Stefani v The King

[2024] VSCA 29

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:

1. 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.

2. 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

1. As is apparent, the non-parole period was 80 per cent of the total effective sentence.

2. 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 [2023] VSCA 183.

3. The first part of the ground was, in effect, an argument that the non-parole period fixed by the judge was manifestly excessive. At the hearing of the appeal, the appellant enlarged the first part of the ground of appeal by reference to an alleged unjustified disparity between the non-parole periods imposed on his co-offenders, which ranged from 60 to 67 per cent of the head sentence (save for one co-offender, who was convicted of murder and sentenced to life imprisonment, with a non-parole period of 32 years, for whom a percentage cannot be calculated).[3]

   [3]This issue had not been raised in the appellant’s written submissions or, unfortunately, drawn to the respondent’s attention prior to the day of the hearing. Accordingly, the Court permitted the filing of further written submissions in relation to this issue. The respondent filed further written submissions, but the appellant did not. No application was made to amend the notice of appeal, however we treated the argument as falling within the scope of the existing notice.

4. For the following reasons, we would dismiss the appeal. In summary, it is well-established that there is no ‘usual’ non-parole period and thus the imposition of a non-parole period that is 80 per cent of the head sentence does not in itself bespeak error. The judge’s failure to provide express reasons for his imposition of an 8 year non-parole period, while sufficient to warrant the grant of leave to appeal,[4] does not of itself amount to appellable error. In so far as the parity argument is concerned, the imposition of a greater non-parole period in relation to the appellant, in comparison to his co-offenders, was reasonably open. Ultimately, it was well open to the judge to conclude that a period of 8 years was the minimum term that justice required the appellant to serve before potentially being released on parole.

   [4]Stefani v The King [2023] VSCA 183, [40]–[41].

Factual background

1. The factual background is set out in the sentencing judge’s remarks, with which the appellant took no issue in respect of the events that occurred. It was as follows.

2. The victim, Bradley Lyons, was 30 years of age and married to Jana Hooper, who was a co-offender. The appellant lived with Mr Lyons and Hooper at the time of these events, sleeping in a bungalow at the rear of their property on McCullough Street in Lakes Entrance. He was friends with Jordan Bottom and Alec Harvey, and through them met Albert Thorn.[5]

   [5]Reasons, [6]–[7].

3. In November 2018, Hooper told her friend Patricia Evans that she believed that Mr Lyons was responsible for getting two of her daughters pregnant. The sentencing judge noted that the evidence indicated that there was no truth to that proposition. Ms Evans spoke with Thorn about rumours concerning Mr Lyons’ behaviour. The appellant and Thorn then discussed the allegations a number of times, with the appellant claiming that Hooper’s children, confiding in the appellant, had made serious allegations about Mr Lyons.[6]

   [6]Reasons, [8]–[9].

4. Later that month, the appellant relayed this to a friend, Christopher Nowell, who suggested that the appellant report the matter to the police. The appellant disagreed, saying that the police would not act immediately. The appellant also told Mr Nowell that he was starting the Australian Freedom Fighters group, a self-styled vigilante group whose mission was to target paedophiles.[7]

   [7]Reasons, [10].

5. On 1 December 2018 an incident occurred at the property in McCullough Street. The appellant ‘observed or at least heard of’ Hooper apparently convulsing while in bed with Mr Lyons. The appellant apparently formed the belief that Mr Lyons had drugged and raped Hooper.[8]

   [8]Reasons, [11].

6. The appellant contacted Bottom, Mr Nowell and Thorn and informed them of what had happened. All four met up and discussed a plan to kidnap and seriously assault Mr Lyons in order to extract a confession from him. Mr Nowell refused to participate, as did Bottom’s girlfriend. The appellant continued to communicate with Thorn and Harvey about the plan to attack Mr Lyons on 2 December 2018.[9]

   [9]Reasons, [11]–[13].

7. The next day, while Mr Lyons was at work, the appellant informed Hooper of the plan to attack Mr Lyons and she agreed to become a party to the assault and kidnap of her husband. The appellant then called Harvey to confirm the plan. Harvey was with Rikki Smith at the time, who at this point became involved in the agreement.[10]

   [10]Reasons, [14]–[15], [19].

8. On 2 December 2018, Hooper picked Mr Lyons up from work and took him home.[11]

   [11]Reasons, [16].

9. Thorn arrived at the appellant’s bungalow first, having purchased two balaclavas and two rolls of duct tape from a camping and disposals store. Once Harvey and Smith arrived, the appellant provided them with further information about the allegations against Mr Lyons. Harvey and Smith wore balaclavas. Harvey armed himself with a pole he found at the property, and the appellant was armed with a sawn-off shotgun.[12]

   [12]Reasons, [18], [20].

10. All four then entered the house through the back door. Hooper ‘gave the nod’ as they walked past her to enter the master bedroom, where Mr Lyons was asleep.[13]

    [13]Reasons, [21].

11. The four of them immediately set upon Mr Lyons, punching him in the face and head. The appellant forced the barrel of the shotgun into Mr Lyons’ mouth and threatened to kill him if he did not confess to the sexual assault allegations. Thorn and Harvey then bound Mr Lyons’ hands in front of his body with the duct tape.[14]

    [14]Reasons, [22]–[23].

12. Shortly after, the appellant gave Harvey and Smith the hard drive from a closed-circuit camera on the premises. They left the premises with it.[15]

    [15]Reasons, [23].

13. The appellant and Thorn remained in the bedroom and further assaulted Mr Lyons. This included the appellant kicking Mr Lyons and holding a lit cigarette to his face. The charge of intentionally causing injury related to this assault. During the assault, Mr Lyons sustained injuries to his face and head, and bled profusely.[16]

    [16]Reasons, [24]–[25].

14. After the assault Thorn parked a car in the carport so its rear was obscured from the view of any passers-by in the street, and opened the boot. The appellant carried Mr Lyons outside, placed him in the boot of the car, and closed the boot. Thorn then drove away from the property with Mr Lyons in the boot. This was the culmination of the kidnapping charge.[17]

    [17]Reasons, [26]–[27].

15. Thorn arrived at his property, where Bottom was asleep. He woke Bottom up and told him he had a present for him. Bottom opened the boot, saw Mr Lyons tied up inside and beaten badly, and closed the boot.[18]

    [18]Reasons, [29].

16. Later that evening, Hooper and the appellant stopped at Woolworths where they encountered and spoke with Ms Evans. Hooper told Ms Evans that Mr Lyons was gone and that ‘they have taken him’. The appellant introduced himself to Ms Evans saying ‘It’s all sorted. We are going to get a confession. We’ve got BJ and we’re going to get a confession out of what BJ has done to the kids.’[19]

    [19]Reasons, [31].

17. Hooper and the appellant arrived at Thorn’s property shortly after, and there were further discussions about the plan to extract a confession from Mr Lyons. Mr Lyons remained in the boot throughout this time.[20]

    [20]Reasons, [32].

18. At 9:15 pm, Ms Evans attended at Thorn’s property. She checked in with Hooper, and asked the others where Mr Lyons was. The appellant told her that the group was going to get a confession from Mr Lyons and dump him at the police station with the confession. Ms Evans questioned the plan, saying the confession would not stand up in court. The appellant insisted the plan would work.[21]

    [21]Reasons, [33]–[34].

19. The appellant and Hooper left Thorn’s property shortly before midnight to return to McCullough Street. Before the appellant left, he was involved in a plan with others for Mr Lyons to be further assaulted in an attempt to extract a confession from him.[22]

    [22]Reasons, [36]–[37].

20. After Hooper and the appellant left, the others tortured Mr Lyons. The details of this were later recounted to the appellant. Mr Lyons was then taken to a remote area where he was shot in the head with a shotgun and buried in a shallow grave.[23]

    [23]Reasons, [37]–[38].

21. After these events, the appellant made several admissions to Ms Evans and to Hooper’s children. When speaking to Ms Evans, he laughed and told her that he had burnt Mr Lyons’ face with a cigarette and ‘gave him a flogging’. The appellant’s admissions to Hooper’s daughters were extensive and included admitting to planning the attack and torture of Mr Lyons, details of the assault, and the appellant’s involvement in the kidnapping. He said that he and others had held a chainsaw over Mr Lyons’ head trying to get him to confess, and that he had been made to ‘piss himself’. He showed one of Hooper’s daughters a pool of blood on Mr Lyons’ side of the mattress in the bedroom.[24]

    [24]Reasons, [41], [44]–[45].

22. The appellant asked one of the daughters to lie to cover for him, and threatened to tell Thorn when she said she was going to make a police statement. He had previously told her that no one would believe her if she told the truth as it would be her word against his.[25]

    [25]Reasons, [46].

23. The appellant and Hooper cleaned up McCullough Street, with the appellant replacing and disposing of the bloodied mattress.[26]

    [26]Reasons, [47].

24. On 13 December 2018 the appellant made a detailed statement to the police in which he lied about the events on 2 December 2018 to cover up his involvement in the assault and kidnapping of Mr Lyons. He told the police about Hooper convulsing on 1 December 2018 and claimed that one of Hooper’s daughters had disclosed to him that ‘the girls’ had been sexually assaulted by Mr Lyons.[27]

    [27]Reasons, [52].

25. On 19 December 2018, Hooper and the appellant were interviewed by the police. In his interview, the appellant said this:

    I’ll say that I can’t tell you what I do know and, yeah, I just – I want you to know that I know that I’m – it looks – it’s pointing towards me and whatnot but – and I know my word doesn’t mean anything to you or whoever watches the tape but I hundred per cent solemnly swear that I didn’t take his life, I never wished his life to be taken ---and yeah. I’m just sorry for the way it’s all gone out, I s’pose.[28]

    [28]Reasons, [55].

26. The appellant said that the last time he saw Mr Lyons, he was conscious and healthy. At the conclusion of the interview, the appellant made some admissions in ‘off-the-record comments’.[29]

    [29]Reasons, [56]–[57].

27. On 14 March 2019, following admissions made by Bottom during a police interview, the police located Mr Lyons’ remains.[30]

    [30]Reasons, [58].

28. On 4 April 2019 the appellant was arrested and interviewed for the second time. He said he had known Mr Lyons for years and they were good friends, but he had never spoken to Mr Lyons about the allegations that Mr Lyons had sexually assaulted the children. The appellant maintained that the contents of his first police statement were true and correct and denied being part of an organisation run by Thorn. He denied threatening one of Hooper’s daughters to discourage her from speaking to police.[31]

    [31]Reasons, [60].

Sentencing reasons

1. The sentencing judge gave detailed and thorough reasons for the sentences he imposed on the appellant. In particular, his Honour observed as follows:[32]

   [T]he offending of [the appellant and Hooper] cannot be viewed as being other than very serious. At its heart was a decision each of you made to engage in totally unacceptable vigilante behaviour. Based on the suspicions you had about the conduct of Mr Lyons towards his step-children, each of you willingly became a party to the violent and heartless behaviour that the group as a whole determined to carry out. In sentencing Harvey, Taylor J described his offending as being ‘imbued with the arrogant righteousness of vigilantism’.[33] She went on to say:

   Your behaviour was deliberate, pre-meditated thuggery in pursuit of private vengeance and conducted in concert with others. As such it was an affront to the rule of law.[34]

   [32]Reasons, [155].

   [33]R v Harvey [2020] VSC 496, [6].

   [34]R  v Harvey [2020] VSC 496, [46].

2. Having taken into account all the relevant sentencing principles, the judge imposed the individual sentences and the total effective sentence set out above. Those sentences were not challenged on the appeal and must be considered to be within the range reasonably open to the judge.

3. His Honour then fixed a non-parole period of 8 years. However, his Honour gave no express reasons for doing so.

The parties’ submissions

1. The appellant submitted that a non-parole period representing 80 per cent of the head sentence constituted an error by the sentencing judge. He acknowledged that the seriousness of an offence can justify a high ratio between the non-parole period and total effective sentence, and that the judge had described his offending as representing ‘a serious example of vigilante justice’ and as being ‘of a very high order of seriousness’. He submitted, however, that these observations do not adequately justify why the ratio between the non-parole period and the head sentence was so high, particularly given that the individual and total effective sentences could properly be characterised as stern, albeit within the range. The appellant also submitted that the non-parole period reveals error, given that:

   (a)he had pleaded guilty at an early (albeit not the ‘earliest practicable’) stage;

   (b)he was 24 years old at the time of the offending, and as such ought be properly regarded as a youthful offender;

   (c)he had never before served a custodial sentence;

   (d)he had a very limited (described as ‘modest’) criminal history;

   (e)he had undertaken rehabilitation courses whilst on remand and had ‘reasonable’ prospects of rehabilitation; and

   (f)the offending occurred in the context of drug use.

2. In oral argument the appellant focused particularly on the proposition that the non-parole period set in relation to him was significantly different, in terms of its percentage of his head sentence, from the non-parole period set in relation to his co-offenders (with the exception of Thorn). He provided the Court with a table setting out the details of the sentences imposed on the co-offenders, as follows:

Offence	Sentence	Cumulation
Jana Hooper
Kidnapping	5 years 6 months	Base
Intentionally causing injury	4 years	1 year
False imprisonment	4 years	1 year
Total Effective Sentence:		7 years 6 months
Non-Parole Period:		4 years 6 months
Non-Parole Period as a ratio of Total Effective Sentence:		60%
Alec Harvey
Intentionally causing injury	5 years 6 months	Base
False imprisonment	5 years	1 year
Assist offender	4 years 5 months	2 years
Total Effective Sentence:		8 years 6 months
Non-Parole Period:		5 years 6 months
Non-Parole Period as a ratio of Total Effective Sentence:		65%
Jordan Bottom
False imprisonment	7 years	Base
Common assault	3 years	2 years
Total Effective Sentence:		9 years
Non-Parole Period:		6 years
Non-Parole Period as a ratio of Total Effective Sentence:		67%
Rikki Smith
Intentionally causing injury	6 years	1 year
False imprisonment	7 years 6 months	Base
Common assault	3 years 6 months	2 years
Total Effective Sentence:		10 years 6 months
Non-Parole Period:		7 years
Non-Parole Period as a ratio of Total Effective Sentence:		67%
Jayden Ball
Intentionally causing injury	2 years	-
Total Effective Sentence:		2 years
Non-Parole Period:		15 months
Non-Parole Period as a ratio of Total Effective Sentence:		62.5%
Albert Thorn
Murder	Life imprisonment	Base
Intentionally causing injury	8 years	Concurrent
Kidnapping	11 years	Concurrent
False imprisonment	9 years	Concurrent
Common assault	5 years	Concurrent
Total Effective Sentence:		Life imprisonment
Non-Parole Period:		32 years
Non-Parole Period as a ratio of Total Effective Sentence:		-

1. The appellant pointed to the fact that, with the exception of Thorn, who was in a different category because he had been convicted of murder and sentenced to life imprisonment, all of the offenders received a non-parole period of less than 70 per cent of their head sentence. He relied, in particular, on a comparison with Bottom and Smith,[35] who had each been convicted of offending of a similar level of seriousness to his own offending. He pointed to the fact that Smith received a more severe total effective sentence than the appellant — 10 years and 6 months, as opposed to 10 years — but received a lesser non-parole period — of 7 years, as opposed to 8 years.   

   [35]DPP v Bottom [2023] VSC 717 (‘Bottom’).

1. In contrast, the respondent submitted that the non-parole period was well within the range open to the sentencing judge. The offending was particularly serious and the appellant was able to call in aid only limited factors in mitigation. In so far as the parity argument was concerned, the respondent pointed to a number of features of the appellant’s offending that warranted a different approach to his non-parole period from the approach adopted in relation to his co-offenders, particularly Smith and Bottom. In particular, the respondent emphasised that the appellant’s role in the offending was significantly more serious than the role played by Smith and Bottom. The appellant was the initial ‘driver’ of the offending and had recruited Smith and Bottom to the plan and subsequent offending.

Consideration

1. The non-parole period is the minimum term which justice requires to be served.[36] The question the appellant raised on the appeal is whether, in all of the circumstances of his case, it was reasonably open to the sentencing judge to fix a non-parole period of 8 years, being 80 per cent of the total effective sentence. He urged a negative answer to that question on the basis that the non-parole period was manifestly excessive. One aspect of that submission focused on what he said was a disparity with the non-parole periods fixed in respect of co-offenders.

   [36]Wallace v The Queen (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA); [2012] VSCA 114 (‘Wallace’).

2. As has often been observed, there is no ‘usual’ non-parole period for an offence or category of offence.[37] Nonetheless, this Court has said that regard should be had to the range of non-parole periods commonly or ‘usually’ imposed, as a means of promoting consistency in sentencing.[38] As a matter of empirical observation, in the majority of cases the non-parole period is between 60 per cent and 75 per cent of the head sentence.[39] However, the authorities make clear that this range ‘ceases to be of much guidance where the head sentence is in the order of 10 years’ imprisonment or more’.[40]

   [37]McLean v The Queen [2018] VSCA 209, [18] (Whelan and Kyrou JJA) (‘McLean’). See also Wallace (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA); [2012] VSCA 114.

   [38]McLean [2018] VSCA 209, [18] (Whelan and Kyrou JJA); Kumova v The Queen (2012) 37 VR 538, 541 [11] (Nettle JA), 547–8 [33]–[35] (Redlich and Osborn JJA); [2012] VSCA 212 (‘Kumova’).

   [39]Kumova (2012) 37 VR 538, 542 [12] (Nettle JA), 545 [27] (Redlich and Osborn JJA); [2012] VSCA 212.

   [40]Kumova (2012) 37 VR 538, 544 [19] (Nettle JA, Redlich and Osborn JJA agreeing at 545 [25]); [2012] VSCA 212. See also Romero v The Queen (2011) 32 VR 486, 493–4 [25]–[27] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]); [2011] VSCA 45.

3. We therefore reject the argument that the fact that the judge did not give express reasons for fixing the non-parole period of 8 years amounts to specific error in the exercise of the sentencing discretion. We also reject the argument, only faintly pressed in oral submissions, that the period of 8 years was not reasonably open, in the sense of being manifestly excessive (putting to one side the parity point, which was developed as a distinct argument). As the respondent submitted, the offending was very serious and there was little by way of mitigating circumstances to place a non-parole period of 8 years outside the available range.

4. The parties did not refer to any authorities that had considered parity between co-offenders solely by reference to their respective non-parole periods. Nor did the Court have the benefit of full argument on the issue. We doubt whether a mechanical comparison of the proportionate length of non-parole periods, without comparing the respective total effective sentences, can be determinative of whether there is such disparity between sentences that the sentence revealing the larger proportionate non-parole period is not reasonably open. It seems to us that the evaluation of alleged disparity between sentences involves a comparison of the whole sentences, not merely the non-parole periods. As explained in Nipoe v The Queen:

   The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgments required’ to arrive at the sentence imposed. It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two co-offenders stand in exactly the same position when they fall to be sentenced.[41]

   [41]Nipoe v The Queen [2020] VSCA 137, [40] (Maxwell P, Niall and Emerton JJA) (citations omitted). See also Chamma v The Queen [2020] VSCA 232, [59] (Priest, Beach and T Forrest JJA).

5. The difficulty is illustrated by considering the consequences of a successful argument based only on the percentage of the head sentence that must be served before an offender is eligible for parole. The proper re-exercise of the sentencing discretion could achieve parity in two ways. The non-parole period could be shortened, or the head sentence made longer. Obviously, on appeal, the latter course would not be taken readily. But plainly the identified disparity will not have demonstrated injustice in the overall sentence; it may equally be said to have suggested that the head sentence was generous. By looking at only part of the sentences, the exercise is incomplete.

6. We are prepared to assume, however, for the purposes of this appeal, that disparity in non-parole periods alone may suffice to conclude that the non-parole period in issue was not reasonably open.[42] However, it is important to emphasise that the parity principle requires a court, if possible, ‘to avoid or minimise unjustified disparity’.[43] In doing so the court must have regard to ‘differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed’.[44]

   [42]

   [43]Green v The Queen (2011) 244 CLR 462, 480 [45] (French CJ, Crennan and Kiefel JJ) (emphasis added); [2011] HCA 49 (‘Green’). See also Lowe v The Queen (1984) 154 CLR 606, 611 (Mason J); [1984] HCA 46; Taleb v The Queen (2014) 42 VR 666, 674–8 [39]–[50] (Neave and Weinberg JJA); [2014] VSCA 96; Dickman v The Queen[No 2] [2017] VSCA 351, [94]–[95] (Priest JA and Croucher AJA).

   [44]Green (2011) 244 CLR 462, 480 [45] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

7. Making the assumption that parity between non-parole periods may be evaluated in this way, it is fair to say that, when looking solely at the bare figures set out in the appellant’s table, the non-parole period imposed on the appellant appears anomalous. However, the bare figures fail to account for the individual circumstances of each offender, including their role in the offending and their mitigating circumstances. The answer to the appellant’s argument based on parity is that, as the respondent submitted, there are several significant differences between the appellant and his co-offenders Smith and Bottom[45] that justify the setting of a proportionately greater non-parole period.

   [45]The other co-offenders (Hooper, Harvey and  Ball) had significantly lesser roles, and committed less serious offences, than the appellant, and the appellant did not seek to place any real weight on the non-parole periods imposed in relation to them. We will thus focus on Smith and Bottom as the real comparators.

8. The first, and perhaps the most significant, factor justifying the non-parole period imposed on the appellant was his role in the offending. The appellant was the initiator and, as the sentencing judge put it, the ‘driver’ of what took place. He had a leadership position, albeit one below Thorn in importance.[46] The appellant had co-founded the vigilante group. He had recruited others to join in the offending and communicated the plan to them. He had defended the plan when questioned about it. In contrast, Bottom and Smith were not involved in the initial planning. They were recruited by the appellant and took on ‘supporting’ roles.[47] That is not to diminish the seriousness of their offending; rather, it is to place that serious offending in proper context in comparison to the appellant’s offending.

   [46]Reasons, [101].

   [47]Bottom [2023] VSC 717, [15], [79]; Reasons, [12], [19], [118].

9. Secondly, as discussed above, the appellant was involved in attempts to conceal the offending, including by removing a CCTV hard drive, cleaning away blood and destroying the blood-stained mattress. He asked one of Hooper’s children to lie for him, and threatened her if she were to tell police what had happened. He also lied to police when questioned. In contrast, Bottom and Smith, although they had initially lied to police, later made admissions. Bottom co-operated with police by taking them to the victim’s body. Neither of them were involved in any conduct to try to conceal the offending.[48]

   [48]Bottom [2023] VSC 717, [26]–[30].

10. Thirdly, Bottom and Smith each had significant factors in mitigation not available to the appellant. They were aged 20 and 21, respectively, at the time of the offending, thus engaging the principles set out in Mills[49] and requiring rehabilitation to be given greater prominence. The judge gave this factor some weight, although the seriousness of the offending meant it had less part to play than otherwise might have been the case.[50] His Honour accepted submissions on behalf of Bottom and Smith that a significant period of time on parole was appropriate to foster their prospects of rehabilitation.[51] In contrast, the appellant advanced no such submission. He was 24 years old at the time of the offending and had a moderate to high risk of reoffending. The weight to be attached to his prospects of rehabilitation on account of his age was less significant, as his counsel accepted on the plea. Furthermore, both Bottom and Smith were able to call on aspects of Verdins in mitigation.[52] In contrast, the appellant did not raise any argument of that kind on the plea.

    [49]Bottom [2023] VSC 717, [70], referring to R vMills [1998] 4 VR 235.

    [50]Bottom [2023] VSC 717, [72].

    [51]Bottom [2023] VSC 717, [92].

    [52]Bottom [2023] VSC 717, [56]. See R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

11. In light of these matters, the disparity between the non-parole period imposed in relation to the appellant and the non-parole period imposed in relation to Bottom and Smith was reasonably open.

Conclusion

1. In light of the above matters, it was well open to the judge to conclude that 8 years was the minimum time that justice required the appellant serve in prison. We would thus dismiss the appeal.

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We note that Dawson and Gaudron JJ referred to disparity between non-parole periods as a proportion of head sentences in Postiglione v The Queen (1997) 189 CLR 295, 302. Their Honours evaluated parity, however, by reference to the total sentences imposed, and not just the non-parole periods:

302–4.