R v Liavaa; Liavaa v The King - [2025] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Liavaa; Liavaa v R [2025] NSWCCA 101
Hearing dates: 21 May 2025
Date of orders: 2 July 2025
Decision date: 02 July 2025
Before: Stern JA at [1];
Cavanagh J at [116];
Rigg J at [149]
Decision:
(1) Crown’s appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is dismissed.
(2) Mr Liavaa is granted leave to appeal against sentence.
(3) Mr Liavaa’s appeal against sentence is dismissed.

Catchwords:
CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy
CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention
SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences

Legislation Cited:
Crimes Act 1900 (NSW), ss 86(3), 112(3)
Criminal Appeal Act 1912 (NSW), s 5D
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Cases Cited:
AA v R [2024] NSWCCA 132
Allen v R [2010] NSWCCA 47
Banat v R [2020] NSWCCA 321
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
JL v R [2024] NSWCCA 246
Lee v R [2023] NSWCCA 70
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
NK v R [2025] NSWCCA 73
O’Brien v R [2023] NSWCCA 41
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
Sarhene v R [2022] NSWCCA 79
Usher v R [2016] NSWCCA 276
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Xu v R [2023] NSWCCA 93

Category: Principal judgment
Parties: Rex (Crown)
Lolo Liavaa (Applicant/Respondent)
Representation:
Counsel:
B Hatfield SC and F Sullivan (Crown)
T Edwards SC and T Weller-Wong (Applicant/Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Criminal Lawyers Group (Applicant/Respondent)

File Number(s): 2023/85162
Publication restriction: Non-publication orders were made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the names and dates of birth of the victims; the victim impact statement of the victim PV; the video recordings relating to the ransom communications by the offenders and co-accused; the photographs of the injuries sustained by the victim PV; and CCTV footage of exit from Brenan Street.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 December 2024

Before:

Harris DCJ

File Number(s):

2023/85162

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 9 and 14 March 2023, Lolo Liavaa, together with a number of other men, was an active participant in two joint criminal enterprises. The first involved an armed invasion, assaults and intimidation of the occupants and abduction of a 26 year old man, PV, from a home in Smithfield, Sydney (Smithfield house) in the early hours of 9 March 2023. The second involved the detention of PV at a house in Belmore, Sydney (Belmore house), for ransom.

On 8 March 2023, Mr Liavaa was added to a Threema group chat titled “Action Team” in which an unknown user in that requested that a sledgehammer be sourced, which Mr Liavaa did. In the early hours of 9 March 2023, Mr Liavaa, with the five other men, entered the Smithfield house. At least two of the men were armed with pistols. A third man was armed with a sledgehammer and used it to force the front door open. The men went upstairs, forced PV’s bedroom door open with the sledgehammer, and entered the bedroom, forcing him out of bed. The men then forced PV, dressed in only his underwear, out the front door and into a black SUV. Mr Liavaa was one of the occupants of this car. PV was taken inside the Belmore house, his hands were secured in front of him with a fabric tie and he was asked a number of questions about himself and about Mr Dinh, who was the intended target of the offences.

PV was detained in the vacant Belmore house from 6 am on 9 March 2023 until his rescue by police at 5.15 pm on 14 March 2023. His detention was solely to hold him for ransom. For the entire period of his detention, he remained in his underwear, his hands bound by zip ties, and his head fully secured in a bloodied pillowcase. He was fed minimal food and water over the six day period. He was subject to extreme physical violence and threats, which were filmed and sent as part of the demands for ransom, which were made to Mr Dinh using the Threema application. The serious assaults included a blade being run across PV’s back and three of his front teeth being extracted with pliers and a hammer.

Mr Liavaa attended the vicinity of the Belmore house on 10, 11, 13 and 14 March, and on occasion he remained there for some time and he either dropped off or picked up other offenders. Although the Crown did not establish that Mr Liavaa was inside the house when the violence was perpetrated on PV, he was aware that PV would be subjected to violence. He knew he was being held for ransom and received videos and photographs of PV in an injured and distressed state.

On 14 March 2023, the police conducted a covert operation that involved placing $150,000 in cash inside a parked vehicle and Mr Dinh sending a message via Threema indicating the location of the money. The cash was collected by two of Mr Liavaa’s co-offenders and was never recovered. After this, Mr Liavaa received a message from a co-accused: “Let’s go pick up the papers there’s 40k…10 each”. A short time later he collected two of the co-accused. At about 9 pm, police arrested Mr Liavaa and one of the co-accused in Mr Liavaa’s car.

Mr Liavaa pleaded guilty to offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900 (NSW) and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm contrary to s 86(3) of the Crimes Act.

Mr Liavaa was 19 years old at the time he committed the offences. He experienced a disadvantaged childhood and was subject to violence in the family home. Mr Liavaa estimated he had attended no more than one year of school prior to moving to Australia, at which point he enrolled in Year 10 and was able to complete Year 12 through a life skills program with an individualised learning program. For the purposes of sentencing, Mr Liavaa relied upon a psychological report which indicated that he met the criteria for a diagnosis of Cannabis Use Disorder, severe and Cocaine Use Disorder, severe (both now subject to a controlled environment) as well as post-traumatic stress disorder which had occurred against a background of complex trauma. On 18 December 2024, Mr Liavaa was sentenced by Harris DCJ to an aggregate sentence, having regard to a reduction of 25% for his guilty plea, of 8 years and 6 months imprisonment with a non-parole period of 5 years and 4 months.

One of his co-accused, Mr Tonga, also pleaded guilty to offences under ss 86(3) and 112(3) of the Crimes Act, but Mr Tonga was also charged with a firearm offence arising from the events of 9 to 14 March 2023. Mr Tonga’s sentence was identical to that of Mr Liavaa and his indicative sentences and non-parole periods for ss 86(3) and 112(3) offences were identical to those of Mr Liavaa.

The Director of Public Prosecution (the Crown) appeals against Mr Tonga’s sentence on the ground that the sentence is manifestly inadequate. Mr Liavaa also seeks leave to appeal against his sentence.

The principal issues in the appeal were if:

(i) the sentencing judge erred in failing to find that Mr Liavaa’s mental condition contributed to the commission of the offences in a material way thereby reducing the assessment of the objective seriousness of the offences and his moral culpability;

(ii) Mr Liavaa has a justifiable sense of grievance as a result of the sentence imposed upon Mr Tonga, given the principles of parity; and

(iii) Mr Liavaa’s sentence is manifestly inadequate.

The Court (Stern JA, Rigg J agreeing, Cavanagh J dissenting on the Crown appeal) held, dismissing both appeals:

As to issue (i) (per Stern JA, Cavanagh and Rigg JJ agreeing)

(1) Contrary to Mr Liavaa’s contention, the sentencing judge clearly rejected his contention that his mental health condition contributed in a material way to the commission of the offences. Her Honour was clearly only prepared to find a relationship between his background, including the dysfunction and his exposure to violence, and his subsequent attachment to anti-social peers and drug use, both of which bore on his moral culpability: [103]-[105].

Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; JL v R [2024] NSWCCA 246, cited.

(2) Given the sentencing judge’s finding as to the degree of connection between Mr Liavaa’s mental impairment and the offending, there was no error in Mr Liavaa’s mental health issues not being taken into account in the evaluation of objective seriousness: [106].

As to issue (ii) (per Stern JA, Cavanagh and Rigg JJ agreeing)

Her Honour clearly considered that there was comparable criminality as between Mr Tonga and Mr Liavaa, and that there were subjective factors particular to each of them that bore on the appropriate sentence. Those matters disclose a clear basis for the sentencing judge’s conclusion that the two men should receive the same sentence. Whilst precise equivalence will always be difficult to establish, there is no basis for “the justifiable sense of grievance” that would justify interference by this Court: [110]-[111].

As to issue (iii) (Per Stern JA, Rigg J agreeing)

The extent of an individual offender’s participation in a joint criminal enterprise can be reflected in the sentencing process. Mr Liavaa played a pivotal role in the kidnapping and transporting of PV, during which PV was assaulted and a pillowcase was put over his head. Mr Liavaa also played a role in transporting the co-offenders to and from the Belmore house over the period of PV’s detention and was aware of what was occurring, including through the group chat. There is, however, no evidence that he was armed at any time (although he did source the sledgehammer), nor that he himself participated in any assault of PV or was present during any assault that occurred at the Belmore house. The only suggestion that he went beyond the back gate of the Belmore house was for around 23 minutes on the morning of 9 March 2023: [86]-[88].

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, applied.

(5) The sentencing judge found that Mr Liavaa’s moral culpability was reduced for a number of reasons and her Honour also took into account his youth, immaturity (as supported by the psychological report) and vulnerability to peer pressure. The sentencing judge also held that, given Mr Liavaa’s youth, rehabilitation should be promoted as far as an appropriate sentence would permit and her Honour’s awareness of the need to avoid a crushing sentence was consistent with this: [89].

NK v R [2025] NSWCCA 73, cited.

(6) The maximum penalties and the standard non-parole period for the sequence one offence clearly support a conclusion that the sentencing judge would not have erred had she imposed an aggregate sentence, and non-parole period, higher than that imposed on Mr Liavaa. However, the sentence imposed on Mr Liavaa, and the indicative sentences identified for the individual offences, are all significant sentences, particularly if considered before the 25% discount for the guilty plea. As for the non-parole period, this was affected both by the 25% discount and by the alteration to the statutory ratio on account of special circumstances: [92]-[94].

(7) Although the Crown relied on what is said to be a comparable case of O’Brien v R [2023] NSWCCA 41, there are important distinctions between the facts of O’Brien v R and the present case. Further, there is questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision for the purpose of a submission as to manifest inadequacy: [97]-[98].

(8) The sentence imposed on Mr Liavaa, whilst clearly lenient, is not an affront to the administration of justice, nor does it risk undermining public confidence in the criminal justice system. This was a case where there was a potentially large range of sentences available, having regard both to the matters going to objective seriousness and those going to moral culpability, specific and general deterrence and rehabilitation: [100].

Per Cavanagh J dissenting

(9) In some respects, Mr Liavaa had a strong subjective case although he did not establish any causal relationship between his mental health problems and the commission of the offences. It is often said that full weight must be given to the Bugmy factors (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37), such as a disadvantaged childhood or being subject to violence in the family home, but the existence of Bugmy factors does not mandate a particular level of leniency: [128].

(10) The offending in this case is extremely serious. It involves perhaps the rare combination in Australia of breaking into the victim’s home, terrorising the occupants, inflicting and threatening violence (not just on PV), forcibly removing an innocent young man, holding him for a number of days during which he was subject to quite brutal treatment, and in addition, the making of a ransom video whilst a gun was pointed at the victim’s head. It is important to have regard to the actual role of Mr Liavaa in fixing a sentence. His role was not minor or secondary: [132]-[134].

(11) For the reasons set out in R v Tonga [2025] NSWCCA 100 the aggregate sentence imposed on Mr Liavaa in respect the two specially aggravated offences was not just lenient, but it was manifestly inadequate: [135].

(12) The aggregate sentence his Honour would impose would be 13 years and 6 months, with a non-parole period of 8 years and 6 months: [146].

JUDGMENT

STERN JA: Between 9 and 14 March 2023, Lolo Liavaa, together with a number of other men, was an active participant in two joint criminal enterprises. The first involved an armed invasion, assaults and intimidation of the occupants and abduction of a 26 year old man, whom I will refer to as PV, from a home in Smithfield, Sydney (Smithfield house) in the early hours of 9 March 2023. The second involved the detention of PV at a house in Belmore, Sydney (Belmore house), for ransom, from around 6 am on 9 March 2023 until 5.15 pm on 14 March 2023 when PV was rescued by police. During this period of detention PV was kept in appalling circumstances and was subject to multiple serious assaults and threats of violence.
At the time PV was living at the Smithfield house with his then partner and her parents, brother and brother’s girlfriend. None of Mr Liavaa or his co-accused were known to PV at the time. Indeed, the intended target of the offences was Tran Dinh, who is referred to in some detail below and who appears to have been believed to have been wealthy and/or have access to drugs, and not PV.
Mr Liavaa was arrested on 14 March 2023. He pleaded guilty to offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900 (NSW) (sequence one) and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm contrary to s 86(3) of the Crimes Act (sequence two). Each of these offences carried a maximum penalty of 25 years imprisonment and sequence one attracted a standard non-parole period of 7 years.
On 18 December 2024, Mr Liavaa was sentenced by Harris DCJ to an aggregate sentence, having regard to a reduction of 25% for his guilty plea, of 8 years and 6 months imprisonment with a non-parole period of 5 years and 4 months. He will be eligible for release on parole on 13 July 2028. The indicative sentences, taking into account the 25% reduction, were 6 years and 9 months with a non-parole period of 4 years and 3 months for sequence one and 7 years for sequence two.
Mr Liavaa’s sentencing hearing occurred on the same days, and before the same judge, as that of Mr Tonga, one of his co-accused. Mr Tonga also pleaded guilty to offences under ss 86(3) and 112(3) of the Crimes Act, but Mr Tonga was also charged with a firearm offence arising from the events of 9 to 14 March 2023. Mr Tonga’s sentence was identical to that of Mr Liavaa and his indicative sentences and non-parole periods for sequences one and two of his offending (the same offences as charged as sequence one and two for Mr Liavaa) were identical to those of Mr Liavaa. The indicative sentence for his firearm offence was 3 years with a non-parole period of 20 months. However, as would be expected, the circumstances of Mr Liavaa’s offending were somewhat different to that of Mr Tonga’s, and the two men also had different subjective circumstances.
The Director of Public Prosecutions (the Crown) appeals against Mr Liavaa’s sentence under s 5D of the Criminal Appeal Act 1912 (NSW) on the ground of manifest inadequacy.
Mr Liavaa also seeks leave to appeal against his sentence on the grounds that:

The sentencing judge erred in failing to find that his mental condition contributed to the commission of the offences in a material way thereby reducing the assessment of the objective seriousness of the offences and his moral culpability (noting that this ground originally included a further contention, not pressed at the hearing of the appeal, as to the weight that the sentencing judge gave to Mr Liavaa’s disadvantaged background) (ground one).

He has a justifiable sense of grievance as a result of the sentence imposed upon Mr Tonga, given the principles of parity (ground two).

In order to achieve finality, Mr Liavaa should be granted leave to appeal consistent with the observations of N Adams J in Xu v R [2023] NSWCCA 93 at [40] (Garling and Hamill JJ agreeing). However, for the reasons set out below, both appeals should be dismissed.

Background

This summary of relevant background comes from the statement of agreed facts upon which Mr Liavaa was sentenced and, to the extent relevant to Mr Liavaa’s contentions as to parity, from the remarks on sentence in Mr Tonga’s case. The statement of agreed facts uses the term “co-accused” or “offenders” when referring to the other males involved in the offending. For convenience I have adopted that language, but nothing in this judgment should be taken to suggest that any identified person (other than Mr Tonga who also pleaded guilty to the charges against him) was in fact involved in the offending.

In February 2023, an associate of one of Mr Liavaa’s co-accused, who was employed by Service NSW, dishonestly used the Roads and Maritime Services (RMS) database to access details relating to a Lexus Sedan driven by PV and also records relating to Mr Dinh. Mr Dinh was married to a relative of the family of PV’s partner and his Service NSW details listed his address as being the Smithfield house but he did not actually live there.
On 1 March 2023, at 2.20 pm, Mr Liavaa received a message via Threema (an end-to-end encrypted messaging application) with instructions from an unknown sender about the upcoming kidnapping of Mr Dinh who was described as “the target”. The instructions included that “you’ll need action clothes & tools plus ballys [balaclavas], hats, gloves, zip ties & something to cover old mates face … Use know the drill”. The instructions included where to wait for Mr Dinh, what car Mr Dinh would be driving, what navigation tools to use, where and how to switch to a second car, when to turn off the phone being used for navigation and how to locate and access the “safe house”. The message also referred to making sure Mr Dinh stayed quiet when switching vehicles and to “pistol whip” him if he did make noise. The message concluded that:

“When you get to the safe spot you’ll see someone with a torch flashing use in the garry drive straight into garage & Audi will take off. I’ll be there with the brother, drive straight in & I’ll put the roller doors down. Make sure no ones talking inside the garage when use park up I’ll guide use straight inside the house from there we touch up the dog. We might do shifts overnight max 48hours we hold him and squeeze the life out of him. But promise you everyone’s getting paid.”

It was clear from this message that the proposed kidnapping would involve ill treatment of the anticipated victim, and that participants in the offending could expect to be paid.
Upon receiving this message, Mr Liavaa messaged Dr Alese Plichta, a family friend whom he calls his aunt, asking after a black tracksuit, a baseball bat and a hoodie. Dr Plichta responded saying that “you don’t need to”, to which Mr Liavaa replied:

“Coz I need money...But this is different. These are missions...I’m basically playing GTA [a reference to a video game called ‘Grand Theft Auto’] real life”.

On 1 March 2023, PV and his partner arrived at the Smithfield house at around 10 pm. Shortly after exiting the Lexus, the details of which were accessed in the RMS database, they were assaulted by Mr Liavaa and three other men. At least two of the men were armed with a crowbar, wooden plank or baseball bat. Both PV and his partner were struck. Mr Liavaa and the other men then fled the scene. PV sustained injuries to his eye sockets, arms, head and back. At approximately 11.05 pm, the offender read a message sent using Threema that asked “Youz good?” He replied at 11.38 pm saying “Toko I’m sorry lahd… U want me to go back there and end it?” This was a reference to the failed attempt to detain PV that night. This conduct is relevant only by way of background to the offences of which Mr Liavaa was convicted.
Starting on the afternoon of 2 March 2023, Mr Liavaa received a series of messages about a further attempt to kidnap “the target”.
On 8 March 2023, Mr Liavaa was added to a Threema group chat titled “Action Team”. At 6.45 pm on 8 March 2023, an unknown user in that group chat requested that a sledgehammer be sourced:

“to break down the door straight away. That’s why there’s 6 of use running in to make sure we grab the dog. You’ll have a gat [pistol] as well, make sure you have zip tie as well brothers”.

At 7.40 pm Mr Liavaa wrote in that group chat: “sledgehammer getting sorted”, and he sourced and supplied a sledgehammer which was used in the offending. At 10 pm on 8 March 2023 he received several messages in the group chat in which reference was made to torturing the victim so that they could “get paid”. One such message read: “we’re gonna snatch the dog, torture the fuck out of him so we can get paid... he’s cashed asf... big big coin... we’re getting paid $300,000...$75k each.” Mr Liavaa read and responded to these messages. Again, these messages make it clear that the intention was to torture the victim and for the participants to be paid for their role in the offending.
As for Mr Tonga, the Crown could not establish that he received or was party to any of the messages described above, nor that he used Threema to communicate with his co-offenders at any time.

The sequence one offence

At 12.14 am on 9 March 2023, Mr Liavaa received detailed instructions in the Threema group chat as to how to carry out the offences, including as to the need to plan everything before “heading in” and to switch cars on the way from the Smithfield house to the Belmore house. The message referred to there being different teams carrying out the offending.
Mr Liavaa, together with three other men, arrived at the Smithfield house at 5.19am on 9 March 2023 in a black SUV. He and the three other men ran from the car to the entrance of the home, along with two other men, including Mr Tonga who ran from a white hatchback. All of the men were wearing dark hooded clothing, face masks and balaclavas. At least two of the men (including Mr Tonga) were armed with pistols and a third was armed with the sledgehammer (that had been sourced by Mr Liavaa). At 5.20 am, one of the men forced the front door open with the sledgehammer. Mr Tonga held his pistol in plain sight as he entered the house. The Crown did not allege that Mr Liavaa was armed, or that either Mr Liavaa or Mr Tonga broke down the front door.
All six men then entered the house, went upstairs, forced PV’s bedroom door open with the sledgehammer, and entered the bedroom, forcing him out of bed. One of the men held a gun to PV’s face. PV’s partner’s brother attempted to intervene and was hit by one of the men with the sledgehammer before being attacked by three other men, causing a fracture to his left forearm.
One of the men pointed a pistol at the mother of PV’s partner and her brother’s girlfriend and threatened to shoot them. PV was grabbed and forced downstairs. The mother of PV’s partner tried to grab one of the men and was punched twice in the chest.

The sequence two offence

At 5.23 am the men forced PV, dressed in only his underwear, out the front door and into the black SUV. Two men were in the front seats and a man was on either side of PV in the middle rear seat. They put a pillowcase over PV’s face before punching him in the head, nose and eyes. One of the men said to him: “Don’t do anything stupid or we will shoot you”. PV felt his nose start to bleed and found it difficult to breathe. Mr Liavaa was one of the occupants of this car. The white hatchback, in which Mr Tonga was travelling, closely followed the black SUV.
The occupants of the black SUV changed cars at one point. At that point, PV was told:

“We’re going to get out. You’re going to get into another car and you’re not going to do anything stupid, you’re not going to scream, you’re not going to run or we’re going to shoot you”.

Mr Liavaa’s phone location showed that his movements were consistent with the instructions he was given, as referred to at [19] above, and thereafter he drove the car carrying PV to the Belmore house, arriving there at 6.09 am. One of the men said to PV, who had a pillowcase over his head:

“We’re gonna go inside, don’t make a scene, don’t do anything stupid or we’re going to shoot you.”

PV was taken inside and his hands were secured in front of him with a fabric tie.
At 6.12 am, Mr Liavaa sent a message on Threema: “WTF am I doin”. He was told to “come in” and he then entered the rear yard of the Belmore house. He can be seen on CCTV leaving the Belmore house at about 6.40 am. Shortly after that, two other men left the Belmore house and got into the vehicle with Mr Liavaa, who then drove away. The available CCTV only showed the rear yard of the Belmore house and did not extend to the back door entrance.
Inside the Belmore house, PV was asked a number of questions about himself and about Mr Dinh (referred to as “whitey”) and he told the men everything he could. He heard a noise like the trigger of a gun and a man placed a gun to the back of his head. A towel or piece of rolled up fabric was put in his mouth and tied at the back of his head. He was told to lay down but after a while he heard footsteps and was struck on the side of the head. He could feel someone holding a gun to his head. He was kicked in the back and then, when he sat up, struck to the shoulder and knee with a sledgehammer. He was told to “[j]ust give [Mr Dinh] up or we’re going to cut your fingers off”. The man then ran a blade across PV’s back and said:

“Feel how blunt that is? I’m gonna cut your fingers off. Don’t move. Tell me everything you know about Tran... You better think of something important to tell us about Tran or we’re going to cut your fingers off the next time we come back.”

PV’s hands were then tied behind his back and he was instructed to sleep. After a short while someone punched him in the face, at which point his mouth gag was removed and he was force-fed chicken nuggets. He was then instructed to sleep. After a few hours he awoke to someone striking him in the face. He was then hit in the back and the back of the head with a sledgehammer.
At 10.11 am on 9 March 2023, Mr Tonga was seen on CCTV returning to his home address, wearing the same clothing he had been wearing earlier that day.
At about 5.05 pm on 10 March 2023, Mr Liavaa arrived at the Belmore house and dropped off two of the co-offenders and a further person. The three people entered the Belmore residence and Mr Liavaa drove away.
At 12.56 am on 11 March 2023, Mr Liavaa returned to the rear of the Belmore house and remained in the area until 4.12 am, when he drove away with the three people he dropped off previously.
Mr Liavaa returned to the rear of the Belmore house at 6.54 pm on 13 March 2023. He dropped two of the co-offenders off before driving away.
On 13 March 2023, a gun was placed against PV’s head and he was told to open his mouth. He felt pliers inside his mouth attempting to extract his front right tooth. Another man then entered the room and struck him in the teeth several times with a hard object until his front teeth became loose. The men then removed three of his front teeth. Although the Crown could not prove that Mr Liavaa was present at the Belmore house on that day, he was aware that it occurred and continued to participate in the criminal enterprise.
The Crown could not prove that Mr Tonga was present inside the Belmore House on 9-13 March 2023, including when PV’s teeth were forcibly removed, however he was also aware that it occurred and continued to participate in the criminal enterprise.
At 4.33 am on 14 March 2023, Mr Liavaa arrived in a vehicle at Forbes Avenue, Belmore, which provides rear access to the Belmore house, before visiting McDonalds at 7.15 am with one of the co-offenders and then returning to Belmore. A short time after 9.23 am, two of the co-offenders, one of whom was Mr Tonga, were observed by police walking from the Belmore house and getting into the car driven by Mr Liavaa, who then drove away from the location.
A number of ransom demands were made to Mr Dinh using the Threema handle “whitey whitey” over this period (the Crown could not prove that Mr Liavaa was operating this Threema handle):

At 6.31 pm on 9 March 2023, a message was sent saying: “Going to make dis clear no1 negotiating we set a price 5mil or work if you can’t meet up 2 our requirements, we cut ur boy up bit by bit until you give us what we want”;

At 9.19 pm on 9 March 2023, a message was sent saying: “Want his body in pieces? Get the 5mil ready let me know will be released”;

At 1.18 pm on 10 March 2023, an image message was sent which featured PV’s bruised abdomen and blood on his left hand;

At 1.22 pm on 10 March 2023, another image message was sent which showed a large laceration (slash marks) across PV’s back and white cloth material over his head;

At 2.54 pm on 10 March 2023, a message was sent saying: “You have 24h to cough up something nice. We waiting, times ticking”;

At 7.25 pm on 10 March 2023, Mr Dinh requested evidence that PV was alive and he was sent an image of PV with a pistol in his mouth;

At about 8.39 pm on 10 March 2023, a video file was sent to Mr Dinh accompanied by the demand “in 24 hours cough up $5mil plus all your work. You will never see his face again”;

At 9.10 pm on 10 March 2023, a video was sent to Mr Dinh showing PV repeatedly begging: “Tran help me. They’re gonna fucken kill me” with two men holding him while another forced a pistol inside his mouth;

After Mr Dinh, under the supervision of police, negotiated a payment of $150,000, at 5.23 pm on 13 March 2023, a message was sent to him saying: “Drop that bag off let me know when ready. This is your last week to get your shit together and come up with money or else we chopping fingers off everyday you are late and sending them to you. This is the last warning”;

At 8.44 pm on 13 March 2023, a video file was sent to Mr Dinh featuring PV bound to the rear with a bag over his head. He was forced to open his bleeding mouth revealing missing front teeth; and

At 10.58 pm on 13 March 2023, a message was sent saying: “We gave you an option to dead drop and you didn’t go on with it. Sit there and watch this dog slowly suffer. Every day your late one finger will be coming off and sent to you. That 150k get dropped tonight to Bannyrigg or we start chopping up tomorrow morning onwards ... playing ball or delaying us? You have one week to gather 3.5m. You have one week to gather 50kgs of H or eye. An another 50kgs”.

At 10.16 am on 14 March 2023, a hostage video and demands were sent to Mr Dinh. The video showed Mr Tonga holding a gun to PV’s head and it appears that only one of the other co-offenders were in the house. Mr Tonga is filmed saying “[g]o on, say it” and PV says “Tran do the fucking drop. I just want to go home. Stop delaying it man.” The accompanying message said “150k you will drop somewhere for us soon. That comes of the 3.5M”. Over the course of 14 March 2023, Mr Dinh communicated with “Whitey whitey” for the release of PV. The police conducted a covert operation that involved placing $150,000 in cash inside a parked vehicle and Mr Dinh sending a message via Threema indicating the location of the money. The cash was collected by Mr Tonga, who was seen in possession of a pistol, and another co-offender. This, together with the video at 10.16 am on 14 March 2023, formed the basis of the firearms offence of which Mr Tonga was convicted.
At 5.15 pm on 14 March 2023, police stormed the Belmore house and recovered PV. He was found with a bloodied pillowcase tied around his head and his hands tied behind his back with cable ties. His injuries included a large bruise over his entire left shoulder, three missing front teeth, bruising and swelling to his face, bruising to his right ear and left knee and lacerations across his back. Mr Tonga was arrested at the house around 6 pm. The cash was never recovered.
PV was detained in the vacant Belmore house from 6 am on 9 March 2023 until his rescue at 5.15 pm on 14 March 2023. His detention was solely to hold him for ransom. For the entire period of his detention, he remained in his underwear, his hands bound by zip ties, and his head fully secured in a bloodied pillowcase. He was fed minimal food and water over the six-day period. He was subject to extreme physical violence and threats, which were filmed and sent as part of the demands for ransom.
The sentencing judge noted that Mr Liavaa told community corrections that he had been offered payment in illicit substances, and that the agreed facts reflected that all participants were to be paid out of the ransom money.

Arrest

At about 6.47 pm on 14 March 2023, Mr Liavaa received a message from a co-accused: “Let’s go pick up the papers there’s 40k…10 each”. A short time later he collected two of the co-accused. At about 9 pm, police arrested Mr Liavaa and one of the co-accused in Mr Liavaa’s car. Among other items, a baseball bat, three mobile phones, two knives and a 9mm round of ammunition were seized from the vehicle. A blood swab taken from the baseball bat was found to match the DNA profile of PV. A phone in the possession of Mr Liavaa contained some of the messages on Threema, but not the ransom demands, and also showed that Mr Liavaa was party to a separate Threema group chat in which members posted live pictures of PV in a state of hostage. One of those pictures showed PV with material covering his eyes with his front teeth missing. There was no evidence that Mr Tonga was party to the group chat.

Victim impact statement

A victim impact statement, tendered in the sentence proceedings, spoke to the very significant impacts of the offending on both PV and his family. He suffered extensive injuries which had lasting impacts, including on his mental health. His injuries are a constant reminder of what happened to him whilst detained. As at October 2024 he had not yet been able to have his teeth replaced, and looking in the mirror is a further reminder of the horrific ordeal he endured. He has constant nightmares and whenever he falls asleep he feels as if he will wake up to the events that unfolded on the night he was taken. All aspects of his, and his family’s life, including their work, have been affected. He no longer feels safe doing any of the things he thought of as normal. He feels that he will never be able to return to the person he once was.

Mr Liavaa’s subjective case

Mr Liavaa was 19 years old at the time he committed the offences and 20 years old at the time of sentencing.
For the purpose of sentencing, Mr Liavaa relied upon a report of a Lucienne Barhon, a clinical neuropsychologist, dated 8 January 2024, a psychological report of Ann-Marie De Santa Brigida dated 22 September 2024, a sentencing assessment report of Community Corrections Officer Megan Dove dated 11 September 2024, a letter to the court authored by himself, a number of character references and an affidavit of Dr Plichta, sworn on 20 March 2023.
Mr Liavaa was born in New Zealand to Tongan parents and was one of six children. He was raised with another six step-siblings from his father’s previous relationship. His mother passed away when he was 5 or 6 years old. His father then raised his 12 children alone for several years, before repartnering when Mr Liavaa was approximately 12 years old. His stepmother was physically abusive towards him as were his older brothers. His father died in 2019 when Mr Liavaa was 15 years old. Mr Liavaa then moved to Australia (where he had lived for a short time when he was very young), initially residing with an older brother. However, as he would be beaten by him if he did anything wrong, he ran off to live with Dr Plichta. In the few months prior to his arrest, Dr Plichta had assisted him to obtain a rental property so that he could transition to living independently.
Mr Liavaa estimated that he had attended no more than one year of school prior to moving to Australia. After his arrival in Australia, he enrolled in Year 10 at a school where Dr Plichta was the principal. He required significant support from teaching staff and was in a special education class in Years 11 and 12. He completed Year 12 at the end of 2022 through a life skills program with an individualised learning program. He said that he could now read and write simple words and do very basic maths.
Mr Liavaa began smoking cannabis daily and occasionally binge drinking after his father passed away in 2019. He said this had been a means of coping with his loss and adjustment to having no parents. In the approximately 18 months prior to the offending, he had befriended a group of local boys and begun using cocaine, at first occasionally. In the four to six months leading up to his arrest he had been using two small bags of cocaine daily. He also acknowledged illicit use of buprenorphine whilst on remand.

Ms Barhon’s report noted that Mr Liavaa sustained a mild complicated traumatic brain injury in November 2021 after being assaulted with a golf club. Medical records indicated that post-concussive symptoms resolved within two months of the injury, although Mr Liavaa reported various intermittent yet persistent post-concussive symptoms at the time of interview by Ms Barhon. Ms Barhon considered that he did not meet the criteria for a cognitive or mental health impairment, either at the time of the offending or at the time of her assessment of him. She added:

“Considering his reported personal history, he impressed as being more vulnerable to peer/social influences and more likely to model the behaviours of those he hopes to establish social connections with. Mr Liavaa would have been going through a significant period of change in the lead up to the alleged offending, having only recently completed high school with no clear direction or plan for his future, and had just moved to live independently for the first time.”

Ms De Santa Brigida considered that Mr Liavaa would have met the criteria for a diagnosis of Cannabis Use Disorder, severe and Cocaine Use Disorder, severe, but that these were now subject to a controlled environment.
She also considered that he met the diagnosis of post-traumatic stress disorder (PTSD) which had occurred against a background of complex trauma. She said that the aetiology of the PTSD and complex trauma was his exposure to developmental trauma. She said that he evidenced:

“the classic symptoms of PTSD, with intrusive thoughts, dreams, and nightmares, avoidance of stimuli associated with the trauma and problems relating to others.”

Ms De Santa Brigida did not suggest that these symptoms played any role in Mr Liavaa’s offending.
Ms De Santa Brigida also said that Mr Liavaa evidenced two types of anger. Reactive-impulsive anger, which would be associated with his complex trauma in childhood, and goal-directed aggression, which was most likely related to his early attachment problems as he had “sought out his age-matched peers to compensate for the absence of a secure attachment base”. Again, she did not draw any link between either form of anger and his offending.
She did say, however, that his comment to Dr Plichta in the lead up to the offending that he was “basically playing [Grand Theft Auto] real life” indicated the immaturity of his prefrontal cortex.
Ms De Santa Brigida identified that research demonstrates that one risk factor for violent behaviour and incarceration of young males is trauma. Alongside this, she noted that substance abuse is demonstrated to be a major risk factor for aggression, violent behaviour and incarceration. Childhood abuse also has links to the probability that an individual will engage in criminality. She identified, further, that research shows that early trauma may cause an enduring vulnerability to addiction and that impairments in brain functioning as a result of trauma have been linked to the earlier onset of alcohol and drug use, criminal behaviour, and engaging in, modelling and encouraging delinquent behaviour in adulthood. She concluded:

“As noted, extensive research indicates that there is a direct nexus between childhood trauma and acting out behaviour, offending and substance abuse. Indeed, early trauma in an [individual’s] life is correlated with creating an enduring vulnerability to substance abuse. Mr Liavaa has also been substantially affected by the early loss of his mother which has resulted in a rupture in the attachment process.”

As can be seen, Ms De Santa Brigida’s opinion is framed at a level of generality, identifying linkages between trauma and other experiences and the probability that an individual will display certain behaviours or engage in certain activities, including offending. Her report steadfastly avoided any opinion as to whether or not Mr Liavaa’s background or experiences, or mental health diagnoses, in fact contributed to his offending.
Dr Plichta explained in her affidavit that before his brain injury, Mr Liavaa had worked casually in cleaning and maintenance and in 2023 had been working with young people with disabilities as a School Assistant (Level 1). She also explained that he suffered from a serious heart condition which made it difficult for him to obtain work in areas of labouring. Ms Plichta said that she and her husband will support Mr Liavaa when he is released from custody.
In his letter to the court, Mr Liavaa said that he was deeply remorseful for the pain and suffering he had caused to PV and his family. He also said that he did not ever want to return to gaol after he finishes his sentence. He also raised that he had suffered from severe constipation whilst in prison and had also suffered from a foot infection and an ankle injury, for which he had not received medical attention or x-rays despite requests. He also said that he had experienced lock-ins and witnessed assaults whilst on remand.
His references were supportive and (as the sentencing judge found) indicated an “otherwise kind and generous natured person who has strong community ties”.
In the sentencing assessment report, Ms Dove said that Mr Liavaa had obtained five offences in custody, including for physical altercations and assault and one offence of refusing urinalysis sample. Under the heading “Insight into impact of offending”, she said:

“Mr Liavaa was forthcoming in his assessment of the consequence and long term trauma the offence may have caused the victim and his family. Additionally, he appeared to distance himself from the harm caused to the victim.
He maintained some deflection of responsibility around the level of violence used against the victim, however Mr Liavaa identified himself as a violent person.
While Mr Liavaa demonstrated elements of remorse and guilt, his ongoing behaviour in the custodial environment suggests some concern in how he will manage conflict in the future.”

She said that he had been assessed as a low risk of reoffending according to the “Level of Service Inventory – Revised”.

The remarks on sentence

Objective seriousness

Consistent with Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29], the sentencing judge identified the facts, matters and circumstances that bore upon sentencing, without offering any label to characterise its objective seriousness.
Her Honour identified a number of matters that heightened the seriousness of the offending comprised in sequence one, the offence of specially aggravated break and enter and intimidation. First, the multiplicity of co-offenders increased the level of intimidation of the occupants of the Smithfield house. Secondly, the offenders were armed with two dangerous weapons held in plain sight and used in a menacing way with explicit threats of occupants being shot, increasing the capacity to instil fear of serious harm or even death. Her Honour also highlighted that the offenders wore face masks and dark hooded clothing, the method of entry was particularly violent and involved a sledgehammer sourced by Mr Liavaa, and this was also used to enter PV’s bedroom which “undoubtedly [added] to the terrifying nature of the experience of those asleep inside”. There was little or no opportunity for PV and the other occupants to defend themselves and the intimidation was of a high order.
The statutory aggravating features were the use of violence, that the offence was committed in the home of the victim, that the offenders were aware that there were people inside and there was a level of planning and organised criminal activity beyond that which might be assumed. Whilst the commission of the offence for financial gain was an aggravating figure, there was significant overlap as regards this with the kidnapping offence.
As for the sequence two offence, the specially aggravated kidnapping for advantage, her Honour identified a number of circumstances of note, being that PV was ambushed, taken from his bed at gunpoint and forced into a vehicle, he was assaulted whilst being transported in that vehicle, the kidnappers were strangers and he did not know what they were capable of, he was kept isolated in an unknown, unfamiliar, location, he was in only his underpants for six days, he was gagged, blindfolded, had his hands tied and a pillowcase over his head and at the same time was aware that the offenders were armed, he had limited access to food, water and a toilet and was kept with his hands secured behind his back, he was threatened, including with firearms and threats to cut off his fingers, he was subjected to serious physical violence and substantial actual bodily harm was inflicted with no medical treatment or basic care. Mr Liavaa was present at the violent assault of PV on 1 March 2023 and at the assault in the car during the kidnapping and was aware of the stated intention that PV be tortured and pistol whipped and he received shared videos and photographs showing PV’s physical state and injuries.
The sentencing judge found that Mr Liavaa’s role was pivotal in the kidnapping and transporting of PV and that he was the transporter of others to the Belmore house and on occasions spent a number of hours in the vicinity of that house (albeit that it could not be proved that he had entered the house). It was also relevant that Mr Dinh was exposed to genuine threats of serious harm to PV, who was his nephew, if he did not comply with the demands for a substantial ransom. The $150,000, which was provided as a partial payment for the ransom demands as part of a covert operation conducted by police, was never recovered.
Other statutory aggravating factors included the use of actual violence, the level of planning and organised criminal activity and the substantial injury and emotional harm sustained by PV. The sentencing judge did not find the use of gratuitous cruelty as an aggravating feature.

Plea of guilty and criminal history

As set out above, a 25% discount was allowed for Mr Liavaa’s early guilty plea. He did not have a prior criminal record and was to be afforded a degree of leniency for this.

Subjective circumstances

Her Honour referred to Ms De Santa Brigida’s opinion that Mr Liavaa suffered from severe cannabis and cocaine use disorders, now subject to a controlled environment, to the symptoms of PTSD that Ms De Santa Brigida identified and to Ms De Santa Brigida’s diagnosis of Type II PTSD.
In response to Mr Liavaa’s submission that the Court would find a causal link between his conduct and his upbringing, the sentencing judge said:

“I accept there is a relationship between his upbringing characterised by disadvantage and a level of dysfunction, his exposure to violence and his subsequent attachment to anti-social peers and drug use. This bears on his level of moral culpability, reducing it to some extent.”

Her Honour also found that Mr Liavaa’s relatively young age, both at the time of his offending and at the time of sentence, bore on the emphasis to be given to general deterrence. Her Honour observed that the planning and execution of the offences lent towards a finding of adult behaviour rather than immaturity but that social media exposure of young people to criminal activity and violence tended “to blur the lines between immature parroting of that exposure and what might, in the past have been considered an adult choice”. Here, having regard to the reference to the video game Grand Theft Auto in the exchange between Mr Liavaa and Dr Plichta (at [54] above), her Honour found that the relevance of youth was demonstrated. Thus, she took into account:

“his relatively young age and an immature capacity for sound judgment and what is likely to have been his vulnerability to peer group pressure to what I have already found to be a reduction in his moral culpability.”

Her Honour also said that, given Mr Liavaa’s age, there ought to be a focus on rehabilitation “such that it is promoted as far as an appropriate sentence will permit”.
Her Honour found that specific deterrence remained a consideration, noting that Mr Liavaa had identified himself as a violent person to Ms Dove. The reduction in moral culpability reduced to some extent the emphasis to be given to general deterrence. As for remorse, having regard to his letter and Ms Dove’s observations in her report, the sentencing judge said that Mr Liavaa may be remorseful and, despite not hearing from him, she would give him the benefit of the doubt in that respect. She found, however, that given that there was nothing particularly insightful in Mr Liavaa’s letter, which was largely dedicated to the impact on himself, he still had some way to go in this respect.
As to risk of re-offending, her Honour noted Ms Dove’s assessment and Mr Liavaa’s offences in custody. Her Honour also noted that Mr Liavaa had a substantial amount of pro-social community support and that he would “require a level of extended supervision to encourage pro-social behaviour and relationships”. Her Honour added:

“While his young age and community support leads me to conclude his prospects of rehabilitation are probably good, his poor conduct in custody and propensity to engage in violence is of concern and to be contrasted with a positive attitude and demonstrated commitment to rehabilitation by Mr Tonga post arrest.”

This suggests that her Honour was somewhat guarded as to Mr Liavaa’s prospects of rehabilitation notwithstanding Ms Dove’s assessment.
Her Honour took into account Mr Liavaa’s stated experience in custody, including the lock-ins, in the general mix of subjective factors.

Parity

Her Honour expressly considered the issue of parity as between the sentences for Mr Liavaa, whom she was sentencing, and Mr Tonga, whom she had sentenced on 6 December 2024. Her Honour identified the following matters as relevant:

Mr Tonga was 20 years old and Mr Liavaa had just turned 19 years old at the time of the offending.

Mr Liavaa was party to the kidnapping plans from at least 1 March 2023 and was a recipient of photos and videos of PV as a hostage shared amongst the group. He participated in the 1 March 2023 attack and was thus aware of what was to happen and the seriousness of it well in advance of 9 March 2023.

Mr Tonga, but not Mr Liavaa, was armed with a pistol and Mr Tonga was also sentenced for possession of that pistol. However, that offence “was closely if not entirely related to the offences for which they are both to be sentenced and the criminal enterprise of which they are both a part”.

Mr Liavaa sourced the sledgehammer used in the break and enter and he transported and used it in the detain offence (as to this I note that the statement of agreed facts does not in fact identify Mr Liavaa as having himself used the sledgehammer in the offending).

Mr Liavaa transported three offenders to the Smithfield house and travelled in the same car as PV to the Belmore house. However, this had little impact on parity as all the offenders were involved in the kidnapping and movement of PV.

Mr Liavaa was the driver of the switch car to the Belmore house. He entered at least the rear of the property and remained there for a little over 20 minutes. He attended the vicinity of the Belmore house on 10, 11, 13 and 14 March, and on occasion he remained there for some time and he either dropped off or picked up other offenders.

Mr Tonga was present in the Belmore house on 14 March for a number of hours and played an instrumental role, being filmed as he threatened PV by holding a gun to his head. This video was sent to Mr Dinh.

There is no evidence of either Mr Liavaa or Mr Tonga inflicting physical violence on PV. They are liable as participants in the joint criminal enterprise. Neither orchestrated the offences, nor were they present when the most serious assault on PV was perpetrated.

Her Honour held that “[d]ifferences in their participation becomes of less substance when assessing their overall criminality”.
As to subjective factors:

Mr Tonga was genuinely remorseful, had demonstrated positive behaviours in custody and had appreciable prospects of rehabilitation, more obvious than those of Mr Liavaa; but

Mr Liavaa’s moral culpability was reduced for reasons including his disadvantaged childhood.

In sentencing, her Honour observed:

“Having considered the criminality of the offending against that of Mr Tonga and the offender’s own subjective case, including his reduced moral culpability, a less positive finding of remorse and prospects of rehabilitation; employing instinctive synthesis ultimately the sentences should and will be the same. The additional offence for which Mr Tonga was sentenced will not, having regard to the principle of totality, bear on the aggregate sentence of imprisonment I will impose.”

Sentence

The sentence her Honour imposed included some notional accumulation but also a level of concurrency. Her Honour was cognizant to avoid a crushing sentence for a 20 year old man. Her Honour found special circumstances and varied the statutory ratio including for reasons of rehabilitation, and because it was a lengthy sentence for a young man and he will require an extended period under supervision to re-establish himself in the community, absent anti-social peers, and to address his mental health and history of drug use. On this account her Honour reduced the statutory ratio to 63%.

The Crown appeal – manifest inadequacy

As French CJ, Crennan and Keifel JJ confirmed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], the primary purpose served by a Crown appeal against sentence is to lay down principles for the guidance of sentencing courts. That includes the purpose of ensuring, so far as the subject matter permits, uniformity of sentencing: Everett v The Queen (1994) 181 CLR 295 at 306 (McHugh J); [1994] HCA 49. On such an appeal, the Crown must demonstrate an error in the nature of that identified in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 and, if that threshold is met, that the court should exercise its discretion to impose a different sentence: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 (“CMB”) at [54] (Kiefel, Bell and Keane JJ). For this purpose, the Crown must negate any reason why the residual discretion of the court not to interfere should be exercised: CMB at [34] (French CJ and Gageler J) quoting R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 (Heydon JA, Levine J and Carruthers AJ agreeing) at [12].
The Crown’s contended error in this case, manifest inadequacy, is a conclusion that is, or is not, plainly apparent and does not depend upon any antecedent specific error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). To establish manifest inadequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust: Dinsdale v The Queen at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, it is only warranted “where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. What reveals manifest inadequacy is “consideration of all of the matters that are relevant to fixing the sentence”: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60]. It will arise where the court concludes that “the inadequacy of the sentence appealed from is so marked that it amounts to ‘an affront to the administration of justice’ which risks undermining public confidence in the criminal justice system. In such a case the Court would be justified in interfering with the sentence”: Green v The Queen at [42] (French CJ, Crennan and Kiefel JJ).

In the present case, the Crown contends that the sentence imposed was below the range of sentences that could justly be imposed. The Crown relies in this regard upon a number of matters.
First, the Crown contends that the offending was very serious, involving both a terrifying and highly intimidating home invasion, together with multiple assaults, and the taking and holding of PV over a protracted period of time in horrific circumstances including serious ill-treatment, violent assaults and threats that he would be killed, made both to PV and to others through the ransom messages. Relevantly, significant fear and terror was occasioned: Allen v R [2010] NSWCCA 47 at [20] (Latham J, McClellan CJ at CL and Schmidt J agreeing). All of these matters must be accepted.
Given his participation in the two joint criminal enterprises, Mr Liavaa should be sentenced on the basis of the enterprises as a whole. However, as was held in Green v The Queen at [71], the extent of an individual offender’s participation in a joint criminal enterprise can be reflected in the sentencing process. The relevant principles were explained by Spigelman CJ in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161], [166] (see also McClellan CJ at CL, Howie and Johnson JJ at [213]), recently cited with approval in York v R [2025] NSWCCA 81:

“It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with precision, because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced … .
…
Whilst recognising that some differentiation in culpability amongst co- offenders in a joint enterprise is often appropriate, there are limits to which this can occur with respect to the objective seriousness of the offence, because of the existence of the common purpose to commit the offence. Differences in subjective circumstances will, however, result in differences, sometimes significant differences, in the end result.”

Here, as the sentencing judge found, Mr Liavaa played a pivotal role in the kidnapping and transporting of PV, during which PV was assaulted and a pillowcase was put over his head. Mr Liavaa also played a role in transporting the co-offenders to and from the Belmore house over the period of PV’s detention and was aware of what was occurring, including through the group chat. There is, however, no evidence that he was armed at any time (although he did source the sledgehammer), nor that he himself participated in any assault of PV or was present during any assault that occurred at the Belmore house. The only suggestion that he went beyond the back gate of the Belmore house was for around 23 minutes on the morning of 9 March 2023. All of those matters are relevant when considering the objective seriousness of his offending notwithstanding his responsibility for the joint enterprise as a whole.
Secondly, as regards subjective factors, the Crown submits that some features of Mr Liavaa’s subjective case were “relatively strong” but others were not, such that his subjective case as a whole “did not warrant the excessive leniency” bestowed. I doubt that it is helpful to categorise Mr Liavaa’s subjective case by reference to its relative strength or weakness implicitly vis-à-vis other (unstated) cases. Rather, the relevant enquiry is as to the matters relied upon by Mr Liavaa which went to his moral culpability, the need for specific or general deterrence and, relatedly, the risk of reoffending and his prospects of rehabilitation. As the sentencing judge held, Mr Liavaa’s moral culpability was reduced for a number of reasons (see above at [69]) and the sentencing judge also took into account his youth, immaturity (as supported by the report of Ms De Santa Brigida) and vulnerability to peer pressure (see above at [71]). As was recently recognised by Yehia J (Ball JA agreeing) in NK v R [2025] NSWCCA 73 at [100] the interplay between various subjective factors may have a cumulative effect on the reduction of moral culpability. As noted previously, her Honour also held that, given Mr Liavaa’s youth, rehabilitation should be promoted as far as an appropriate sentence would permit. Her Honour’s awareness of the need to avoid a crushing sentence was consistent with this.
The range of ways in which an offender’s youth may be relevant on sentence have been helpfully summarised by Hamill J in Sarhene v R [2022] NSWCCA 79 at [25]. In particular, as Hodgson JA observed (Rothman J agreeing) in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5], the age of maturity is not necessarily 18 years given that “emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties”. The sentencing judge’s finding that Mr Liavaa had “an immature capacity for sound judgment” and “vulnerability to peer group pressure” (likely based upon Ms De Santa Brigida’s report) supports her Honour’s reliance upon Mr Liavaa’s youth when determining what sentence was appropriate. This finding should be taken to reflect not just Mr Liavaa’s age, but the impact of his background and mental health upon his maturity and judgment: see, eg, the recognition that an offender’s background may impact their maturity in NK v R at [101].
It was not suggested by the Crown that the sentencing judge erred in the subjective factors she identified as being relevant in this case. I would infer that her Honour placed material weight on these factors, as she was entitled to do. That provides important context when considering the Crown’s contentions as to manifest inadequacy. Indeed, I would infer that it was Mr Liavaa’s subjective case that influenced her Honour to impose the undoubtedly lenient sentence that she did.
Thirdly, the Crown relies upon the maximum penalties of 25 years for both the sequence one and sequence two offences, and the standard non-parole period of 7 years for the sequence one offence as legislative guideposts. As observed in Muldrock v The Queen at [31], the maximum penalty “serves as an indication of the relative seriousness of the offence”. As for the standard non-parole period, s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that:

“the standard non-parole period represents the non-parole period for an offence … that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

The standard non-parole period does not take into account aggravating or mitigating factors which bear on sentencing in an individual case: Muldrock v The Queen at [31].
Both the maximum penalties and the standard non-parole period for the sequence one offence clearly support a conclusion that the sentencing judge would not have erred had she imposed an aggregate sentence, and non-parole period, higher than that imposed on Mr Liavaa. The former, which serves as a yardstick, supports a conclusion which would in any event be readily apparent, that the offences here are both serious offences for which significant custodial sentences may be imposed. But I would regard the sentence imposed on Mr Liavaa, and the indicative sentences identified for the individual offences, as all significant sentences, particularly if considered before the 25% discount for the guilty plea. As for the non-parole period, this was affected both by the 25% discount and by the alteration to the statutory ratio on account of special circumstances.
Fourthly, the Crown points to what it says are the inadequate indicative sentences (in particular for sequence 2), the degree of concurrency and the extent of the reduction of the statutory ratio for special circumstances. Whilst the Crown accepts that, as (for example) stated in AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J), there can be no appeal against indicative sentences, the Crown contends that the inadequacy in the indicative terms signals an error in the aggregate term. The Crown submits that there is a substantial disconnect between the seriousness of the offending and the corresponding indicative sentences. It submits that the notional additional sentence of only 18 months for the sequence one offence supports its contention of manifest inadequacy. The Crown also contends that the reduction in the statutory ratio for special circumstances was unduly generous, in particular given that Mr Liavaa’s youth was taken into account as a subjective circumstance going to moral culpability and general deterrence.
Consistent with observations I have already made, I would certainly agree that the indicative sentences here are lenient. I would also agree that the extent of concurrency here is significant, in particular having regard to the significant intimidation and fear, not to mention bodily harm, caused during the sequence one offence. As against that, however, as Mr Liavaa submits, the two offences were all part of a single episode of criminal conduct.
Fifthly, whilst noting the limitations of comparative cases, reliance is also placed by the Crown on what is said to be a comparable case of O’Brien v R [2023] NSWCCA 41. The offender in that case was convicted of three offences, robbery in company, specially aggravated kidnapping contrary to s 86(3) of the Crimes Act, and taking and driving a conveyance without consent. He was convicted following a trial. An aggregate sentence of 14 years with a non-parole period of 9 years was imposed, with indicative sentences of 7 years for the robbery, 13 years for the kidnapping and 2 years for the taking and driving without consent. The offender appealed, including against his sentence on the ground that it was manifestly excessive. Without descending into detail, some important distinctions between the facts of O’Brien v R and the present case should be noted. First, the offender had no background of disadvantage nor any physical or mental health, nor any drug dependency, issues. Second, the offender was not entitled to the leniency of a first-time offender. Third, the offender expressed no remorse, did not accept responsibility and expressed a belief that the allegations had been falsified. Fourth, his motive was greed and resentment. Fifth, the offender’s prospects of rehabilitation were found to be guarded. These factors were all relied upon by Button J (with whom Bell CJ and Garling J agreed) in rejecting the offender’s contention that the sentence was manifestly excessive: at [88]-[90].
Moreover, illustrating (if further illustration be necessary) the questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision for the purpose of a submission as to manifest inadequacy: see, by analogy Lee v R [2023] NSWCCA 70 at [47] (Dhanji J), for his part Mr Liavaa relies by way of comparison upon Banat v R [2020] NSWCCA 321 in which Mr Banat’s appeal was largely dismissed. Mr Banat had been convicted of an offence under s 86(3) of the Crimes Act involving a violent kidnapping (and three other unrelated offences). The kidnapping offence involved 39 hours of detention with repeated assaults on the victim by a number of people including a gun being pointed to his head, an electrical drill touched to his skin, petrol (or something he believed to be petrol) poured over him and a threat made to set it alight, and a knife placed in his mouth. The victim had cuts to the back of his head, face and hands and drill marks on his face and chest. Mr Banat pleaded not guilty, was 34 years old at the time of the offence, had a number of previous convictions, and also relied upon evidence from a psychologist in his subjective case. He was sentenced to an aggregate sentence of 9 years with a non-parole period of 6 years, and the indicative sentence for the s 86(3) offence was 8 years.
Finally, having regard to these matters upon which it relies, the Crown contends that the sentence imposed by the sentencing judge in this case is likely to undermine confidence in the administration of justice. Further, the Crown contends that the appeal will allow this Court to “provide governance and guidance to sentencing courts in relation to the sentencing of highly organised home invasions and kidnappings by criminal groups, featuring extortion and torture” and will provide an important comparator for the sentencing of any co-offenders who are found guilty and for the one co-offender who has pleaded guilty but has not yet been sentenced.
Having regard to the matters set out above, I am satisfied that the sentence imposed on Mr Liavaa, whilst clearly lenient, is not an affront to the administration of justice, nor does it risk undermining public confidence in the criminal justice system. This was a case where there was a potentially large range of sentences available, having regard both to the matters going to objective seriousness and those going to moral culpability, specific and general deterrence and rehabilitation. In light of this, I am not satisfied that the sentence is manifestly inadequate.
The Crown’s appeal should thus be dismissed.

Mr Liavaa’s appeal

Ground one: Mr Liavaa’s mental health

In ground one, Mr Liavaa contends, in essence, that the sentencing judge did not engage with, and failed to make a finding in response to, his contention that there was a causal link between his diagnosed PTSD and his offending. In this regard, Mr Liavaa contended before the sentencing judge that his “diagnosis of PTSD and the strong circumstantial case that [his] mental health has had a material impact upon his offending conduct” enlivened the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) at [177] (McClellan CJ at CL).
As reflected in De La Rosa, where an offender’s mental health contributes to the commission of the offence in a material way, it may have various consequences for the sentencing process. However, no causal link between Mr Liavaa’s PTSD and his offending is established by the psychological (nor for that matter the neuropsychological) evidence before the sentencing judge (which I have summarised above at [49] to [56]). Rather, that evidence went to scientific literature that shows that such mental health issues as Mr Liavaa was diagnosed with, and his background and history of trauma, can increase the risk of drug use, violence and offending.
Contrary to Mr Liavaa’s contention, the sentencing judge clearly rejected his contention that his mental health condition contributed in a material way to the commission of the offences. As set out at [69]-[70] above, her Honour referred both to Mr Liavaa’s contention to this effect, and to Ms De Santa Brigida’s diagnoses and the symptoms she identified, but was clearly only prepared to find a relationship between his background, including the dysfunction and his exposure to violence, and his subsequent attachment to anti-social peers and drug use, both of which bore on his moral culpability. Her Honour’s analysis is consistent with the approach set out by this Court in JL v R [2024] NSWCCA 246 at [1]-[2] (Hamill J), [6]-[12] (N Adams J) and [56]-[63] (Sweeney J). Moreover, given the highly planned nature of the offending here, that the participants were to be paid, and the character of Mr Liavaa’s involvement which, after the planned break and enter and kidnapping of PV, primarily involved providing transportation, it is unsurprising that the sentencing judge rejected the contention that Mr Liavaa’s mental health diagnoses contributed to his offending in a material way.
The sentencing judge also clearly took into account the impact that Mr Liavaa’s background had had on him, including on his mental health. The sentencing judge identified in this regard the relationship between his dysfunctional background and exposure to violence and his attachment to anti-social peers and drug use. The fact that his dysfunctional background and exposure to violence had also led to PTSD, and that he had been diagnosed as suffering from drug use disorders now subject to a controlled environment, was implicitly subsumed in this analysis.
To the extent that Mr Liavaa contends that his mental health issues went to the objective seriousness of his offending, as the Court explained in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [96], an offender’s mental impairment may, but not necessarily will, affect an assessment of objective seriousness. One factor of relevance is the degree of connection between the mental impairment and the offending. Given the sentencing judge’s finding as to this, there was no error in Mr Liavaa’s mental health issues not being taken into account in the evaluation of objective seriousness.
Mr Liavaa’s first ground of appeal should be dismissed.

Ground two: parity

Mr Liavaa’s contentions on parity rely, in part, upon the submissions he makes as to the failure of the sentencing judge to take proper account of his mental health issues. He contends, further, that:

“[he] should have received a significantly lower sentence than the co-offender because of his reduced moral culpability given his disadvantaged upbringing and the contribution of his mental [health issues] upon the offending conduct, the subject of Ground One”.

He also relies upon the fact that, unlike Mr Tonga, he did not “take part in the terrifying and brutal use of the gun in threatening the victim which became part of the hostage video” and was not convicted of a firearm offence. He says that, having regard to these matters, there is a justifiable sense of grievance having regard to the parity principle which requires that like offenders should be treated in a like manner: Green v The Queen at [28] and [31] (French CJ, Crennan and Kiefel JJ).
I would reject this contention. I have already explained, in some detail, the matters that the sentence judge relied upon as to parity. Her Honour clearly considered that there was comparable criminality as between Mr Tonga and Mr Liavaa, and that there were subjective factors particular to each of them that bore on the appropriate sentence. Those matters disclose a clear basis for the sentencing judge’s conclusion that the two men should receive the same sentence. Whilst Mr Tonga was convicted of the additional firearms offence, as the sentencing judge found, that did not bear on his appropriate aggregate sentence having regard to the principle of totality.
This is a case in which, as the sentencing judge explained, Mr Liavaa and Mr Tonga participated in the joint criminal enterprises in differing ways and, as I have already explained, both were also responsible for the entirety of the two criminal enterprises. They also had different, but both meaningful, subjective cases. Whilst precise equivalence will always be difficult to establish, there is no basis for “the justifiable sense of grievance” that would justify interference by this Court. As N Adams J (Hoeben CJ at CL and Button J agreeing) emphasised in Usher v R [2016] NSWCCA 276 at [73]:

“It is of significance that the same sentencing judge sentenced both the applicant and the co-offender. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, ‘…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:’ Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed). In Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed at [55]-[56]:

‘55 It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant.
56 In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene… .’”

These observations apply equally here.
It follows that Mr Liavaa’s second ground of appeal should be dismissed.

Conclusion

It necessarily follows that both appeals should be dismissed.
The orders I propose are:

Crown’s appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is dismissed.

Mr Liavaa is granted leave to appeal against sentence.

Mr Liavaa’s appeal against sentence is dismissed.

CAVANAGH J: Like in R v Tonga [2025] NSWCCA 100 (a co-offender), I have had the benefit of reviewing the judgment of Stern JA.
In respect of the Mr Liavaa’s appeal, I agree with the orders proposed by her Honour for the reasons set out in her Honour’s judgment.
I take a different view in respect of the Crown appeal on sentence as I did in respect of the co-offender (Tonga at [65]-[138]). Reference should be made to that judgment as the same reasoning applies to the sentence imposed on Mr Liavaa. I will endeavour not to repeat what I said in Tonga. My judgment in this matter will thus be necessarily brief.
Mr Liavaa was sentenced as follows:

Seq

Offence

Maximum penalty

Indicative

Pre-discount

1

Specially aggravated break and enter and commit the serious indictable offence of intimidation being in company and armed with a dangerous weapon

S 112(3) Crimes Act 1900

25 years imprisonment

SNPP 7 years

6 years

9 months

NPP 4 years

3 months

9 years

2

Specially aggravated detain person with intent to hold them to ransom being in company and occasioning actual bodily harm

S 86(3) Crimes Act 1900

25 years imprisonment

No SNPP

7 years

9 years

4 months

Aggregate sentence

8 years 6 months

NPP 5 years 4 months

Mr Liavaa’s participation

Mr Liavaa was sentenced for each of the specially aggravated offences on the basis that he was a participant in a joint criminal enterprise and that he is liable for all of the acts constituting the crimes. Each of the offences involved aggravating features as I set out in Tonga (at [90]-[91]).
In determining the appropriate sentence, regard should be had to his role and level of participation in the criminal enterprise.
Mr Liavaa acted on detailed instructions received through the Threema group chat. He sourced the sledgehammer and was part of the planning for the events which actually occurred.
He arrived at the house in the SUV. He entered the premises with the other men and entered the principal victim’s (PV) bedroom. He was present when the events occurred in the house although it was not established that he held the gun or the sledgehammer or made any individual threats.
He left the premises with PV and was in the car with PV when PV was hooded and beaten. He was in the car when PV was taken to the Belmore house. He did not initially enter the house but, after receiving a message on Threema to come in, he entered at least the yard of the premises. At some point shortly thereafter, two of the men inside left the Belmore house and drove away with Mr Liavaa.
At 5.05pm the next day on 10 March, he dropped off two co-offenders and a further person at the house. Those three people entered the Belmore house and Mr Liavaa drove away. He came back the next day at 12.56am and remained at the rear of the house until 4.12am before driving away and taking the three men he brought there away. He then returned to the rear of the house at 6.54pm on 13 March 2023 again dropping two co-offenders off. He came back at 4.33am the next day.
Although the Crown did not establish that Mr Liavaa was inside the house when the violence was perpetrated on PV, he was aware that PV would be subjected to violence. He knew he was being held for ransom. He received videos and photographs of PV in an injured and distressed state.
He was well aware of what was happening to PV inside the Belmore house (although not every act of violence) and was well aware of the threats. His purpose was the same as the others, that is to hold and inflict violence on PV for financial gain.
In some respects, Mr Liavaa had a strong subjective case although he did not establish any causal relationship between his mental health problems and the commission of the offences. It is often said that full weight must be given to the Bugmy factors (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37), such as a disadvantaged childhood or being subject to violence in the family home, but the existence of Bugmy factors does not mandate a particular level of leniency.
The sentencing judge had regard to his youth but also observed that the planning and execution tended to demonstrate adult behaviour.
The sentencing judge was somewhat guarded about Mr Liavaa’s stated remorse. Further, unlike Mr Tonga, Mr Liavaa had demonstrated poor conduct in custody including violent behaviour.
Although the sentencing judge allowed for some reduction in moral culpability, his subjective case was not so strong as to provide an explanation for what I consider to be the very lenient sentence, having regard to the seriousness of both sequences 1 and 2.
As I said in Tonga, I regard this offending as extremely serious. It involves perhaps the rare combination in Australia of breaking into the victim’s home, terrorising the occupants, inflicting and threatening violence (not just on PV), forcibly removing an innocent young man, holding him for a number of days during which he was subject to quite brutal treatment, and in addition, the making of a ransom video whilst a gun was pointed at the victim’s head.
It is important to have regard to the actual role of Mr Liavaa in fixing a sentence. His role was not minor or secondary.
In respect of the s 112(3) offence, he was involved in the planning and was there inside the house when the events unfolded although he was not holding a weapon. In respect of the s 86(3) offence, he was in the car when PV was driven away and was aware how PV was treated. Over the next few days, he ferried people back and forth from the Belmore house with the knowledge of what was happening to PV and the threats being made to PV’s uncle. It has not been established that Mr Liavaa inflicted the acts of violence on PV inside the Belmore house but other than that he was very much an active participant in all that occurred.
For the reasons set out in Tonga, I consider that the aggregate sentence imposed on Mr Liavaa in respect the two specially aggravated offences was not just lenient, but it was manifestly inadequate.

Resentence

Again, it is only necessary that I state my reasons briefly. There is no challenge to the findings made by the sentencing judge and I adopt them. I emphasise that I view the offending as, particularly in respect of sequence 2, extremely serious.
Mr Liaava has a relatively strong subjective case having regard to his reduced moral culpability.
However, Mr Liavaa was an active participant in the joint criminal enterprise, both in respect of sequences 1 and 2. He was involved in the planning and entered the house along with the other men; he had sourced a sledgehammer; he knew others were carrying weapons, and he was present when the violence was inflicted inside the house and in the car when PV was hit and a hood was placed over his head. Whilst the Crown did not establish that he was ever inside the Belmore house whilst violence was inflicted on PV, he continued to play an active role by ferrying people to and from the house all the while knowing what was happening to PV inside the house. He was thus an active participant in the conduct giving rise to the very serious offending under sequences 1 and 2.
The principle of parity is of some importance in the sentencing of the co-offenders, Mr Tonga and Mr Liavaa. They were around the same age at the time of the offending. Their roles in respect of the offending conduct under sequence 1 had some differences (Mr Liavaa was involved in the planning, Mr Tonga held the gun whilst inside the house, but they were essentially very similar). In respect of sequence 2, again they did some different things but when looked at as a whole, it is difficult to find that one played a greater role than the other. Mr Liavaa did not go inside the house but he ferried people to and from and thus was actively involved over the whole period that PV was held. Mr Tonga appears not to have been actively involved throughout the whole period but he went inside the house when he held the gun to PV’s head in the ransom video which I view as particularly egregious.
Their subjective cases are somewhat different. I accept that Mr Liavaa is entitled to a reduction in moral culpability which Mr Tonga was not. On the other hand, Mr Tonga appears to be demonstrating greater strides towards rehabilitation with his post-offending conduct. The differences in their subjective cases are not stark, particularly as I have rejected Mr Liavaa’s submission that his mental health issues are causally relevant to the offending conduct.
He is also entitled to a 25% discount on account of his early plea of guilty. Further, I accept that there are special circumstances for the reasons set out by the sentencing judge and vary the statutory ratio in setting the non-parole period.
In my view, the objective and subjective features of Mr Liavaa’s case are so similar to that of Mr Tonga that they should receive the same sentences.
Mr Tonga was convicted of an additional offence (sequence 7, being in possession of an unlicensed pistol), but as I said in Tonga at [119], I would consider that there should be concurrency in respect of that penalty with the much more substantial penalties.
In the circumstances, I would provide indicative sentences as follows:

Sequence 1: pre discount, 11 years; after discount, 8 year and 3 months

Sequence 2: pre discount, 13 years; after discount, 9 years and 9 months.

The aggregate sentence must recognise the total criminality involved. There must be a recognition of the high level of criminality involved particularly in all the events comprising sequence 2. There must be a level of concurrency but not such as to minimise the conduct involved in both offences.
The aggregate sentence I would impose would be 13 years and 6 months, with a non-parole period of 8 years and 6 months.
The orders I would propose would be:

Crown appeal on sentence allowed.

Quash the sentence imposed in the District Court on 6 December 2024.

In lieu thereof, the respondent is sentenced to a term of imprisonment of 13 years and 6 months commencing on 14 March 2023 and expiring on 13 September 2036. I impose a non-parole period of 8 years and 6 months.

The respondent will therefore be eligible for parole on 13 September 2031.
RIGG J: I agree with Stern JA.

**********

Decision last updated: 02 July 2025

Medium Neutral Citation:	R v Liavaa; Liavaa v R [2025] NSWCCA 101
Hearing dates:	21 May 2025
Date of orders:	2 July 2025
Decision date:	02 July 2025
Before:	Stern JA at [1]; Cavanagh J at [116]; Rigg J at [149]
Decision:	(1) Crown’s appeal under s 5D of the Criminal Appeal Act 1912 (NSW) is dismissed. (2) Mr Liavaa is granted leave to appeal against sentence. (3) Mr Liavaa’s appeal against sentence is dismissed.
Catchwords:	CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences
Legislation Cited:	Crimes Act 1900 (NSW), ss 86(3), 112(3) Criminal Appeal Act 1912 (NSW), s 5D Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Cases Cited:	AA v R [2024] NSWCCA 132 Allen v R [2010] NSWCCA 47 Banat v R [2020] NSWCCA 321 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 JL v R [2024] NSWCCA 246 Lee v R [2023] NSWCCA 70 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 NK v R [2025] NSWCCA 73 O’Brien v R [2023] NSWCCA 41 R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 Sarhene v R [2022] NSWCCA 79 Usher v R [2016] NSWCCA 276 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Xu v R [2023] NSWCCA 93
Category:	Principal judgment
Parties:	Rex (Crown) Lolo Liavaa (Applicant/Respondent)
Representation:	Counsel: B Hatfield SC and F Sullivan (Crown) T Edwards SC and T Weller-Wong (Applicant/Respondent) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Criminal Lawyers Group (Applicant/Respondent)
File Number(s):	2023/85162
Publication restriction:	Non-publication orders were made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the names and dates of birth of the victims; the victim impact statement of the victim PV; the video recordings relating to the ransom communications by the offenders and co-accused; the photographs of the injuries sustained by the victim PV; and CCTV footage of exit from Brenan Street.
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 December 2024 Before: Harris DCJ File Number(s): 2023/85162

Seq	Offence	Maximum penalty	Indicative	Pre-discount
1	Specially aggravated break and enter and commit the serious indictable offence of intimidation being in company and armed with a dangerous weapon S 112(3) Crimes Act 1900	25 years imprisonment SNPP 7 years	6 years 9 months NPP 4 years 3 months	9 years
2	Specially aggravated detain person with intent to hold them to ransom being in company and occasioning actual bodily harm S 86(3) Crimes Act 1900	25 years imprisonment No SNPP	7 years	9 years 4 months
Aggregate sentence			8 years 6 months NPP 5 years 4 months