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Stefani v The King

Stefani v The King

Case [2024] VSCA 29 13 March 2024

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0011

NICK STEFANI	Appellant
v
THE KING	Respondent

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JUDGES:	McLEISH, WALKER and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024
DATE OF JUDGMENT:	13 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 29
JUDGMENT APPEALED FROM:	[2022] VSC 821 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to four charges concerning kidnapping and assault – Total effective sentence of 10 years’ imprisonment – Non-parole period of 8 years – Whether non-parole period reasonably open to sentencing judge – Non-parole period 80 per cent of head sentence – Co-offenders given lesser proportionate non-parole periods – Relevance of parity between non-parole periods – Appeal dismissed.

Wallace v The Queen (2012) 35 VR 520, McLean v The Queen [2018] VSCA 209, Kumova v The Queen (2012) 37 VR 538, Romero v The Queen (2011) 32 VR 486, Green v The Queen (2011) 244 CLR 462 applied; Postiglione v The Queen (1997) 189 CLR 295 referred to.

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Counsel
Appellant:		Dr T Alexander with Ms A C Sharpley
Respondent:		Mr G Buchhorn
Solicitors
Appellant:	Slades & Parsons Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
WALKER JA
TAYLOR JA:

On 31 January 2022 the appellant pleaded guilty before a judge of the Supreme Court to four charges concerning kidnapping and assault. The offending was extremely serious, and was part of a vigilante exercise by seven people against a man they thought had engaged in the sexual abuse of his partner’s children. Ultimately, the victim was killed, although the appellant was not present at that time. The other six offenders were charged with various offences, some of which were the same as, or similar to, the offences with which the appellant was charged. Some of the co-offenders also pleaded guilty, while others faced trial. All were ultimately convicted.
On 22 December 2022 the appellant was sentenced by the Court as follows:[1]
[1]DPP v Hooper [2022] VSC 821 (‘Reasons’).

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Causing injury intentionally contrary to s 18 of the Crimes Act 1958 10 years 6 years 1 year

2 Kidnapping contrary to common law 25 years 7 years Base

3 False imprisonment contrary to common law 10 years 6 years 1 year

4 Common assault contrary to common law 5 years 3 years 1 year

Total Effective Sentence: 10 years’ imprisonment

Non-Parole Period: 8 years

Pre-sentence Detention Declared: 1358 days

Section 6AAA Statement:
Total Effective Sentence 14 years’ imprisonment

Non-Parole Period 11 years

As is apparent, the non-parole period was 80 per cent of the total effective sentence.
The appellant now appeals against his sentence[2] on the ground that the sentencing judge erred in failing to:
(a)impose a sentence which allowed greater disparity between the total effective sentence and the non-parole period;
(b)give reasons for fixing the non-parole period.
[2]Leave to appeal was granted on 14 August 2023: Stefani v The King

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Stefani v The King

Details

AGLC: Stefani v The King [2024] VSCA 29
Case: [2024] VSCA 29
Decision Date: 13 March 2024

CaseChat Overview and Summary

The appellant in Stefani v The King appealed against the sentence imposed by the County Court of Victoria following his guilty plea to four charges related to kidnapping and assault. The appellant was sentenced to a total effective term of imprisonment of 10 years, with a non-parole period of 8 years. The appeal focused on whether the non-parole period was reasonably open to the sentencing judge, considering that it constituted 80% of the head sentence, and whether there was a relevant parity between the non-parole periods of co-offenders who received lesser sentences.

The court was required to determine whether the non-parole period of 8 years was appropriately within the range of sentences that could reasonably be imposed by the sentencing judge. This involved examining the proportionality of the non-parole period relative to the head sentence, as well as comparing it with the sentences of co-offenders. The court needed to consider the principles established in previous cases such as Wallace v The Queen, McLean v The Queen, Kumova v The Queen, Romero v The Queen, and Green v The Queen, to ascertain if the sentence imposed was just and reasonable. Additionally, the relevance of parity between the non-parole periods of co-offenders was examined, particularly in light of the lesser sentences they received.

The Court of Appeal dismissed the appeal, finding that the non-parole period of 8 years was reasonably open to the sentencing judge. The court held that the non-parole period constituted 80% of the head sentence, which was within the acceptable range. The relevance of parity between the non-parole periods of co-offenders was deemed not to be determinative in this context. The court concluded that the sentence was appropriate given the circumstances of the case and the principles established in previous jurisprudence.

No additional orders were made by the Court of Appeal. The appellant's appeal was dismissed, and the original sentence remained in effect.

Orders