Director of Public Prosecutions v Pihlgren

[2023] VCC 547

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-00893

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARED PIHLGREN

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2023
DATE OF SENTENCE:	13 April 2023
CASE MAY BE CITED AS:	DPP v Pihlgren
MEDIUM NEUTRAL CITATION:	[2023] VCC 547

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Intentionally causing serious injury - Serious violent offender

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Cedic v The Queen [2011] VSCA 258; Nash v The Queen (2013) 40 VR 134; Chol v The Queen (2016) 262 A Crim R 455; Ranger v The Queen [2018] VSCA 271; O’Toole v The Queen [2019] VSCA 185 and Wyka v The Queen [2020] VSCA 104.

Sentence:                  12 years imprisonment. 8 years non-parole.  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Singh	Ms C. Picone (Office of Public Prosecutions)
For the Accused	Mr C. Oldham	Ms Y. Kushnir (Slades & Parsons)

HER HONOUR:

1Jared Pihlgren, you have pleaded guilty to one count of causing serious injury intentionally contrary to section 16 of the Crimes Act 1958 (Vic).[1]  The maximum penalty for this offence is 20 years imprisonment.

[1]Committed at Melbourne, Victoria, on 17 December 2021.

Introduction

2At the time of offending, you were 52 years of age. Your co-offender and son, Mr Jay Stephens, was then 22 years of age. The victim,  Mr Jingu Kim, was 35 years of age and not known to either of you.

3On 16 December 2021, Mr Kim had been to a restaurant and later, a karaoke bar, on Healy’s Lane in Melbourne. At about midnight, he left the premises and intended to walk home.   

4CCTV footage was tendered as part of the prosecution case. I have viewed this footage closely as it provides the best, and an objective view, of the following events. It is necessary to describe the entirety of the events in order to give context to your involvement in them.  

Circumstances of offending

5At about 12:28am, Mr Kim walked east on Lonsdale Street toward Queen Street. He was followed by you and your son. At the southern side of Lonsdale Street, he was approached by Stephens who engaged him in an argument. Stephens subsequently assaulted Mr Kim by punching him multiple times to the head and upper body.

6Mr Kim tried to defend himself by avoiding Stephens. He moved away but could not escape. During this period of the altercation, which lasted about 3 minutes in total, you were generally present, but not physically participating. You hovered close by.  

7Once Stephens and Mr Kim progressed their fight to the ground, Mr Kim was in a position slightly above Stephens. You moved closer, bent over and removed a knife from your bum-bag.

8You initially attempted to stab Mr Kim in the area of his back, but you do not appear to have made contact. You then succeeded in stabbing Mr Kim forcefully in the upper left area of his back. You caused a deep puncture wound that penetrated through to Mr Kim’s lung.  

9Mr 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.   

11You and your son moved a few steps away while Mr Kim remained on the ground. It is clear from the CCTV that he was significantly injured and not capable of doing anything beyond attempting to raise himself into a crawling position - as if to avoid further attacks. He was bleeding heavily from his wounds.

12While Mr Kim was bleeding heavily and barely moving, Stephens returned to him some 7 seconds after he had picked himself up from the ground. He then forcefully stomped onto the side of Mr Kim’s head.

13The CCTV shows that this stomp was one of considerable force. It was inflicted on a victim who was, at that stage, lying on the footpath. A moment before Stephens jumped onto his head, Mr Kim raised both hands to try to defend himself. He did not move immediately after his head was stomped on.  At this point, you looked at Mr Kim as he lay on the ground. You and Stephens ushered each other away.

14My observation is that at this point, Mr Kim shows no signs of consciousness. He was bleeding heavily. A few minutes later, bystanders approached and tried to assist. An ambulance was called. By this time, it seems that Mr Kim was slipping in and out of consciousness.   An ambulance arrived and Mr Kim was treated at the scene before being transported to hospital. A significant amount of blood was observed on the footpath.

Mr Kim’s injuries

15A medical report from Dr Schreiber from the Victorian Institute of Forensic Medicine notes that Mr Kim’s condition was initially life threatening. Mr Kim required chest drain insertion and emergency surgeries.

16Dr Schreiber concluded that there was sustained sharp trauma to Mr Kim’s torso and hand alongside injury to his spine. Injuries to his chest were deep and life threatening. He suffered heart failure and significant lung collapse. He required resuscitation.  Without hospital intervention, he would have died. This is the first life threatening injury relied on by the prosecution. It is not in dispute that this was the result of the first successful stab inflicted by you. 

17Dr Schreiber, in an additional report dated 21 June 2022, noted that there was blunt trauma to the head and face including ‘indentation’. Indentation 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.

18I observe that the medical opinion confirms that significant blood loss can result in loss of consciousness. In the context of this case, I find that it was one of the causes of Mr Kim’s loss of consciousness. His fading,  physicality and consciousness is evidenced in the CCTV footage from the time of the first stab.   

19Mr Kim also suffered soft tissue injuries, bruising and pain to his face, body and head. It is noted that the charge against Stephens of intentionally causing injury relates to the injury caused by Stephens when he stomped on Mr Kim’s head as he lay on the ground, bleeding heavily.  

Victim Impact Statement

20Mr Kim has provided a Victim Impact Statement. There is no doubt that this event perpetrated by both of you on him continues to cause him real physical and psychological damage. He told the Court that his heart stopped for 3 minutes. He was also in a coma for 3 days. He suffers continued pain in his body as a result of the totality of your attacks. His psychological presentation now includes post-traumatic stress disorder, anxiety and panic attacks to the extent that he is unable to work or even exercise properly. As a result, every aspect of his life has been detrimentally affected. 

Objective seriousness & relevant sentencing principles

21The following matters have non-exhaustively been taken into account in assessing the gravity of a particular incidence of causing serious injury intentionally: an offender’s proven intent (whether to cause serious injury, really serious injury or the maximum possible injury);[2] the seriousness of the injury actually caused (encompassing both the immediate and long-term consequences for the victim);[3] the vulnerability of the victim;[4] whether a weapon was used;[5] the duration of the attack and whether the offender acted alone or in company.[6]

[2]Nash v The Queen (2013) 40 VR 134 at [10].

[3]Ranger v The Queen [2018] VSCA 271, [79].

[4]Ibid [78].

[5]Wyka v The Queen [2020] VSCA 104, [88].

[6]Nash above n 2.

22From its commencement, the attack on Mr Kim was completely unprovoked and started by Stephens. You joined in and made the attack even more one-sided; two against one.  You were armed with a knife, and on the CCTV evidence, there was some precontemplation before you joined in on the attack.  

23There is no suggestion of defence of another.  It was submitted that you moved in to attack Mr Kim out of concern for your co-offender as you told your counsel he had recently suffered a serious injury. I note that your co-offender reported an ankle injury to the Community Corrections Order report author and that he had recently been in a wheelchair. No supporting documentation was provided.  

24There is no evidence in  the CCTV which suggests that your co-offender was physically compromised in any way that night. His attack on Mr Kim was ferocious. There is no evidence of a leg or ankle injury especially considering his head stomp action.  

25I do not accept this explanation, at any level, as a reason for your assault on him.   Good sense suggests that if you had real concern as to the welfare of your son, you might have instead stepped in to stop him attacking Mr Kim. As we see in the CCTV footage, your actions markedly increased the violence and seriousness of the offending, but you are not charged with, nor did you particulate in, the affray itself. 

26The event occurred in Melbourne’s Central Business District at night. My observation from the CCTV footage was that the area was busy with active motor and pedestrian traffic.

27It is noted that the attack did not take a long time. You rendered Mr Kim unable to stand up immediately after the first stab. This does not assist you.  

28As a whole, taking into account the public area in which the offending was committed, the use of a knife, the vulnerability of Mr Kim (who was fending off another attacker) and your precontemplation, the objective seriousness of your offending is at a very high level.  

29The seriousness of the injuries inflicted on Mr Kim is of the highest order. They were immediately life threatening. On Dr Schreiber’s evidence, it was only through the rapid intervention of medical attention at hospital, including surgery, that Mr Kim did not die. The long term consequences for Mr Kim are significant, both physically, and psychologically. 

30At the time of your involvement in the attack, Mr Kim was in a vulnerable position in that he was being attacked by your son.  On you joining in, he became much more physically vulnerable as he was then outnumbered 2 to 1.  

31Your use of a knife is a further serious aggravating circumstance.  

32While the attack lasted a short time, this was due to the fact that you disabled Mr Kim, almost immediately, by the ferocity of your attack.

33The offending is of high objective seriousness.

Personal circumstances

34You are now 53 years of age[7] and have a criminal history in Victoria, Western Australia, South Australia and Queensland, dating back to the 1990s. It was submitted on your behalf that most of your relevant prior offending was old and/or resulted in brief terms of imprisonment. 

[7]As above, you were 52 when this offending took place.

35The obvious observation is that these brief terms have done nothing to deter you personally from further offending.  It seems that the longest you have previously spent in custody is about 10 months, and you were ultimately released, noting no further supervision.

36You were released from custody after a ‘time-served’ sentence was imposed in April 2021 for a series of offences relating to threatening behaviour and other serious offences. Other similar offences have been dealt with in Victoria by way of community based orders which, as your counsel observed, have often been breached.  

37I have no information or evidence relating to your background. Your counsel submitted that you instruct that you were raised by your family and extended family. Further, that you left home at 16 years of age. It was submitted that you enjoyed several long term relationships and have 5 children.

38It is reported that you and your partner wish to adopt a child from an international agency.  I have already observed that this might be of concern to the adoption authorities given your propensity for violence. Considering the presentation  of your son, who is your co-offender in these proceedings, you do not present as the ideal parent.  

39I have no information on which to make findings that your time in custody is more burdensome for you, than it is for others. I do accept, however, accept that some disadvantages still exist due to COVID restrictions and that up until now, there have been significant restrictions in custody. This will afford some consideration on the sentence to be imposed.

40I am told that you have some medical or psychological conditions for which you receive medication. I am also told that you are not vaccinated against COVID and are therefore more isolated than others. You have not provided a medical reason for refusing vaccination.

41I have no information as to any reason why you committed this offence, apart from assisting your son.  I was not addressed as to any Verdins considerations or any other matter that would reduce your moral culpability, demonstrate hardship in custody or reflect on your prospects of rehabilitation. 

Plea

42You 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.

43In 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 contained in the CCTV footage. It is, I find, an acceptance of the inevitable, rather than evidence of genuine remorse.  

44However, 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.  

Serious violent offender provisions

45On 13 May 2019, you were sentenced to 27 days imprisonment for a charge of threat to kill, a charge included in Clause 3(b)(iii), Schedule 1 of the Sentencing Act 1991 (Vic). For this subsequent offence of causing serious injury intentionally, you will be sentenced as a serious violent offender and that fact will be placed on the court record.

46As a result, the principal purpose of this sentence will be the protection of the community pursuant to sections 6D and 6F of the Sentencing Act 1991 (Vic). I note, however, that the prosecution do not seek a disproportionate sentence.

47The Court of Appeal has observed that where there is an intention to cause serious injury and severe injury results, Nash v The Queen[8]  and Cedic v The Queen[9] are ‘yardsticks’ for formulating a sentence in such a category of seriousness.[10] Specifically, that sentences in excess of 10 years typically involve ‘life threatening or catastrophic injuries, or ongoing serious physical or mental disablement’.[11]

[8]Nash above n 2.  

[9][2011] VSCA 258.

[10]Chol v The Queen (2016) 262 A Crim R 455, 464 [34].

[11]O’Toole v The Queen [2019] VSCA 185, [46].

48In the context of this case, these consequences are in evidence.

Sentence

49Mr Pihlgren, I sentence you to 12 years imprisonment with a non-parole period of 8 years.

50Had it not been for your plea of guilty, I would have imposed a term of 16 years imprisonment and a non-parole period of 11 years and 8 months.

51I note and declare 482 days of pre-sentence detention and reckon this period as time served.

52I sentence you as a serious violent offender and order that this designation be entered into the records of the court.