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Pihlgren v The King; Stephens v The King

Pihlgren v The King; Stephens v The King

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Case Copied 26 March 2024 50 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0079

JARED PIHLGREN	Applicant
v
THE KING	Respondent

S EAPCR 2023 0173

JAY STEPHENS	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2024
DATE OF JUDGMENT:	26 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 47
JUDGMENT APPEALED FROM:	DPP v Pihlgren [2023] VCC 547; DPP v Stephens [2023] VCC 1598 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury – 12 years’ imprisonment – Non-parole period 8 years – Whether sentencing judge erred in describing aspects of offending – Misdescriptions immaterial to sentencing exercise – Sentencing judge did not err in making no reference to Worboyes discount – Whether sentence manifestly excessive – Unprovoked attack on stranger in public with knife – Life-threatening injuries – Permanent physical and psychological effects – Very serious example of charged offence – Substantial criminal record – Sentenced as serious violent offender – Very few mitigating factors – Community protection – Leave to appeal granted – Appeal dismissed.

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.

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Counsel
Applicant (Pihlgren):		Ms GF Connelly
Applicant (Stephens):		Mr SJ Tovey with Ms N Kaye
Respondent:		Ms S Clancy
Solicitors
Applicant (Pihlgren):	Slades & Parsons Criminal Law
Applicant (Stephens):	Angus Cameron Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Circumstances of the offending

Pihlgren v The King

Offending and sentencing remarks

Ground 1 — Material errors of fact

Alleged error 1 — ‘following’

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

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

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

Alleged error 5 — causation of the indentation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSCA 47
Decision Date: 26 March 2024

CaseChat Overview and Summary

In the matter of Pihlgren v The King and Stephens v The King, the appellants challenged the sentences imposed upon them by the Supreme Court of Victoria. Pihlgren was convicted of intentionally causing serious injury to a stranger, and Stephens was convicted of intentionally causing injury to a stranger and engaging in affray. Both appeals focused on the severity of the sentences and whether they were manifestly excessive.

The primary legal issue in both appeals was whether the sentences imposed were manifestly excessive. This involved assessing the descriptions of the injuries, the relevance of mitigating factors, and the overall proportionality of the sentences. For Pihlgren, the court also considered whether the sentencing judge had erred by not applying the Worboyes discount. In Stephens' case, the court examined the cumulative impact of the sentences and whether they adequately reflected the mid-range nature of the offending.

The court found that in Pihlgren's case, the sentencing judge did not err in describing the aspects of the offending as there were no material misdescriptions. The court also held that the absence of the Worboyes discount did not constitute an error, as the discount was not applicable. The unprovoked attack on a stranger, resulting in life-threatening injuries, justified the severity of the sentence. Despite Pihlgren's substantial criminal record and few mitigating factors, the sentence was deemed appropriate for community protection. Consequently, the appeal was dismissed. In contrast, the court found that the sentences for Stephens were manifestly excessive. The injuries were relatively low-level, and the judge had erred in characterising them. The total effective sentence of 5 years 9 months was reduced to 4 years 3 months, with a non-parole period of 2 years 9 months.

Both appeals resulted in differing outcomes, reflecting the court's consideration of the specific circumstances and the gravity of the offending in each case.

Orders