Everett v The King

[2025] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0157

JASON EVERETT	Applicant
v
THE KING	Respondent

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JUDGES:	ORR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2025
DATE OF JUDGMENT:	7 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 96
JUDGMENT APPEALED FROM:	[2024] VCC 325 (Judge Maidment)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated home invasion – Intentionally cause injury – Extortion – Theft – Whether proper weight given to parity principle in light of sentences imposed on two co-offenders – Whether orders for cumulation reflected overlap in offences – Whether sentence manifestly excessive – Sentences of 15 months, 12 months and 3 months’ imprisonment for theft of laptop, car and car keys, with total of 5 months cumulated, manifestly excessive – Appeal allowed.

Abdirahman v The Queen [2020] VSCA 87; DPP v Wol [2019] VSCA 268; Green v The Queen (2011) 244 CLR 462; Kellway (a pseudonym) v The King [2023] VSCA 109; Postiglione v The Queen (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584.

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Counsel
Applicant:		Mr PP Kounnas
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	McNally & Gleeson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA
T FORREST JA:

1. At about 10:30 pm on 11 January 2018, the applicant and two co-offenders forced their way into the home of Saso Stevanovski. The applicant was carrying a torch or taser, and a knife. One of the two co-offenders, Evangelos Bayamis, believed that Mr Stevanovski owed him money. Mr Bayamis had recruited the applicant and the other co-offender, William Thomason, to go with him to Mr Stevanovski’s house to demand the money.

2. Once inside the house, the applicant struck Mr Stevanovski in the head with the torch or taser, knocking him to the floor. He used the knife to threaten Mr Stevanovski’s partner, who was also in the house. Mr Bayamis threatened to burn Mr Stevanovski and his family if Mr Stevanovski did not pay the money he claimed he was owed. Mr Stevanovski provided his bank account details and his bank card, and Mr Bayamis later withdrew $2,300 from the account. Before leaving the premises, the applicant took Mr Stevanovski’s laptop, as well as a car parked at the property, and the car keys.

3. The applicant pleaded guilty to stealing the car and car keys. He pleaded not guilty to charges of aggravated home invasion, intentionally causing injury, extortion with threat to kill or inflict injury, and theft of Mr Stevanovski’s laptop. He was convicted of each of these charges at trial. Prior to the trial, the applicant had also indicated that he would plead guilty to an alternative charge of recklessly causing injury, but the prosecution rejected that offer and proceeded with the charge of intentionally causing injury.

4. On 27 February 2024, the applicant was sentenced as follows:

Charge	Offence	Maximum		Sentence	Cumulation
1	Aggravated home invasion[1]	25 years’ imprisonment		4 years and 3 months’ imprisonment	Base
2	Intentionally causing injury[2]	10 years’ imprisonment		2 years and 9 months’ imprisonment	14 months
4	Extortion with threat to kill or inflict injury[3]	15 years’ imprisonment		2 years and 9 months’ imprisonment	14 months
5	Theft (laptop)[4]	10 years’ imprisonment		15 months’ imprisonment	3 months
6	Theft (car keys)	10 years’ imprisonment		3 months’ imprisonment	-
7	Theft (car)	10 years’ imprisonment		12 months’ imprisonment	2 months
Total effective sentence			7 years’ imprisonment
Non-parole period			4 years and 4 months
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991			1,051 days
Section 6AAA statement (in relation to charges 6 and 7 only)			Total effective sentence: 7 years and 3 months’ imprisonment; non-parole period: 4 years and 6 months

[1]Contrary to s 77B of the Crimes Act 1958.

[2]Contrary to s 18 of the Crimes Act 1958.

[3]Contrary to s 27 of the Crimes Act 1958.

[4]Contrary to s 74 of the Crimes Act 1958.

1. The applicant now seeks leave to appeal his sentence, as well as an extension of time within which to do so. The application for leave to appeal was filed five months out of time.[5] There are three proposed grounds of appeal. The proposed grounds allege that the sentence was manifestly excessive; that the sentence was excessive in that the judge failed to give proper weight to the principle of parity; and that the judge erred in his cumulation of certain sentences so as not to properly reflect the overlap in offences.

   [5]The applicant’s solicitor has sworn an affidavit explaining the reasons for the delay, which relate to attempts to engage counsel to draw documents and to secure legal aid funding.

2. For the reasons that follow, we would grant the applicant an extension of time within which to seek leave to appeal his sentence; refuse leave to appeal on the second and third proposed grounds; grant leave to appeal on the first proposed ground; allow the appeal; and resentence the applicant in the manner set out below.[6]

   [6]See below [61]–[63].

Circumstances of the offending

1. Mr Stevanovski operated a cleaning business. Mr Bayamis had worked as a subcontractor for Mr Stevanovski. There was a dispute between the two about money allegedly owed by Mr Stevanovski to Mr Bayamis.

2. Mr Bayamis arranged for the applicant and Mr Thomason to accompany him to Mr Stevanovski’s house, with a view to demanding the money he claimed to be owed. The applicant had not had any previous dealings with Mr Stevanovski.

3. At about 10:30 pm on 11 January 2018, the three offenders arrived at Mr Stevanovski’s home in Wollert, which he shared with his partner, Moayad Matar. Mr Bayamis went to the front door. The applicant and Mr Thomason remained out of sight. Mr Bayamis persuaded Mr Stevanovski to open the front door. Mr Bayamis then called out to the applicant and Mr Thomason, who forced their way into the premises. The applicant was carrying a torch or taser, and a knife (Charge 1 ­— aggravated home invasion).

4. Shortly after the trio gained entry to Mr Stevanovski’s home, Mr Stevanovski screamed for help. Mr Bayamis yelled at the applicant and Mr Thomason to ‘Make him shut the fuck up’. The applicant punched Mr Stevanovski and hit him on the back of the head with the torch or taser. This caused a large gash to the back of Mr Stevanovski’s head and knocked him to the floor. Mr Stevanvoski was then dragged to the kitchen, where the applicant hit him several times with the torch or taser, causing him further injuries (Charge 2 — intentionally causing injury).

5. In the midst of these events, Mr Stevanovski managed to call his mother on his mobile phone. The call went to voicemail, and Mr Stevanovski was recorded screaming in the voice message. At some point, Mr Matar emerged from the garage. The applicant threatened him with the knife, telling him to sit down and not move, or he would be hurt. Mr Thomason then held Mr Stevanovski down while both the applicant and Mr Bayamis landed blows all over his body.

6. Mr Bayamis threatened to burn Mr Stevanovski and his entire family while Mr Stevanovski was in the house. Mr Bayamis also demanded the money he claimed to be owed by Mr Stevanovski (Charge 4 ­— extortion). Mr Stevanovski handed over his bank card and PIN. The applicant left the house shortly after this. He took Mr Stevanovski’s laptop (Charge 5 ­— theft) and the keys to an Audi vehicle (Charge 6 ­— theft) that was parked at the property. He used the keys to take the vehicle (Charge 7 ­— theft), which was owned by Mr Stevanovski’s father.

7. Mr Bayamis went to an automatic teller machine and used Mr Stevanovski’s bank card to withdraw about $2,300 from his bank account in two instalments.

8. Later that night, Mr Matar took Mr Stevanovski to hospital, where he was treated for his injuries. Mr Stevanovski had two lacerations to his head: one to his eyebrow that required stitches and one to the back of his head, which was glued. He also sustained an abrasion and suffered tenderness to his right elbow.

9. On 15 January 2018, the police located the stolen Audi parked on the front lawn of Mr Thomason’s house in Glenroy. The stolen laptop was located on the rear seat. The applicant was arrested nearby after being chased by police. Mr Bayamis was arrested later that day at his house in Sunbury. When interviewed, the applicant denied the offending.

Sentencing reasons

1. The sentencing judge observed that the applicant had pleaded guilty to two charges of theft, avoiding the need for a jury verdict on those matters.[7]

   [7]DPP v Everett [2024] VCC 325, [2] (‘Reasons’).

2. He referred to the applicant’s prior convictions, which extended back to 1994, when the applicant was aged 18. The applicant’s most recent prior conviction was on 18 August 2016. Over the years he had been convicted of a number of offences involving violence. The judge observed that the present offending was by far the most serious of the applicant’s offending.[8]

   [8]Reasons, [3].

3. After summarising the circumstances of the offending, the judge referred to the victim impact statements of Mr Stevanovski and Mr Matar, which set out the consequences of their experience, and the terrifying nature of the invasion into their home. The judge noted that the two victim impact statements were made approximately three months after the offending, but inferred that each of the victims would have experienced long-term psychological effects given the nature of the assaults, particularly Mr Stevanovski.[9]

   [9]Reasons, [4]–[11].

4. The judge then turned to various matters personal to the applicant, referring to a number of documents tendered by the applicant at the plea hearing. These included a report and other documents detailing rehabilitative steps the applicant had taken while in custody, a letter from the Department of Justice acknowledging assistance the applicant had provided to a fellow prisoner who had attempted suicide, a letter of support from the applicant’s former wife, documentation concerning the applicant’s membership of Alcoholics Anonymous, a report from a psychologist and a report from a neuropsychologist.[10]

   [10]Reasons, [12]–[18].

5. The judge addressed the matters relied on in mitigation. He accepted that the applicant’s background and upbringing reduced his moral culpability for the offending, in accordance with the principles in Bugmy v The Queen,[11] but noted that this had to be balanced against the need for public protection in relation to offending of a violent nature. He described the applicant’s background as ‘significantly deprived’ and ‘attended by physical abuse and sexual abuse and emotional deprivation’ to a point where the applicant had been driven to resort at an early stage to substance abuse and criminal activity. The judge took into account that the applicant had been diagnosed with post-traumatic stress disorder and anxiety, attention deficit hyperactivity disorder and other conditions arising from his substance abuse.[12]

   [11](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).

   [12]Reasons, [19]–[23].

6. The judge observed that what stood out from the material filed was that the applicant’s record in the years prior to the offending had ‘not been that bad’. The judge also described the applicant’s efforts at rehabilitation despite the setbacks in his life as ‘extremely impressive’.[13]

   [13]Reasons, [24].

7. The judge recorded that he needed to consider the sentences imposed on Mr Bayamis and Mr Thomason, each of whom had pleaded guilty and been dealt with in 2020. He observed that both Mr Bayamis and Mr Thomason had pleaded guilty to home invasion, rather than aggravated home invasion, because the prosecution was unable to demonstrate that either of them was aware that the applicant had a knife when he entered the premises. The judge noted that Mr Bayamis had received a total effective sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years. Mr Thomason had received a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years and 8 months.[14]

   [14]Reasons, [25]–[26].

8. The judge said:

   It is true that I have to sentence you for the offence of aggravated home invasion and that you did use the knife to threaten Mr Matar. Otherwise, it seems to me that there is not a lot to aggravate the offending beyond the offending of Messrs Bayamis and Thomason. Mr Bayamis was undoubtedly the ringleader and the orchestrator of this offending and responsible for recruiting you to assist him in the crimes that were committed.

   Nevertheless, it is important that I do my best to ensure parity of sentence and I cannot give you any credit for the fact that you pleaded not guilty to the offences the subject of the indictment other than Charge 3 which involved recklessly causing injury and Charges 6 and 7 to which you pleaded guilty. I have to sentence you on the basis of the jury’s verdicts, as well as for the pleas of guilty to Charges 6 and 7.[15]

   [15]Reasons, [26]–[27].

9. After noting the sentencing principles of just punishment, denunciation, general deterrence, individual deterrence and the need to promote rehabilitation, the judge recorded that he was ‘inclined to accede’ to the applicant’s submission that the sentence should incorporate a significant period during which parole would be available to him. Before pronouncing sentence, he again referred to the need for parity with the sentences of the applicant’s co-offenders.[16]

   [16]Reasons, [28]–[29].

Submissions

Proposed grounds 1 and 2: Manifest excess and parity

1. It is convenient to deal with the submissions in relation to the first two proposed grounds together.

2. The applicant concedes that the sentencing judge considered all relevant matters put forward on the plea. However, he submits that the following matters were particularly relevant, and ‘push this sentence into the realm of excess’:

   (a)In relation to charge 1 (aggravated home invasion), the offending occurred before the offence became a category 1 offence,[17] although a mandatory minimum non-parole period did apply.[18]

   (b)The judge accepted that Bugmy principles were enlivened, but was cautious to balance that against the need for public protection.

   (c)The judge seemingly accepted that the scope of the offending between the applicant and his co-offenders was markedly similar and that there was ‘not a lot to aggravate’ his offending beyond that of the co-offenders, other than the applicant entering the premises with a knife.

   (d)The applicant did not direct the offending and was seemingly not the principal offender, despite being armed. Instead he was subservient to Mr Bayamis in his actions, a matter that was not given enough weight in the sentencing exercise.

   (e)There was a significant period of delay between the offending, which occurred in January 2018, and the plea hearing in February 2024. This was a result of the applicant’s trial being adjourned on multiple occasions for reasons beyond his control, including reasons connected with COVID.

   [17]As defined in s 3 of the Sentencing Act 1991.

   [18]See Sentencing Act 1991 s 10AC.

3. Further, the applicant submits that the sentence of 15 months’ imprisonment imposed on charge 5 (theft of the laptop) is in and of itself excessive, as well as out of line with the sentence of 12 months’ imprisonment imposed for theft of the vehicle. He points to the difference in value between the car and the laptop, as well as the different effect of the loss of a physical device such as a laptop and the loss of a car. He submits that there is a ‘disconnect’ between the seriousness of the thefts and the sentences imposed.

4. As to parity principles, the applicant submits that although the judge considered the issue of parity, the large difference in the sentences imposed on the applicant and Mr Bayamis is not adequately explained by Mr Bayamis’s plea of guilty, given their offending was ‘largely congruent’.

5. The applicant submits that when his sentence is compared with Mr Bayamis’s sentence, it is clear that the judge did not give effect to parity principles. The applicant was acting under Mr Bayamis’s direction, and yet the judge sentenced the applicant to an additional 15 months’ imprisonment on charge 1 (aggravated home invasion), an additional 9 months’ imprisonment on charge 2 (intentionally cause injury) and an additional 9 months’ imprisonment on charge 4 (extortion with threat to kill or inflict injury).

6. The applicant emphasises that although he was the one who hit Mr Stevanovski with the torch or taser, he did so pursuant to Mr Bayamis’s instruction to ‘make [Mr Stevanovski] shut the fuck up’. There was therefore no real or meaningful separation in their culpability for that act. Further, he submits that his sentence on the charge of intentionally causing injury failed to take into account the remorse he had demonstrated by indicating that he would plead guilty to the alternative charge of recklessly causing injury.

7. In response, the respondent submits that the total effective sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 4 months, is within range. The respondent characterises the offending as involving a serious example of aggravated home invasion and moderately serious examples of intentionally causing injury and extortion with threat to kill or inflict injury. While accepting that the offending was driven by Mr Bayamis, in the sense that the debt that he claimed to be owed was the reason the three offenders were at the property, the respondent submits that the applicant was nonetheless an enthusiastic participant in the events that occurred at the property in pursuit of the recovery of that debt. The applicant commenced the assault on Mr Stevanovski. The applicant then continued the assault in company with Mr Bayamis while Mr Thomason was holding Mr Stevanovski down. The applicant’s actions were not confined to acting on the specific directions or instructions of Mr Bayamis.

8. The respondent acknowledges that the offence of aggravated home invasion was not a category 1 offence at the time of the offending in January 2018 (so that it was not mandatory for the sentencing judge to make a custodial order for this offence).[19] However, the respondent submits that the sentence imposed was nonetheless not outside the range.

   [19]See Sentencing Act 1991 s 5(2G).

9. In support of that submission, the respondent points to Dean v The Queen, in which this Court refused leave to appeal against a sentence of 6 years’ imprisonment imposed on an offender who had pleaded guilty to an aggravated home invasion that was committed in company, during which the offenders carried a baseball bat and imitation handgun.[20] The respondent also refers to DPP v O’Reilly, which concerned an aggravated home invasion committed by three offenders wearing balaclavas who were armed with a sword, hatchet and crowbar.[21] The offenders received sentences which ranged from 5 years and 4 months’ imprisonment (for the co-offender who pleaded guilty and had no prior convictions) to 7 years and 4 months’ imprisonment (for the two co-offenders who pleaded not guilty and had significant criminal records).

   [20][2020] VSCA 100.

   [21][2022] VCC 1392 (‘O’Reilly’). See also Harika v The King [2023] VSCA 317. We note that the offenders appear to have been sentenced on the basis that the offence was a category 1 offence, although the offending occurred in September 2018, prior to the classification of the offence as a category 1 offence on 28 October 2018: see O’Reilly [2022] VCC 1392, [61] (Judge Doyle).

1. In relation to the sentence of 15 months’ imprisonment imposed on the applicant for the theft of the laptop, the respondent submits that the difference between that sentence and the sentence of 12 months’ imprisonment imposed for the theft of the vehicle is explained by the guilty plea that was entered for the latter charge. At the hearing, in response to questions from the Court, the respondent advised that the laptop was an ASUS Lamborghini laptop, with a value in excess of $2,500. The car was a 2003 Audi, with no specified value. There was no evidence that either item had been damaged.

2. More generally, the respondent emphasises the applicant’s significant criminal history, noting that he had previously been sentenced to a term of imprisonment of 46 days, as well as four suspended sentences and three community correction orders. His prior convictions included convictions for intentionally and recklessly causing injury, carrying controlled weapons without an excuse, assaulting a police officer, robbery and unlawful assault. In these circumstances, the respondent submits that the principle of specific deterrence assumed significance. Nonetheless, the judge also took into account the applicant’s efforts at rehabilitation and the reduced moral culpability that flowed from his disadvantaged background.

3. As to the relevance of delay, the respondent submits that the judge was clearly aware of the delay, which was the subject of submissions at the plea hearing. Further, the period between the offending and the plea hearing had allowed the applicant to engage in the rehabilitative work that had so impressed the judge.

4. The respondent further submits that the judge clearly and properly took the principle of parity into account. There were significant differences in the factual bases on which the offenders were sentenced: only the applicant was sentenced for aggravated home invasion; the two co-offenders pleaded guilty; and the applicant played the more violent role in the offending. In addition, while Mr Bayamis had prior convictions for driving, drug and dishonesty offences, he had no prior convictions for offences involving violence. Any disparity between the sentences was said to be justifiable.

5. The respondent points to two further matters relevant to parity. First, the s 6AAA declaration made in relation to Mr Bayamis was 7 years’ imprisonment with a non-parole period of 5 years. This was said to show that the applicant’s sentence and Mr Bayamis’s sentence were ‘on par’ and to provide a rational explanation for the difference between the sentences. Second, the applicant’s non-parole period represented approximately 45 per cent of his total effective sentence, which reflected the judge’s views of his prospects of rehabilitation.[22] In contrast, the non-parole period fixed as part of Mr Bayamis’s sentence was approximately 67 per cent of the total effective sentence.

Proposed ground 3: Cumulation of sentences on charges 2 and 4

[22]This submission is incorrect, in that the applicant’s non-parole period in fact represented approximately 62 per cent of his total effective sentence.

1. Turning to the final proposed ground, the applicant submits that the judge erred in ordering (partial) cumulation of the sentences imposed on charge 2 (intentionally causing injury) and charge 4 (extortion with threat to kill or inflict injury) because the acts and conduct constituting these offences and the offence of aggravated home invasion are properly seen as one extended act of criminality. Thus, it is submitted, the orders for cumulation do not adequately reflect the principle of totality and the sentencing discretion has miscarried. At the hearing, the applicant’s counsel conceded that some degree of cumulation was warranted on charges 2 and 4, and submitted that it was the magnitude of the cumulation that revealed error.

2. The respondent submits that the orders for cumulation reflect the principle of totality, which required the judge to ensure that the applicant, as a person being sentenced for multiple offences, received a sentence that is a ‘just and appropriate measure of the total criminality involved’.[23] The sentence on charge 2 was required to reflect the injury caused to Mr Stevanovski during the home invasion, the offence of aggravated home invasion being complete upon entry. The sentence on charge 4 was required to reflect the threat to burn Mr Stevanovski and his family, the demands for money and the withdrawal of $2,300 from Mr Stevanovski’s bank account. Each charge therefore related to conduct that was separate from the conduct constituting the aggravated home invasion, and some cumulation of the sentences was required. The amount of cumulation was not out of range, particularly when regard is had to the fact that the applicant’s 7 year sentence includes a significant period during which he will be eligible for parole.

   [23]Postiglione v The Queen (1997) 189 CLR 295, 307–8 (McHugh J); [1997] HCA 26 (‘Postiglione’).

Consideration

Proposed ground 2: Parity

1. We commence with the second proposed ground, by which the applicant submits that his sentence was excessive because the judge failed to give effect to the parity principle.

2. The parity principle reflects the notion that those who commit the same or similar offences should be treated equally, save where differences in the offenders’ age, background, previous criminal history and general character, and the part which each played in the commission of the offence, justify the imposition of different sentences.[24] The purpose of the principle is to ensure consistency in punishment.[25]

   [24]See Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64; Postiglione (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ); [1997] HCA 26; Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 (‘Green’).

   [25]See Kellway (a pseudonym) v The King [2023] VSCA 109, [124] (Emerton P, Niall and Kaye JJA) (‘Kellway’).

3. For an appellate court to intervene on the basis of disparity in the sentences imposed on co-offenders, the disparity must be such that the difference is ‘marked’ or ‘manifest’. The disparity must engender an objectively justifiable sense of grievance on the part of the offender on whom the heavier sentence is imposed — in other words, it must give the appearance that justice has not been done.[26]

   [26]See Kellway [2023] VSCA 109, [126] (Emerton P, Niall and Kaye JJA); Abdirahman v The Queen [2020] VSCA 87, [27] (Weinberg and Osborn JJA); Green (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

4. Mr Bayamis was charged with only two of the same offences as the applicant: intentionally causing injury and extortion with threat to kill or inflict injury. For each of these offences, he was sentenced to 2 years’ imprisonment following a plea of guilty, in comparison to the 2 years and 9 months’ imprisonment the applicant received in the absence of a plea of guilty.

5. Mr Bayamis was not charged with aggravated home invasion, but with the lesser offence of home invasion. His sentence of 3 years’ imprisonment for that charge is therefore more difficult to compare with the sentence of 4 years and 3 months’ imprisonment that the applicant received for aggravated home invasion.

6. It is true that Mr Bayamis orchestrated the offending and recruited the applicant to play his part in the offending. The applicant would not have been at Mr Stevanovski’s house that night but for Mr Bayamis and his plan to recover the money he believed Mr Stevanovski owed him. However, having been recruited to assist in that endeavour, it was the applicant (not Mr Bayamis or Mr Thomason) who carried a knife into Mr Stevanovski’s house that night, as well as a torch or taser. It was the applicant who then inflicted the bulk of the violence on Mr Stevanovski, using the torch or taser, and who threatened Mr Matar with the knife.

7. The applicant fell to be sentenced for the offences arising from this conduct both as a person who had been convicted following a trial by jury, and as a person who had a significant relevant criminal history. That criminal history included multiple convictions for offences of violence, offences involving weapons, and a robbery. The sentences the applicant had received for committing these offences (a short term of imprisonment, multiple suspended sentences and multiple community correction orders) had not deterred him from engaging in the present offending.

8. In contrast, Mr Bayamis was sentenced on the basis that he was entitled to a reduction in sentence for his plea of guilty, and that he had no prior convictions for any offence involving violence, with a criminal history that was of only ‘marginal relevance’ in the sentencing exercise.[27]

   [27]DPP v Bayamis [2020] VCC 566, [42], [46] (Judge Lacava).

9. In these circumstances, we are not persuaded that the disparity between the sentences imposed on the applicant and Mr Bayamis is such that an objective observer would not regard justice as having been done. To the contrary, the differences between the sentences imposed on the two offenders are justified by the differences in the part they each played in the commission of the relevant offences, their previous criminal histories, and the reduction in sentence that flowed from Mr Bayamis’s plea of guilty.

Proposed ground 3: Error in cumulation of sentences on charges 2 and 4

1. We turn next to the third proposed ground, by which the applicant contends that the judge erred in his cumulation of the sentences imposed on charges 2 and 4, so as not to properly reflect the overlap of the offences.

2. In our view, this ground is without merit. As the applicant ultimately conceded, some element of cumulation was warranted. That is because the offence of intentionally causing injury (charge 2) and the offence of extortion with a threat to kill or inflict injury (charge 4) were distinct incidents of offending, with distinct consequences, from the aggravated home invasion (charge 1). The judge did not err in ordering that 14 months of the sentences imposed for each of these offences be cumulated on the sentence for the aggravated home invasion. The amount of cumulation was within range and reflected the judge’s application of the principle of totality.

Proposed ground 1: Manifest excess

1. Finally, we turn to the applicant’s contention that the sentence is manifestly excessive.

2. To succeed on a ground of manifest excess, the applicant must show that his sentence was ‘wholly outside the range of sentencing options available’.[28] As this Court has often observed, this is a ‘stringent requirement’, which is difficult to satisfy.[29] The applicant must show that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[30] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[31]

   [28]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.

   [29]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

   [30]Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).

   [31]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.

3. As the applicant conceded, the sentencing judge considered all relevant matters put forward on his behalf, including his reduced moral culpability as a result of his significantly deprived background, his various diagnoses and conditions (some of which arose from his substance abuse), his impressive attempts to rehabilitate himself and the delay in the resolution of his charges.

4. We accept the respondent’s submission that this was a serious example of an aggravated home invasion. The offending was planned, and motivated by a desire to recover a debt believed to be owed to Mr Bayamis. There were two victims to the offending: the intended target, Mr Stevanovski, and his partner, who had the misfortune to also be at home at the time. The applicant and his co-offenders entered the home of Mr Stevanovski and Mr Matar late at night, in a violent manner. The applicant was equipped with two weapons, which he then went on to use to inflict injury on Mr Stevanovski and to threaten Mr Matar. Although it is not clear how long the applicant (or his co-offenders) remained in the house that night, it was not a ‘fleeting’ period of time.[32] The victim impact statements prepared by Mr Stevanovski and Mr Matar in the aftermath of the offending make clear that the events of that evening had profound effects on each of them. Both spoke of the fear they felt following the offending, and Mr Matar spoke of his need to now lock the door and windows of every room he entered.

   [32]See DPP v Wol [2019] VSCA 268, [59] (Kyrou, Kaye and T Forrest JJA).

5. We also accept the respondent’s submission that these were moderately serious examples of the offences of intentionally causing injury and extortion with threat to kill or inflict injury. As to the former, Mr Stevanovski sustained multiple injuries, including a large laceration to the back of his head. The applicant’s attack on Mr Stevanovski involved punching him and striking him with the torch or taser, knocking him to the floor.

6. As to the offence of extortion with threat to kill or inflict injury, the threat to burn Mr Stevanovski and his entire family was no doubt a terrifying one. And after that threat was made, Mr Stevanovski provided the offenders with the means to withdraw $2,300 from his bank account.

7. We are not persuaded that the applicant has discharged his burden to establish that the sentences imposed for any of these offences were wholly outside the range of available sentencing options. However, we are so persuaded in relation to the sentences imposed for each of the three charges of theft. The sentence of 15 months’ imprisonment for the theft of the laptop is not explicable, even taking into account the applicant’s prior convictions and the lack of remorse evident in his plea of not guilty. The laptop was recovered some four days after the offending. There was no evidence of any particular hardship caused to Mr Stevanovski by being deprived of the laptop in the days following the offending. In these circumstances, and bearing in mind what the judge described as the applicant’s ‘extremely impressive’ application to his rehabilitation over the three-year period following the offending, we regard a sentence of 15 months’ imprisonment to be manifestly excessive.

8. As for the theft of the car and the car keys, we are also persuaded that the sentences imposed for those charges (12 months’ imprisonment and 3 months’ imprisonment respectively) were wholly outside the range. The applicant pleaded guilty to stealing both items, which were also recovered in the days following the offending. The car was 15 years old, and its value was unknown. Again, there was no evidence of any particular hardship endured by Mr Stevanovski as a result of being deprived of the use of the car in the days following the offending. We are satisfied that the sentencing discretion has miscarried.

Resentence

1. In light of our conclusion that the sentences imposed on the three theft charges are manifestly excessive, the sentencing discretion is reopened.

2. On charge 5 (theft of the laptop), we would sentence the applicant to 6 months’ imprisonment. On charge 6 (theft of the car keys), we would impose a sentence of 1 month imprisonment. On charge 7 (theft of the car), we would impose a sentence of 6 months’ imprisonment.

3. We would affirm all other sentences. We would direct that 1 month of each of the sentences imposed on charges 5 and 7 be cumulated on the base sentence, resulting in a total effective sentence of 6 years and 9 months’ imprisonment. We would fix a non-parole period of 4 years and 1 month.

4. Pursuant to s 6AAA of the Sentencing Act 1991, but for the applicant’s pleas of guilty on charges 6 and 7, the total effective sentence that we would have imposed is 6 years and 11 months’ imprisonment, with a non-parole period of 4 years and 3 months.

Conclusion

1. For the above reasons, we have determined to grant the applicant an extension of time within which to seek leave to appeal his sentence; to refuse leave to appeal on the second and third proposed grounds; to grant leave to appeal on the first proposed ground; and to allow the appeal.

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