Stephan v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0037

RAYMOND STEPHAN	Appellant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and JANE DIXON AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2025
DATE OF JUDGMENT:	12 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 121
JUDGMENT APPEALED FROM:	[2023] VCC 1517 (Judge Chettle)

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CRIMINAL LAW – Sentence – Appeal – Kidnapping – Blackmail – Intentionally causing injury – Make threat to kill – Appellant sentenced to 4 years 6 months’ imprisonment – Co-offender sentenced to 6 years’ imprisonment – Whether parity principle infringed – Whether sentence manifestly excessive – Where appellant aged 21 years at time of offending – Minor criminal history – Where co-offender had extensive criminal record and more prominent role in the offending – Differences in sentence giving rise to justifiable sense of grievance – Appeal allowed.

Crimes Act 1958, ss 18, 20, 63A, 87(1), 323, 324; Sentencing Act 1991, s 5(2H).

Ah-Kau and Ofamooni v The Queen [2018] VSCA 296; Anthony v The Queen [2016] VSCA 22; Ayol v The Queen [2014] VSCA 151; Azzopardi v The Queen (2011) 35 VR 43; Clarkson v The Queen (2011) 32 VR 361; Green v The Queen (2011) 244 CLR 462; Guest v The Queen [2014] VSCA 29; Hafner v The Queen [2012] VSCA 190; Kumas v The Queen [2017] VSCA 287; R v Mills [1998] 4 VR 235; Roe v The Queen [2021] VSCA 54; Taleb v R [2014] VSCA 96; Wan v The Queen [2019] VSCA 81, considered.

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Counsel
Appellant:		Mr P Smallwood with Mr JJ Bourke
Respondent:		Mr J Shaw
Solicitors
Appellant:	Stephan Andrianakis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
JANE DIXON AJA:

Introduction and overview

On 18 May 2023, the appellant was convicted by a jury in the County Court of one charge of kidnapping, one charge of blackmail, one charge of intentionally causing injury and one charge of making a threat to kill. These are the offences to which his appeal against sentence relates.[1]
[1]The appeal was specified not to relate to the sentences imposed on the plea indictment (Indictment No. M11129349) or for the related summary charges, other than to the extent that those sentences were relevant to the non-parole period fixed.
The appellant also pleaded guilty to one charge of possess a drug of dependence on a separate indictment. Five related summary offences to which he also pleaded guilty were taken into account.[2]
[2]Namely, two charges of possess a prohibited weapon without exemption or approval, and three charges of possess a Schedule 4 poison.

Procedural background to sentencing

The appellant was one of four offenders charged with kidnapping and related offences (the ‘kidnapping incident’) committed on 17 May 2021. The four offenders were the appellant and his father Robert Stephan (‘Robert S’), Wayne Favaloro (‘Wayne F’) and Ricky Favaloro (‘Ricky F’).
The appellant and Robert S elected to stand trial on charges flowing from a separate firearms incident and the kidnapping incident, whereas Wayne F and Ricky F both pleaded guilty on 4 May 2023 to an indictment charging only kidnapping and intentionally causing injury.
The appellant and Robert S faced an indictment containing five charges comprising: discharging a firearm at a premises[3] (charge 1), kidnapping (charge 2), blackmail (charge 3), intentionally causing injury (charge 4) and making a threat to kill (charge 5).[4]
[3]Contrary to Firearms Act 1996, s 131A(1).
[4]Indictment No. C2114538.1.
At the conclusion of the trial both the appellant and Robert S were found guilty of charges 2, 3, 4 and 5, but acquitted of charge 1.
Kidnapping is a category 2 offence, requiring a term of imprisonment unless special circumstances exist.[5]
[5]Sentencing Act 1991, s 5(2H).
The plea hearing for the four offenders took place on 16 August 2023 and each of the offenders were sentenced on 24 August 2023.[6]
[6]DPP v Stephan & Ors [2023] VCC 1517 (Judge Chettle) (‘Reasons’).
The appellant was sentenced as follows:

Charge on Trial Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Kidnapping[7]	25 years’	3 years 6 months’	Base
3	Blackmail[8]	15 years’	1 year	3 months
4	Intentionally causing injury[9]	10 years’	1 year 3 months’	6 months
5	Making a threat to kill[10]	10 years’	1 year	3 months
The plea indictment (County Court Case No. CR-23-01427)
1	Possessing a drug of dependence[11]	30 penalty units and/or 1 year	3 months’	-
Related summary charges
11	Possessing a prohibited weapon[12]	240 penalty units or 2 years’	1 month	-
18	Possessing a prohibited weapon[13]	240 penalty units or 2 years’	1 month	-
19	Possessing a Schedule 4 poison[14]	10 penalty units	Aggregate $300 fine	N/A
20	Possessing a Schedule 4 poison[15]	10 penalty units		N/A
21	Possessing a Schedule 4 poison[16]	10 penalty units		N/A
Total Effective Sentence:		4 years 6 months’
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		129 days
Section 6AAA Statement:		For the plea indictment and related summary charges: 6 months’ and a $500 fine

[7]Contrary to Crimes Act 1958, s 63A.

[8]Contrary to Crimes Act 1958, s 87(1).

[9]Contrary to Crimes Act 1958, s 18.

[10]Contrary to Crimes Act 1958, s 20.

[11]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 73.

[12]Contrary to Control of Weapons Act 1990, s 5AA.

[13]Ibid.

[14]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 36B(2).

[15]Ibid.

[16]Ibid.

The appellant’s co-offenders were sentenced as follows:

Offence	Robert S	Wayne F	Ricky F
Kidnapping	4 years 6 months’	3 years’	2 years’
Blackmail	1 year 6 months’[17]	N/A	N/A
Intentionally causing injury	1 year 6 months’[18]	9 months’[19]	1 year[20]
Making a threat to kill	1 year 6 months’[21]	N/A	N/A
Total Effective Sentence:	6 years’	3 years 4 months’	2 years 6 months’
Non-Parole Period:	4 years’	2 years 3 months’	1 year 6 months’

[17]Six months of the sentence for blackmail are to be served cumulatively upon the base sentence being kidnapping.

[18]Six months of the sentence for intentionally causing injury are to be served cumulatively upon the base sentence being kidnapping.

[19]Four months of the sentence for intentionally causing injury are to be served cumulatively upon the base sentence being kidnapping.

[20]Six months of the sentence for intentionally causing injury are to be served cumulatively upon the base sentence being kidnapping.

[21]Six months of the sentence for making a threat to kill are to be served cumulatively upon the base sentence being kidnapping.

On 15 July 2024, Boyce JA granted the appellant leave to appeal against sentence on Ground 1 and referred Ground 2 for consideration by the Court hearing the appeal. Those grounds were as follows:
Ground 1: That there was not greater disparity between the sentences imposed on the applicant and the sentences imposed on Robert S gives rise to a justifiable sense of grievance and gives the appearance that justice has not been done.
Ground 2: The total effective sentence (constituted by the sentence imposed on charge 2 and each of the orders for cumulation made) and the non-parole period fixed were each manifestly excessive.
For the reasons that follow Ground 1 must succeed.

Circumstances of the offending

The victim (‘BR’) set up a drug transaction for the purchase of cannabis between the appellant and an unknown purported purchaser. On 16 May 2021, the appellant and Ricky F attended the meeting location to effect the drug transaction but were set upon by a group who stole cash, cannabis and personal items from them. Both the appellant and Ricky F blamed BR for setting them up for the ‘drug rip-off’. They requested that BR meet them to sort it out.
On 17 May 2021, BR agreed to meet at a location in Coburg North. The appellant attended that location with his father Robert S, Ricky F, and Ricky F’s father Wayne F. Robert S was driving a Commodore sedan with the appellant and Ricky F. Wayne F was driving a second vehicle with an unidentified male passenger.
The four offenders approached BR in the street and forced him into the rear right seat of the Commodore sedan. Robert S returned to the driver’s seat, the appellant sat in the front passenger seat and Ricky F sat in the rear seat next to BR. Wayne F returned to the second vehicle with the unidentified male and the two vehicles moved off in convoy.
Ricky F wore knuckle dusters on his right hand. Whilst being driven in the vehicle, BR was threatened and assaulted. Robert S said that he was going to take BR to see Robert S’ brother in the cemetery stating, ‘I just got out of gaol for eight years, I’m not afraid to go in for another eight’. Ricky F continually punched BR with the knuckle dusters. The appellant also reached behind from the front seat and punched BR once or twice to the head.
BR was driven to Fawkner cemetery. When they arrived, Robert S remarked that it was lucky the cemetery was closed or BR would be spending the night there. Ricky F then handed the knuckle dusters to the appellant, produced a hunting knife and threatened to stab BR. At this point the appellant intervened and said ‘[s]top, just relax’. BR disclaimed involvement in the drug rip-off.
Robert S threatened BR saying, ‘[y]ou get a thousand dollars a week, you're gonna pay half of that to each of us until you pay us or else I will come and cut your tongue out and I will kill you’. This conduct formed the basis of the blackmail and threat to kill charges of which the appellant and Robert S were convicted. BR was given tissues to clean blood from his face, warned not go to the police, and told he must pay the money. He was dropped at the Northern Hospital at 10:50 pm with both vehicles still travelling in convoy. He received treatment for his injuries at the hospital and was then released.[22]
[22]The victim’s injuries included a 2 centimetre laceration to the back of his head, a laceration to his left thumb, multiple lacerations to both his hands, a lacerated left eyebrow, swelling to his right palm, and concussion.
On 1 June 2021, a search warrant was executed on the appellant’s home. Police seized knuckle dusters and 1.2 grams of cannabis. The appellant was intercepted later that day, driving a motor vehicle in Cheltenham, and arrested. Police conducted a search of the motor vehicle and found another set of knuckle dusters and other items that were the subject of the summary charges.[23]
[23]Three Schedule 4 poisons, namely tramadol, isotretinoin and lidocaine. The appellant was also in possession of five MDMA tablets, a small container of 1,4-butanediol, seven and a half tablets of Diazepam and a small quantity of Stanozolol.
Robert S was also arrested on 1 June 2021. Both Wayne F and Ricky F were arrested on 11 June 2021.

The plea hearing

Written plea submissions were tendered and relied upon by the appellant during the plea hearing, along with a drug and alcohol report, a bundle of references and a hospital discharge summary.[24] Plea submissions referred to the appellant’s personal history, his youth, his pleas of guilty to the plea indictment and related summary charges, and to delay.[25]
[24]The documents were tendered on 16 August 2023.
[25]Similar documents were tendered on behalf of Robert S, Wayne F and Ricky F at the plea hearing including personal references for Robert S, sentencing remarks relating to Robert S’ previous offending, sentencing remarks relating to Wayne F’s previous offending and psychologist reports.

Sentencing Reasons

His Honour directed some of his remarks to all of the offenders. The prosecution case on the kidnapping and intentionally causing injury charges was put on the basis that each offender was either a principal offender or complicit in that offending.[26] His Honour also stated that the four were equally culpable although each had significantly different roles in the offending. The offences to which they had pleaded or for which they had been found guilty were described as serious criminal offences. His Honour remarked that nothing other than terms of imprisonment were appropriate for the violent offences.
[26]Pursuant to the Crimes Act 1958, ss 323–4.
His Honour stated that he had regard to the offenders’ individual antecedents, roles in the offending and the mitigating factors relevant to each offender in arriving at the appropriate sentences. General deterrence, specific deterrence, just punishment and denunciation were regarded as significant sentencing factors. His Honour also accepted the need to promote rehabilitation and to have regard to the principles of parsimony and totality. His Honour accepted the submission of the prosecution as to the seriousness of the offending which, he said, occurred in a ‘frightening, dangerous and seriously criminal manner’.
His Honour categorised the kidnapping as a mid-level example of that offence; the blackmail as a lower level example of that offence; the intentionally causing injury as a lower mid-level example of that offence, (noting the injuries sustained were fortunately relatively minor); and the threat to kill as a mid-level example of that offence.
In summarising the roles of each offender his Honour said:
You, [Robert S], made the blackmail demand and delivered the threat to kill. You, [Ricky F], predominantly inflicted injury to [the victim]. You, [Wayne F] provided support by your presence but were not in the car when the injuries were inflicted. I accept that you, [the appellant], sought to moderate [Ricky F's] violence, however you substantially drove the offending.[27]
[27]Reasons, [77].
Ground 1 concerns parity by reference to the sentence of Robert S — the appellant’s father. Therefore, it is necessary to consider the factors considered by the learned sentencing judge for and against both the appellant and Robert S concerning their separate roles in the offending and matters personal to each of them. As mentioned earlier, both the appellant and Robert S were convicted by the jury on the same charges.
His Honour briefly referred to the appellant’s personal history. The appellant was 21 years’ old at the time of offending and 24 years’ old when sentenced. He had left school in year 11 and completed a plumbing apprenticeship. In mid-2022 he commenced his own plumbing business. The appellant had an issue with drugs for some years with his only previous court appearance being for drug-related offending in 2018. The appellant’s drug use escalated after the death of his grandfather, with whom he was close. An April 2021 hospital discharge summary was tendered, indicating the appellant suffered an overdose on a range of substances.[28] Following the current charges being laid, in late 2021 the appellant had taken some steps to rehabilitate himself by attending drug counselling whilst on bail.
[28]The Discharge Summary from the Northern Hospital was dated 11 April 2021 and became Exhibit RS-4 on the plea.
The learned sentencing judge had regard to the following factors that were adverse to the appellant or did not allow for mitigation:
(a)the appellant was described as ‘the driving force’ in the offending with his ‘significant’ role arising from his resentment over the losses he suffered in the failed drug deal;
(b)the appellant was no doubt influenced by his father and, ‘acting like a second-rate gangster’, exhibited bravado, arrogance and hostility;
(c)the appellant’s possession of multiple sets of knuckle dusters[29] was said to indicate a preparedness to employ cowardly violence;
(d)the appellant ran a contested trial and had not shown remorse for his violent offending against the victim; and
(e)the appellant had one prior court appearance for trafficking methylamphetamine, possession of a prohibited weapon, taking an item into prison and driving whilst suspended for which he was fined without conviction on 29 October 2018.[30] The learned sentencing judge however, described the appellant’s prior offending as being of minor relevance.[31]
[29]Seized from his home during execution of a search warrant.
[30]Fined $3250.00 at Geelong Magistrates’ Court.
[31]This was said by the sentencing judge in discussions with the appellant’s counsel in the plea hearing of 16 August 2023.
The following were considered to be factors in mitigation in respect of the appellant:
(a)the appellant’s youth, having been 21 years old at the time of the offending and 24 years old at the date of sentence;
(b)his good employment history as a plumber and the fact that he was running his own plumbing business following being granted bail;
(c)the offending occurred against a background of drug abuse exacerbated by the death of his grandfather;
(d)the appellant had taken steps to rehabilitate himself from drug abuse since the offending whilst on bail, including engaging in drug counselling and in mental health performance coaching;
(e)references tendered on behalf of the appellant that attested to his professional skill, punctuality, honesty, hardworking nature and developing maturity;
(f)the appellant had not re-offended in the two and a half years prior;
(g)the appellant’s attempts to moderate Ricky F’s behaviour when Ricky F pulled a knife on the victim; and
(h)the appellant’s plea of guilty to the possession of drugs charge and the related summary offences, for which he was entitled to credit.
His Honour indicated that because of the appellant’s age at the time of the offending he would endeavour to promote his rehabilitation, noting the importance of the appellant remaining drug free and that it was of significance that the appellant had not re-offended.
His Honour also described the personal background of Robert S. Robert S was aged 49 at the date of sentence. He had suffered depression and anxiety for two years when, during his school years, his brother committed suicide after attempting to kill their parents. Later, Robert S became qualified as a mechanic specialising in renovating high performance vehicles. Robert S had been in a 20 year relationship with his ex-wife with whom he had three children (the appellant and two younger daughters, aged 18 and 16). His father had died and his mother suffered from schizoaffective disorder and required care from his ex-wife and daughters. He remained good friends with his ex-wife and his daughters. The difficult personal history of Robert S was set out in detail in two psychological reports tendered on the plea.[32]
[32]Psychological Report of Jeffrey Cummins dated 28 February 2014, and Psychological Report of Laura Fleming dated 21 June 2023.
The following matters were considered adverse to Robert S, or that did not allow for mitigation:
(a)the charges were contested and the victim was compelled to give evidence;
(b)he played a significant role in the offending. He was ‘the senior man present’. He also drove the vehicle that took BR to the cemetery. He spoke ‘like a television gangster’ and it was he who made the blackmail demand and the threat to kill;
(c)he had ‘a troubling prior criminal history’ and ‘very serious prior convictions,’ that were described as having some similarity to the offending before the Court. In 1998 he was fined for a dishonesty offence. In 2004 he was convicted of possession of cannabis and possession of a prohibited weapon. His more serious criminal offending commenced after he turned 40, when he embarked on an armed robbery with a handgun in pursuit of a debt of $8000 for work he had done. He was sentenced on 1 September 2015 to 725 days’ imprisonment and an 18-month community correction order for one charge of armed robbery. On 3 May 2016, his Honour Judge Hicks sentenced him in the County Court for intentionally causing serious injury to 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months;[33]
(d)the offending before the Court happened on 16 February 2021, within 3 months following his release from custody;
(e)in discussions with Ms Fleming, a psychologist who prepared a report for the plea, Robert S minimised his offending and his role in it, as he did regarding his prior offences in his instructions to his counsel;
(f)he had demonstrated little remorse for his conduct; and
(g)he was declared a ‘serious violent offender’ (‘SVO’) on charge 5 (making a threat to kill),[34] and his Honour stated that he was bound to regard protection of the community as the principal sentencing factor.[35]
[33]His Honour's Judge Hicks’ sentencing remarks became Exhibit C on the plea. Robert S was also dealt with on 17/9/2020 for breach of the CCO that had been imposed on 1 September 2015.
[34]His Honour noted that while the serious violent offender provisions could permit imposition of a disproportionate sentence, the prosecution did not seek that and therefore he would not impose a disproportionate sentence. His Honour indicated that protection of the community could be achieved with the sentencing options otherwise available to the court.
[35]Whilst s 6E of the Sentencing Act1991 provided that every term of imprisonment imposed on a serious offender for a relevant offence unless otherwise directed by the court, shall be served cumulatively on any other sentence imposed, his Honour was disposed to direct otherwise in the present case because total cumulation would lead to an a disproportionate or crushing sentence. Principles of totality required some concurrency on sentences in his case.

The following were considered mitigating factors in respect of Robert S:
(a)he had served a lengthy period on remand awaiting trial during the COVID-19 pandemic (including lockdowns and loss of visits), making his time in prison more onerous;[36]
(b)he had offered to plead guilty to charges for which he was convicted;[37]
(c)he had been diagnosed with anxiety and major depressive disorder. It was accepted that he had controlled his long-term depression with medication. His Honour accepted Ms Fleming’s opinion that imprisonment could be detrimental to his mental health.
[36]Reasons, [39].
[37]Although the prosecution clarified during the plea hearing that no formal offer was made on behalf of Robert S, a verbal discussion occurred before trial and the offer was not in relation to all of the matters of which he was ultimately found guilty. The respondent’s written submissions also stated: ‘the respondent understands that the applicant offered to plead guilty to some, but not all, of the offences of which he was ultimately convicted, but no submissions were made to this effect on the plea’.

Parties’ submissions

Appellant’s submissions

Regarding Ground 1, the appellant submitted that greater disparity between the sentences imposed on the appellant and the sentences imposed on Robert S was required. Three key considerations underpinned the appellant’s argument on parity. First, relative to the appellant Robert S’s criminal record was much worse. Second, that the appellant was a young offender was very important to the learned judge’s sentencing task. Third, the appellant had made significant progress towards rehabilitation whilst on bail.
Expanding on these points, counsel submitted that the troubling criminal history of Robert S, which included prior convictions for violence offending, was relevant to both an assessment of his moral culpability and to the weight to be given to considerations of just punishment, specific deterrence, denunciation and community protection. This was especially so, given the learned sentencing judge found that Robert S was to be dealt with as a SVO on charge 5. Robert S’ SVO status was relevant because it required the learned sentencing judge to treat community protection as the principal sentencing purpose in relation to that particular charge. This is a punitive consideration.[38] There was also a different role to be played in respect of totality on that particular charge.
[38]Citing Guest v The Queen [2014] VSCA 29, [28].
On the other hand, the appellant’s criminal record was very different. Furthermore, the appellant was only aged 21 when he committed the offending and 24 years old when sentence was imposed. It was necessary for prominence to be given to the appellant’s rehabilitation. He had not offended during a period of some 22 months while on bail up until the jury verdict. During that time he had taken active steps towards his own rehabilitation. This included engaging in drug counselling sessions, wherein clear treatment goals and relapse prevention strategies had been established and he had shown consistent motivation.
The significance of delay was underscored in the appellant’s case because he had used the time awaiting trial to progress his own rehabilitation — thus making this a much more important consideration in his case. This was demonstrated by the references tendered on the plea that spoke to his work ethic, his skilled work as a plumber and the fact that he had been attending sessions with a mental health coach. The combination of the appellant’s pronounced past rehabilitation and the relative differences in criminal records meant that the sentencing task for the appellant needed to be seen as materially different from that concerning his father, Robert S.
There should have been a meaningful difference in regards to the purposes of sentencing that needed to be applied to the appellant in contrast to Robert S.
All of these factors should have led to a greater level of disparity between the sentences imposed on the appellant as against Robert S. That there was not greater disparity gives rise to a justifiable sense of grievance and the appearance that justice has not been done. The manifest disparity was submitted to be sufficient to make good Ground 1.
In further response to an argument put by the respondent about the need to avoid the compressing effect on the sentences imposed on Wayne F and Ricky F by reducing the appellant’s sentence, the appellant argued that it needed to be remembered that Wayne F had a significant prior criminal history, and Ricky F had a central role in the offending. Ricky F’s central role in the offending was highlighted by his Honour, who noted Ricky F meted out almost all of the violence, used the knuckle dusters and pulled a knife.[39] Therefore, there was no risk of a compressing effect. The sentencing task for the appellant should have given greater emphasis to his youth, his prospects for rehabilitation and the steps he had already taken towards rehabilitation.
[39]Reasons, [67].
Regarding Ground 2, it was submitted that although leave had not been granted on this ground, the argument as to manifest excess overlapped with aspects highlighted in the argument on parity. As with the argument advanced on Ground 1, manifestly insufficient weight had been given in mitigation to the appellant’s youth, his prospects for rehabilitation and the facilitation of his rehabilitation. This could explain why manifestly excessive sentences were imposed on the appellant.
The appellant submitted that both the total effective sentence and non-parole period fixed were each too heavy and fell outside the permissible range of dispositions. Totality had an important role to play in the sentencing of the appellant as there was temporal proximity between each of the offences. Delay was relevant both because of hardship occasioned by delay and also because the appellant had used his time on bail productively. Parsimony was also important. The trial judge was prohibited from imposing a sentence more severe than that which was necessary to achieve the applicable sentencing purposes. Whilst not taking issue with the gravity of the offending, when regard is had to all of the sentencing factors, the sentences imposed on the appellant were too high. A different sentence should be imposed upon the sentencing discretion being reopened and re-exercised according to law.

Respondent’s submissions

The respondent submitted that the appellant’s complaint about disparity between himself and Robert S focused on distinctions such as his age, limited criminal record, steps towards rehabilitation, and asserted lower moral culpability. However, it was submitted that his Honour was conscious of the issue of parity on the plea, observing that although each offender was equally culpable for the offending, two of the offenders pleaded guilty to a reduced number of charges and each offender had personal circumstances justifying the imposition of different sentences.
The respondent submitted that matters favourable to the appellant had been appropriately taken into account by his Honour including his youth, the steps taken towards rehabilitation, the fact he had his own plumbing business, and that he had not offended while on bail. His Honour accepted the favourable aspects of references tendered on behalf of the appellant and accepted that the appellant’s prior history was of minor relevance. However, these factors needed to be balanced against his significant role in serious offending and absence of remorse. While youthfulness was an important consideration, in cases of serious offending the weight given to youth may need to yield to other sentencing purposes such as general deterrence.[40]
[40]Citing Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA); [2011] VSCA 372.
While the appellant had matters in his favour which Robert S did not — matters which were mentioned by his Honour — there were also compelling matters in Robert S’s favour which were not applicable to the appellant. The respective differences between the appellant and Robert S’s circumstances justified the different sentences imposed, with the sentence imposed upon Robert S for kidnapping being a full year greater than that imposed upon the appellant and the ultimate non-parole period for Robert S also being a year longer than for the appellant. It was submitted that there could not be a justified sense of grievance based on inadequate disparity.
Furthermore, if it is intended to reduce the appellant’s sentence to address parity considerations, the Court must not do this by imposing a manifestly inadequate sentence. Any attempt to correct a perceived disparity between offenders should not lead to disparity elsewhere, which could arise in this case in relation to the sentences imposed on Wayne F and Ricky F, if the appellant’s sentence is reduced. The two sentences on Wayne F and Ricky F were not excessive. The Court should avoid compression of sentences to correct disparity. The Court should also remember that in this case the appellant expressed no remorse and did not plead guilty. The appellant has the difficulty that he was seen as the person with the grievance and he was therefore described as ‘the driving force’.[41]
[41]Reasons, [44].
Regarding Ground 2, considering the objective gravity of the offending it was reasonably open to have imposed the sentence that was imposed. The offending had a number of objectively serious features, including that four men engaged to overpower the one victim, the offence occurred at night, was planned in advance and weapons, threats and violence were used to overbear the victim’s will. In considering the objective gravity of the appellant’s role, he was the man behind it all who facilitated Robert S’s involvement in the offending.
In the respondent’s written submissions particular reference was made to Hanna v The Queen, in which his Honour Priest JA held that a sentence of 7 years’ imprisonment for a charge of kidnapping was ‘well within the range open in the proper exercise of discretion’.[42] It was submitted that review of current sentencing practice showed that the sentences imposed in this case were well within range.[43]
[42][2014] VSCA 187, [88] (Maxwell P agreeing at [1], Neave JA agreeing at [2]).
[43]To support the submission that the appellant’s sentence was reasonably open to the sentencing judge to have imposed, the respondent also made brief reference to the cases of Chong v The King [2023] VSCA 62, Tonkin v The King [2023] VSCA 194 and Roe v The Queen [2021] VSCA 54, for comparative purposes.
The respondent also argued that the orders for cumulation were well within the available range and that his Honour was ‘live to the issue of totality’. Only one year cumulation was imposed in total on the appellant and full concurrency ordered on the plea indictment and related summary offences.
The respondent submitted that the sentence imposed on the appellant was well open to the learned sentencing judge in the sound exercise of his discretion and the appeal should be dismissed.

Legal principles to be applied

Parity

The principles concerning parity of sentences are well-settled. The parity principle is an aspect of equal justice. It reflects the notion that when two or more co-offenders are sentenced, like should be treated as alike, save for relevant differences among individual roles and individual circumstances.
As Buchanan JA said in Hafner v The Queen:
While it is obviously desirable that persons who are parties to the commission of the same offence should receive the same sentence, matters such as age, background, previous criminal history and general character and the role played in the commission of the offence have to be taken into account.[44]
[44][2012] VSCA 190, [17].
However, mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court.[45] If there is a ‘marked’ or manifest disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity will have been infringed.[46] Disparity of this kind may justify appellate intervention even though the sentence, taken by itself, and having regard to current sentencing practice more generally, is not manifestly excessive.[47] However ‘no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did’.[48] This inquiry reflects the restraint with which the disparity ground is approached.[49]
[45]Hafner v The Queen [2012] VSCA 190, [17]. See also Lowe v The Queen (1984) 154 CLR 606, 613–14; [1984] HCA 46.
[46]Anthony v The Queen [2016] VSCA 22, [12] (Redlich and Beach JJA) (‘Anthony’).
[47]Roe v The Queen [2021] VSCA 54, [36] (Maxwell P and McLeish JA) (‘Roe’) citing Green v The Queen (2011) 244 CLR 462, 475 [32] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49 (‘Green’).
[48]Anthony [2016] VSCA 22, [12] (Redlich and Beach JJA).
[49]Roe [2021] VSCA 54, [38] (Maxwell P and McLeish JA).
A ‘justifiable sense of grievance’, as observed by French CJ, Crennan and Kiefel JJ in Green v The Queen, is to be assessed objectively.[50] Whilst the avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of an appellant’s sentence, even to a level which might otherwise be regarded as at the bottom end of the range, it would not require a reduction to the point where the appellant’s sentence is wholly inappropriate or outside the range.[51]

Manifest Excess

[50](2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

[51]Taleb v R [2014] VSCA 96, [45]–[48] (Neave and Weinberg JJA). See also Green (2011) 244 CLR 462, 475–6 [33] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

A ground of appeal complaining of manifest excess is a stringent ground to meet. It is a well-established principle that the sentence imposed should be proportionate to the gravity of the offence considered in light of all the circumstances. Therefore, manifest excess requires that something went obviously, plainly or badly wrong in the exercise of the sentencing discretion.[52] The question to be asked is whether the sentence or sentences imposed were wholly outside the range of sentencing options available to the judge.[53]
[52]Wan v The Queen [2019] VSCA 81, [36] (McLeish and T Forrest JJA) (‘Wan’) and Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), quoting Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157. See also Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[53]Wan [2019] VSCA 81, [36] (McLeish and T Forrest JJA).

Consideration

Ground 1

Plainly, the very experienced sentencing judge turned his mind to the issue of parity and the need to undertake a comparative analysis. Consideration must also be given to the fact that it was his Honour who heard the evidence at trial. His Honour remarked on the significantly different roles played by each individual in the offending and considered that there were factors personal to each of the offenders relevant to the sentence they each received. His Honour referred to the various mitigating factors and materials each offender was able to properly rely upon.
However, when considering the sentencing reasons as a whole, there were several factors relevant to the appellant which revealed themselves as requiring greater weight in the comparative analysis as between his sentencing and that of Robert S, than that attributed by the learned sentencing judge.
Firstly, as to the offenders’ roles in the offending, the kidnapping of the victim was motivated by revenge and pursuit of compensation for the drug rip-off perpetrated against the appellant and Ricky F. All four offenders were equally liable for that conduct and for causing the injuries to the victim. However, when comparing the roles of Robert S and the appellant, it was Robert S who was ‘the senior man present’. Robert S drove the victim to the cemetery and uttered both the blackmail demand and the threat to kill. Despite turning around and punching BR once or twice in the head, the appellant was not otherwise a direct perpetrator of the physical violence.[54] Furthermore, as acknowledged by the learned sentencing judge, the appellant intervened to stop Ricky F when Ricky F produced a knife. Therefore, although the appellant was described as ‘the driver of the offending’, this description needs to be read in the context of all the facts of the offending.
[54]Reasons, [4].
Secondly, the appellant’s youth at the time of the offending was a very significant factor. Robert S did not have the advantage of youth or immaturity to explain or mitigate his offending. The appellant, at 21 years of age, ought to have been able to look to his father for sensible guidance after losing out in the drug rip-off. It was common ground that Robert S was instead liable to have been a bad influence on his son. Robert S had prior convictions for similar violent offending to the offending in the present case.
As was made plain in R v Mills (‘Mills’), youthfulness generally evokes prominent emphasis on rehabilitation in sentencing, and lesser weight being given to punitive considerations.[55] Mills drew attention to the significance of looking to an offender's future, as well as to the past conduct for which the offender is being sentenced. Depending on the circumstances of the particular case the importance of youth may be diminished as the gravity of the offending is increased.[56] In the present case however, there was room for much greater regard to be paid to the appellant’s youth and immaturity at the time of the offending. Whilst not being heard to suggest this offending was other than serious, his Honour did not describe any of the offending as high-level examples of the subject offences.
[55][1998] 4 VR 235. 
[56]Azzopardi v R [2011] VSCA 372 [44] (Redlich JA, Coghlan AJA agreeing at [92], Macaulay AJA agreeing at [93]). See also Wan [2019] VSCA 81 as another example of more prominence being given to deterrence for a young person who perpetrated extreme violence in a public place: at [22], [38] (McLeish and T Forrest JJA).
Although the appellant’s offending was serious, the overall circumstances were not such as to require the consideration of youth and prospects for rehabilitation to yield to any significant degree to other sentencing considerations. Indeed, we accept that the significance of the appellant’s youth to the sentencing task was informed by his prospects for rehabilitation. His age and rehabilitative prospects were relevant not only in fixing the maximum sentence, but also in the consideration of the length of a non-parole period.
The appellant had only one previous court appearance that did not lead to any convictions being imposed. He had started his own plumbing business and six letters of reference were tendered on his behalf at the plea highlighting his drive, hardworking nature and developing maturity. Once he was granted bail, he had been in the community for some 22 months without re-offending, and actively sought and engaged in drug and alcohol treatment and mental health support over that time. These factors pointed to good prospects for rehabilitation and, taken together with his youth, required greater weight to be attributed to these matters in differentiating between the appellant’s sentencing and that of Robert S.
Thirdly, there was a stark difference in the prior criminal history of the appellant as against Robert S. The appellant’s criminal history was of ‘minor relevance’ and he had never been sentenced to imprisonment before the current matter. Conversely, Robert S had twice been sentenced to imprisonment in the County Court for serious offending, and was declared a SVO on charge 5. Further, Robert S committed the current offences within a short time of being released from prison in 2021.The report of Laura Fleming described Robert S’s prospects of rehabilitation as only moderate, although this was not discussed in his Honour’s reasons.

We accept the submission of the appellant that because of his prior criminal history, Robert S’s moral culpability fell to be assessed very differently to the appellant’s moral culpability. We also agree that more weight was required to be given in the case of Robert S to just punishment, specific deterrence, denunciation and community protection. This is especially so since on charge 5 he was sentenced as a SVO. The lack of differentiation in the sentencing exercise is particularly evident when comparing the sentences imposed on charge 5 (threat to kill). Here, Robert S was sentenced to 18 months’ imprisonment with 6 months cumulation. This is in only modest contrast to the 12 months’ imprisonment with 3 months cumulation imposed on the appellant. Yet that was the very offence upon which Robert S was declared a SVO, and it was Robert S who uttered the threat to kill.
Fourthly, delay assumed some significance in favour of the appellant because while awaiting trial the appellant had not re-offended and had used the time constructively towards reforming himself.
While the respondent pointed out that the kidnapping charge for Robert S was a year higher than for the appellant, and that after orders for cumulation and concurrency, the non-parole period imposed on Robert S was 12 months longer than for the appellant, we are nevertheless persuaded that the overall sentencing exercise for the appellant as against Robert S involved marked and unjustifiable disparity. The appellant had never been sentenced to be imprisoned before, he had a good business and future career as a self-employed plumber and had made substantial progress towards rehabilitation while awaiting trial.
For the reasons above, we accept the appellant’s submission that there was inadequate disparity between the sentences imposed on the appellant and Robert S. There is no scientifically precise answer to the quantification of disparities between offenders. Ultimately, it is an evaluation based on impression.[57] We have formed this impression, having regard to the differences between the two offenders, and borne in mind that ‘precise mathematical evaluations of debits and credits between offenders is not only impossible to achieve but contrary to the methodology of intuitive synthesis’.[58] We consider that the lack of disparity is marked and the sentence of the appellant, when compared to Robert S, gives rise to a justifiable sense of grievance.
[57]Ah-Kau and Ofamooni v The Queen [2018] VSCA 296, [51] (McLeish and T Forrest JJA).
[58]Roe v The Queen [2021] VSCA 54, [10] (Maxwell P and McLeish JA). See also Kumas v The Queen [2017] VSCA 287, [42] (Maxwell P, Weinberg and Priest JJA).
In light of our conclusion on Ground 1 it will be necessary to resentence the appellant. In doing so it is necessary for this Court to also have regard to the sentence imposed on the other co-offenders. That can be done without resulting in any ‘compression’ of the sentences imposed on Wayne F and Ricky F.
It is unnecessary to determine Ground 2, hence leave will not be granted on that ground.

Conclusion

For the above reasons, error has been shown on Ground 1 and the appeal will be upheld on that ground.
The sentencing orders imposed on the appellant in the County Court on 24 August 2023 are set aside.
The appellant will be resentenced as follows:

Charge on Trial Indictment	Offence	Max Penalty	Sentence	Cumulation
2	Kidnapping	25 years	3 years	Base
3	Blackmail	15 years	6 months	1 month
4	Intentionally causing injury	10 years	1 year	4 months
5	Making a threat to kill	10 years	6 months	1 month
The plea indictment (County Court Case No. CR-23-01427)
1	Possessing a drug of dependence	30 penalty units and/or 1 year	3 months	-
Related summary charges
11	Possessing a prohibited weapon	240 penalty units or 2 years	1 months	-
18	Possessing a prohibited weapon	240 penalty units or 2 years	1 month	N/A
19	Possessing a Schedule 4 poison	10 penalty units	Aggregate $300 fine	N/A
20	Possessing a Schedule 4 poison	10 penalty units		N/A
21	Possessing a Schedule 4 poison	10 penalty units		N/A
Total Effective Sentence:		3 years and 6 months
Non-Parole Period:		2 years and 3 months
Pre-sentence Detention Declared:		787 days
Section 6AAA Statement:		For the plea indictment and related summary charges: 6 months and a $500 fine

All other ancillary orders of Judge Chettle made on 24 August 2023 are affirmed.

[2025] VSCA 121

12 June 2025