Director of Public Prosecutions v Stephan
[2023] VCC 1517
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-22-00684
CR-22-00685
CR-23-01427
CR-22-00686
CR-22-00687
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT STEPHAN RAYMOND STEPHAN WAYNE FAVALORO RICKY FAVALORO |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 July 2023 and 16 August 2023 |
DATE OF SENTENCE: | 24 August 2023 |
CASE MAY BE CITED AS: | DPP v Stephan |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1517 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Kidnapping, blackmail, intentionally cause injury, make threat to kill, possess prohibited weapon without exemption/approval, possess a schedule 4 poison, possess drug of dependence.
Legislation Cited: ss323, 324 of the Crimes Act 1958, ss5(2H) (c)(i) and (c)(ii), s6AAA Sentencing Act 1991.
Cases Cited:DPP v Stephan [2016] VCC 534, Tewaka v The King [2022] VSCA 275
Sentence:Robert Stephan - Imprisonment – total effective sentence 6 years, non-parole period 4 years.
Raymond Stephan – Imprisonment – total effective sentence 4 years and six months, non-parole period of 3 years, fine, forfeiture and disposal order.
Wayne Favaloro – Imprisonment – total effective sentence 3 years and 4 months, non-parole period 2 years and 4 months.
Ricky Favaloro – Imprisonment – total effective sentence - 2 years and 6 months, non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | Ms K. Van Den Akker, Office of Public Prosecutions |
For Accused Robert Stephan | Mr C. Thomson | Mr J. Valos, Valos Black & Associates |
For Accused Raymond Stephan | Mr D. Sala | Mr S. Andrianakis, Stephen Andrianakis and Associates |
For Accused Wayne Favaloro | Ms K. Mildenhall | Slade & Parsons Criminal Law |
For Accused Ricky Favaloro | Mr A. Jackson | Mr T. Magazis, Theo Magazis & Associates |
HIS HONOUR
1Robert Stephan and Raymond Stephan, you were both convicted by a jury on 18 May of this year of one charge of kidnapping, one charge of blackmail, one charge of intentionally causing injury and one charge of make threat to kill.
2Wayne Favaloro and Ricky Favaloro, you both pleaded guilty on 4 May of this year to one charge of kidnapping and on charge of intentionally causing injury.
3On 15 August of this year, you Raymond Stephan pleaded guilty to one charge of possession of drug of dependence, namely cannabis, Diazepam, MDMA, 1,4‑butanediol and stanozolol. You also pleaded to five related summary offences, two charges of possession of knuckle dusters and three charges of possession of schedule 4 poisons.
4The facts of the offending of each of you is set out in Exhibit A, the prosecution plea summary. Each of your counsel accepted that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I sentence you all on the basis of the fact set out therein.
5I make it clear that I have had no regard to the assertions in that document as to the firing of shots at Truganina on 17 May 2021. That occurrence has no relevance to the sentencing process of any of you.
6Briefly stated, the victim set up a drug transaction between an unknown purported purchaser and you Raymond Stephan. You Ricky Favaloro attended a meeting on 16 May 2021 with Raymond Stephan, to effect a drug transaction but you were set upon by a group who stole your cash, cannabis, and personal items. You both blamed the victim for this drug rip-off.
7On Monday 17 May, a meeting was arranged by you, Raymond Stephan with the victim at Tonkin Avenue in Coburg North. All four of you arrived at that location at about 9.30 pm. You, Robert Stephan were driving your Holden Commodore sedan with Raymond Stephan and Ricky Favaloro as passengers and you, Wayne Favaloro were driving a black Commodore utility with an unknown man as a passenger.
8You all approached the victim on the street. He was forced into the rear right seat of the Commodore sedan. You, Robert Stephan got back into the driver's seat, Raymond Stephan got into the front passenger seat and you, Ricky Favaloro, sat next to the victim in the back seat. You, Ricky Favaloro, had knuckle dusters on your right hand. Wayne Favaloro returned to his utility and the two vehicles moved off with the utility following the sedan. That is the basis of the kidnapping charge.
9You, Robert Stephan, said to the victim 'You don't know who you fucked with. You don't know what family you fucked with. I'm going to take you to see my brother, do you know where he is'? the victim said no. You said 'The cemetery'. Robert Stephan said 'I just got out of gaol for eight years, I'm not afraid to go in for another eight'. Ricky Favaloro continually punched the victim with the knuckle dusters and you, Raymond Stephan, turned around from the front seat and punched the victim once or twice to his head.
10The victim was driven to the Fawkner cemetery on Sydney Road. You, Robert Stephan, told him that he was lucky that the cemetery was closed or he would be spending the night there. You, Ricky Favaloro, handed the knuckle dusters to Raymond Stephan and produced a six or seven-inch hunting knife and threatened to stab the victim. You said to him 'You almost got me stabbed last night, do you want to know how that feels' and you Raymond Stephan intervened and said 'Stop, just relax'. the victim told you that it was not him and he had nothing to do with it.
11You, Robert Stephan, threatened to kill the victim if he did not pay you money. You said, 'You get a thousand dollars a week, you're gonna pay half of that to each of us until you pay us or else I will come and cut your tongue out and I will kill you'. This forms the basis of the blackmail charge and the threat to kill charge that you, Raymond and Robert Stephan were convicted of by the jury.
12The victim was given tissues to clean the blood from his face. He was warned not to speak to police and told he must pay the money. He was dropped at the Northern Hospital at 10.50 pm, both vehicles still travelling in convoy. the victim suffered a 2-centimetre laceration to the back of his head and a laceration to his left thumb, multiple lacerations to both his hands, a lacerated left eyebrow, swelling to his right palm and concussion. He received treatment and x-rays at the hospital and was released.
13You, Robert Stephan, were arrested at 7.50 am on 1 June 2021 and when interviewed you denied knowing the victim and you said that you were not driving vehicle in the CCTV footage from the Northern Hospital. You said you had not seen Wayne Favaloro's vehicle before and you said you did not know Wayne Favaloro or Ricky Favaloro.
14You, Raymond Stephan, were also arrested that day in Cheltenham. You were found in possession of a set of knuckle dusters and three schedule 4 poisons, namely tramadol, Isotretinoin and lidocaine. You also possessed five MDMA tablets, a small container of 1,4‑butanediol, seven and a half tablets of Diazepam and a small quantity of stanozolol. Police located 1.2 grams of cannabis and another set of knuckle dusters at your home in Epping. That is the basis of the possession of drug of dependence charge and the related summary offences to which you have pleaded guilty.
15On 11 June 2021, you Wayne Favaloro were arrested. When interviewed, you admitted being present when the victim was kidnapped and assaulted. You told police you hit him with knuckle dusters. Perversely, that was a lie. Your son, Ricky, assaulted the victim with knuckle dusters not you. You were trying to take the blame for your son's actions.
16At 11.00 am that day, you, Ricky Favaloro were arrested in Altona North and you declined to be interviewed.
17The prosecution case was that each of you was either a principal offender or were complicit in that offending pursuant to s323 and 324 of the Crimes Act.
18All four of you have admitted prior criminal history. You, Ricky Favaloro, have one court appearance where you received a good behaviour bond in 2020 for several driving offences. In my view this is irrelevant to this offending and I do not have any regard to that prior history.
19You, Raymond Stephan, have one prior appearance at Geelong Magistrates' Court on 29 October 2018 when you were fined $3,250 without conviction for trafficking methamphetamine, possession and using a prohibited weapon, taking something into a prison and driving whilst your authorisation was suspended.
20You, Wayne Favaloro, have prior convictions for offensive behaviour, indecent language, intentionally damaging property and failure to comply with a community based order. More significantly, on 24 October 2008, you were sentenced to a two year community based order by Judge Howie in this court on two charges of intentionally causing serious injury.
21His Honour's sentencing remarks in that case are Exhibit D on this plea. That lenient sentence is explained by His Honour's reasons and your mental health issues at the time and I will return to that issue subsequently.
22You, Robert Stephan, have a troubling prior criminal history. In 1998 you were fined on dishonesty offence. In 2004 you were convicted of possess cannabis and possession of a prohibited weapon. On 1 September 2015 you were before the County Court on one charge of armed robbery and sentenced to 725 days' imprisonment and an 18 month community corrections order. On 3 May 2016, you were convicted of intentionally causing serious injury in this court and sentenced to 6 years and 6 months' imprisonment with a non‑parole period of 3 years and 6 months. His Honour's Judge Hicks' sentence remarks in that matter are Exhibit C on this plea. Again, I will return to that matter subsequently.
23All of the offences for which you were convicted or pleaded guilty to are serious criminal offences, the maximum penalties prescribed by Parliament demonstrates as much. Kidnapping in particular has a maximum penalty of 25 years' imprisonment and is a category 2 offence pursuant to the Sentencing Act. This court is required to impose a term of imprisonment and not a combination sentence of imprisonment and a community corrections order for a category 2 offence unless the particular offender proves on the balance of probabilities that: (a), at the time of the commission of the offence, he or she had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or (b), the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than ordinary burden or risks of imprisonment.
24Finally, if there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order of the type mandated, the court does not need to make such an order.
25The exceptions do not apply to impaired mental functioning caused substantially by self‑induced intoxication.
26With the exception of your counsel, Raymond Stephan, each of your counsel sought to establish the existence of an exception under s5(2H) of the Sentencing Act and I will deal with those submission subsequently.
27Because of your prior conviction for intentionally causing serious injury, you, Robert Stephan, fall to be sentenced as a serious violent offender in respect of the threat to kill charge. I must regard protection of the community from you as the principal sentencing factor. To achieve that purpose the court may impose a disproportionate sentence. The prosecution do not seek and I will not impose a disproportionate sentence in your case. I can protect the community with the sentencing options otherwise available to this court. However, I do direct that it be recorded in the records of the court that you have been sentenced as a serious violent offender on the threat to kill charge before me.
28Section 6E of the Sentencing Act also provides that every term of imprisonment imposed on a serious offender for a relevant offence unless otherwise directed by the court, shall be served cumulatively on any other sentence impose. I am otherwise directing in this case. Total cumulation would be in my view, lead to an imposition of a disproportionate or crushing sentence. Principles of totality requires some concurrency on sentences in your case.
29Turning to the personal circumstances of each of you and dealing first with you, Robert Stephan. You are currently 49 years of age, being born in in November 1973. Your personal history is comprehensively set out in the report of psychologist, Laura Fleming, Exhibit 3 on your plea.
30Your parents came to Australia in 1968 from Egypt. Your father was an accountant who died shortly before you were arrested on this matter. Your mother is currently 76 years of age suffering from schizoaffective disorder and psychosis. She requires care that she receives from your former wife and two daughters. You plan to go and live with your mother and care for her when you are released from custody.
31You had an older brother who committed suicide in 1991. This occurred in the context of an attempt to kill your parents and has caused great stress to your family. You suffered anxiety and depression and required medication for two years. You were midway through Year 12 when your brother died. You moved to a technical college then undertook a motor mechanics apprenticeship. You worked there after as a mechanic until establishing your own business, first in Thomastown then in Campbellfield. Your speciality is renovating high performance motor vehicles.
32You were in a relationship for about 20 years with your ex-wife. You have three children aged 23, 18 and 16 and your son, Raymond, is of course your co‑accused in this offending. You remain close friends with your ex‑partner and she and your daughters support you still.
33You fell into serious crime after turning 40. Your counsel provided an outline of your prior offending in his written submissions. That version does not accord with the description of your serious prior offending as set out in Exhibit C, Judge Hicks' sentence on 3 May 2016. His Honour had regard to the sentencing remarks of Judge Cohen who sentenced you in 2015 for armed robbery. Your counsel, Mr Thomson, wrote in his submissions at paragraph 11 the following:
'In 2014, Robert Stephan was under enormous pressure. A customer agreed to pay him $8,000 for work on a car. Robert went to see him. The customer tried to give him a cheque for $2,000 saying he would pay the rest in instalments. Robert produced an imitation pistol and took the customer's car.'[1]
[1] DPP v STEPHAN [2016] VCC 534
34Judge Hicks in Exhibit C stated at paragraph 35:
'Up until the age of 40, you lived as I understand it, what could be described as a law-abiding life. However at 40 you committed serious offences. On 14 February 2014 you committed the offence of armed robbery by use of a firearm and was sentenced by Judge Cohen. The circumstances of that offending can be briefly stated. You have run your business as a motor mechanic and were owed money in respect of that business. You were not paid that money. You took matters into your own hands and attended at premises to retrieve such money. At those premises you produced a semi‑automatic pistol, approached the vehicle in the matter, grabbed his collar and pushed the pistol into his left temple, demanding that the victim provide you with the balance of money owed, namely $8,000. You pointed the pistol towards the wall of the office and tried to fire it, however it didn't discharge. You tried to reload it and waved it around as if you intended to shoot at something. You appeared to be both men as being very aggressive and agitated. When another victim at the premises asked what you were doing you walked over to where that victim was, pointed your pistol at his head, grabbed his shirt and told him to get downstairs. You demanded he hand over the keys to his car and you drove that away from the premises.'
35Those two versions obviously do not sit together. Your prior offences are clearly very serious and have some similarity to your current offending. Significantly, you were released from prison on 16 February 2021. You re-offended in the matters before me within three months of that release.
36Your role in this offending was significant. You were the senior man present, you drove the vehicle taking the victim to the cemetery. You spoke like a television gangster, full of bravado, threats and arrogance. You uttered the threat to kill and made the unwarranted demand with menaces.
37You have controlled your long‑term depression with medication. Psychologist, Laura Fleming, reports that imprisonment may cause you issues with your mental health, that those without your issues would not face and I take that possibility into account in sentencing you.
38Speaking about this offending, you told Ms Fleming, the psychologist, that you did not harm your victim, the incident was not serious, and your victim did not require treatment. You clearly minimised your offending and your role in it like you did with your prior offending when you instructed your counsel. You have demonstrated little remorse for your conduct. You compelled the victim to give evidence at a heavily contested trial.
39I do take into account in your favour the fact that you have spent your time in custody subject to COVID‑19 restrictions which has led to lockdowns, loss of visits and that has made your time in prison more onerous for you.
40Turning to you, Raymond Stephan, you are now 24 years of age being born in July 1999. You were 21 when you offended. You left school at Year 11 level and completed a plumbing apprenticeship. You were employed until mid-2022 when you commenced your own plumbing business.
41You have had an issue with drugs for some years. Your prior convictions in 2018 are drug‑related. Apparently your drug use escalated after your grandfather died. Your counsel tendered a discharge summary from Northern Hospital, Exhibit RS-4, indicating that you overdosed on Ketamine, cocaine, GHB and alcohol. Your counsel suggested this was a suicide attempt. The report states that you ingested the drugs recreationally whilst clubbing with friends. You denied suicidal ideation or a wish to self‑harm. Whatever the case may be, you were clearly out of control and drug-fuelled at the time. The offending for which I am to sentence you was a response to your failed attempt to traffic cannabis the night before
42You have taken some steps to rehabilitate yourself since the offending. In late 2021 you attended drug counselling at Caraniche whilst on bail. You were focused on abstinence from drugs and relapse prevention strategies. You then engaged with Nadia Sophia in mental health performance coaching and I refer to Exhibit RS-3. References tendered attest to your skill as a plumber and to your punctuality, honesty and hardworking nature. You are said to be developing maturity.
43Because you were only 21 at the time of your offending, I must endeavour to promote your rehabilitation. Your prospects will be improved if you remain drug-free. It is of some significance that you have been offence-free for the past two and a half years.
44That said, your role in this offending was significant. You were the driving force behind it. You had the grievance as you sustained significant loss in the failed drug deal. You no doubt were influenced by your father and exhibited bravado, arrogance and hostility. You too acted like a second-rate gangster. Your possession of multiple sets of knuckle dusters indicates a preparedness to employ cowardly violence.
45You are entitled to credit to your pleas of guilty to the possession of drug charge and the related summary offences. However, you have displayed no remorse for your violent offending against the victim. As I said, you ran a fully contested trial.
46Turning to you now, Wayne Favaloro. You are 51 years of age being born in April 1972. You grew up in the northern suburbs of Melbourne. You believed yourself to be of Italian/Australian heritage until 15 years ago when you discovered that your maternal grandmother was of Aboriginal heritage You now identify as Indigenous. You were educated to mid‑Year 9 level and found sporadic employment thereafter. You have established mental health issues but have worked repairing cars and radiators, as a security guard, a scaffolder and as a forklift driver.
47You suffered a back injury at work 15 years ago and have since been receiving a disability support pension. You have managed some casual work as a traffic controller over recent years. You met your wife nearly 30 years ago and have one 23 year old son, your co‑accused, Ricky.
48Subsequent to your workplace injury, you developed an amphetamine then methylamphetamine addiction. You managed to reduce your drug use about 10 years ago. You have been diagnosed for many years with schizoaffective disorder, with depression and psychotic symptoms. You have experienced multiple suicide attempts, have been the subject of both voluntary and involuntary psychiatric admissions, you are the subject of a comprehensive treatment regime. You are prescribed anti‑psychotic and mood stabilisers twice daily. You suffer chronic pain as a result of your injuries and also suffer from diabetes.
49Your concern for your son has seen a deterioration of your mental health issues since your arrest. Your general practitioner reports a re-emergence of mood symptoms including depression and self-harm thoughts. Psychologist, Naomi Cameron, in Exhibit WF-2 describes you as depressed, anxious and stressed. You have a melancholy personality trait, narcissistic traits and anti-social traits. You exhibit sadistic, negativistic, schizotypal and borderline personality traits. Dr Cameron sets out how those traits manifest in her report and how they have impacted your functioning in society.
50Substance abuse was a significant factor in your mental health issues. You claim to be abstinent from substance of recent times and a full list of your current medications can be found in Exhibit WF-6. That document will be provided to the prison authorities.
51Your mental health issues were significant in Judge Howie's sentence in 2008, Exhibit D. You had violently attacked two men intentionally causing serious injury to them. His Honour said at paragraph 17 of his sentence as follows:
'As I said, a difficult issue arises because of your mental health. It's a matter to which I must give careful attention. I have the benefit of reports of psychiatrist, Dr Cidoni, Dr D'Souza and Dr Vikas and your general practitioner, Dr Daniel. It appears from those reports you suffered from unstable moods and depressive periods since June 2005. You were referred to your general practitioner, then Dr Hooper, to Northern Mental Health in July 2005. Dr Hooper has been treating you for bipolar affective disorder. You have been medicated with anti-depressant and mood stabiliser medication.
'On 26 March 2006, you were discharged to your general practitioner to continue the management of your bipolar affective disorder. In December 2005 and in February 2006, you made suicide attempts which led to you being assessed by Dr Daniel at a Epping health centre. He found you to be unstable. On 5 September 2007, your mental state had deteriorated to such a degree that you were suicidal and admitted for a week to the Northern psychiatric unit. You also said that you felt homicidal and tried to kill your son by smothering him with a pillow. You were treated with new medications and discharged with a number of medications to be taken.
'In any event, Dr Daniel reports that you settled for a couple of weeks but presented to him on 20 December 2007 which was a week before the commission of the offences with deterioration in your mental state. He tried unsuccessfully to have you admitted to a psychiatric unit at Northpark Hospital. Dr Daniel notes that trials of various mood stabilisers and anti‑psychotic medication had not been successful and he considered your prognosis to be poor from a psychiatric and physical point of view.
'In the periods from 5 September 2007 to 12 September 2007 and 18 February 2008 to 23 February 2008, you were admitted to the Northern psychiatric unit. You were diagnosed with depression of mild severity, impulse control disorder of Cluster B personality style characterised by mood swings, impulsivity, risk-taking behaviour, poor frustration tolerance, grandiosity and an inflated sense of self-esteem. You were treated with fluoxetine and carbamazepine, an anti-convulsant.
'You were admitted again to the Northern psychiatric unit from 18 February 2008 to 23 February 2008 in the context of suicide ideation and feelings of depression. You increased reported levels of anxiety and a strong urge to touch females and to bash people. Dr Cidoni, a consultant psychiatrist, assessed you on 25 March 2008 and diagnosed you as having bipolar II disorder.
'I was concerned as to how or what threat you posed to members of the community and what treatment regime you should receive and accordingly I requested a report from Forensicare and an assessment from the office of Corrections. I have received a Forensicare report from Dr Mason, co-signed by Dr Sullivan. Dr Mason considers it to be likely that the offending related to manic relapse of your mental illness.
'In view of the effect of your mental illness on your behaviour, I consider that your moral culpability as distinct from your legal responsibility, should be treated as being reduced and the general deterrence which would normally be prominent in an offence such as this should be moderated. Dr Mason stated in a report on 26 September 2008 she believed that you may again be relapsing into psychotic episode despite your compliance with medication and advised that the risk you are to others is predominantly increased when you experience such a relapse.
'Generally speaking, courts are and should be reluctant to punish a person severely for an offence to which mental illness has contributed significantly. For this reason I do not consider a sentence of imprisonment to be served immediately to be appropriate.'
52His Honour then explained why he intends to impose a community correction order.
53After that sentence, you have up until this offending, been able to be properly medicated and managed. Your use of drugs appears to have prompted your involvement in this offending. You became angered at your son's involvement in the failed drug transaction and sought to extract revenge upon those you believed to be responsible.
54Your counsel sought to persuade this court that you fell within the exception to the mandatory sentence set out in s5(2H) of the Sentencing Act to which I referred before. Your counsel relied upon portions of Dr Cameron's report. At paragraph 127, Dr Cameron reported:
'At the time of offending his capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of his conduct were impaired. His methylamphetamine use would have heightened his risk‑taking behaviour, impulsivity and behavioural disinhibition. Substance use increases levels of impulsivity, risk-taking and behavioural disinhibition, that is, lack of restraint and self‑control which are already at a higher baseline due to his personality vulnerabilities. These factors increase the risk of criminal misconduct.'
55As discussed on your plea, I do not believe that Dr Cameron's report enlivens s5(2H)(c)(i) or (c)(ii). It is also clear that drug use was a substantial cause of any impaired mental functioning you may have suffered. You have not established on the balance of probabilities the existence of any relevant mental impairment. Dr Cameron relied on your account of the offending as set out in paragraph 60 to 61 of her report. As I previously said, those statements by you were not accurate. Significantly, your general practitioner, Dr Daly, reported in Exhibit WF-3:
'I last saw Wayne in 8 April 2021. He was well enough at the time without any clear mental health concerns but admitted some stress in the form of needing to move his rental accommodation. I didn't find it unusual for Wayne not to contact me for the last two months since he's been stable in the preceding months, looking good and in good spirits.'
56I do accept that custody could threaten your mental health stability and I take that into account in sentencing you. I otherwise reject your counsel's submission that all the limbs of Verdins[2] are enlivened in your case.
[2] R v Verdins - [2007] VSCA 62 - 16 VR 269; 171 A Crim R 227
57You do receive the sentencing benefit of your pleas of guilty. You are entitled to a reduction in sentence to reflect those pleas of guilty and the value of those pleas is greater because of their greater utilitarian value given the effect COVID‑19 has had upon our justice system. You have facilitated the course of justice. Although your pleas of guilty may indicate some remorse, I do not accept that you have demonstrated significant remorse. You have somewhat sought to minimise your offending.
58I do take into account that you remain offence‑free from 2008 to 2021. If you remain drug-free and medication compliant, your prospects of rehabilitation can be seen as reasonable. I also take into account the references tendered which speak of your hard-working nature and your open and honest character.
59Turning to you, finally, Ricky Favaloro. You are now 23 years of age being born in November 1999. You also were 21 at the time of this offending. You suffered some medical issues as a child and were apparently diagnosed with oppositional defiant disorder and attention deficit hyperactivity disorder as a child. You attended various schools, leaving at age 16. You have worked in construction since then and you are currently employed on the Westgate Tunnel Project. You live with your partner at her parents' home in Wollert.
60According to psychologist, Ian Mackinnon, Exhibit RF‑4, you have been receiving treatment 'over the last few years by psychiatric staff at the northern area mental health services for psychotic symptoms and PTSD. You have been prescribed various mood-stabilisers and antipsychotic medications. You have used drugs cocaine, cannabis and MDMA'. Mr Mackinnon concluded that you suffer from complex post-traumatic stress disorder and substance abuse disorder and at paragraph 64 of his report Mr Mackinnon stated:
'The identifiable antecedence to Mr Favaloro's CPTSD were the many chaotic and frightening experiences he reportedly experienced during his formative years, including his father's suicide attempts and psychiatric episodes, a police raid during which guns were apparently drawn, and many instances of bullying and teasing suffered during his formative years'.
61In relation to your offending, Mr Mackinnon reports that you told him 'I don't remember much, it was a long time ago. At the time I was using cocaine, I just went along, I don't know the guy's name, I don't hurt people'. Mr Mackinnon concluded 'Mr Favaloro's complex post‑traumatic stress disorder and substance abuse disorder made significant contributions to his offending by degrading his ability to reason and make sound judgement, diminishing his consequential thinking and encouraging a self‑absorbed perspective that reduces his concern for the welfare of others'.
62This conclusion led your counsel submitting that s5(2H) of the Sentencing Act exceptions were established in your case. Despite reference to the relevant authorities your counsel bravely submitted that a community corrections order would satisfy all sentencing considerations in your case.
63The learned prosecutor submitted that there is no evidence to establish s5(2H) exceptions. He described Mr Mackinnon's report as providing limited assistance and giving no explanation as to the application of the alleged conditions to your offending. He submitted that Mr Mackinnon's report did not stand up to the rigorous scrutiny required by the authorities.
64The prosecutor referred me to the decision of Tewaka v The King [2022] VSCA 275[3]. He particularly referred me to paragraphs 37, 38 and 40 of the judgment. The criticisms of Mr Mackinnon's report in that case apply to his report in this case. He conducted a video link conference and based on self-report by you, diagnosed you with CPTSD, he did not explain the role drug abuse played in your offending and drew conclusions that in my view have no real basis. No proper analysis of your offending and its motivations was made by Mr Mackinnon, nor was there any proper explanation as to how your alleged disorders contributed to your offending.
[3]Tewaka v The King [2022] VSCA 275
65He based his conclusions on a distorted and inaccurate account of your offending given by you. Mr Mackinnon made no mention of your involvement in the failed drug transaction nor your involvement in assaulting the victim with knuckle dusters and a knife. He was not aware or told that you were motivated by a desire for revenge.
66I accept the prosecution's submissions as to the lack of assistance in Mr Mackinnon's report and do not find that you have established on the balance of probabilities the existence of any exception pursuant to s5(2H) of the Sentencing Act. Someday hopefully the prosecution will require some of these psychologists to attend court and be cross‑examined as to their conclusions.
67You played a central role in the offences. You personally inflicted almost all of the violence metred out to the victim. You cowardly used knuckle dusters and you threatened him with a knife.
68You have not been frank with your treating doctors at Northern Hospital and indeed you were not frank with Mr Mackinnon. The consultant psychiatrist was asked in Exhibit RF-6; “is there any particular psychological conditions the client has or had when the offending behaviour occurred, how long have they had that condition and whether the condition is of temporary or permanent nature”, to which the consultant psychiatrist responded:
'I'm unable to comment on whether Mr Favaloro is suffering from any psychological condition when the offending occurred. As per the medical records, during the review on 30 December 2021, he stated that he had no clue as to why he'd received the charges with regard to the offending behaviour. He denied being aware of any such behaviour. This was not explored further.'
69When asked whether he could comment on any psychological condition and the alleged offending, he responded 'I'm unable to comment' due to the reasons he gave as mentioned above.
70I do take into account in your favour your pleas of guilty. You too are entitled to a reduction in sentence to reflect those pleas. The value of those pleas is greater because of COVID‑19 effect on our legal system and you are therefore entitled to a greater reduction in sentence.
71Also of significance is your age. You are still a young offender and I am mindful of the requirement that I promote your rehabilitation if possible and accordingly will give less weight to general deterrence in your case. You fall to be sentenced as a man of otherwise good character. As I said, I do not see your traffic offence is any way relevant to this offending.
72The exhibited references, Exhibit RF-3, provide evidence of your good work ethic and the regard your employer has for you. You are described as popular and a well-liked member of the team. I take the references and the letter from your mother into account in sentencing you.
73Although the principles in Bugmy[4] have no real relevance to you, I do accept that the influence of your father de-stabilised your youth. He was not and is not a good role model. You were subject to his influence and that of Robert Stephan in this offending.
[4] Bugmy v R (2013) 302 ALR 192
74Your prospects for rehabilitation are in my view reasonable. You have a good job, enjoy the support of your partner and her family and have no relevant prior convictions. Provided you remain drug-free and stay away from criminal influences, you should become a worthwhile citizen.
75I need to address the issue of parity of sentence in relation to all of you. Although you are all equally culpable for your offending, you each had significantly different roles in this offending. You, Wayne Favaloro, and you Ricky Favaloro, pleaded guilty and face only two charges not four. You, Ricky Favaloro and Raymond Stephan are both young offenders. You all have different prior criminal histories. There are factors personal to each of you that are relevant to the sentence that each will receive. For these reasons, each of you will receive different sentences.
76The offences for which you were convicted or pleaded guilty are serious criminal offences. As discussed with your counsel and the prosecution on your plea, I regard the kidnapping as a mid‑level example of that offence. The blackmail offence is a lower level example of that offence whilst the intentionally causing injury offence represents a lower mid-level example of that offence. You were all lucky that the injuries sustained were relatively minor. The threat to kill I regard as a mid-level example of that offending.
77You, Robert Stephan, made the blackmail demand and delivered the threat to kill. You, Ricky Favaloro, predominantly inflicted injury to the victim. You, Wayne Favaloro provided support by your presence but were not in the car when the injuries were inflicted. I accept that you, Raymond Stephan, sought to moderate Ricky Favaloro's violence, however you substantially drove the offending.
78Nothing other than terms of imprisonment are appropriate for the violent offences. I have regard to your individual antecedence, the role you played in the offending and the various mitigating factors that I referred to and arriving at appropriate sentences for each of you.
79Principles of general deterrence, specific deterrence, just punishment and denunciation of your conduct are all significant sentencing factors in this case.
80I must also promote your rehabilitation, have regard to principles of parsimony and totality. I accept the submission of the prosecution in paragraph 4 of Exhibit B as to the nature and seriousness of your offending. You behaved in a frightening, dangerous and seriously criminal manner.
81On all the charges, you are all convicted.
82Robert Stephan on the charge of kidnapping you are sentenced to be imprisoned for 4 years and 6 months. On the charge of blackmail you are sentenced to be imprisoned for 18 months, on the charge of intentionally cause injury you are sentence to be imprisoned for 18 months, and the charge of threat to kill you are sentenced as a serious, violent offender and sentenced to 18 months' imprisonment.
83I order that 6 months of the sentence imposed on the blackmail charge, 6 months of the sentence imposed on the intentional causing injury and 6 months of the threat to kill charge, be served cumulatively upon the sentence imposed on the kidnapping charge which I declare to be the base sentence. That is an effective term of imprisonment of 6 years and I order that you serve 4 years of that sentence before being eligible for parole.
84Raymond Stephan, as you are convicted of all four charges. On the charge of kidnapping, you are sentenced to be imprisoned for 3 years and 6 months. On the charge of blackmail, you are sentenced to be imprisoned for 12 months. On the charge of intentionally causing injury, you are sentenced to be imprisoned for 15 months, and on the charge of threat to kill you are sentenced to be imprisoned for 12 months.
85In relation to the separate charge of possession of drug of dependence and the related summary offences, on the possession of drug of dependence you are sentenced to a period of imprisonment for 3 months. On the two knuckle dusters charges, Charges 11 and 18, you are sentenced to a month imprisonment in respect of each to those charges. On Charges 19 and 20 and 21, the poisons charges, you are sentenced to an aggregate fine of $300.
86I order that 3 months of the sentence imposed on the blackmail charge, 6 months of the sentence imposed on the intentionally cause injury charge, and 3 months of the sentence on the threat to kill charge be served cumulatively on the sentence of the kidnapping charge. That is an effective term of imprisonment of 4 and a half years and I order that you serve 3 years of that before being eligible for parole. The sentences on the drug charges and related summary offences will be served concurrently.
87I indicate that pursuant to s6AAA of the Sentencing Act on the possession of drugs and related summary offences charges, I would have imposed a term of imprisonment of 6 months and a fine of $500, but for your pleas of guilty.
88Wayne Favaloro, on the charge of charge of kidnapping you are convicted and sentenced to be imprisoned for 3 years. On the charges of intentionally causing injury you are convicted and sentenced to be imprisoned for 9 months. I order that 4 months of the sentence imposed on the intentionally cause injury charge be served cumulatively on the kidnapping charge which I declare to be the base sentence. That is an effective term of imprisonment of 3 years and 4 months and I order that you serve 2 years and 3 months before being eligible for parole.
89Pursuant to s6AAA of the Sentencing Act I indicate that but for your pleas of guilty I would have imposed an effective term of imprisonment of 5 years with a non‑parole period of 3 years.
90Ricky Favaloro, on the charge of kidnapping you are convicted and sentenced to be imprisoned for 2 years. On the charge of intentionally causing injury you are convicted and sentenced to be imprisoned for 12 months. I order that 6 months of the charge of intentionally causing serious injury be served cumulatively upon the sentenced for kidnapping. That is an effective term of imprisonment of 2 and a half years and I order that you serve 18 months before being eligible for parole.
91In indicate pursuant s6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed a total effective sentence of 3 and a half years with a non‑parole period of 2 years.
92I make the forfeiture orders sought by the prosecution and I declare in relation to – what is the PSD that I have to declare as of today in respect of Robert and Raymond Stephan?
93MR FISHER: Robert Stephan is 815 days not including today.
94HIS HONOUR: Yes.
95MR FISHER: Raymond Stephan is 129 days not including today
96MR SALA: I agree with that, Your Honour.
97HIS HONOUR: All right, I declare in relation to you, Robert Stephan, that you have already served 815 days not including today, and Raymond Stephan, you have served 129 days of the sentence imposed not including today. Are there any other orders required?
98MR FISHER: In relation to Wayne Favaloro there is pre-sentence detention of 21 days that should be declared.
99HIS HONOUR: Okay thank you, I forgot that, and Mr Wayne Favaloro I declare 21 days, not including today, of the sentence I have just imposed has already been served by way of pre-sentence detention. Can you remove both Mr Favaloro’s and terminate the links. I will adjourn until 2 o'clock.
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