UNCLE WALLY: Yes. So you were on Yorta Yorta country, my country, Uncle Len's country, using a knife.

[APPLICANT]: I don't recall using a knife but, yeah.

UNCLE WALLY: Yes. Well, that's what it's there.

[APPLICANT]: Yeah.

UNCLE WALLY: That's what we heard. How do you think that would have made our elders feel you walking around the street with a knife?

[APPLICANT]: No, not right at all.

UNCLE WALLY: Not right.

[APPLICANT]: I was in a pretty bad headspace at the time.

1. Later, addressing the applicant, Uncle Wally said:

So never lose your culture. Be the man that you want to be. Be the warrior, be the wise man, be an elder. Stay away from the bad warrior. Carrying knives in the community is not going to get you anywhere. These two boys [Van Den Akker and Renouf] deserve to have a father in their lives and you deserve to have your sons. To do that, it's going to take work. AA [Alcoholics Anonymous] NA [Narcotics Anonymous]. AA will always tell you it's one day at a time. One day. Don't get ahead of yourself.

1. Following these observations by Uncle Wally, the applicant's counsel had an opportunity to make further submissions about the applicant's possession of a knife but did not do so. In those circumstances, the suggestion that the applicant was denied procedural fairness cannot be accepted.
2. Quite plainly, the applicant must have armed himself with a knife or other bladed weapon at a time proximate to his physical interaction with the victims since, self-evidently, they did not stab themselves. Moreover, given the nature of the wounds caused to the two victims, the instrument used by the applicant to inflict those wounds must have been a bladed weapon such as a knife.
3. Furthermore, insofar as the applicant may have claimed when assessed by a reporting psychologist that he may have 'grabbed a weapon' in the course of the altercation with his victims, that claim is worthy of little or no weight. As to that, we note that Carla Lechner, psychologist, in a report dated 24 March 2025, stated:[5]

[The applicant] has pleaded guilty to the above charges. He has limited recollection of what precisely occurred on account of his level of alcohol intoxication. He stated that it was in the days shortly after breaking up with his long-term partner and he was 'in a bad way'. He believes that he was acting in self-defence. He maintains that he did not bring a weapon but concedes that he likely grabbed a weapon in the course of the altercation. ...

1. Additionally, as was noted above, the applicant told Uncle Wally in the course of the sentencing conversation, 'I don't recall using a knife'.
2. Notwithstanding his apparent assertions to Ms Lechner and Uncle Wally during the sentencing conversation, it is uncontroversial that the applicant must have used a knife or a similar weapon to injure his victims. It is highly unlikely that he might have done so by grabbing a weapon from one of them.
3. In these circumstances, grounds 1 and 2 cannot be upheld. It was open to the judge to find that the applicant was carrying a knife at the time he caused the injuries foundational of charges 1 and 2. There was no denial of procedural fairness.

1. As a result of an amendment to s 15 of the Crimes Act 1958 effected by the Crimes Amendment (Gross Violence Offences) Act 2013, a 'serious injury' for an offence committed after 1 July 2013 is 'an injury (including the cumulative effect of more than one injury) that ... endangers life; or ... is substantial and protracted'.
2. The applicant's counsel submitted that, although the two victims suffered serious injury as defined, the applicant did not fall to be sentenced on the basis that he intended to cause injury to the victims that would endanger life or be substantial and protracted. So much cannot be gainsaid. But despite the fact that it must be accepted that the applicant did not intend to cause injury to Mr Van Den Akker and Mr Renouf amounting to 'serious injury' as now defined, it does not follow that he fell to be sentenced on the basis that he intended to cause injury that was merely trivial, or other than severe (falling short of 'serious').
3. Mr Van Den Akker suffered stab wounds to the chest - resulting in subcutaneous emphysema around the chest wall - abdomen and flank, causing injuries to the diaphragm and spleen which required surgery. Mr Renouf suffered a deep laceration open down to muscle, with deeper abdominal visceral organ fat on view. Damage to muscles of the abdomen and thigh - including transection of a nerve in his thigh (which may cause permanent numbness in the region) - required emergency surgery to repair the damage. He was hospitalised for four days. As the applicant's counsel acknowledged in this Court, objectively the victims' injuries amounted to 'serious injury'. The fact that the victims objectively suffered 'serious injury' was a matter informing an assessment of the gravity of the offence.
4. Moreover, the seriousness of the applicant's offending must be gauged not only by the injuries themselves, but also by the method of their infliction. The use of a bladed weapon to cause injury aggravates the applicant's offending. Indeed, the resort to bladed weapons in violent confrontations is the source of justified community concern, calling for general deterrence to be given full weight as part of the sentencing task.
5. Under cover of ground 3, the applicant's counsel relied on the following matters to contend that the sentence was manifestly excessive:
   • first, the applicant pleaded guilty to intentionally causing injury, not serious injury;
   • secondly, the applicant was entitled to rely on Bugmy[6] and Verdins[7] considerations to reduce his moral culpability;
   • thirdly, the applicant was responding to an aggressive pursuit, so that his moral culpability was reduced, therefore rendering the role of general deterrence limited and that of specific deterrence modest; and
   • fourthly, the delay was exceptional.
6. In our view, far from being manifestly excessive, the sentence imposed on the applicant is lenient.
7. A conclusion that a sentence is manifestly excessive does not rely on the attribution of discrete error. Nonetheless, an examination of the judge's reasons demonstrates that she had regard to all of the matters that were relevant to the exercise of the sentencing discretion in the applicant's case.
8. In her reasons for sentence, the judge described the circumstances of the offending - including the victims' injuries and their treatment - and noted that the applicant also suffered injuries (including fractures to his nose and left medial orbit, and multiple bruises and grazes to his body). The judge noted that in his record of interview with police on 13 December 2020, the applicant told police that: he was hit with a pole or baseball bat; there were seven onto one; he was punched and kicked; he only threw a couple of hits; and he did not stab or injure anyone and would not have a clue how other people were injured.
9. The judge said that the applicant's offending was serious. Although she could not exclude that the applicant's actions were committed in self-defence, 'those actions were excessive and disproportionate and far outweighed any reasonable response to the threat posed'. It took little to imagine the serious physical and psychological impacts the applicant's offending must have had on the victims.
10. Further, the judge noted that the applicant's plea of guilty, entered post-committal, had significant utilitarian benefit. The community was saved the time and expense of running a trial and the victims were spared the ordeal of giving evidence at trial. In those circumstances, the applicant had facilitated the administration of justice, and was 'entitled to a benefit for that'. By his plea the applicant had accepted responsibility for his offending 'and there is some demonstration of remorse', although the judge noted the applicant's claim that he had little recollection of the offending.
11. As to the applicant's personal circumstances, the judge noted that the applicant is a 43-year-old Gunditjmara man, born in February 1982. He was raised in Broadmeadows, and left school at the end of year 7 after multiple suspensions, later completing a course in Aboriginal Studies at Kangan TAFE. The applicant was abused by the local parish priest, and as a child was exposed to alcoholism and domestic violence at home. He commenced heroin use at age 12, ceasing its use in 2015, and methadone use in 2020. In 2024, he began using 'ice' and quickly developed an addiction. The applicant has three children - sons aged 21 and 18 and a 16-year-old daughter - and has contact with his sons, who were present in court to support him. He has a limited employment history and was a participant in the NDIS. While in custody the applicant had suffered a severe leg infection that had required hospitalisation. He had also participated in the Dardi Munwurro program and had recently sold his first painting through the Torch (an organisation that provides art, cultural and arts industry support to First Nations people currently in, or recently released from, Victorian prisons).
12. The judge noted that she had received a psychological report from clinical psychologist, Ms Carla Lechner. Testing indicated that the applicant is likely to be severely psychologically distressed and he displayed symptoms of post-traumatic stress disorder ('PTSD'). The applicant's recall of the offending is limited by his use of alcohol at the time. Ms Lechner found the applicant to present 'with a complex clinical picture that includes symptoms of complex PTSD, adult ADHD [attention deficit hyperactivity disorder], poly-substance abuse, poor emotional and behavioural regulation and an acquired brain injury'. An ARBIAS ('Acquired Brain Injury Disability Support Services') report from Dr Matt Treeby found the applicant to have a full-scale IQ of 72. Dr Treeby reported that the applicant's 'experience of complex trauma and early onset of polysubstance use from a young age likely compromised his cognitive, emotional and brain development during childhood and adolescence'. The applicant's drug use and head trauma history are likely to have resulted in some degree of acquired brain injury.
13. Further, the judge acknowledged the applicant's participation in the sentencing conversation - which is 'confronting' and 'more difficult than a General List plea hearing' - and set out what was observed by this Court in Honeysett[8] concerning the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor.
14. The judge found that Bugmy considerations were applicable 'in a general sense', and said:

I find that your exposure to alcohol and family violence, your early drug use and sexual abuse renders your moral culpability less than that of an offender whose formative years have not been so marred. I reduce the sentence accordingly.

1. As to Verdins considerations, the judge observed:

While moderated, general and specific deterrence still have some application in your case as do denunciation and just punishment. You and others minded to commit offences such as these must be made aware that serious punishment will follow. This type of offending is unacceptable.

Ms Lechner found that your symptoms are 'aggravated by the inherently threatening and conflictual prison environment'. I take this into account and apply limbs 5 and 6 of Verdins, that gaol will be harder for you than for someone without your conditions and that your condition may worsen in custody.

You have an extensive criminal history including some dated but relevant injury offences. I consider community protection to have some relevance here.

Your prospects of rehabilitation are entirely contingent on you remaining drug free and engaging with the supports available to you.

I note that the offending occurred in 2020 and has now been hanging over your head for some time. I take this delay into account.

1. Finally, the judge said she took parity into account 'to the extent that it is relevant', noting that police refused to pursue charges of affray against Mr Van Den Akker; that Mr Kosterman pleaded guilty to affray and other unrelated charges and was sentenced to an aggregate term of three months' imprisonment; and that Mr Renouf completed Diversion and a charge of affray was subsequently discharged.
2. The approach this Court must adopt to a complaint that a sentence is manifestly excessive was set out in Leimonitis:[9]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[10] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[11] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[12] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[13]

1. As we have indicated, it is plain from an examination of the judge's sentencing reasons that she had regard to all of the matters urged upon her that were relevant to the exercise of the sentencing discretion. When synthesising for ourselves the various factors that the judge took into account, we are not persuaded that the applicant's sentence is manifestly excessive. Paying due regard to the delay in finalising the matter, and taking into account the applicant's plea of guilty (including some remorse); his psychological condition (including Bugmy and Verdins considerations); and his participation in the sentencing conversation; we have been unable to conclude that the sentence imposed is manifestly excessive. Indeed, if anything, the sentence is, as we have said, lenient.
2. The applicant has a poor criminal history, commencing in 2000. Although the majority of his previous offending relates to dishonesty offences (such as theft and burglary), and to driving and 'street offences', he has previous convictions for robbery, assault, assault with a weapon and possessing dangerous articles. He has also breached community based dispositions and suspended sentences of imprisonment. Although he did not fall to be sentenced again for his previous offending, his poor criminal history is directly relevant to his prospects of rehabilitation, the need for specific deterrence and requirements of community protection.[14] Also in that vein, we note that, during the period of delay between the present offending and sentence, the applicant committed offences which included assault with a weapon, for which he was sentenced - and served - a sentence of 18 months' imprisonment.[15]
3. Albeit that their genesis may initially have been rooted in self-defence, the applicant's offences were serious examples of intentionally causing injury. A knife or other bladed weapon was used and severe injuries were caused. In those circumstances, both general and specific deterrence had to be given weight in the exercise of the sentencing discretion, as did denunciation and community protection. And as the judge said, the applicant's prospects of rehabilitation were 'entirely contingent' on him remaining drug free and engaging with the available supports available.
4. For these reasons, ground 3 cannot be upheld.

1. The application for leave to appeal against sentence must be refused.

[1] Crimes Act 1958, s 18. The maximum penalty is 10 years' imprisonment.

[6] Bugmy v The Queen (2013) 249 CLR 571 ('Bugmy').

[7] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[8] Honeysett v The Queen [2018] VSCA 214; (2018) 56 VR 375, 389 [54]-[55] (Priest, Beach and Hargrave JJA) ('Honeysett').

[9] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).

[10] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v The Queen [2013] VSCA 4, [12] (Priest JA); Allen v The Queen [2013] VSCA 44; (2013) 36 VR 565, 573 [51]-[52] (Priest JA).

[11] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[13] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15] [Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ].

[14] R v O'Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).

[15] See R v Rumpf |[1988] VicRp 55; [1988] VR 466.