Tonkin v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0187

DANIEL TONKIN	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2023
DATE OF JUDGMENT:	23 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 194
JUDGMENT APPEALED FROM:	[2022] VCC 1485 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – Kidnapping – Extortion with threat to inflict injury – Common assault – Theft – Principle of totality – Whether amount of cumulation appropriate given common factual basis of offences – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Manifest excess – Whether in all the circumstances the sentence was excessive – Leave to appeal refused.

Crimes Act 1958 ss 27, 63A, 74.

Azzopardi v The Queen (2011) 35 VR 43, Bogdanovich v The Queen [2011] VSCA 388, Brown v The Queen [2017] VSCA 268, DPP (Vic) v Marino [2011] VSCA 133, House v The King (1936) 55 CLR 499, Whitten v The King [2023] VSCA 181.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Mr CB Boyce KC
Solicitors
Applicant:	Valos Black & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
J FORREST AJA:

On 13 May 2022, after a plea of not guilty and a three week trial, a jury found Daniel Tonkin, the applicant, guilty of one count of kidnapping,[1] one count of extortion with threat to inflict injury,[2] one count of common assault and one count of theft.[3]
[1]Contrary to Crimes Act 1958 s 63A.
[2]Contrary to Crimes Act 1958 s 27(a).
[3]Contrary to Crimes Act 1958 s 74(1).
The applicant was born on 26 April 1992 and at the time of sentencing was 30 years of age.
The judge sentenced the applicant on the kidnapping count to 4 years and 3 months’ imprisonment (25 years maximum penalty), on the extortion count to 3 years and 3 months’ imprisonment (15 years maximum penalty), on the common assault count to 2 years’ imprisonment (five years maximum penalty), and on the theft count to imprisonment of 1 year (10 years maximum penalty).
The kidnapping sentence was the base sentence. The judge cumulated 12 months, 6 months and 4 months (a total of 22 months) on the base for the extortion, assault and theft respectively. The total effective sentence imposed was 6 years and 1 month imprisonment with 4 years set as a non-parole period.
Two co-accused, Javanov and Chand who also pleaded not guilty to similar charges were also found guilty. A fourth co-offender, Ulutui was charged with one count of extortion with threat to inflict injury, one count of common assault and one count of theft.
The applicant, Javanov and Chand were sentenced together on 12 September 2022 by her Honour Judge Riddell.[4] Ulutui was sentenced on 29 June 2023, also by her Honour.[5]
[4]DPP (Vic) v Tonkin [2022] VCC 1485 (‘Reasons’).
[5]DPP (Vic) v Ulutui [2023] VCC 1120 (‘Ulutui’).
Javanov was sentenced on the kidnapping count to 4 years and 2 months’ imprisonment, on the extortion count to 3 years and 3 months’ imprisonment, on the common assault count to 2 years and 8 months’ imprisonment, and on the theft count to imprisonment of 1 year.
The kidnapping sentence was the base sentence. The judge cumulated 12 months, 12 months and 6 months (a total of 30 months) on the base for the extortion, assault and theft respectively. The total effective sentence imposed was 6 years and 8 months’ imprisonment with 5 years set as a non-parole period.
Chand was sentenced on the kidnapping count to 4 years’ imprisonment, on the extortion count to 3 years and 3 months’ imprisonment, on the common assault to 2 years and 8 months’ imprisonment, and on the theft to imprisonment of 1 year.
The kidnapping sentence was the base sentence and the judge cumulated 12 months, 12 months and 6 months (a total of 30 months) on the base for the extortion, assault and theft respectively. The total effective sentence imposed was 6 years and 6 months’ imprisonment with 4 years and 10 months set as a non-parole period.
Judge Riddell sentenced Ulutui (who pleaded guilty) to an aggregate term of imprisonment of 2 years and 3 months, with a 27-month community correction order to commence upon his release.[6]
[6]Ulutui [2023] VCC 1120, [177].

Grounds of appeal

On 13 December 2022, the applicant filed an application for leave to appeal against the sentence on the following grounds:
Ground 1: The learned sentencing judge failed properly to apply the principles of totality where the kidnapping, extortion, and assault arose from the same factual circumstances.
Ground 2: The sentence imposed on Charge 2 and the orders for cumulation are manifestly excessive in all of the circumstances.
On 20 February 2023, the applicant was granted an extension of time administratively.

The circumstances of the offending

In 2018 the victim, Alex Kovac,[7] was in Melbourne undertaking drug rehabilitation course. He had travelled from Sydney. He and the applicant who was also attending the course struck up a friendship.
[7]A pseudonym.
In late 2018 Kovac and the applicant commenced living together. Tonkin introduced Kovac to the other co-accused. They were all drug users.
The applicant and Alex had a falling out and, on 9 April 2019, Alex moved to the nearby Sandown Park Hotel.
Ulutui and a male called Leon visited Alex at the hotel the same day. The three of them smoked methamphetamine. Ulutui and the applicant went to play the pokies. Chand also attended at the hotel. It seems likely that in Alex’s absence the plot to kidnap him was hatched.
On the following day Alex received a text message from Ulutui, requesting to meet him at a shopping centre. The applicant picked Alex up from his hotel and then drove him to the shopping centre to meet Chand and Leon. After an altercation with Leon, Alex was then driven by the applicant to a house at which Javanov was present. Chand arrived at the house soon after.
The judge summarised the subsequent events in these succinct terms:
You were all variously involved with Mr Ulutui and a fifth man in an attempt to extort money from 24 year old Alex Kovac between 10 and 11 April 2019. Mr Kovac was kidnapped and detained at two houses. He was tied to a chair, physically assaulted and threatened with weapons. You took his belongings and made him call his parents to seek payment of $30,000 to secure his release.[8]
[8]Reasons, [3].
In a little more detail, Alex was driven by the applicant to a house and then taken to a rear room and tied up by Chand and Javanov who struck him to the face and head multiple times. He was struck to both eyes and the nose area for ‘a good couple of minutes.’ His face was swollen ‘pretty quickly’ and he had trouble hearing from his right ear.
At one point of time during this ordeal Chand or Javanov held a crowbar against Alex’s knee in a threatening way.
During this incident the applicant was in and out of the room. At one point Javanov went to remove Alex’s chain and his watch. However, the applicant intervened and told Javanov to stop.
Shortly afterwards Ulutui and another man removed Alex’s watch and other items.
Subsequently, Chand told Alex that he wanted $50,000 ‘for wasting their time’. Chand having been told this was impossible then demanded $30,000.
A series of calls were then made to Alex’s parents — some as voice calls and some on FaceTime. Ulutui held the phone for Alex to speak. Alex spoke to his father William during the calls, who recorded the calls. Ulutui spoke to the parents and demanded a ransom of $30,000.
Alex asked his parents to pay the money to ensure his release. During the calls, the applicant, Javanov, Chand, Ulutui and the fifth man were present. At various times the calls were muted whilst the co-offenders debated what Alex should say or gave him instructions. A story was fabricated that Alex had broken into Ulutui’s home and stolen Rolex watches worth $25,000 and a car worth $30,000 as the reason the money was being demanded. At various points during the calls Alex was struck to the face and head.
During a FaceTime call William Kovac saw that his son was tied to a chair, and saw his son being hit to the head. The screenshots captured by his mother showed facial injuries. His parents described Alex’s demeanour during the calls as very fearful and upset.
Chand produced a card which flipped out into a knife and threatened Alex between calls by pressing it up against Alex’s arms and legs. Chand urged Alex to have the money organised soon. Alex described Chand as aggressive ‘to the point where I thought he was going to use it’.
Later that evening of 10 April, William Kovac telephoned the applicant to inquire if he knew anything about Alex’s whereabouts. The applicant’s responses in the phone call aroused William’s suspicions. As a result, the Kovacs called the police and reported Alex’s kidnapping.
At some time after this call the applicant untied Alex, escorted him to a car, and drove him to a unit in Hampton East. Alex was taken to a rear children’s bedroom. Alex was told he could not leave until the money was paid. The applicant told Alex to take Seroquel tablets which had the effect of sedating him. The applicant then allowed Alex to call his mother.
On 11 April 2019, at about 9:30 am, Alex was woken by the applicant. He told Alex that he (Alex) was to ring his parents and tell them that he had bashed himself and was calling a psychiatric unit. Alex, accompanied by the applicant, made the call from one of the few telephone boxes remaining in Melbourne and the applicant stayed nearby. After the call Alex returned to the unit and went back to sleep.
Alex woke later and realised he was the only person at the unit. He walked outside intending to call a taxi but was seen by Javanov (who was playing basketball), who told him to go back to the unit or that he would ‘drag him there’. Alex returned to the outside of the unit and sat on the front step.
Shortly afterwards, Alex observed, quite fortuitously, a taxi pull up outside the unit and made his escape in that vehicle. The driver took him to the Sandringham Hospital where his mother and police were contacted.
As a result of the assaults, Alex sustained a perforated right ear drum, bruising around both eye sockets, tenderness and swelling to his nose, bruising to the upper and lower lips, and mild tenderness and soft tissue injury to his left shoulder.
The applicant, Javanov, Chand and Ulutui were subsequently arrested. Each of them either made no comment or denied having any involvement in the offending.

The judge’s sentencing remarks

The trial of the applicant, Javanov and Chand was conducted over three weeks before a jury. Each of the accused was found guilty of the charges set out above.
The judge sentenced the applicant, Javanov and Chand together.
Her Honour commenced by considering the victim impact statements of Alex, William and Louise Kovac. Alex described being diagnosed with post-traumatic stress disorder and anxiety. William said he still experiences heightened stress, increased anxiety and poor sleep. Louise’s statement was not published, but she said the event was ‘every parents’ worst nightmare’.[9]
[9]Reasons, [41]–[50].
The judge held that this was a ‘serious matter’ and that principles of general deterrence, denunciation and just punishment were paramount in sentencing the applicant, Javanov and Chand. She also said that the sentence she imposed needed to achieve community protection both from the offenders and others who would behave similarly.[10]
[10]Reasons, [51].
The judge held that the kidnapping was aggravated by ‘a degree of planning’. She said it was obvious that the applicant and possibly Chand viewed Alex as ‘an easy avenue to money’. She noted that the applicant’s counsel accepted that the premeditation started when Alex was at the Sandown Park Hotel. She said that the applicant and Chand had coordinated to meet up and follow each other to the place where Javanov was waiting, although she could not conclude when Javanov became involved in the plan.[11]
[11]Reasons, [52]–[53].
The judge said that although the kidnapping ‘occurred by deception rather than force’, force soon followed.[12] The ongoing detention of Alex occurred over a period of approximately 24 hours spanning two days. The kidnap was achieved by way of physical restraint, by the threat of force with weapons, by the use of sedating drugs, and in two different locations which were foreign to the victim. It was committed for the purpose of demanding a ransom.[13]
[12]Reasons, [54].
[13]Reasons, [55].
The judge considered that the extortion was also serious. It too was premeditated, being the sole purpose of the venture. The offenders saw Mr Kovac’s parents as an easy target. The amount demanded was significant. It was made with a very real threat to injure Kovac. As the phone calls were being made, Alex was restrained and assaulted, and weapons capable of inflicting serious injury to Alex were produced.[14]
[14]Reasons, [57].
Addressing the assault charge, the judge noted that it was separate to, but informed, the kidnap. She said it was a serious assault, which involved repeated physical force to Alex’s face and head. The assault was inflicted by multiple people and in the context of Alex being restrained and unable in any way to defend himself.[15] The force was significant enough to rupture his eardrum and leave apparent bruising and swelling to his eyes.[16]
[15]Reasons, [58].
[16]Reasons, [58].
As to the theft charge, the judge said that the offenders stole items of value to a young man. She said it was a gratuitous offence which took advantage of his inability to do anything to stop the offenders.[17]
[17]Reasons, [59].
In determining where the offending fell in the range of seriousness, the judge said:
I accept the period of the kidnap was shorter than in some other cases. The weapons were not used. There was no money extorted and the theft was of items not of high value. Nonetheless, looked at globally, this is serious offending which warrants condign punishment.[18]
[18]Reasons, [60].
The judge then examined the applicant’s personal circumstances. She noted that he was aged 30 at the time of sentence. He had had a ‘loving and supportive’ family; however, his parents separated when he was aged 13. She also noted that at the age of 13, he had ‘had a negative experience’ with a teacher at a school camp. At the age of 17, he had lost contact with his father, with whom he had a difficult relationship. In year 11, he left school, his peer group became a ‘negative influence’, and he started using alcohol.[19]
[19]Reasons, [62]–[67].
The judge noted that soon after the applicant started drinking alcohol, he commenced drug use. By about age 19–20, the applicant was using methamphetamine, cocaine and GHB. He began using drugs daily in his early 20s. He abused prescription medication Valium and Xanax from age 24. He used Seroquel to reduce anxiety and sleep.[20]
[20]Reasons, [68].
The judge set out the applicant’s relationship and employment history. His relationship history was marred by drug use.[21]
[21]Reasons, [69]–[73].
Of the applicant’s prior criminal history, the judge said:
Your prior criminal history dates back to 2012. You have a number of convictions for possessing drugs of dependence including methylamphetamine, GHB, ecstasy, amphetamine and a prescription drug. Your other offending relates to driving, dishonesty and failing to answer bail. You have received fines and one Community Correction Order which you report was a positive, providing structure in your life. The offending before me represents a serious escalation in your offending behaviour.[22]
[22]Reasons, [74].
The judge described the applicant’s efforts at rehabilitation from drug use in generally positive terms. Between 2018–21, the applicant participated in various intensive rehabilitation programs. He was described as having ‘tremendous insight’ into his use of illicit substances, although he was prone to relapse from time to time, especially due to the stress of an impending trial date.[23]
[23]Reasons, [75]–[87].
Turning to the applicant’s mental health, the judge noted that he had been actively psychotic due to drug use and had expressed suicidal ideation. Following an assessment, he was assessed as having low average intellectual capacity, Adjustment Disorder, Major Depressive Disorder, Generalised Anxiety Disorder and Substance Use Disorder (in enforced remission). These conditions resulted in persistent negative emotional states and impacted upon the applicant’s daily functioning. His risk of reoffending was assessed as ‘medium’.[24]
[24]Reasons, [88]–[90], [92].
The assessor opined that the applicant’s mental illness was exacerbated by the prospect of further imprisonment. The judge said that his symptoms produced challenges that would weigh more heavily upon the applicant than a person without his conditions. It was expected his maladjustment would continue, and there were concerns that he might harm himself. The judge accepted that these factors enlivened limbs 5 and 6 as outlined in R v Verdins (‘Verdins’).[25]
[25]Reasons, [93], citing (2007) 16 VR 269; [2007] VSCA 62.
Of the applicant’s prospects of rehabilitation, the judge said:
Your prospects of rehabilitation hinge on your ability to withstand drug use. It seems to me that you are a person with the potential to overcome your addiction. It is often something that takes several attempts, however the reports describe you as having insight and an understanding of your addiction. You have a good attitude to employment and understand it is a protective factor for you. You have ongoing family support. Your mother states that you have been in daily contact with her or your girlfriend whilst in custody. You and your father are keen to build your relationship. The references I have read from your mother, aunt and uncle make clear you have a large extended family who want you back in their lives and are ready to support you.[26]
[26]Reasons, [94].
The judge accepted that the applicant had demonstrated genuine remorse. She referred to: his volunteer work; his counselling of other addicts at Narcotics Anonymous; his removing peers of a negative influence in his life; and his not reoffending, other than drug use. She said his prospects of rehabilitation were positive.[27]
[27]Reasons, [95]–[98].
The judge took into account the difficulties which each of the accused faced in remand due to the COVID-19 pandemic.[28] The judge also took into account the delay caused thereby.[29]
[28]Reasons, [147]–[148], citing Worboyes v The Queen [2021] VSCA 169.
[29]Reasons, [149].
The judge had regard to current sentencing practices and was provided with a range of examples including Huynh v The Queen.[30]
[30]Reasons, [150], citing [2020] VSCA 222.
As to the overlap between the kidnapping and the extortion charges, the judge said:
I am mindful of the overlap between charges 1 and 2 being the kidnap and ongoing detention for purpose of demanding a ransom, and the extortion constituting the actual demands. I am mindful of the way in which the assault informs the seriousness of the kidnap but is also a separate offence. For that reason there will be a greater degree of concurrency between those charges than I may have otherwise ordered.[31]
[31]Reasons, [150].
In the context of considering parity, the judge noted that it was not disputed that the applicant’s, Javanov’s and Chand’s roles ‘seem to even out’.[32] The judge explained the different sentences she imposed to each of said three offenders by way of their personal circumstances. In respect of the applicant, she said:
You Mr Tonkin are now aged 30. Your prior criminal history is less serious with no prior history of violence. This is markedly out of kilter with it. I take into account your multiple and genuine efforts towards rehabilitation, the fact you have not reoffended in the ensuing three and a half years, the fact of your good employment history and prospects and tangible family support, and your expression of remorse. In your case it is appropriate to impose a slightly lower head sentence and to lower the non-parole period to encourage your positive prospects of rehabilitation.[33]
[32]Reasons, [154].
[33]Reasons, [155].

The judge explained Chand’s higher sentence by reference to his serious prior criminal history, his lack of engagement with rehabilitative orders, his ‘guarded’ prospects of rehabilitation, and his ongoing lack of any remorse.[34]
[34]Reasons, [156].
The judge explained Javanov’s sentence, which was the highest, by his age of 37, his serious prior criminal history, his ongoing offending despite a range of therapeutic orders, his ‘guarded’ prospects of rehabilitation, and his ongoing lack of any remorse.[35]
[35]Reasons, [157].

Ground 1 — Did the judge apply the principle of totality correctly?

The applicant accepted that the judge recognised that the factual bases of charges 1 and 2 (kidnapping and extortion) overlapped; and that this should result in ‘a greater degree of concurrency’.[36] However, the applicant submitted that in circumstances where 12 months’ and 6 months’ cumulation were ordered on charges 2 and 3 (extortion and assault), the judge gave insufficient weight to the principle of totality. Being a complaint about the sufficiency of weight given to totality, rather than the failure to consider totality at all, the applicant acknowledged that ground 1 might more accurately be understood as contributing to the manifest excess argument under ground 2 instead of a discrete ground of specific error. No complaint was made about the orders on the theft charge (charge 4).
[36]The applicant referred to Reasons, [151].
The applicant argued that the conduct giving rise to each of the charges ‘amounted from the one course of conduct’: that is, detaining the victim with the intention of demanding a ransom, then making threats to injure and demanding the money.
The applicant submitted that many of the factors which rendered the conduct giving rise to each of the charges as ‘serious’ were common across the individual offences, and this called for a more significant degree of cumulation than was actually ordered.[37]
[37]The applicant referred to Reasons, [60].
Thus, the applicant contended that he should be resentenced on charges 2 and 3.
The Director in response referred to Brown v The Queen (‘Brown’),[38] which she submitted was a similar case. There, the victim was falsely imprisoned twice in order to extort from him a drug debt. For the second false imprisonment, the applicant was sentenced to 3 years imprisonment. That was the head sentence. For the first false imprisonment, 14 months (of a two year sentence) were cumulated. For the extortion, 16 months (of a two year sentence) were cumulated.
[38]The respondent referred to [2017] VSCA 268, [45]–[49] (Osborn and Coghlan JJA).
In comparison with Brown, the Director submitted that the cumulation ordered in the present case was modest.
The Director also referred to R v Cunliffe (‘Cunliffe’).[39] There, the offender attempted to extort $1 million from the victim’s parents, detaining the 21 year old victim and raping her. The Court found that the total effective sentence of 20 years offended the principle of totality. On a re-sentence, the Court still ordered some cumulation between the false imprisonment, blackmail and associated firearms charges, resulting in a total effective sentence of 15 years. The Director submitted that Cunliffe was ‘somewhat analogous’ to the present case.
[39][2000] VSCA 146.
The principle of totality has been described as requiring the sentencing judge to ‘stand back’ and consider what is an appropriate total effective sentence given the conduct involved.[40]
[40]DPP (Vic) v Marino [2011] VSCA 133, [51] (Kyrou AJA, Buchanan JA agreeing at [1], Nettle JA agreeing at [2]).
In Bogdanovich v The Queen, Ashley and Weinberg JJA said:
A convicted offender should be sentenced not simply and indiscriminately for every separate criminal act, but for what in the broad sense can be characterised as his or her overall criminal conduct.[41]
[41][2011] VSCA 388, [63].
In Azzopardi v The Queen,[42] Redlich JA (with whom Coghlan AJA and Macaulay AJA agreed) examined in some detail the principle of totality. His Honour observed that its application often reduces the overall sentence imposed, compared to if the sentence for each individual offence were merely aggregated. Once an aggregate sentence achieves the principles of just punishment, retribution, denunciation, deterrence and protection of the community, then any sentence beyond that is not only purposeless, but might be harmful.[43]
[42](2011) 35 VR 43; [2011] VSCA 372.
[43](2011) 35 VR 43, 59–63 [57]–[69] (Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372.
As noted above, the Director referred to Brown.[44] There, a head sentence of 3 years was imposed for the second false imprisonment. For the first false imprisonment, 14 months (of a two year sentence) were cumulated. For the extortion, 16 months (of a two year sentence) were cumulated. So, seven-twelfths (about 58 per cent) of the sentence for the first false imprisonment was cumulated, and two-thirds (about 67 per cent) of the sentence for extortion was cumulated.
[44][2017] VSCA 268.
Here, the head sentence of the applicant on the kidnapping charge was four years and three months imprisonment. The individual sentence in respect of the extortion charge was three years and three months, with 12 months cumulated on the base. The individual sentence in respect of the assault charge was 2 years, with 6 months cumulated on the base.
We reject the applicant’s contention that the cumulation, either individually or totally, was excessive.
Clearly the judge was alive to the differences between the charges and the overlap. She addressed the kidnapping charge first, as the taking away and detaining of the victim, and then the extortion charge, as involving the demands made upon his parents.[45]
[45]Reasons, [52]–[57].
The careful analysis by the judge of the different aspects which each of the three charges contributed to the whole fully justified the level of cumulation for each charge, accepting that they all formed part of a connected course of conduct. It is not to the point that there were common features in each of the crimes: it is not suggested that total concurrency was warranted. Rather, there were both common and differentiating characteristics — as the judge recognised in her thorough consideration of the appropriate orders for cumulation and concurrency.
It may be accepted that in practice, kidnapping and extortion often occur concomitantly. But conceptually, a kidnapping may occur without an extortion with threat to injure. A kidnapping will often precede an extortion with threat to injure. And an extortion with threat to injure will often further the aim of a kidnapping. Here, the charge of extortion, whilst bound up with the kidnapping, also had a number of differentiating characteristics (for instance, the call to the parents and the demand for payment of a ransom).
Similarly, the judge’s reasoning in relation to the cumulation of the penalty on the assault charge discloses no error. It was appropriate for the acts of violence, which were not conceptually essential to the kidnapping or extortion, to be punished separately, with adequate allowance made for their seriousness.
The same may be said of the other aggravating factors referred to by the applicant. The judge found that the kidnapping and extortion were both premediated.[46] She found that the use of, or threat to use, weapons aggravated both the kidnapping and extortion.[47] She found that the restraining of the victim, and his inability to defend himself, aggravated the kidnapping, extortion and assault.[48] But the fact that there were aggravating factors common across multiple offences did not preclude the judge from ordering appropriate cumulation to reflect the seriousness of each.
[46]Reasons, [52]–[53], [55], [57].
[47]Reasons, [54]–[55], [57].
[48]Reasons, [54]–[55], [57]–[58].
In the circumstances, the degree of concurrency ordered by the judge was significant and entirely appropriate. It was approximately 69 per cent concurrency on the extortion; and 75 per cent concurrency on the assault. Or, put in the converse, approximately 31 per cent of the sentence for extortion, and 25 per cent of the sentence for assault, was cumulated.
We accept the Director’s submission that the cumulation ordered was, in the circumstances, relatively modest.[49]
[49]Reasons, [151].
It follows that we can discern no error in the judge’s cumulation of charges 2 and 3, and ground 1 must fail.

Ground 2 — Manifest excess

The applicant submitted that the sentence imposed in respect of charge 2 (the extortion charge), and the orders for cumulation, were manifestly too long given:
(a)The totality of the offending;
(b)The need for a significant degree of concurrency as between the offences arising from the same factual circumstances;
(c)The applicability of limbs 5 and 6 from Verdins;
(d)The applicant’s positive prospects of rehabilitation, as well as the rehabilitation he undertook whilst on bail; and
(e)The applicant’s expression of genuine remorse.
The Director accepted in written submissions that the sentence on charge 2, viewed alone, was at the higher end in the light of current sentencing practice.[50] Nonetheless, it was submitted, the sentence was within range, and the judge not only correctly identified the matters in aggravation,[51] but also considered each of the five matters raised above by the applicant.[52]
[50]The respondent referred to Stowers v The King [2022] VSCA 203, [39] (Kyrou, McLeish and Kennedy JJA).
[51]The respondent referred to Reasons, [52]–[60].
[52]The respondent referred to Reasons, [93]–[97], [151].
In oral submissions, counsel retreated from this concession, arguing that this sentence could not be regarded as stern, but rather, fell squarely within current sentencing practices.
In House v The King, Dixon, Evatt and McTiernan JJ said:
But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.[53]
[53](1936) 55 CLR 499, 504–5.
Recently the orthodox approach has been described as follows:[54]
To once more traverse a well-trodden path, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Ordinarily, it is a conclusion that does not admit of much elaboration or sustained argument,[55] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[56] Appellate intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[57]
[54]Whitten v The King [2023] VSCA 181, [31] (Priest JA and J Forrest AJA).
[55]See, eg, Allen v The Queen (2013) 36 VR 565, 573 [51]–[52] (Priest JA, Maxwell P agreeing at 566 [1], Weinberg JA agreeing at 566 [2]); [2013] VSCA 44.
[56]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J); [2000] HCA 54.
[57]Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (the Court); [1999] HCA 29.
As was accepted by counsel for the applicant, this ground is intertwined with the first ground.[58] Taking into account the matters we have set out in relation to the offending, allowing for his prospects of rehabilitation and the applicant’s comparatively ‘clean’ criminal history, we can discern no error in the judge’s total effective sentence of 6 years and 1 month imprisonment, nor in the sentences imposed in respect of each of the individual counts.
[58]See, eg, Reasons, [21], [23]–[24], [28], [33], [35].
The total effective sentence reflected that this was a terrifying and traumatic experience for the applicant and his family. The applicant betrayed his friendship with Alex and then actively assisted over two days in his imprisonment, assault and theft — all with the apparent purpose of obtaining a short term gain. There is no redeeming feature in his conduct, other than that at times, he was not the prime mover of some of the more serious assaults.
Accordingly, ground 2 must fail.

Conclusion

For the reasons expressed above, orders to the following effect will be made:
(1)Leave to appeal on grounds 1 and 2 is refused.
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[2023] VSCA 194

23 August 2023