Stefani v The King
[2023] VSCA 183
•14 August 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0011 |
| NICK STEFANI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 July 2023 |
| DATE OF JUDGMENT: | 14 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 183 |
| JUDGMENT APPEALED FROM: | [2022] VSC 821 (Justice Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to four charges concerning kidnapping and assault – Total effective sentence of 10 years’ imprisonment – Non-parole period of 8 years’ imprisonment – Whether non-parole period was reasonably open to sentencing judge – Non-parole period 80 per cent of head sentence – Ratio of non-parole period outside of ‘usual’ range – No reasons given by sentencing judge – Leave to appeal sentence granted.
McLean v The Queen [2018] VSCA 209, Cummins (a pseudonym) v The Queen [2013] VSCA 352, Kumova v The Queen (2012) 37 VR 538, Gray v R [2010] VSCA 312 applied.
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| Counsel | |||
| Applicant: | Dr T Alexander with Ms A C Sharpley | ||
| Respondent: | Ms A Moran | ||
Solicitors | |||
| Applicant: | Slades & Parsons Solicitors | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA:
On 31 January 2022 the applicant pleaded guilty before a judge of the Supreme Court to four charges concerning kidnapping and assault. On 22 December 2022 he was sentence by the Court as follows:[1]
[1]DPP v Hooper & Stefani [2022] VSC 821, [172]–[180] (‘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’ imprisonment Pre-sentence Detention Declared: 1358 days Section 6AAA Statement: Total Effective Sentence 14 years’ imprisonment
Non Parole-Period 11 years’ imprisonment
The applicant now seeks leave to appeal his sentence on the single ground that the sentencing judge erred in failing to:
(a)impose a sentence which allowed greater disparity between the total effective sentence and a non-parole period;
(b)give reasons for fixing the non-parole period.
For the following reasons, I would grant leave to appeal. In summary, in my opinion the imposition of a non-parole period of 80 per cent of the head sentence ‘invites scrutiny’ in the present case, where the judge gave no reasons for imposing a non-parole period of that order.
Factual background
The factual background is set out in the sentencing judge’s remarks, with which the applicant took no issue in respect of the events that occurred. In summary, it is as follows.
The victim, Bradley Lyons, was 30 years of age and married to Jana Hooper, who was a co-offender. The applicant 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. He was friends with Jordan Bottom and Alec Harvey, and through them met Albert Thorn.[2]
[2]Reasons, [6]–[7].
In November 2018, Hooper disclosed to 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 those propositions. Ms Evans spoke with Thorn about rumours concerning Mr Lyons’ behaviour. The applicant and Thorn then discussed the allegations a number of times, with the applicant claiming that Hooper’s children, confiding in the applicant, had made serious allegations about Mr Lyons.[3]
[3]Reasons, [8]–[10].
Later that month, the applicant relayed this to a friend, Christopher Nowell, who suggested that he report the matter to the police. The applicant disagreed, saying that the police would not act immediately. He also told Nowell that he was starting the Australian Freedom Fighters group, a self-styled vigilante group whose mission was to target paedophiles.[4]
[4]Reasons, [10].
On 1 December 2018 an incident occurred at the property in McCullough Street. The applicant ‘observed or at least heard of’ Hooper apparently convulsing while in bed with Mr Lyons. The applicant apparently formed the belief that Mr Lyons had drugged and raped Hooper.[5]
[5]Reasons, [11].
The applicant contacted Bottom, 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. Nowell refused to participate, as did Bottom’s girlfriend. The applicant continued to communicate with Thorn and Harvey about the plan to attack Mr Lyons on 2 December 2018.[6]
[6]Reasons, [12]–[13].
The next day, while Mr Lyons was at work, the applicant 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 applicant then called Harvey to confirm the plan. Harvey was with Rikki Smith at the time, who at this point became involved in the agreement.[7]
[7]Reasons, [12]–[14], [19].
On 2 December 2018, Hooper picked Mr Lyons up from work and took him home.[8]
[8]Reasons, [16].
Thorn arrived at the applicant’s bungalow first, having purchased two balaclavas and two rolls of duct tape from a camping and disposal store. Once Harvey and Smith arrived, the applicant provided them with further information about the allegations against Mr Lyons. Harvey and Smith wore a balaclava. Harvey armed himself with a pole he found at the property, and the applicant was armed with a sawn-off shotgun.[9]
[9]Reasons, [18], [20].
All four then entered the house through the back door. Hooper ‘gave the nod’ as they walked passed her to enter the master bedroom, where Mr Lyons was asleep.[10]
[10]Reasons, [22].
The four of them immediately set upon Mr Lyons, punching him in the face and head. The applicant 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’ hand in front of his body with the duct tape.[11]
[11]Reasons, [22], [23].
Shortly after, Harvey and Smith collected the CCTV hard drive on the premises from the applicant and left the premises.[12]
[12]Reasons, [23].
The applicant and Thorn remained in the bedroom and further assaulted Mr Lyons. This included the applicant kicking him 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.[13]
[13]Reasons, [24], [25].
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 applicant then 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.[14]
[14]Reasons, [26], [27].
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.[15]
[15]Reasons, [29].
Later that evening, Hooper and the applicant 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 applicant 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.’[16]
[16]Reasons, [31].
Hooper and the applicant 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.[17]
[17]Reasons, [32].
At 9:15 pm, Ms Evans attended at Thorn’s property. She checked in with Hooper, and after asking the others about where Mr Lyons was, the applicant 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 applicant insisted the plan would work.[18]
[18]Reasons, [33], [34].
The applicant and Hooper left Thorn’s property shortly before midnight to return to McCullough St. Before the applicant 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.[19]
[19]Reasons, [36], [37].
After Hooper and the applicant left, the others tortured Mr Lyons. The details of this were recounted to the applicant. 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.[20]
[20]Reasons, [37], [38].
After the events, the applicant 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’. His admissions to Hooper’s daughters were extensive and included admitting to planning the attack and torture of Mr Lyons, details of the assault, and his involvement in the kidnapping. He had 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 bedroom in the mattress.[21]
[21]Reasons, [41], [44]–[45].
He 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 told her that no one would believe her if she told the truth as it would be her word against his.[22]
[22]Reasons, [46].
The applicant and Hooper cleaned up McCullough St, with the applicant replacing and disposing of the bloodied mattress.[23]
[23]Reasons, [47].
On 13 December 2018 the applicant made a detailed statement to the police in which he lied about the events on 2 December 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 the children had disclosed to him that they had been sexually assaulted by Mr Lyons.[24]
[24]Reasons, [52].
On 19 December 2018, Hooper and the applicant were interviewed by the police. In his interview, the applicant 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.[25]
[25]Reasons, [55].
The applicant said that the last time he saw Mr Lyons, he was conscious and healthy. At the conclusion of the interview, the applicant made some admissions in ‘off-the-record comments’.[26]
[26]Reasons, [56], [57].
On 14 March 2019, following admissions made by Bottom during a police interview, the police located Mr Lyons’ remains.[27]
[27]Reasons, [58].
On 4 April 2019 the applicant was arrested and interviewed for the second time. He said he had known Mr Lyons for years and were good friends, but never spoke to him about the allegations that he had sexually assaulted the children. He 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.[28]
[28]Reasons, [60].
Sentencing reasons
The sentencing judge gave detailed and thorough reasons for the sentences he imposed on the applicant. In particular, his Honour observed as follows:[29]
[T]he offending of [the applicant 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’.[30] 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.[31]
[29]Reasons, [155].
[30]The Queen v Harvey [2020] VSC 496, [6].
[31]The Queen v Harvey [2020] VSC 496, [46].
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.
His Honour then imposed a non-parole period of 8 years’ imprisonment. That is 80 per cent of the total effective sentence. However, his Honour gave no reasons for the imposition of that non-parole period.
The parties’ submissions
The applicant submitted that a non-parole period representing 80 per cent of the head sentence ‘at least invites scrutiny’, relying on McLean v The Queen,[32] particularly where no reasons for such a non-parole period were given. 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 explain or justify why the ratio between the non-parole period and the head sentence was so high. That was so where, he submitted, the individual and total effective sentences could properly be characterised as stern, albeit within the range. He also submitted that the non-parole period imposed, once scrutinised, 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.
[32][2018] VSCA 209, [18] (‘McLean’).
In contrast, the respondent submitted that leave ought to be refused because a non-parole period of 8 years’ imprisonment was well open to the judge in the circumstances of this case. The respondent relied in particular upon the decisions of this Court in Kumova v The Queen[33] and Romero v The Queen[34] for the proposition that, in cases involving very serious crimes, where the head sentence is 10 years or more, the concept of a ‘usual’ non-parole period of between 60 per cent and 75 per cent of the head sentence ceases to be of much guidance, and there was no requirement in such cases that a judge provide reasons for exceeding that ‘usual’ range. The respondent pointed out that in Kumova, which involved trafficking a large commercial quantity of methylamphetamine, which attracted a maximum penalty of life imprisonment, a head sentence of 10 years’ imprisonment had been imposed and the Court observed that a non-parole period of 8 years’ imprisonment ‘would have been unremarkable’.[35]
[33](2012) 37 VR 538; [2012] VSCA 212 (‘Kumova’).
[34](2011) 32 VR 486; [2011] VSCA 45 (‘Romero’).
[35](2012) 37 VR 538, 544 [23] (Nettle J, Redlich and Osborn JJA agreeing at [25]).
The respondent contended that there is no authority to support the applicant’s submission that if the sentence is in the 10-year-and-above range, an 80 per cent non-parole period is in error without explanation.
Consideration
The non-parole period is the minimum term which justice requires to be served.[36] The question the applicant seeks to raise in his application for leave to 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.
[36]Wallace v The Queen (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA); [2012] VSCA 114 (‘Wallace’).
There is, of course, no ‘usual’ non-parole period for an offence or category of offence.[37] Nonetheless, regard should be had to the range of non-parole periods commonly or ‘usually’ imposed, as a means of promoting consistency in sentencing.[38] In the majority of cases, the non-parole period is between 60 per cent and 75 per cent of the head sentence.[39] While 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] that does not mean that the range of non-parole periods usually imposed ceases to be of any relevance whatsoever once a sentence of 10 years’ imprisonment is imposed.
[37]Romero (2011) 32 VR 486, 493–4 [25]–[26] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]); see also Wallace (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA).
[38]McLean [2018] VSCA 209, [18] (Whelan and Kyrou JJA); Kumova (2012) 37 VR 538, 547–8 [33]–[35] (Redlich and Osborn JJA).
[39]Kumova (2012) 37 VR 538, 545 [27] (Redlich and Osborn JJA).
[40]Kumova (2012) 37 VR 538, 544 [19] (Nettle JA, Redlich and Osborn JJA agreeing at [25]); See also Romero v The Queen (2011) 32 VR 486, 493–4 [25]–[27] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]).
Furthermore, this Court has noted that the absence of an explanation for a non-parole period that exceeds 75 per cent of the head sentenced ‘invites appellate scrutiny’.[41] That remark has been endorsed in cases where the head sentence was 10 years’ imprisonment or more.[42] As this Court observed in Cummins v The Queen, which involved a total effective sentence of 13 years and 6 months’ imprisonment, ‘although a ratio of more than 75 per cent between the head sentence and the non-parole period will not necessarily connote error, the justification for such a ratio should normally be provided’.[43] In the present case, it would have been prudent for the sentencing judge to refer to the fact that the non-parole period was a high proportion of the head sentence and to briefly state the reasons why.
[41]Gray v R [2010] VSCA 312, [20]–[21] (Nettle J, Tate JA agreeing at [26]); see also Stowers v The King [2022] VSCA 203, [42] (Kyrou, McLeish and Kennedy JJA); Kumova (2012) 37 VR 538, 541 [14] (Nettle JA), 545 [32] (Redlich and Osbron JJA); Cummins (a pseudonym) v The Queen [2013] VSCA 352, [80] (Redlich, Weinberg and Priest JJA) (‘Cummins’).
[42]Kumova (2012) 37 VR 538, 541 [14] (Nettle JA), 545 [32] (Redlich and Osbron JJA); Cummins (a pseudonym) v The Queen [2013] VSCA 352, [80] (Redlich, Weinberg and Priest JJA).
[43]Cummins (a pseudonym) v The Queen [2013] VSCA 352, [80] (Redlich, Weinberg and Priest JJA).
Plainly it may be that, in a particular case, the imposition of a non-parole period of 80 per cent, without reasons, will not amount to error on the part of the sentencing judge.[44] However, the question on the application before me is whether to grant leave to appeal; not whether to grant the appeal. I consider that the well-accepted proposition that such circumstances ‘invite appellate scrutiny’ supports a grant of leave to appeal in the present case.
[44]I note that the proposition in Kumova upon which the respondent relied — that a non-parole period of 80 per cent of the head sentence would have been ‘unremarkable’ — was expressly directed to the particular circumstances of that case, and cannot be extrapolated to a more general proposition that a non-parole period of 80 per cent of the head sentence would be ‘unremarkable’ in any case where the head sentence is 10 years’ imprisonment or more.
Conclusion
For these reasons, I would grant leave to appeal.
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