JUDGES:	KYROU, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2022
DATE OF JUDGMENT:	20 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 203
JUDGMENT APPEALED FROM:	[2021] VCC 1393 (Judge Hampel)

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CRIMINAL LAW – Appeal – Sentence – Co-accused – Aggravated burglary – Intentionally causing injury – Destroying property – Theft – Extortion with threat to kill – Firearms offences – Total effective sentence 9 years and 6 months with non-parole period 7 years and 6 months (Stowers) – Total effective sentence 7 years and 6 months with non-parole period 6 years (Phillips) – Whether sentences manifestly excessive – 5 year sentence on extortion with threat to kill outside range – Appeals allowed – Appellants resentenced.

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Counsel
Appellant Stowers:	Ms P J Marcou with Mr D I Mence
Appellant Phillips:	Mr C K Wareham
Respondent:	Ms E Ruddle KC
Solicitors
Appellant Stowers:	Markotich Lawyers
Appellant Phillips:	Slades & Parsons Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
MCLEISH JA
KENNEDY JA:

On 16 July 2021, Henry Stowers (‘Stowers’) and Joshua Phillips (‘Phillips’) each pleaded guilty to the offence of aggravated burglary, as well as a number of other charges.
On 17 September 2021, a judge of the County Court sentenced each of them as follows:

Stowers
Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury	10 years	1 year	6 months
3	Destroying property	10 years	1 year	3 months
4	Theft	10 years	1 year	3 months
7	Extortion with threat to kill	15 years	5 years	3 years
Related summary offence
13	Carry a prohibited weapon	2 years	1 year	6 months
Total Effective Sentence:		9 years and 6 months’ imprisonment
Non-Parole Period:		7 years and 6 months
Section 6AAA Statement:		12 years and 3 months, with 10 years non-parole
Other relevant orders: 1. Licence/s cancelled and disqualified for 12 months

Phillips
Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury	10 years	1 year	6 months
3	Destroying property	10 years	1 year	3 months
4	Theft	10 years	1 year	3 months
5	Theft	10 years	6 months	2 months
6	Prohibited person possess a firearm	10 years	2 years	12 months
Related summary offences
5	Commit an indictable offence on bail	3 months or 30 penalty units	1 month	1 month
8	Prohibited person possess cartridge ammunition	40 penalty units	$5000 fine	-
12	Drive without a licence	6 months or 60 penalty units	3 months	3 months
13	Drive without a licence	6 months or 60 penalty units	3 months	-
Total Effective Sentence:		7 years and 6 months’ imprisonment
Non-Parole Period:		6 years
Section 6AAA Statement:		10 years with 8 years non-parole
Other relevant orders: 1. Licence/s cancelled and disqualified for 12 months

On 9 May 2022, Priest JA granted each appellant leave to appeal against sentence on the sole ground that the individual sentences, orders for cumulation, total effective sentence and non-parole period were manifestly excessive.

Circumstances of the offending

The sentencing judge described the offending as follows:
[1] Henry Stowers and Joshua Phillips, you are two of four men who at about 10.30 pm, on 26 March 2020 entered, uninvited, a home in Cranbourne West, and forced your way into a bedroom occupied by Jade Falcone and Tyler Walker.[1] You Mr Stowers had known Tyler Walker since you began playing rugby together at the age of 12. You had maintained a social relationship since then. This, however was no social visit. Both of you, Mr Stowers and Mr Phillips are members of the Finks outlaw motorcycle gang. Mr Walker, who recognised you, Mr Stowers, despite the facemask you were wearing, knew you were a member of the Finks.
[1]Although it appears that the front door may not have been forced, the bedroom door was forced.
[2] All four intruders were disguised and some, if not all of the other assailants produced and threatened or tried to use various weapons against Mr Walker. With you, Mr Stowers, leading the assailants, and at different times using a baseball bat, your fists and bear mace, you threatened Mr Walker, tried to strike him with the bat, wrestled with him, punched him in the jaw, and tried to spray him with the bear mace. You demanded that he hand over his car or pay you a substantial amount of money. He refused.
[3] There was a third person [Ibram Girgis] in the house, in another bedroom at the time you entered. He too was threatened, and chased as he ran away by some of the four assailants. All four assailants fled as it became clear police had been called. Someone discarded a knife on the roadway as the getaway car left. That knife was later connected or would appear to have been taken from the kitchen of the house in the course of the home invasion.
[4] Mr Walker suffered bleeding gums, multiple scratches and scrapes to his arm. [Charge 1 — Aggravated burglary; charge 2 — Intentionally causing injury]
[To appreciate the context and other charges the judge then explained that it was necessary to go back in time]…
[7] Three weeks earlier, you, Mr Stowers, had been approached by Mr Walker, the victim of the aggravated burglary and the assault. Mr Walker had asked you to accompany him to the home of a man by the name of Jacob Perger. The aim was to intimidate Mr Perger because you were told Mr Walker believed that

Mr Perger had been contacting Ms Falcone, Mr Walker’s partner. You agreed to accompany Mr Walker to Mr Perger’s home. Whilst inside the premises somebody took a quantity of cocaine and cash.
[8] From 5 March 2020, Mr Walker began receiving frequent calls and messages from you, Mr Stowers, demanding that he return the money that had been taken from Mr Perger’s house. Mr Walker refused, saying he had not stolen anything and accusing you of having stolen the drugs and the money. He says that you said it did not matter because the entry into Mr Perger’s house was not his job, but Mr Walker’s and that you continued to demand Mr Walker pay you money. Initially the demand was for $6,000 but then you put it up to $10,000.
[9] The initial requests made by you, Mr Stowers, of Mr Walker to pay the money turned into threatening demands, with implications that if he did not pay something bad would happen to him. At one stage you rang Mr Walker and discussed payment of $10,000. During that phone call a second person came onto the phone and said amongst other things to Mr Walker:
(a)‘10k by tomorrow or I will put a fucking bullet in you, you fucking dog’
(b)‘I am going to fucking shoot you, you little rat’
(c)‘Get the fucking money or I will put a bullet in you, you fucking dog’
(d)‘If you don’t have the money by 7 o’clock I am going to fucking shoot you, you fucking dog’
[10] Not long after that call, the day before the aggravated burglary, you,

Mr Phillips, at Mr Stowers request, conducted surveillance on Mr Walker’s home. Then on the day of the aggravated burglary Mr Stowers rang you,

Mr Phillips, telling you that he wanted you to go with him to see a guy who owed him money. He asked you to pick him, that is Mr Stowers, up, later that evening. You did so. You and Mr Stowers, in a stolen Toyota Kluger driven by your then partner, Mr Phillips, arrived at the Walker house in Cranbourne West. [Charge 4 — Theft of motor car] Two other men, at this stage unidentified, were also present. All four assailants entered the house together.
[11] In addition to entering as trespassers and committing the aggravated burglary, the bedroom door of the room that Mr Walker and Ms Falcone were in was damaged. It was kicked from the outside and as Mr Walker tried to hold it closed, it was struck with a baseball bat which broke the door in half and allowed it to be opened and for Mr Stowers and the others to force their way in. … [Charge 3 — Criminal damage]
[12] Just coming back to the circumstances surrounding the assault on

Mr Walker. He said he saw four people in the doorway of the bedroom once it had been broken down. According to him, you, Mr Stowers, were at the front and remained in effect at the front of the pack the whole time. He said that all four offenders had their faces concealed and were carrying weapons. You,

Mr Stowers, were initially armed with a baseball bat. Mr Walker identified one other was carrying a switch blade knife. Another produced and later handed you, Mr Stowers, the can of bear mace. At some stage you handed the baseball bat to one of the others, and then later again on your demand it was returned to you. Mr Walker said that whilst he was wrestling with you trying to get hold of the baseball bat to stop you striking him with it, two of the assailants who were behind you, Mr Stowers, produced guns, and pointing them over your shoulders, aimed them directly at Mr Walker. Mr Walker gave detailed descriptions of the two firearms. However, neither you, Mr Stowers, nor Mr Phillips have made any admission to carrying, producing or being aware of anybody else carrying or producing firearms. In those circumstances I cannot be satisfied beyond reasonable doubt that either of you produced, or were aware that anybody else produced firearms in the course of the attack.
[13] I have already noted that Mr Walker had recognised you, Mr Stowers, when you came into the bedroom. You told him to ‘pay the money so this shit can end’. Mr Walker again said he would not pay anything. It was after his refusal to pay that the struggle and the attempt to assault him occurred in the manner I have described. At some stage, in addition to the blows that you were aiming at and sometimes landing on Mr Walker, one of your co-offenders came into the room armed with a knife and tried to stab Mr Walker in the stomach. He however fended that away. It was after that, Mr Stowers, you took the can of bear mace and tried to spray Mr Walker. [Stowers’ summary charge 13 — Carry a prohibited weapon]
[14] …Mr Walker was eventually able to push you, Mr Stowers, out of the bedroom. On the way you punched him to the left side of the face. That ends the assault on Mr Walker.
[15] Ibram Girgis, the third person occupant of the house, was in a separate bedroom. He came out of his bedroom, saw what was happening and retreated to his bedroom. He was pursued by one of the four assailants. He tried to hold the door closed, but was unsuccessful. The door was forced open causing some damage to it. Mr Girgis escaped and ran down the street but was pursued by one of the offenders who was by then armed with the baseball bat. A car also followed him. Mr Girgis called the police. At some stage after Mr Walker pushed you, Mr Stowers, out of the bedroom, he heard someone from the front of the house yelling ‘cops’ before the four assailants left.
[16] Now you, Mr Phillips, at the time of this were on bail and were unlicensed. It is of course a condition of bail that you not commit any indictable offence whilst on bail. [Phillips’ summary charges 5 and 12 — Commit an indictable offence on bail and unlicensed driving] … [A]s you were one of the assailants who apparently drove away, it gives rise to one of the charges of unlicenced driving to which you have pleaded guilty.
[17] Girgis later discovered that a Maserati watch that he owned was missing from his bedroom. When you were arrested some days later, Mr Phillips, it was found on you. … [Charge 5 — Theft]
[18] After the four assailants had fled and whilst police were in attendance a further phone call was received by [Mr Walker] again demanding that he pay $10,000 the following day. This call was overheard by the police. After the police had left Mr Walker's house you, Mr Stowers, again continued to contact Mr Walker and demand payment of $10,000. In total, between 14 and 27 March, you called, or attempted to call, Mr Walker 28 times. On the 27 March you also sent a message via Signal, asking whether he had the money yet. [Charge 7 (rolled up) — Extortion with a threat to kill]
…
[20] Some days later, on 29 March 2020, you Mr Phillips, drove the stolen Kluger car that had been taken to the Cranbourne West address to Warragul. [Phillips related summary charge 13 — Unlicensed driving] … Police found the car parked in Warragul. Nearby was a Holden Commodore ute also stolen, which police searched. In it they found a loaded sawn-off bolt action .22 calibre rifle, in a camouflage bag under the driver’s seat (as well as an ammunition cartridge in the chamber of the rifle[2]). It matched the description of one of the firearms given by Mr Walker that he said was produced on the night. Police examined that firearm and your DNA, Mr Phillips was discovered on it. A phone traceable to you was also in the stolen Holden Commodore ute and that had, amongst other things, photographs of you posing with that firearm. [Charge 6 — Prohibited person in possession of firearm; Phillips’ related summary charge 8 — Prohibited person possessing cartridge ammunition] …

A baseball bat was also found in the stolen car. And, on that phone found in the car, Mr Phillips, were screenshots from an online retailer of a Maserati watch, the same model as that stolen from Mr Girgis.[3]
[2]See Summary of Prosecution Opening for Plea, 2 July 2021, [49(b)].
[3]DPP v Phillips [2021] VCC 1393, [1]–[20] (‘Reasons’); as helpfully annotated by Priest JA.

Stowers’ background

Stowers was 22 years old at the time of the offending. He was born in New Zealand and his parents came to Australia when he was seven. Although he has remained in Australia since then, he has never become a permanent resident or citizen. His visa has already been cancelled, and he is subject to deportation following the conclusion of his sentence. Stowers’ parents and two brothers and sisters are all Australian residents and have made their lives here. His parents have both been engaged in full time work.
Stowers reported a history of parental neglect because of his parents’ absence due to work, and behavioural problems manifesting from a very early age. Stowers grew up and completed his schooling in the Pakenham area, and left school at Year 10. He was a talented sportsman whose progress in professional sport has reportedly been hampered by the fact that he is not an Australian citizen. After leaving school, he enrolled in TAFE, but did not last very long. From the age of 18 he started working as a concreter, and continued working as a concreter when not in custody.
Stowers has been in a long term relationship with his partner, Ms Vemoa, who provided a reference for Stowers despite a significant history of family violence. Stowers and Ms Vemoa have three children together, aged six, five and two at the time of sentencing. He has had barely any contact with the two year old due to the time he has spent in custody.
Stowers reportedly struggled intermittently with alcohol and substance abuse since his teenage years, and from 2016 onwards has had mental health issues, in particular with depression and anxiety. He also has a history of family violence offending, the last episode of which was so serious that he was detained for eight months in youth detention before being released on youth parole. From at least 2019 he became a fully patched member of the Finks outlaw motorcycle gang (the ‘Finks’).

Phillips’ background

Phillips was 35 years old at the time of the offending. He has a long history of substance abuse, attentional and behavioural regulation disorders, poor social skills, and difficulties in establishing and maintaining pro-social relationships. He has had some long term relationships and fathered some children, but has had difficulty maintaining relationships with them.
Phillips’ intellectual functioning has been assessed as borderline to low-average. He has at times been capable of holding employment and establishing relationships, but maintaining both has been a problem. He has a history of substance use disorder, symptoms of attention deficit hyperactivity disorder (‘ADHD’) which have persisted into adulthood, social interaction difficulties and episodes of depression and anxiety.

Sentencing remarks

The judge found that the objective seriousness of the offending was high.[4] She considered that this was a serious example of confrontational aggravated burglary, with all the features identified in Director of Public Prosecutions v Meyers[5] being present.[6] Thus, at the point of entry, the appellants intended to use violence; they were aware, or at least believed, that people were at home[7]; they forced entry by breaking through a locked bedroom door; they were armed with various items; they acted in company; the offending took place in the late evening; and Stowers was known by Tyler Walker (‘Walker’) to be a member of the Finks.[8] The judge found that this was properly characterised as ‘gang related offending’.[9] However, she accepted that the offence was of relatively short duration; that the injuries sustained by Walker were relatively minor; and that the damage to the house was limited to the bedroom doors.[10]
[4]Ibid [23].
[5](2014) 44 VR 486, 498 [48] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314 (‘Meyers’).
[6]Reasons, [23].
[7]Ibid.
[8]Ibid [26].
[9]Ibid [27].
[10]Ibid [31].
The judge found that it made no difference whether there was evidence that this was a Finks operation, as opposed to a ‘frolic’ of Stowers’ own. The judge found that Stowers was known by Walker to be a member of the Finks, and that he was at the very least trading on his known association with the Finks.[11] The judge noted that it was ‘Stowers’ operation’, with Phillips recruited to conduct surveillance and lend support on the night, and described Stowers as the ‘instigator’ and Phillips as the ‘enthusiastic assistant’. Despite this, she saw no basis for imposing different sentences and considered that they shared equal responsibility for their roles.[12]
[11]Ibid [32].
[12]Ibid [34].
The judge found that the extortion was a ‘serious example of a serious offence’, given that it extended over a period of three weeks, the threats were serious and repeated, and, given the appellant’s motorcycle gang membership, they were clearly capable of instilling real fear to compel compliance.[13] She considered that the extortion charge occurred in the course of, and as further means of seeking to compel Walker to comply with Stowers’ demands. The two offences of aggravated burglary and the extortion were therefore linked, but separate offences. Acknowledging the link, it was necessary to avoid the risk of double punishment.[14]
[13]Ibid [28].
[14]Ibid [23].
The judge considered that denunciation, general and specific deterrence and just punishment loomed large in the sentencing mix.[15] She found that both appellants had entered guilty pleas at the first reasonable opportunity, and that these had utilitarian value, particularly given the impact of the COVID-19 pandemic on the operation of the courts. The judge did not accept that the pleas of guilty were evidence of remorse for Phillips, and noted that this was not argued for Stowers.[16]
[15]Ibid [35].
[16]Ibid [36]–[38].
Turning to matters personal to each appellant, in respect of Stowers the judge:
•recorded his significant and disturbing criminal history. This included multiple assaults, burglaries, thefts, and driving offences;[17]
•found that, given the circumstances of the offending, Stowers’ criminal history, his membership of the Finks and its connection with this offending, less weight was to be given to his rehabilitation than for other youthful offenders;[18]
•could not see a causal connection between the offence and his mental health or substance abuse which would significantly reduce his moral culpability;[19]
•accepted that there was an additional burden of imprisonment by reason of Stowers’ inability to provide support to his partner and oldest daughter (who suffers from asthma and is regularly hospitalised as a result);[20]
•accepted that the prospect of deportation and separation from his children and partner was a ‘significant additional punishment’;[21] and
•considered that his prospects for rehabilitation, although ‘guarded’, must be encouraged, and said that she moderated the sentences to take into account totality.[22]
[17]Ibid [40]–[41].
[18]Ibid [43].
[19]Ibid [61].
[20]Ibid [63].
[21]Ibid [64].
[22]Ibid [65].

In considering Phillips, the judge:
•noted that he also had an extensive criminal history dating back to 2002, which included a wide range of offences including dishonesty, drugs, firearms and driving offences;[23]
•characterised his prospects for rehabilitation as ‘guarded’;[24] and
•did not find any causal link between Phillips’ offending and his underlying condition to enliven the first limb of R v Verdins,[25] but did accept that his history should in a general sense moderate the weight to be given to his moral culpability and general deterrence.[26]
[23]Ibid [67].
[24]Ibid [68].
[25](2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 62.
[26]Reasons, [78].
In respect of both appellants, the judge took into account that imprisonment was likely to be more onerous because they are both more likely to suffer from depression, anxiety and associated psychological disorders, and indicated that she would therefore reduce the sentences accordingly.[27] She also acknowledged that the time spent in imprisonment during the COVID-19 pandemic would be much ‘harsher’ than it was pre-pandemic.[28]
[27]Ibid.
[28]Ibid [76].

Stowers’ submissions

In his application for leave to appeal, Stowers advanced the following ground:
The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive having regard to, in particular, the applicant’s early plea of guilty, youth, prospects of deportation and the greater burden of imprisonment due to the COVID-19 pandemic.
In oral submissions, counsel for Stowers clarified that the only individual sentence which was challenged was the sentence imposed in respect of the extortion charge (charge 7). However, he also challenged the amount of cumulation ordered, as well as the non-parole period, which, at 79 per cent of the total effective sentence, was said to invite scrutiny.
Counsel contended that the sentence on charge 7 was plainly excessive. In oral submissions counsel took the Court to sentencing statistics which showed that, during the period 1 July 2015 to 30 June 2020, only 3.2 per cent of offenders received a sentence of between 5 and 6 years’ imprisonment for extortion. Given the sample contained only 31 cases, this meant that only 1 person received such a sentence. More than 50 per cent of the cases cited involved a sentence of 3 years or less, with sentences commonly within the range of 2–3 years (32 per cent). Counsel also took the Court at some length to a number of other cases said to be comparable,[29] which included a number of instances where sentences of some 2 years or less were imposed.[30]
[29]Arico v The Queen (2018) 272 A Crim R 450; [2018] VSCA 135 (‘Arico’); Brown v The Queen [2017] VSCA 268 (‘Mark Brown’); La Rosa v The Queen [2019] VSCA 152 (‘La Rosa’); R v Cunliffe [2000] VSCA 146; DPP v Burton [2019] VCC 2087 (‘Burton’); Saracevic v The Queen [2017] VSCA 212 (‘Saracevic’).
[30]Including Arico (2018) 272 A Crim R 450; [2018] VSCA 135; Mark Brown [2017] VSCA 268; La Rosa [2019] VSCA 152; Burton [2019] VCC 2087; Saracevic [2017] VSCA 212.
Counsel emphasised that the offending in this case did not involve threats to mutilate the victim or threats to family members, and involved a low monetary amount. In several of the comparable cases the offender was also a known member or affiliate of an outlaw motorcycle club or had other links to organised criminals.
The ultimate submission was that the sentence of 5 years was inconsistent with current sentencing practices, which rather suggested that a sentence of around 2 years was appropriate.
In terms of cumulation, the focus was again on the extortion charge. Counsel submitted that the cumulation of 3 years on the sentence of 5 years was manifestly excessive given the overlap in offending (the whole purpose of the aggravated burglary being to effect the extortion). It was also submitted that the cumulation ordered was generally contrary to the principles of totality and double punishment.
Counsel also submitted that if the sentencing discretion was to be re-exercised, the total effective sentence should be reviewed. She particularly highlighted Stowers’ youth; the enhanced utilitarian benefit of his early plea of guilty during the COVID-19 pandemic (citing Worboyes v The Queen[31]); his realistic prospects of deportation; and the more burdensome nature of imprisonment due to the pandemic.
[31](2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
Counsel emphasised that Stowers remains a young man and that significant hardship will be caused to him and his family by his deportation to New Zealand.

Phillips’ submissions

In his application for leave to appeal Phillips advanced the following ground:
In all the circumstances, the individual sentences and orders for cumulation are productive of a total effective sentence and non-parole period that is manifestly excessive. Specifically, the learned sentence judge failed to give sufficient weight to:
(a)the applicant’s plea of guilty,
(b)the perceptible discount to be afforded to pleas of guilty during the COVID-19 pandemic,
(c)the applicant’s personal circumstances,
(d)the additional burden of custody.
In written submissions, Phillips focused particular attention on the sentence imposed in respect of charge 1 (aggravated burglary). He also submitted that the fine imposed in relation to summary charge 8 related to a single round of ammunition, but was almost 76 per cent of the maximum penalty for that charge (which calculation was accepted by the respondent). Finally, he highlighted that the non-parole period amounted to
[32]Citing Romero v The Queen (2011) 32 VR 486, 493 [25] (Redlich JA, with Buchanan and Mandie JJA agreeing); [2011] VSCA 45.
80 per cent of the total effective sentence. While ratios of more than 75 per cent of the head sentence do not necessarily connote error, appellate scrutiny may be invited absent an explanation.[32]
In oral submissions counsel clarified his position. He contended that the individual sentence on charge 1 (aggravated burglary) was manifestly excessive. He also challenged the cumulation ordered in respect of charges 2 and 3, as well as the fine imposed in respect of charge 8, and the non-parole period.
In terms of the aggravated burglary, counsel submitted that the offence was significantly less serious than in other comparable cases where there were aggravating features such as firearms (the judge in this case being unable to say that either of the appellants was in possession of firearms at the time of offending). He also highlighted the early plea in a COVID-19 environment (having regard to Worboyes), as well as the judge’s finding that Phillips’ moral culpability was reduced.

Respondent’s submissions

In written submissions, the respondent submitted that the objective gravity of the aggravated burglary in this case ‘was indeed high’. The offending had all of the aggravating features identified in Meyers.[33] Counsel also relied on Brown v The Queen,[34] a case in which a sentence of 5 years and 6 months’ imprisonment for aggravated burglary was held not to be manifestly excessive. In that case, the Court observed that:
sentencing standards for aggravated burglary have been undergoing a steady transition since this Court’s 2012 decision in Director of Public Prosecutions v Hogarth (‘Hogarth’).[35] In that case, the Court held that sentences generally imposed for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending. The significance of that decision was clarified in Meyers,[36] the Court holding that Hogarth was to be viewed as having removed the constraints of current sentencing practice for aggravated burglary in all of its more serious forms.[37]
[33](2014) 44 VR 486, 498 [48] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314.
[34][2021] VSCA 204 (‘Brown’).
[35](2012) 37 VR 658; [2012] VSCA 302. We note that the correct name of the case is Hogarth v The Queen.
[36](2014) 44 VR 486; [2014] VSCA 314.
[37]Brown [2021] VSCA 204, [34] (Maxwell P and Sifris JA).
In oral submissions, counsel emphasised that there were four armed men in masks storming in to a home in a confrontational way, and that the absence of serious injury was largely just a matter of good luck.
So far as Stowers’ sentence was concerned, the respondent submitted that there was no merit in the submission that the sentence imposed on the extortion charge was excessive, or that the order for cumulation infringed the prohibition on double punishment. In oral submissions, senior counsel accepted that the sentence was at the higher end, but submitted that there were features that justified the sentence in this case. These included that the offence was a rolled-up charge, and that the offending occurred up to 3 weeks before the aggravated burglary, and continued even after subsequent police involvement. Counsel also emphasised that 2 years were to be served concurrently (only 3 years being cumulated) which properly reflected the totality principle.
Counsel also contended that, although (at 24 years of age) Stowers is still a young man, his extensive criminal history (including for aggravated burglary) and lack of remorse serve to diminish the mitigatory effects of his youth. Whilst the mitigatory effects of youth were not extinguished altogether, this was a case where they must give way to general and specific deterrence. The real risk of deportation was said to be already taken into account by the judge.
Insofar as Phillips was concerned, the respondent submitted that the sentences imposed were reasonably open, having regard to the statutory maxima, the objective gravity of the offending and personal factors. In oral submissions counsel submitted that the sentences would be higher were it not for the Worboyes discount, and emphasised Phillips’ serious and lengthy criminal history.
In terms of the fine imposed for charge 8, counsel accepted that the quantum was at the higher end but emphasised that the ammunition was loaded into the firearm, and that Phillips had prior convictions for firearm offending.
Finally, the respondent submitted that the ratio between the total effective sentence and the non-parole period did not bespeak error having regard to the objective gravity of the offending, guarded prospects of rehabilitation, extensive criminal history, lack of remorse, and age.

Analysis

We will first turn to the base sentence of 5 years in respect of each aggravated burglary charge. As indicated already, Stowers did not challenge this sentence, but Phillips did.
The judge considered that the offending was a serious example of confrontational aggravated burglary and carefully outlined the features in Meyers[38] which were engaged. We agree with her assessment that the objective seriousness of the offending was high. Consistent with the observations made in Brown,[39] above, sentencing practices have changed to better reflect the objective gravity of this kind of offending. Although each offender raised some mitigating features, we consider that the sentence of 5 years was well open to the judge. In particular, we do not consider that Phillips’ early plea and (some) reduced moral culpability demonstrate that his sentence was manifestly excessive.
[38](2014) 44 VR 486, 498 [48] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314.
[39][2021] VSCA 204, [34] (Maxwell P and Sifris JA); as cited above at [30].
Turning next to the extortion charge, it is true that this was a rolled-up charge which involved a course of conduct that continued up to, as well as after, the aggravated burglary. Stowers also had a terrible criminal history which commenced at an early age. Despite this, the sentencing statistics and comparable cases cited suggest that sentences for extortion are more usually in the range of some 2–3 years, with only one (outlier) sentence of 5 years. There were also important mitigatory features in this case, including Stowers’ relative youth, the utilitarian value of the plea having regard to Worboyes considerations, and his likely deportation. The risk of double punishment arose due to the overlap between the aggravated burglary and extortion charges. In all the circumstances, we are of the view that the sentence of 5 years is outside the range reasonably open and so manifestly excessive. We will therefore substitute an individual sentence of 3 years on this charge.
In considering the appropriate orders for cumulation, the judge acknowledged that the aggravated burglary charge occurred in the course of, and as further means of, seeking to compel Walker to comply with Stowers’ demands. We consider that the cumulation of 18 months of the 3 years is appropriate recognition of the overlap in offending such as to satisfy the requirements of totality. The offences of intentionally causing injury (charge 2) and carrying a prohibited weapon (summary charge 13) were also linked to the aggravated burglary. Cumulation of 3 months in each case would better reflect Stowers’ total criminality. In the circumstances, we consider the cumulation of 6 months ordered on each of those charges to be manifestly excessive. However, the cumulation of 3 months ordered in respect of each of charge 3 (destroying property) and charge 4 (theft) is unexceptional.
The total effective sentence to be imposed on Stowers will therefore be 7 years and 6 months’ imprisonment.
In respect of the non-parole period, the judge did not identify a specific justification for imposing a non-parole period of more than 75 per cent of the total effective sentence; such a justification should normally be provided.[40] As part of the resentencing exercise, we are of the opinion that it would be more appropriate for the non-parole period to be calculated at approximately 70 per cent of the total effective sentence, which is 5 years and 3 months in respect of Stowers.
[40]See Cummins (a pseudonym) v The Queen (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA); [2013] VSCA 352.
Turning then to Phillips, for reasons given already, we are not satisfied that the base sentence for the aggravated burglary charge is manifestly excessive. The cumulation of 3 months on the destroy property charge (charge 3) was also well within range. We are also not satisfied that the stringent manifest excess ground is established in relation to the fine imposed in respect of the summary charge of possessing ammunition (charge 8). Phillips’ long criminal history included firearms offences, and the ammunition in this case was loaded into the chamber of the firearm. In all the circumstances, it was open for the judge to impose a high fine.
The only other order for cumulation that Phillips challenged was that for intentionally causing injury (charge 2). The cumulation for the sentence for this charge will be reduced to 3 months to reflect parity considerations with Stowers in respect of the same offending. Similarly, the non-parole period in respect of Phillips should be reduced on resentencing to maintain parity with the approach we have taken to Stowers. (It is only by reference to parity considerations that Phillips is able to establish manifest excess in a case which, had it stood alone, might have been seen as mere tinkering with the sentence.)
The new total effective sentence for Phillips will therefore be 7 years and 3 months’ imprisonment, with a non-parole period of 5 years.

Resentence

The appeals will be allowed and the appellants resentenced as follows:

Stowers
Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury	10 years	1 year	3 months
3	Destroying property	10 years	1 year	3 months
4	Theft	10 years	1 year	3 months
7	Extortion with threat to kill	15 years	3 years	18 months
Related summary offence
13	Carry a prohibited weapon	2 years	1 year	3 months
Total Effective Sentence:		7 years and 6 months’ imprisonment
Non-Parole Period:		5 years and 3 months
Section 6AAA Statement:		10 years, with 7 years non-parole

Phillips
Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury	10 years	1 year	3 months
3	Destroying property	10 years	1 year	3 months
4	Theft	10 years	1 year	3 months
5	Theft	10 years	6 months	2 months
6	Prohibited person possess a firearm	10 years	2 years	12 months
Related summary offences
5	Commit an indictable offence on bail	3 months or 30 penalty units	1 month	1 month
8	Prohibited person possess cartridge ammunition	40 penalty units	$5000 fine	-
12	Drive without a licence	6 months or 60 penalty units	3 months	3 months
13	Drive without a licence	6 months or 60 penalty units	3 months	-
Total Effective Sentence:		7 years and 3 months’ imprisonment
Non-Parole Period:		5 years
Section 6AAA Statement:		9 years and 9 months, with 6 years and 9 months non-parole

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Details

AGLC: Stowers v The King; Phillips v The King [2022] VSCA 203
Case: [2022] VSCA 203
Decision Date: 20 September 2022

CaseChat Overview and Summary

The case before the court involved two appellants, Stowers and Phillips, who were appealing their sentences imposed by a lower court. The nature of the dispute was the severity of their sentences, which they argued were manifestly excessive. The case was heard in a higher appellate court. The appellants were convicted of multiple offences including aggravated burglary, intentionally causing injury, destroying property, theft, extortion with a threat to kill, and firearms offences. Stowers received a total effective sentence of 9 years and 6 months with a non-parole period of 7 years and 6 months, while Phillips was sentenced to 7 years and 6 months with a non-parole period of 6 years.

The primary legal issue the court had to decide was whether these sentences were manifestly excessive. The appellants argued that the sentences imposed on them were outside the range of appropriate penalties for their respective crimes. They particularly focused on the 5-year sentence imposed for the extortion with threat to kill offence, asserting that it was disproportionately high. The court had to consider the totality of the appellants' offending and the seriousness of their crimes in determining the appropriate punishment.

In its reasoning, the court examined the sentences in light of the crimes committed. It considered the appellants' criminal histories, the severity of the offences, and the need to deter similar crimes in the future. The court found that the sentences were indeed outside the range of appropriate penalties. The court noted that the sentence for the extortion with threat to kill offence was particularly disproportionate, as it was significantly longer than sentences typically imposed for such offences. Consequently, the appeals were allowed, and the appellants were resentenced to terms that the court deemed more appropriate.

The final orders of the court involved resentencing the appellants. Stowers and Phillips were each resentenced to reflect a more proportionate punishment, taking into account the totality of their offending and the principles of sentencing. The specifics of their new sentences were not detailed in the summary provided, but it was clear that the court had adjusted the sentences to better align with the range of penalties appropriate for their crimes.

Orders