [2020] VCC 626 (Judge Lacava).

[62] Stephens Sentencing Remarks [92]-[94], [103].

[64] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 ('Bugmy').

[65] The judge cited Bugmy [2013] HCA 37; (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and DPP v Silivaai [2023] VSCA 19.

[66] Stephens Sentencing Remarks [110], [114]-[115], [118].

[68] Magee v The King [2023] VSCA 80 (3 years 9 months - attack from behind with hockey stick with sharpened nails) ('Magee'); Wilson v The Queen [2022] VSCA 2 (4 years 6 months - intimate partner rendered unconscious with hammer) ('Wilson'); DPP v Reynolds [2022] VSCA 263 (9 months plus CCO - repeated punching of intimate partner to head and face, choking) ('Reynolds'); Fonua v The King [2022] VSCA 213 (2 years - victim punched to face and kicked on ground).

[69] DPP v Stefani [2022] VSC 821, which was upheld on appeal in Stefani v The King [2024] VSCA 29.

[70] Taupati v The Queen [2017] VSCA 106 (1 year - victim punched and kicked on road by group); Brown v The Queen [2018] VSCA 328 (1 year - punching and kicking, bar fight); DPP v Bidong [2020] VCC 1076 (22 months - large group attack on house, armed with poles).

[71] The respondent noted that this Court described the sentence of 3 years and 9 months in Magee as modest: [2023] VSCA 80 [46] (Beach and Niall JJA); the offender in that case had a less significant criminal history. In Reynolds [2022] VSCA 263, where the sentence was 9 months' imprisonment together with a 970-day CCO, there was significant reformation in the course of a three-year delay before sentence, and the offender had shown remorse. Delay was also highly relevant in Wilson [2022] VSCA 2.

[72] See [64] above.

[73] Wan v The Queen [2019] VSCA 81.

[74] DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 94 [43] (Callaway JA).

[76] Stephens Sentencing Remarks [13].

[79] Stephens Sentencing Remarks [80].

[80] Ibid [81]. Atholwood (1999) 109 A Crim R 465; [1999] WASCA 256 was applied by this Court in Maybus v The Queen [2017] VSCA 125.

[81] Stephens Sentencing Remarks [82].

[82] Atholwood (1999) 109 A Crim R 465, 468 [10] (Ipp J); [1999] WASCA 256.