Dahmes v The King
[2025] VSCA 213
•5 September 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0085 |
| ALEXANDER DAHMES | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR and KIDD JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 August 2025 |
| DATE OF JUDGMENT: | 5 September 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 213 |
| JUDGMENT APPEALED FROM: | DPP v Dahmes (Unreported, County Court of Victoria, Judge Harper, 10 April 2025) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Recklessly causing serious injury – Applicant headbutted, punched, kneed and elbowed victim at nightclub – Applicant had previous martial arts training – Whether judge erred in placing weight on martial arts training – Whether martial arts training aggravating factor – No procedural unfairness – Martial arts training a relevant factor in sentencing – Leave to appeal refused.
Elsayed v The Queen [2019] VSCA 113, referred to.
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| Counsel | |||
| Applicant: | Mr CM Terry | ||
| Respondent: | Mr DA Glynn | ||
Solicitors | |||
| Applicant: | Doogue & George | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
KIDD JA:
On 27 March 2025 the applicant pleaded guilty to a single charge of recklessly causing serious injury. On 10 April 2025 he was sentenced as follows[1]:
[1]DPP v Dahmes (Unreported, County Court of Victoria, Judge Harper, 10 April 2025) (‘Reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Recklessly cause serious injury[2] | 15 years | 9 months in combination with 12 month Community Corrections Order | Base |
| Total Effective Sentence: | 9 months’ imprisonment | |||
| Pre-sentence Detention Declared: | 0 days | |||
| Section 6AAA Statement: | Total Effective Sentence 3 years 6 months Non Parole-Period 2 years 3 months | |||
| Other Relevant Orders: 1. Community corrections order for 12 month period with special conditions. The applicant is to: a) Undergo assessment and treatment for alcohol use. c) Undergo programs to reduce reoffending. | ||||
[2]Contrary to s 17 of the Crimes Act 1958.
The applicant now seeks leave to appeal against sentence on two grounds formulated as follows:
1. The sentencing discretion miscarried because the learned sentencing judge failed to accord procedural fairness to the applicant:
a.The learned sentencing judge placed significant weight on the applicant’s history of martial arts training in the reasons for sentence.
b.The learned sentencing judge did not raise this issue in the course of the plea and did not indicate that it may be considered to be a significant aggravating factor;
c.Had the applicant been aware that the learned sentencing judge considered this matter to be potentially aggravating, there were reasonable arguments that could have been made to persuade the judge that the applicant’s martial arts experience was not an aggravating factor and was entirely neutral in the assessment of moral culpability.
2. The learned sentencing judge erred by treating the accused [sic] history of martial arts training and boxing as an aggravating factor, in circumstances where it was not open to do so.
For the reasons that follow leave to appeal should be refused.
Summary of offending
On 27 May 2023 the applicant attended Retro Nightclub with his partner, Amanda Perera, and a group of friends. Tamati McCulloch and a group of his friends were also at the nightclub.
At 11:41 pm Mr McCulloch had a minor altercation with Ms Perera on the dance floor. The applicant was, at that time, in an adjoining hallway. He was very drunk but not totally incapacitated. Ms Perera found him and took him back to the dance floor to confront Mr McCulloch. What happened next was captured by CCTV footage. That footage was played to the Court during the hearing of the application.
The applicant took a sip from a glass in his right hand before headbutting Mr McCulloch with significant force to the face.[3] Before Mr McCulloch could steady himself the applicant used his right hand to punch Mr McCulloch to the head. A friend of Mr McCulloch’s grabbed the applicant by the back of the shirt as the applicant punched Mr McCulloch twice to the back of the head with his right hand in a closed fist. He was no longer holding a glass. The applicant grabbed the back of Mr McCulloch’s shirt with his right hand and kneed him to the body as Mr McCulloch was bent over. The applicant then swung his right elbow down towards the back of Mr McCulloch’s head/neck area with significant force. Others then intervened and held the applicant back. Throughout, the applicant was yelling angrily at Mr McCulloch.
[3]The judge did not find the presence of the glass at the start of the incident to be an aggravating factor. See Reasons, [7].
Mr McCulloch attended the Royal Melbourne Hospital at about 12:24 am on 28 May 2023. He was drowsy, with a Glasgow Coma Scale of 13–14 against a background of intoxication (alcohol and cocaine) and concussion. He had a 2 x 2cm indention on his forehead, being a comminuted fracture of the anterior table of the frontal bone in the midline. The fracture was severely displaced and fragmented. Mr McCulloch was discharged from hospital on 28 May 2023. On 9 June 2023 Mr McCulloch underwent a surgical procedure, namely a coronal flap, open reduction and internal fixation of the frontal bone. As a result he sustained secondary nerve damage to the forehead and upper eyelids and a permanent scar to his skull.
In a text message to a friend on 28 May 2023 the applicant wrote ‘Mate love the biff. Great ending to a night’.
On 9 June 2023 the applicant participated in a record of interview (‘ROI’) with police. He said that he remembered Ms Perera telling him that some guy had pushed her and the same guy had pushed her again right in front of him. The applicant also said that he grew up doing ‘martial arts and stuff’ and never wanted to get in a fight. He described his actions as a ‘massive overreaction’ and ‘disgusting behaviour’.
The applicant maintained at the plea hearing that he saw Mr McCulloch push Ms Perera a second time. No such push is recorded on the CCTV footage.
The plea hearing
In opening the matter the prosecutor referred to the answers given by the applicant in his ROI concerning his martial arts training. In particular, his statement that the final elbow blow was a learned manoeuvre was highlighted.
The applicant gave evidence at the plea hearing. He said that he had told police during his ROI that he had been involved in martial arts and done some boxing. He had done Muay Thai for about five years and ‘dabbled in a little bit’ of Brazilian Jiu-Jitsu and boxing.
When asked what Muay Thai had taught him about restraint and not being an aggressor, the applicant said that it was ‘massive’ on respect for others, one’s teacher and the dojo itself. One had to leave one’s ego at the door and ‘never go too hard’. The applicant said that there were a few bad kids who came for the wrong reasons, that is, to learn how to fight and take it out to the streets. He said ‘[i]t’s a martial art to defend yourself, not to use against others and that’s — yeah, that’s what I wholly believe in as well.’ The applicant further said that his offending behaviour went against everything he advocated and stood for. He said there were no excuses and it was ‘disgusting’.
During the plea the applicant’s counsel did not make specific reference to the applicant’s evidence concerning his martial art training, other than as a basis for arguing the existence of genuine contrition.
In his submissions the prosecutor said
[The applicant] knew that he could — he had the skills to do this. Sadly, he used them in a totally inappropriate setting, where it was unsafe. He accepts that now.
A little later the prosecutor said that the applicant had reached his thirties maintaining a lawful life but
he should have known better. He was — he was trained to use this in a lawful way and he’s done it in completely the wrong setting now. So [that is] another issue for Your Honour to balance out, in terms of his culpability really.
In his reply the applicant’s counsel did not address these submissions made by the prosecutor.
Sentencing reasons
The judge termed the applicant’s offending ‘plainly serious’.[4] The agreement of the parties that the skull fracture fell towards the lower to mid-range of seriousness for a serious injury was accepted.[5] The judge said
It was submitted that your actions were not unprovoked as your victim had been in an altercation with Ms Perera earlier in the evening. While you maintain there was a second incident immediately prior to your attack, that was plainly not the case according to the CCTV. You are a trained boxer. I consider that although you were alcohol affected, your moral culpability is high.[6]
[4]Reasons, [15].
[5]Reasons, [16].
[6]Reasons, [17].
The impact on Mr McCulloch was noted.[7]
[7]Reasons, [18].
The judge gave full weight to the applicant’s cooperation, admissions and indication of a plea of guilty at the earliest possible opportunity. In addition to the utilitarian value of the plea, the judge considered it demonstrated an acceptance of responsibility together with some remorse. [8]
[8]Reasons, [19]–[21].
The applicant’s personal circumstances were summarised by the judge as follows. He completed Year 11 before commencing an electrical apprenticeship. The applicant had since worked in retail, personal training, labouring, hospitality and manufacturing jobs. At the time of sentence he was employed as a production assistant team leader at a pharmaceutical manufacturing company. The applicant had been in a relationship with Ms Perera for five years. Together they were living with her parents in order to save to buy their own home. The applicant was 35 years of age and came from a close knit family. He is the youngest of four siblings. His sister has five children with a range of medical conditions. The applicant helped care for those children and had, at times, lived with his sister to provide assistance. Although alcohol-affected at the time of the offending, the applicant had no drug or alcohol dependency issues nor any mental health concerns. The judge received three character references that each spoke of the applicant’s good character and his commitment to his family and friends, as well as his remorse for the offending.[9]
[9]Reasons, [22]–[29].
The judge described the level of violence inflicted on Mr McCulloch as ‘horrific’. While it lasted only four to five seconds, the judge said that the CCTV footage was truly shocking.[10] The offending was said not to be planned. Nor did it involve a weapon. Nonetheless it involved repeated contact with Mr McCulloch’s head by way of a headbutt, multiple punches, a knee and an elbow.[11] The judge quoted Ashdown v The Queen[12] to the effect that the offence of recklessly causing serious injury requires more than mere carelessness in which the offender fails to appreciate the risk of injury, but rather a conscious disregard of a risk of serious injury which the offender knows to exist.[13] The judge said
You are a trained boxer and Muay Thai fighter. Other members of the community must be protected from violence such as this, inflicted for no good reason. Your counsel repeatedly submitted that this incident was in response to the preceding altercation between your girlfriend and your victim. That may have been so, but it was over, it was nothing to do with you and it did not call for your intervention. There was, as I have made clear, no second push to which you were responding. [14]
[10]Reasons, [30].
[11]Reasons, [31].
[12][2011] VSCA 408, [52]–[53] (Maxwell P).
[13]Reasons, [32].
[14]Reasons, [33].
General deterrence and community protection were considered paramount sentencing factors.[15] Despite the applicant’s lack of criminal history and otherwise prior good character, the judge said specific deterrence was also a consideration.[16] Just punishment, denunciation and parsimony were expressly referred to.[17] The judge gave weight to both limbs of delay as relevant to the sentencing exercise[18] and termed the applicant’s prospects for rehabilitation excellent.[19]
[15]Reasons, [34].
[16]Reasons, [35].
[17]Reasons, [42].
[18]Reasons, [37].
[19]Reasons, [38].
The judge considered current sentence practice and noted that the applicant’s submission that a community corrections order (‘CCO’) should be imposed was not said by the prosecution to fall outside the range of available sentences.[20] The judge concluded, however, that an immediate term of imprisonment in combination with a CCO was the only sentence which adequately met the competing sentencing considerations for such an alcohol-fuelled violent attack.[21]
[20]Reasons, [39]–[41].
[21]Reasons, [43].
Applicant’s contentions
Ground 1 — procedural fairness
The applicant contends that the possibility his history of martial arts training might be considered an aggravating factor was not raised by the judge during the plea hearing. The evidence was led only to show that the violence of the applicant’s offending was out of character. Nonetheless the judge placed considerable weight on the applicant’s martial arts training as a matter aggravating his offending and elevating his moral culpability. Accordingly, the applicant submits that he was denied procedural fairness.
The applicant further contends that, had he been afforded procedural fairness, the following submissions would have been made.
(a)None of the acts causing the serious injury were ‘particular martial arts’ acts and he was in no better position to execute them than someone without martial arts experience.
(b)The headbutt was specifically something which was not learned in martial arts.
(c)There was little evidence as to what extent he was a ‘trained boxer’.
(d)The applicant gave evidence that he knew not to employ martial arts skills outside a controlled environment.
(e)The applicant’s intoxication impacted his ability to put into practice any martial arts experience.
The asserted denial of procedural fairness is argued by the applicant to be material because he had powerful factors in mitigation of penalty and the prosecution conceded that a CCO was within the range of appropriate sentences.
Ground 2 — martial arts training as aggravating factor
The applicant contends that it was not open to the judge to find, beyond reasonable doubt, that his martial arts and boxing training was to be considered as an aggravating factor which increased his moral culpability. Three reasons are advanced for that contention.
(a)The act which caused the serious injury could not be identified.
(b)Even if the act was a punch or other blunt force, that was not a violent action arising from the applicant’s special training or experience.
(c)The judge could not be satisfied that the applicant acted in a manner consistent with his training and experience.
The applicant further contends that, but for the impermissible use of the martial arts training as an aggravating factor, a different sentence would have been imposed.
Respondent’s contentions
Ground 1 – procedural fairness
The respondent contends there was no denial of procedural fairness to the applicant in this case. The judge’s finding arose squarely on the evidence called and submissions made. The prosecutor opened the matter referring to the applicant’s answer in the ROI that the elbow strike was a technique he learned in martial arts. The applicant then gave viva voce evidence about his martial arts training before the judge. His martial arts skills and experience were subsequently referred to in the submissions made by the prosecutor. Accordingly, the respondent argues that the applicant had the opportunity to address the relevance of his martial arts training to the sentencing exercise but did not do so.
Ground 2 — martial arts training as aggravating factor
The respondent accepts that the judge placed some weight on the applicant’s martial arts experience with respect to his moral culpability. The respondent argues the judge was correct to do so. The applicant had, relative to an untrained person, an increased capacity to inflict serious injury on a person and, knowing that, committed a serious and unprovoked assault. Further, the elbow strike, delivered as the coup de grace, was a technique the applicant had learned through martial arts training.
The respondent further submits that the actual weight given to this matter by the judge was appropriate. It was but one matter considered in sentencing the applicant for an unprovoked and furious alcohol-fuelled assault which involved repeated blows to Mr McCulloch’s head and caused him serious injury. It is submitted that the sentence imposed was not wholly outside the range available to the judge in the sound exercise of her sentencing discretion.
Discussion and analysis
Ground 1 — procedural fairness
In the context of sentencing, the essence of procedural fairness is that a judge
should not take into account a particular factor, attending the offending in question, as an aggravating circumstance, unless counsel for the offender has had an opportunity to address that matter in the course of sentencing submissions.[22]
[22]Elsayed v The Queen [2019] VSCA 113, [25] (Kaye and Weinberg JJA).
Plainly, that requirement has been satisfied in this case.
During his ROI the applicant was shown the CCTV footage. He was then asked the following questions and gave the following answers with respect to the elbow strike:
Q: Is that something that they would teach you, this kind of downward elbow strike?
A: Yeah.
Q: What would be the point of executing a move like that?
A:The point of an elbow is more at close range, to split the guard. The guy, so that if they’re up like that, just to go down.
A little later there was a further question and answer:
Q: And the elbow, is it fair to say that, I – kind, like he’s – from where he’s hunched over, you’re sort of driving? You’ve got the full force of your elbow and gravity and it would be fair to say that someone who executes that manoeuvre was looking to injure someone?
A: I guess so.
Not only was the ROI before the judge as part of the depositions, but these questions and answers were highlighted by the prosecutor in opening.
The applicant then gave evidence as to his years of experience in martial arts. This evidence established that the applicant had fighting skills that someone untrained in martial arts (and boxing) would not have. That those skills specifically included learned control and restraint was relevant to the applicant’s moral culpability.
As noted above, in response to the matters advanced on the applicant’s behalf by his counsel, the prosecutor then twice referred to the applicant’s martial arts skills, once to the skills themselves and once to the learned control and restraint, to found the argument that the applicant should have known better.
The applicant’s counsel was afforded an opportunity to reply. A reply was made, but no submission was directed towards the relevance of the martial arts experience of the applicant in opposition to the prosecution submission, or at all.
Ground 1 must fail.
Ground 2 — martial arts training as aggravating factor
It is clear the judge did put some weight on the applicant’s martial arts training as relevant to his moral culpability for the offending. The judge was correct to do so.
Unlike a person who had not had the benefit of that training, the applicant had a confidence that he could handle himself in a physical confrontation born of experience. He knew how to give, and receive, a punch. And, as he told police, the last blow with his elbow was a manoeuvre that he had learned through his martial arts training. His own evidence that he had been taught control and restraint makes good the prosecution submission to the judge that the applicant, specifically, should have known better.
The applicant sought to characterize the weight the judge attached to this factor as ‘significant’. The descriptor is immaterial. It was one factor considered by the judge in arriving at the sentence imposed. Notably, the judge did not sentence the applicant on the basis that he deployed any martial arts manoeuvre, despite the evidence that he had learned the elbow strike as part of his training.
The assault was truly shocking. As noted above, the CCTV footage was played at the oral hearing of the application. We discern no error in the judge’s conclusion that the only appropriate sentence for the one-sided, unprovoked, ‘alcohol-fuelled, violent attack’ was an immediate term of imprisonment combined with a CCO.
Ground 2 must fail.
Conclusion
The application for leave to appeal against sentence is refused.
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