Rangihuna v R

1. [1]

   ADAMSON JA: I agree with Chen J.

2. [2]

   CHEN J: Following pleas of guilty entered in the Campbelltown Local Court on 31 August 2022, Duane Rangihuna (‘the applicant’) was committed to the District Court to be sentenced for two offences arising out of his involvement in a violent home invasion – and kidnapping – that occurred in the early hours of 1 June 2021.

3. [3]

   On 15 December 2022, her Honour Judge Baly SC (‘the sentencing judge’) sentenced the applicant to an aggregate sentence of 8 years imprisonment, with a non-parole period of 5 years for that offending.

4. [4]

   By Notice of Appeal filed 6 August 2025, containing a single ground of appeal, the applicant seeks leave to appeal against the sentence imposed on him, arguing that there is unjustifiable disparity between his sentence and those imposed upon five of his co-offenders.

The extension of time

1. [5]

   Given the applicant was sentenced on 15 December 2022, he was required to file a notice of intention to apply for leave to appeal within 28 days after he was sentenced: s 10(1)(a) of the Criminal Appeal Act 1912 (NSW). As the applicant did not file such a notice, the “applicable period” for him to file a notice of appeal against the sentence imposed was “the period of 3 months after the … sentence”: r 3.5(2)(b) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

2. [6]

   The Court has the power to extend the time to file a notice of intention to appeal: s 10(1)(b) of the Criminal Appeal Act. The discretion conferred by this power is “wide” and is “to be exercised by consideration of what the interests of justice require in the particular case”: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30]. The Court has power to extend the time to file a notice of appeal: r 3.5(5) of the Supreme Court (Criminal Appeal) Rules.

3. [7]

   The applicant emphasised, in support of an order extending time, the fact that the various co-offenders were sentenced after him – the last of which (Elijah Schaaf) was on 12 December 2024 – and the arguable merits of his ground of appeal justified an extension of time.

4. [8]

   The applicant relied upon the explanation given through his solicitor, Monica McKenzie, in an affidavit sworn 26 February 2025.

5. [9]

   The Crown did not oppose an extension of time. Given that stance, the subject matter of the appeal and the fact that the applicant’s solicitor prosecuted the appeal with reasonable promptitude following the sentencing of the last co-offender, I consider it is appropriate to grant the extension sought.

Background

1. [10]

   As the applicant’s ultimate submission is that there is unjustifiable disparity between his sentence and the sentences imposed upon five of his co-offenders, it is helpful to summarise the background facts relevant to that complaint – which I will cover across three parts: first, the offending and charges against the applicant; secondly, the sentencing of the applicant; and, thirdly, the sentencing of the five co-offenders.

2. [11]

   The applicant was sentenced in accordance with a statement of Agreed Facts on Sentence (the ‘agreed facts’). What follows is drawn from the agreed facts and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc. The references to the agreed facts are expressed as AF at [1] etc.

3. [12]

   In the early hours of 1 June 2021, the victim, and other family members, were asleep inside a home in Bringelly, NSW (J2).

4. [13]

   At around 2:47am, a group of men arrived at the home, having driven there in two stolen vehicles. Seven of them got out, forced the front door open and went inside. Two of the men were armed with pistols (J2).

5. [14]

   Once inside the premises, the men searched for and located the victim. One of the men assaulted the victim’s elderly father by striking him in the head with a pistol and a different man punched him. Two other family members barricaded themselves inside a bedroom (J2). When the victim was located, they dragged him from his bed – where he was asleep with his five-year-old son – and took him outside.

6. [15]

   In the course of the victim “being dragged to the car”, he “broke free and ran off” but was pursued and recaptured, during which he was “struck to his body. He received many injuries. He was taken back into a vehicle and driven off” (J2).

7. [16]

   The victim was taken to a warehouse in Marigold Street, Revesby, NSW (‘the warehouse’). During the journey to the warehouse, the victim’s head was wrapped in duct tape. Later, that tape was replaced with some fabric material and, during this process, the victim observed at least 10 members of the group (AF at [13]).

8. [17]

   The victim was detained for approximately nine hours during which time “members of the group took turns sitting on top of [him] in order to restrain him” (J2-3). His mobile phone was taken and messages were sent to different “contacts” saved within his phone demanding sums of money of up to $100 million. Photographs were taken of the victim with duct tape around his eyes and injuries to his face while also depicting him being bound by his wrists or hands (J3). The images were sent in conjunction with the messages containing the ransom demands (J3). The messages included the statement that “after night fall ‘he’s going in the hole’” (J3).

9. [18]

   Shortly before 9am, police attended the warehouse and commenced surveillance.

10. [19]

    Three of the offenders, not including the applicant, left the warehouse to get food. Following their return, police intercepted them, and they were arrested (J3).

11. [20]

    Subsequently, the police tactical operations unit contained the scene and called upon the occupants of the warehouse to exit. Ten minutes later, the victim was sent out the front door to police wearing only a pair of underpants.

12. [21]

    Those remaining inside set three separate fires in a bid “to destroy critical evidence” (J3). This conduct resulted in the applicant being charged with intent to mislead a judicial proceeding, destroy evidence by means of fire, contrary to s 317(a) of the Crimes Act 1900 (NSW) (sequence 5) (J1).

13. [22]

    Once the fires had taken hold, eight offenders (including the applicant) left the premises and were arrested by police. Those other offenders included Vaeluagaomatagy Feilo, Johann Saafi (aka Johann Schaaf), Brandon Gillett, Elijah Schaaf, Shannon Finau and a juvenile (GF) (AF at [1], [18]). To signpost: the juvenile offender is not relevant to the applicant’s appeal, but the sentences that the five adult offenders received for their part in the offending are argued to give rise to the justifiable sense of grievance that the applicant has, given he received the heaviest sentence.

14. [23]

    When arrested, the applicant was found in possession of ammunition – six Winchester .38 calibre ammunition (J3; AF at [19]) – resulting in him being charged with possessing ammunition for a firearm without holding a licence or permit, contrary to s 65(3) of the Firearms Act 1996 (NSW) (sequence 3) (J1).

15. [24]

    After his arrest, police located duct tape near the home where the victim had been staying. DNA on the duct tape matched the victim and the applicant (AF at [26]).

16. [25]

    It was an agreed fact that the Crown could not prove beyond reasonable doubt that the applicant was a direct participant in the home invasion (AF at [35]). Further, the applicant (AF at [35]):

17. [26]

    Whilst, initially, the applicant was charged with a range of offences arising out of these events, ultimately, he pleaded guilty to two of them.

18. [27]

    The first offence was that he did, on 1 June 2021, while in the company of others, detain the victim without his consent with intent to hold him to ransom and occasion actual bodily harm, contrary to s 86(3) of the Crimes Act (sequence 2).

19. [28]

    The second offence was that he was, between 25 May and 1 June 2021, an accessory before the fact to specially aggravated break and enter and commit a serious indictable offence being armed with a weapon, contrary to s 112(3) of the Crimes Act (sequence 8).

20. [29]

    Additionally, in accordance with s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’), sequences 3 (see [23], above) and 5 (see [21], above) were placed on a Form 1 when sentencing the applicant for sequence 2 (J1).

21. [30]

    The sentencing judge noted that the applicant was to be sentenced for the two offences, each of which had a maximum penalty of 25 years imprisonment, and that, in relation to sequence 2, two further offences (sequences 3 and 5) were to be taken into account on a Form 1 (J1). The maximum penalty for the Form 1 offences were 50 penalty units (sequence 3) and 10 years imprisonment (sequence 5).

22. [31]

    Having set out the background facts summarised above, the sentencing judge made the following further findings.

23. [32]

    The applicant had entered an early guilty plea to the principal offences and was therefore “entitled to a 25% discount for each … for the utilitarian value of his pleas of guilty” (J1).

24. [33]

    In relation to the offending, after noting the agreement about what the Crown could not prove (see [25], above), the sentencing judge found that “both these offences were highly planned and organised joint criminal enterprises” (J4-5). Further, in relation to the kidnapping offence, the sentencing judge found that the “detention was committed for financial gain. [The applicant] said he stood to gain $10,000 …” (J5).

25. [34]

    The sentencing judge found that “beyond accepting that the [applicant] arrived at 6am at the warehouse” and, thus, some hours after the other offenders, “there is no precise evidence of what he did in the warehouse”, but by his plea, the applicant accepts “his joint involvement in not only the substantial offence, but also the setting [of] fire to destroy evidence” (J6-7).

26. [35]

    In terms of the objective seriousness of the offending, the sentencing judge found that the kidnapping offence (sequence 2) fell “above the putative mid-range in terms of seriousness” (J7). In making that finding and accepting that she could not be “precise about what exactly [the applicant] did”, her Honour did not accept “that he was asleep at any time”, as was submitted on his behalf (J7).

27. [36]

    In relation to the applicant being an accessory to the aggravated break and enter offence (sequence 8), the sentencing judge accepted that it was “possible to be more precise as to the [applicant’s] role” given “[c]learly, he did not enter the home” but rather, his role was preparing one of the vehicles “for the abduction whereby he filled the car up with petrol”, as well as sourcing various items “such as duct tape” (J7).

28. [37]

    The sentencing judge found that the “home invasion was a serious example” of its kind and, whilst she was unable to find beyond reasonable doubt that the applicant had “any prior knowledge that the victim would be injured”, the applicant was aware “that the offence involved an abduction and relocation of the victim, and it was committed for financial gain. [The applicant’s] role was quite significant. Both items he supplied were used in the commission of the offence” (J8).

29. [38]

    In relation to the Form 1 offences, the sentencing judge did not accept that “the ammunition possessed by the [applicant] was directly linked to the firearms used in the detention offence” but did accept that, in relation to the “tamper with evidence offence” (sequence 5), it was a “serious offence of its kind by virtue of the fact that it involved lighting fires to destroy evidence” and noted that “[i]t will add to the length of the sentence that I impose for the detention offence” (J8).

30. [39]

    The sentencing judge accepted that there were two aggravating factors.

31. [40]

    The first aggravating factor was that the applicant was on parole at the time he committed these offences (J8). As the sentencing judge found, the applicant had been released on parole after serving part of his sentence for “robbery armed and in company on 9 December 2020” and that his response to parole was “unsatisfactory. It [was] noted in a breach report that he appeared reluctant to engage in intervention” (J8). The sentencing judge later noted, in the context of identifying the commencement date for the sentence that she imposed, that the applicant’s parole was revoked following his arrest and detention on 1 June 2021, and that he was serving the balance of his term, which expired on 30 April 2023 (J12).

32. [41]

    The second aggravating factor was the applicant’s “record of previous personal violence offences” and that, as an adult, he had “been convicted of a number of serious and planned offences involving violence” (J8-9).

33. [42]

    The sentencing judge considered that those “aggravating factors … attract weight. The sentencing purpose of personal deterrence is one which attracts weight” (J9).

34. [43]

    In relation to the applicant’s moral culpability for the offences, the sentencing judge accepted that it was “reduced” given his “mental condition, including post-traumatic stress disorder, [which had] been causal in terms of his drug use and subsequent serious offending”, with the consequence that his “sentences [would] be reduced” (J10-11).

35. [44]

    The sentencing judge considered that “both general and personal deterrence [were] important sentencing purposes in this case” (J11).

36. [45]

    The applicant was found to be “remorseful”, but the sentencing judge was unprepared to find that the applicant had “good prospects of rehabilitation”, nor that he was “unlikely to reoffend. [The applicant’s] record [was] such that the protection of the community [was] an important sentencing consideration” (J11).

37. [46]

    Whilst the sentencing judge accepted that there was “a very real risk of institutionalisation”, her Honour considered that the existence of that fact “cannot operate to mean that an inadequate sentence is imposed for this very serious offending” but that it would “sound in a finding of special circumstances, [although] the ratio [would] not be varied to any great extent” (J11).

38. [47]

    Her Honour considered that the principal offences were “very much interrelated, and the criminality [was] also intertwined and overlap[ped]” and, given sequence 8 “proceeded and led directly to the detention” (being sequence 2), the aggregate sentence imposed was “one that notionally reflect[ed] complete concurrence between the two sentences” (J11).

39. [48]

    Consistent with her Honour’s earlier finding about the risk of institutionalisation, a finding of special circumstances was made “to enable [the applicant] to receive treatment for his mental health and drug use. A longer period on parole [was] also warranted to prevent, insofar as possible, institutionalisation” (J12).

40. [49]

    The sentencing judge indicated the following sentences. For sequence 2, taking into account the two matters on the Form 1, a sentence of imprisonment for 8 years. For sequence 3, a sentence of imprisonment for 5 years and 6 months (J12). The aggregate sentence imposed was imprisonment for 8 years, commencing 1 January 2022, with a non-parole period of 5 years (J13). The non-parole period expires on 31 December 2026 and the overall term on 31 December 2029.

41. [50]

    After the applicant was sentenced, the co-offenders were sentenced in the following order: Mr Finau on 25 August 2023 by her Honour Judge Turner; Mr Feilo, Mr Saafi and Mr Gillett on 6 December 2024 by his Honour Judge Grant; and Mr Schaaf on 12 December 2024 by his Honour Judge Grant.

42. [51]

    It is presently sufficient to provide the following summary of the procedural history for, and the sentences imposed upon, each co-offender – albeit that it will be necessary, given the nature of the parity arguments raised, to later return to some of the findings made when each was sentenced.

43. [52]

    Mr Finau, following early guilty pleas made in the Local Court on 31 August 2022, was committed to the District Court for sentence and sentenced by her Honour Judge Turner on 25 August 2023. The relevant findings made by her Honour are summarised below. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

44. [53]

    Mr Finau pleaded guilty to two offences – namely, taking and detaining in company with intent to ransom and occasion actual bodily harm, contrary to s 86(3) of the Crimes Act and specially aggravated break and enter and commit a serious indictable offence, namely, occasioning actual bodily harm whilst armed with an offensive weapon, contrary to s 112(3) of the Crimes Act. Mr Finau was also charged with intent to mislead a judicial proceeding, destroy evidence by means of fire, contrary to s 317(a) of the Crimes Act, which was placed on a Form 1 when sentencing him for the kidnapping offence.

45. [54]

    The relevant findings made by her Honour Judge Turner were as follows.

46. [55]

    A sentencing discount of 25% was applied to the sentence that otherwise would have been imposed by reason of his early guilty pleas (J2).

47. [56]

    In relation to the objective seriousness of the offending, for the specially aggravated break and enter offence, Judge Turner found it was “a serious example of this offence” and, in relation to the kidnapping offence, her Honour agreed with the assessment made by the sentencing judge – namely, that “both these offences were highly planned and organised joint criminal enterprises” (J13). Later, Judge Turner found that they were “very serious examples of both offences” and, in relation to the specially aggravated break and enter offence, her Honour found that it was “within the upper end of the middle range of seriousness for that type of offence” (J16).

48. [57]

    Her Honour found that the Form 1 offence was “a serious type of offence of that nature” (J16).

49. [58]

    When dealing with the issue about Mr Finau’s role in the offending, given his “intellectual disability”, her Honour accepted that he “did not play any managerial role in the offending or [assist] in the planning of it” and, further, that there was no evidence as to what he did “at the house” or “at the warehouse” (J14-15). Her Honour was prepared to accept that Mr Finau “was more likely a follower in the offending than a leader” (J16).

50. [59]

    Judge Turner noted that the offending was committed whilst Mr Finau was on parole for the following offending: “[f]ire firearm in or near public place; [e]nter building with firearm; and assault occasioning actual bodily harm in company” – which her Honour considered were themselves “serious offences” (J17).

51. [60]

    Her Honour also found that Mr Finau had a lengthy criminal record which “[did] not entitle him to leniency” and also “increase[d] the weight to be given to retribution, personal deterrence … and the protection of society” (J19).

52. [61]

    Judge Turner noted that Mr Finau had been assessed as having a range of psychological disorders, but also as having a “general cognitive ability … in the extremely low range of intellectual functioning” and that he had been diagnosed as having “a mild Intellectual Developmental Disorder” (J25). Her Honour found that Mr Finau had “an intellectual disability, and mental health conditions of post-traumatic stress disorder and major depressive disorder” (J26). Further, she accepted that Mr Finau’s “cognitive limitations have some connection, along with his mental health issues, to his offending behaviour” such that his moral culpability “[was] reduced” (J26).

53. [62]

    In terms of Mr Finau’s upbringing, her Honour accepted that it was one of disadvantage and “characterised by violence in the home and by drug use”, thereby attracting the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’), and that he was “sexually abused as a child” (J28). These matters were also found to reduce his moral culpability (J28).

54. [63]

    Judge Turner accepted the expression of remorse by Mr Finau (J31). However, her Honour was not satisfied that Mr Finau’s “prospects of rehabilitation [were] good” and noted that she was “guarded about his prospects of rehabilitation” such that she “certainly could not find … that he is unlikely to reoffend” (J32-33).

55. [64]

    Having noted that the applicant had previously been sentenced, Judge Turner addressed, in considerable detail, issues of parity. It is presently sufficient to mention only some of that analysis. Her Honour accepted that there were some similarities between the applicant and Mr Finau but, nevertheless, observed what she considered to be a number of “significant points of difference between them” – including their ages (the applicant being, at that time, 38 years old whereas Mr Finau was 26); that the offending was different, including a further Form 1 offence in the case of the applicant; and, in relation to the specially aggravated break and enter offence, their roles were different (J34-38).

56. [65]

    A finding of special circumstances was made “on the basis of the continuing hardship that COVID-19 causes in people in custody and how that will impact upon” Mr Finau, and that he had a “clear need for ongoing treatment and support given his intellectual disability and the degree of mentoring, supervision and assistance he requires in making life choices and managing his everyday living”, albeit that the variation from “the statutory ratio [would] not be substantial” (J42-43).

57. [66]

    Judge Turner accepted that whilst there was some “overlap in terms of criminality between the offences”, the offences nevertheless “involve[d] separate and distinct criminality and, more importantly, there [was] a different victim for each offence”: accordingly, her Honour considered that the sentence “for one offence in this case could not comprehend or reflect the criminality for the other” (J40). The following sentences were indicated: for the kidnapping offence (taking into account the matter on the Form 1), seven years imprisonment and, for the specially aggravated break and enter offence, four years and six months (J39).

58. [67]

    Her Honour sentenced Mr Finau to imprisonment for 7 years and 7 months, commencing 1 September 2021, with a non-parole period of 4 years and 7 months. The non-parole period expires on 31 March 2026 and the overall term on 31 March 2029 (J43).

59. [68]

    On 24 April 2024, Mr Feilo was tried (with, relevantly, three co-accused – Mr Gillett, Mr Saafi and Mr Schaaf) before his Honour Judge Grant and a jury in the District Court at Sydney, on an indictment containing four charges (‘the joint indictment’):

    1. (1)

       count 1: that, on 1 June 2021, he did break and enter and commit a serious indictable offence, namely assault occasioning actual bodily harm in circumstances of special aggravation while being armed with an offensive weapon, contrary to s 112(3) of the Crimes Act;

    2. (2)

       count 2: that, on 1 June 2021, he did, while in the company of others detain the victim, without his consent, with intent to hold him to ransom and occasioned actual bodily harm, contrary to s 86(3) of the Crimes Act;

    3. (3)

       count 3: that, on 1 June 2021, he did, with intent to mislead a judicial proceeding, destroy evidence by means of fire, contrary to s 317(a) of the Crimes Act (the ‘tamper with evidence offence’); and

    4. (4)

       count 4: that, on 1 June 2021, he did, while in the company of others, intentionally damage the premises at Marigold Street, Revesby, by means of fire, contrary to s 195(1A)(b) of the Crimes Act (the ‘damage property offence’).

60. [69]

    Mr Feilo entered pleas of not guilty to counts 1-3 however, at the commencement of the trial, he pleaded guilty to count 4.

61. [70]

    On 28 May 2024, the jury returned a verdict of not guilty in relation to count 1. In relation to count 2, the trial judge directed the jury to return a verdict of not guilty to the aggravated and specially aggravated kidnapping offences, but the jury returned a verdict of guilty to the basic offence under s 86(1)(a) of the Crimes Act. The jury returned a verdict of guilty to count 3.

62. [71]

    On 6 December 2024, Mr Feilo was sentenced by Judge Grant. The relevant findings made by his Honour are summarised below. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

63. [72]

    Given there was a plea of guilty to count 4 on the first day of trial, Judge Grant accepted that Mr Feilo was “entitled to a discount of 5% on the sentence” to be imposed upon him for this offence (J1).

64. [73]

    His Honour noted that, at the time of the offending, Mr Feilo was “19 years and three months old” (J1).

65. [74]

    In relation to the kidnapping offence (count 2), Judge Grant found there was “no evidence that any particular offender was responsible to a greater or lesser degree for any individual act that occurred in the warehouse” and that the “offenders were found guilty on the basis that there was a joint criminal enterprise …” (J3).

66. [75]

    His Honour then addressed the objective seriousness of the offending. In relation to the kidnapping offence, his Honour was “unable to discern any particular role of the offenders, other than that they were present, and were present pursuant to a joint criminal enterprise” (J6). Further, when considering the “period of detention”, whilst satisfied that Mr Feilo “was present” at the warehouse, he was not “satisfied beyond a reasonable doubt when he arrived at the [warehouse]” but still noted that “[i]t was a serious offence” (J7). In relation to the tamper with evidence offence (count 3), his Honour found the offence to be “spontaneous” and a “panicked response to the sudden and heavy police presence” and that whilst the “intention to damage potential evidence” was clear, nevertheless found the offending to be “below the mid-range” (J7). In relation to the damage property offence (count 4), his Honour found that, whilst the structure of the building was not damaged, the damage caused by the fires (and the efforts by emergency services to extinguish it) was “extensive” but, nonetheless, his Honour found the offending to be “below the mid-range” (J7-8).

67. [76]

    Judge Grant then addressed Mr Feilo’s subjective circumstances.

68. [77]

    His Honour noted that Mr Feilo had “no prior criminal record” and thus was “entitled to leniency as a first-time offender” (J8). He accepted that Mr Feilo “suffered from a complex post-traumatic stress disorder, and an antisocial personality disorder” and that if “sent to gaol, those conditions would make his time in custody more onerous” (J11). His Honour accepted that Mr Feilo “had a disadvantaged background”, considering that the “Bugmy principles [had] been enlivened” with the consequence that his “moral culpability [was] reduced, and there must be moderation of specific and general deterrence by reason of his deprived background and his mental health issues” (J15-16).

69. [78]

    Judge Grant accepted that Mr Feilo “to a substantial degree” facilitated the administration of justice “by agreeing facts, limiting witnesses, and narrowing [the] issues” and that there should, pursuant to s 22A of the CSP Act, be “a lesser penalty than would otherwise be imposed” (J16).

70. [79]

    In relation to rehabilitation, his Honour was satisfied that Mr Feilo “has some prospects” and that “he will not be before a [c]ourt again, in relation to this type of offending” (J17). Further, his Honour was satisfied there was “some evidence of genuine contrition and remorse” (J17).

71. [80]

    Given Mr Feilo’s age at the time of the offending, his Honour noted the Crown's concession that Mr Feilo was “entitled to some leniency on the basis of his relative youth at the time of offending” and, accordingly, considerations of “general deterrence [and] principles of retribution [were] of less significance” (J17-18). Further, in relation to Mr Feilo’s relative youth, his Honour considered that emphasis should be “placed upon the need to provide an opportunity for rehabilitation” and that his “[i]mmaturity reduces his moral culpability. Rehabilitation of young offenders is one of the great objectives of the criminal law” (J18).

72. [81]

    As the applicant and Mr Finau had, by this time, been sentenced, his Honour specifically considered issues of parity. In particular, the following matters were noted:

    1. (1)

       The applicant and Mr Finau had Form 1 matters taken into account when their sentences were imposed (J19).

    2. (2)

       Their “offending involved [a] violent home invasion” with the victim taken to a warehouse (J19).

    3. (3)

       Mr Finau “featured prominently in the evidence in the trial” and “was a central figure in both the home invasion and the detention at Revesby” (J19) and the Crown could not “say that any of the five offenders to be sentenced were more involved or more culpable” than Mr Finau (J19).

    4. (4)

       The Crown conceded that Mr Finau’s “moral culpability for the offending … was greater than that of any of the five offenders to be sentenced” and also conceded that “the punishments to be imposed should reflect that concession” (J19).

    5. (5)

       The “role played by each offender” in the trial before his Honour “[was] different to that of Mr Finau” and the applicant (J19).

73. [82]

    Judge Grant sentenced Mr Feilo to an aggregate sentence of 3 years imprisonment to be served by way of an intensive correction order (J22-23). The indicative sentences were: 30 months for count 2 (the kidnapping offence); 12 months for count 3 (the tamper with evidence offence); and “with the 5% discount” for the guilty plea, 18 months for count 4 (the damage property offence) (J23).

74. [83]

    On 24 April 2024, Mr Gillett was also tried (with, relevantly, three co-accused – Mr Feilo, Mr Saafi and Mr Schaaf) before Judge Grant and a jury on the joint indictment: see [68], above. He entered a plea of not guilty to each count.

75. [84]

    On 28 May 2024, the jury returned a verdict of not guilty in relation to count 1. In relation to count 2, the trial judge directed the jury to return a verdict of not guilty to the aggravated and specially aggravated kidnapping offences, but the jury returned a verdict of guilty to the basic kidnapping offence under s 86(1)(a) of the Crimes Act (count 2). The jury returned a verdict of guilty to counts 3 and 4.

76. [85]

    On 6 December 2024, Mr Gillett was sentenced by Judge Grant. The relevant findings made by his Honour are summarised below. Given the sentencing judgment is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

77. [86]

    Mr Gillett “was on parole for a stalk/intimidate offence at the time of the offending” – this was an aggravating factor (J27).

78. [87]

    His Honour adopted “the facts” set out in Mr Feilo’s sentencing judgment, as well as the “assessment of objective seriousness” (J27-28). That included the finding that he was “unable to discern any particular role of the offenders, other than that they were present, and were present pursuant to a joint criminal enterprise” (J6 – Feilo).

79. [88]

    In relation to Mr Gillett's subjective circumstances:

    1. (1)

       His Honour accepted that Mr Gillett’s childhood exposed him to “domestic family violence and violence in the community in his formative years” and that these matters, and the fact he was subjected to sexual abuse whilst in juvenile detention, “further reduce[d] his moral culpability, moderating the weight” to be given to general and specific deterrence and protection of the community (J28). His Honour later repeated his finding – namely, that the “Bugmy principles have been enlivened, moderating specific deterrence and general deterrence” (J29).

    2. (2)

       Mr Gillett’s criminal history “disentitle[d] him to leniency” (J28).

    3. (3)

       His Honour considered that Mr Gillett “has prospects of rehabilitation” but was “unable to say that he will not be before a court again” (J28).

80. [89]

    His Honour addressed parity given Mr Finau and the applicant had been sentenced and repeated what he had said about that topic in Mr Feilo’s sentencing judgment: see [81], above (J29). His Honour also addressed parity as between Mr Gillett and Mr Feilo, finding that Mr Gillett's sentence “must also be different … due to [his] criminal history and his commission of these offences while he was on parole” (J29).

81. [90]

    A finding of special circumstances was made based upon the existence of “a risk of institutionalisation”, the need for “treatment and supervision when released” and because Mr Gillett’s “mental health conditions will make his time in custody more onerous” (J29).

82. [91]

    Judge Grant sentenced Mr Gillett to an aggregate sentence of 4 years imprisonment, commencing 31 October 2022, with a non-parole period of 2 years and 8 months (J30). The indicative sentences were: 30 months for count 2 (the kidnapping offence); 12 months for count 3 (the tamper with evidence offence); and 19 months for count 4 (the damage property offence) (J30).

83. [92]

    On 24 April 2024, Mr Saafi was also tried (with, relevantly, three co-accused – Mr Feilo, Mr Gillett and Mr Schaaf), before Judge Grant and a jury on the joint indictment. Mr Saafi, however, entered pleas of guilty on the first day of trial to counts 2-4 in full satisfaction of the indictment.

84. [93]

    In relation to count 2, and unlike Mr Feilo, Mr Gillett and Mr Schaaf, who were found guilty of the basic kidnapping offence within s 86(1)(a) of the Crimes Act, Mr Saafi pleaded guilty to the specially aggravated form in s 86(3) of the Crimes Act.

85. [94]

    On 6 December 2024, he was sentenced by Judge Grant. The relevant findings made by his Honour are summarised below. Given the sentencing judgment is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

86. [95]

    Judge Grant accepted that whilst Mr Saafi entered his plea “at a late stage”, being the commencement of the trial, he was entitled “to a statutory discount of 5% due to the timing of the plea” (J34). Additionally, his Honour found that Mr Saafi was “entitled to a further discount aside from the 5% discount previously stated”, given he had “facilitated the course of justice in the running of the trial” (J34).

87. [96]

    Given Mr Saafi “was on an intensive correction order which commenced on 25 March 2021” when he committed these offences, that was an aggravating factor (J34).

88. [97]

    His Honour adopted “the facts” set out in Mr Feilo’s sentencing judgment, as well as the assessment of “objective seriousness” (J35). That included the finding that he was “unable to discern any particular role of the offenders, other than that they were present, and were present pursuant to a joint criminal enterprise” (J6 – Feilo)

89. [98]

    Judge Grant considered that the sentencing of Mr Saafi presented “a particular challenge”, as “the jury verdicts in relation to each of the other accused was for the basic offence (given the absence of evidence by the victim about where his injuries were sustained)” (J35). Accordingly, his Honour proceeded on the basis suggested by the Crown, namely, that the nature of the injuries suffered should be taken to be “the least serious” which included the bruising and swelling to the face of the victim and a split lip (J35).

90. [99]

    In relation to Mr Saafi’s subjective circumstances, Judge Grant accepted the following matters:

    1. (1)

       Mr Saafi “had a disadvantaged upbringing, enlivening the Bugmy principles and reducing his moral culpability, necessitating moderation of specific and general deterrence” (J38).

    2. (2)

       Mr Saafi’s “mental health issues [would] make his time in prison more onerous”, but they were “not causative of the offending in a [Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194] sense” (J38).

    3. (3)

       Mr Saafi “was sexually interfered with at school” and that “[t]his is consistent with his diagnosis of post-traumatic stress disorder” (J39).

    4. (4)

       Mr Saafi had expressed and demonstrated “remorse and contrition” (J39).

    5. (5)

       Mr Saafi had “prospects of rehabilitation” and, further, was “able to conclude that he will not be before a [c]ourt for this type of offending” (J40).

91. [100]

    His Honour addressed parity, observing that Mr Saafi’s position was “different to Mr Feilo, who was 19 at the time of offending with no prior convictions” and that it was also different to Mr Gillett and Mr Schaaf, given that Mr Saafi “pleaded guilty to an offence which carries a maximum penalty of 25 years’ imprisonment”, whereas the maximum penalty for Mr Gillett and Mr Schaaf was “14 years’ imprisonment” (J40). His Honour considered that the role played by Mr Saafi “[was] different to that” of Mr Finau and the applicant (J40-41).

92. [101]

    A finding of special circumstances was made based upon the need for “long term supervision, detailed intervention and guided rehabilitation” which would assist with “protecting the community long-term by reinforcing [Mr Saafi’s] abstinence” (J41).

93. [102]

    Judge Grant sentenced Mr Saafi to an aggregate sentence of 5 years imprisonment, commencing on 2 March 2023, with a non-parole period of 3 years. The indicative sentences (allowing for a discount for the guilty pleas) were: 4 years for count 2 (the kidnapping offence); 12 months for count 3 (the tamper with evidence offence); and 18 months for count 4 (the damage property offence).

94. [103]

    On 24 April 2024, Mr Schaaf was also tried (with, relevantly, three co-accused – Mr Feilo, Mr Gillett and Mr Saafi) before Judge Grant and a jury on the joint indictment: see [68], above. He entered a plea of not guilty to each of those counts.

95. [104]

    On 28 May 2024, the jury returned a verdict of not guilty in relation to count 1. In relation to count 2, the trial judge directed the jury to return a verdict of not guilty to the aggravated and specially aggravated kidnapping offences, but the jury returned a verdict of guilty to the basic offence under s 86(1)(a) of the Crimes Act (count 2). The jury returned a verdict of guilty to counts 3 and 4.

96. [105]

    On 12 December 2024, Mr Schaaf was sentenced by his Honour Judge Grant. The relevant findings made by his Honour are summarised below. Given the sentencing judgment is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

97. [106]

    Mr Schaaf “was on parole at the time of offending” which was subsequently revoked (J1).

98. [107]

    His Honour adopted “the facts” and “objective seriousness summation” set out in Mr Feilo’s sentencing judgment (J1-2). That included the finding that he was “unable to discern any particular role of the offenders, other than that they were present, and were present pursuant to a joint criminal enterprise” (J6 – Feilo).

99. [108]

    In relation to Mr Schaaf’s subjective circumstances, Judge Grant accepted the following matters:

    1. (1)

       Mr Schaaf “had a disadvantaged life as a young person” and that this “deprivation enliven[ed] the Bugmy principles, reducing his moral culpability. There must be moderation of general and specific deterrence” (J5-6).

    2. (2)

       Although Mr Schaaf did “not have an extensive criminal history”, it nevertheless “disentitle[d] him to leniency” (J6).

    3. (3)

       Mr Schaaf had “good prospects of rehabilitation” and his Honour was also satisfied “that he [would] not be before a court again for this type of offending” (J6).

    4. (4)

       In relation to remorse, although he had expressed this to a psychologist who had prepared a report on his behalf for the purposes of the sentence hearing, his Honour gave “little, if any, weight to this expression” (J6-7).

100. [109]

     A finding of special circumstances was made based upon Mr Schaaf requiring “supervision and support” to ensure he remained clear of “the cycle of drugs and crime” (J6-7).

101. [110]

     His Honour addressed parity and, in relation to the applicant, his Honour noted that he had pleaded guilty “and was sentenced on the basis of accessorial liability for count 1” and the specially aggravated kidnapping offence and that other offending had been taken into account on a Form 1 (J7). Further, his Honour accepted, in line with a concession made by the Crown, that none of the co-offenders to be sentenced “were more involved or more culpable” than Mr Finau; that his “moral culpability [was] greater” than the other offenders; and that the “role played by each offender in the trial [was] different to that of” Mr Finau and the applicant (J7-8).

102. [111]

     Judge Grant sentenced Mr Schaaf to an aggregate sentence of 4 years imprisonment, commencing 30 October 2021, with a non-parole period of 2 years and 8 months. The indicative sentences were: 30 months for count 2 (the kidnapping offence); 12 months for count 3 (the tamper with evidence offence); and 19 months for count 4 (the damage property offence).

The ground of appeal

1. [112]

   The applicant’s sole ground of appeal is:

2. [113]

   The principles applicable to a consideration of a parity ground of appeal are well-established. They may be summarised as follows.

3. [114]

   First, although the applicant’s appeal is brought pursuant to s 5(1)(c) of the Criminal Appeal Act, the “exercise of the statutory discretion is informed by the common law norm” of equal justice according to law: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (‘Green’).

4. [115]

   Secondly, in Lowe v The Queen (1984) 154 CLR 606, 623; [1984] HCA 46 (‘Lowe’), Dawson J explained the parity principle in these terms:

5. [116]

   Thirdly, the parity principle “requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (emphasis in original). In this respect, the question is to be resolved as a matter “of substance rather than form” (see Kadwell (a pseudonym) v R [2021] NSWCCA 42 at [13]), requiring consideration of the “different circumstances of the co-offenders in question and their different degrees of criminality”: Postiglione v The Queen (1997) 189 CLR 295, 301-302; [1997] HCA 26.

6. [117]

   Fourthly, the test of unjustifiable disparity is an objective one; that is, assessed by objective criteria: Green at [31]. What must be shown is that “a reasonable mind looking overall at what has happened would see that the [applicant’s] grievance is justified”: R v Wei Pan [2005] NSWCCA 114 at [34]; Rae v R [2011] NSWCCA 211 at [61] (‘Rae’).

7. [118]

   Fifthly, an appeal court will not intervene where “disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”: Green at [31], citing Lowe at 609.

8. [119]

   Having identified those relevant background principles, I turn now to address the ground of appeal and the applicant’s arguments in support of it.

The applicant’s arguments: consideration

1. [120]

   As earlier noted, the applicant argues that unjustifiable disparity is apparent and appealable error demonstrated once his sentence is compared with those imposed upon five of his co-offenders – Mr Feilo, Mr Saafi, Mr Gillett, Mr Schaaf and Mr Finau.

2. [121]

   Before addressing the various arguments raised by the applicant, and given the terms of them, the following two matters presently warrant emphasis.

3. [122]

   First, as earlier noted (see [50], above), after the sentencing of the applicant, the remaining (relevant) co-offenders were sentenced. When they were, each sentencing judge specifically considered parity issues. In those circumstances, whilst there remains the “responsibility of analysing the differences in criminality and subjective circumstances to determine whether” a “justifiable sense of grievance” arises (see generally Mohr v R [2024] NSWCCA 197; (2024) 390 FLR 293 at [24]), there is reason to exercise caution before finding that there is: Rae at [68]; Lonsdale v R [2020] NSWCCA 267 at [44].

4. [123]

   Secondly, it is important to note that, as Mason J said in Lowe (at 612) there is “no principle of law that sentences must strictly compare” or, as Dawson J said in that same case (at 623), there is “no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them”.

5. [124]

   I turn now to address the applicant’s arguments in relation to each co-offender.

6. [125]

   In relation to the sentence imposed upon Mr Feilo, the applicant identified a range of matters that were argued to be demonstrative of unjustifiable disparity between his sentence and Mr Feilo’s – namely, “his plea of guilty, his level of involvement in the joint criminal enterprise compared to that of [Mr Feilo], [that] [he] was not charged with arson, did not participate in the home invasion and transport the victim” and had an otherwise strong subjective case (applicant’s submissions at [52]). Given these matters, the applicant submitted that Mr Feilo’s sentence, to be served by intensive correction order, was “unfair and so disparate that he has a justifiable sense of grievance” (applicant’s submissions at [53]).

7. [126]

   At the outset, it is important to recognise there are significant differences between the offending and, thus, the offences for which the applicant and Mr Feilo were sentenced. Three of them warrant emphasis. First, the applicant pleaded guilty to, and was sentenced for, the specially aggravated kidnapping offence under s 86(3) of the Crimes Act, whereas Mr Feilo was found guilty of the basic kidnapping offence under s 86(1)(a) of the Crimes Act. Secondly, the maximum penalty available for each offence differed, reflecting their different levels of seriousness: for the specially aggravated kidnapping offence, the applicant was liable to imprisonment for 25 years, whereas for the basic kidnapping offence, Mr Feilo was liable to imprisonment for 14 years. Thirdly, the applicant pleaded guilty to, and was sentenced for, being an accessory to the specially aggravated break and enter offence under s 112(3) of the Crimes Act (an offence with a maximum penalty of imprisonment for 25 years), whereas Mr Feilo was found not guilty of the specially aggravated break and enter offence under s 112(3) of the Crimes Act.

8. [127]

   Although it has been recognised that the fact a co-offender in the same criminal enterprise has been charged with and sentenced for different offences will not prevent the parity principle applying, it has also been accepted that there are “significant limitations” and “[particular] difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender” who has been charged with a less serious offence than the applicant: Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [203]; Green at [30]. These limitations apply to the broad comparative exercise that the applicant invited this Court to undertake.

9. [128]

   Perhaps implicitly acknowledging the difficulties in broadly comparing his sentence with Mr Feilo’s given the different offending, the applicant argued that unjustifiable disparity could be discerned from “his level of involvement in the joint criminal enterprise compared to that of [Mr Feilo]”. I am unable to accept this submission simply because I do not accept its central premise – viz., that the role of the applicant in the kidnapping offence was lower than that of Mr Feilo. That, I consider, is readily apparent when one compares the findings about the role of each in the kidnapping offence, to which I will briefly refer.

10. [129]

    In relation to that offence, the findings of the sentencing judge about the applicant’s “role” have earlier been set out: see [33]ff, above. By way of short summary: the sentencing judge found that each of the principal offences “were highly planned and organised joint criminal enterprises” (J4-5); that the “detention was committed for financial gain. [The applicant] said he stood to gain $10,000 …” (J5); that although the applicant arrived some hours after the other offenders, “there is no precise evidence of what he did in the warehouse” but, by his plea, the applicant accepted “his joint involvement …” (J6-7); and that the applicant was aware the home invasion “involved an abduction and relocation of the victim” (J8). Further, when assessing the objective seriousness of the offending, the sentencing judge found that the kidnapping offence (sequence 2) fell “above the putative mid-range in terms of seriousness” (J7). In making that finding and accepting that she could not be “precise about what exactly [the applicant] did”, her Honour did not accept “that he was asleep at any time”, as was submitted on his behalf (J7).

11. [130]

    The findings of Judge Grant about Mr Feilo’s role in the kidnapping offence have earlier been set out: see [74]-[75], above. By way of short summary: his Honour essentially found that there was no evidence that any particular offender was responsible for any individual act that occurred but that they were instead found guilty on the basis that there was a joint criminal enterprise; and, importantly, whilst satisfied that Mr Feilo “was present” at the warehouse, he was unable to make a finding about when he arrived there.

12. [131]

    In my view, once regard is had to the findings made by the sentencing judge about the applicant’s role in the kidnapping offence, and the findings made by Judge Grant about Mr Feilo’s role, contrary to what the applicant argued, there is no substance to the submission that their roles were different and, in consequence, that such a difference should have been, but was not, reflected in the sentences imposed.

13. [132]

    The applicant next argued that, in relation to the offence of being an accessory to specially aggravated break and enter, he “did not participate in the home invasion and transport of the victim”. Each of those facts may be accepted. But their significance is, I consider, of no moment once it is recognised that neither Mr Feilo – nor any of the co-offenders – were found guilty of, and thus sentenced for, any offence in relation to the break and enter at Bringelly. Separately, I add the following. The fact that the applicant did not participate in the transportation of the victim is, I consider, very much offset by the fact that, as the sentencing judge found, the applicant was aware that the home invasion “involved an abduction and relocation of the victim, and it was committed for financial gain” and that his role “was quite significant. Both items he supplied were used in the commission of the offence”: see [37], above.

14. [133]

    In relation to the specially aggravated break and enter offence, it should (again) be noted that the maximum penalty is imprisonment for 25 years. Given the sentencing judge’s finding about the applicant’s role in that offending, substantial punishment was warranted, as the Crown submitted.

15. [134]

    It may be accepted, as the applicant next submitted, that he was “not charged with arson”, however, I do not regard that matter, on its own or in combination with the other arguments raised by the applicant, to be significant, or to suggest any unjustifiable discrepancy in the sentences. That is for the following reasons. First, the applicant was charged with the offence under s 317(a) of the Crimes Act – viz., that he did, with intent to mislead a judicial proceeding, destroy evidence by means of fire (sequence 5). To this end, the sentencing judge made a finding that, by his plea, the applicant accepted “his joint involvement in not only the substantial offence, but also the setting [of] fire to destroy evidence” (J6-7). Secondly, the sentencing judge took into account the applicant’s role in those events as sequence 5 was placed on a Form 1 to be considered when sentencing the applicant for sequence 2: see [21], [29], above.

16. [135]

    To the extent that the applicant emphasised his subjective case, it should be noted that Mr Feilo presented, and was found to have, a fairly compelling subjective case that included the following (see [77]-[80], above): he was 19 years of age at the time of the offending; his relative youth ameliorated his moral culpability and the need for general deterrence and retribution and emphasised the importance of rehabilitation; he had no prior criminal record and thus was entitled to leniency; he had a number of mental health issues, as well as a disadvantaged background, that reduced his moral culpability; he had “to a substantial degree” facilitated the administration of justice, entitling him to a reduction in his sentence; and that there was some evidence of genuine contrition and remorse. These were matters of substance significantly informing the different sentencing outcome.

17. [136]

    Finally, and for completeness, it should be emphasised that Judge Grant specifically addressed issues of parity in relation to Mr Feilo and the applicant: see [81], above.

18. [137]

    In my view, for the above reasons, the matters relied upon by the applicant do not demonstrate that there is unjustifiable disparity between the applicant’s sentence and the one imposed upon Mr Feilo. Further, the difference in the sentencing outcomes is readily explained by differences in the offending and the subjective cases of each, and in no way impermissibly disparate: Green at [32].

19. [138]

    In relation to the sentence imposed upon Mr Saafi, the applicant’s parity complaint was that, despite Mr Saafi’s “late plea and actual involvement in the transport and physical assault upon the victim at [the warehouse]”, he received a lower aggregate sentence and non-parole period than the applicant (applicant’s submissions at [56]). The corollary to the submission appeared to be that, given those features, this Court should conclude that there is unjustified disparity between the sentences.

20. [139]

    Whilst it is correct to observe, as the applicant did, that Mr Saafi entered a late plea to counts 2-4 of the joint indictment, that fact does not, in my view, suggest or demonstrate any relevant disparity between the sentences imposed. That is because the extent of the sentencing discount is a function of the “mandatory and exclusive code” that operates in a “mechanical” manner (that is, with no element of discretion), depending upon when that plea is entered: s 25D(2) of the CSP Act; Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [2]; Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 at [6].

21. [140]

    Here, given the timing of the pleas, the applicant received a greater sentencing discount than Mr Saafi. However, contrary to what the applicant’s submission appeared to suggest, it does not follow from the limited sentencing discount that Mr Saafi received that, axiomatically, the applicant’s sentence should have been lower than Mr Saafi’s sentence. Fundamentally, that is because the sentencing discount does not inform the fixing of that term but operates, once it is set, as a reduction to it – that is, the reduction is applied to “any sentence that would otherwise have been imposed” (as an aggregate sentence was imposed, the discount would be applied to the indicative sentences: s 53A(2)(b) of the CSP Act; Elsaj v R [2017] NSWCCA 124 at [56]; Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [6], [138]). (To the extent the applicant’s reference to Mr Saafi’s “late plea” should be taken to involve a consideration of the undiscounted indicative sentence for the kidnapping offence, this general argument is dealt with later as part of the overall complaint that the applicant advances in relation to that offence).

22. [141]

    The applicant also argued that Mr Saafi had “actual involvement in the transport and physical assault upon the victim at [the warehouse]” (applicant’s submissions at [56]). That submission should be rejected. As the Crown submitted, Judge Grant did not make a finding that Mr Saafi was involved in the “transportation” and, further, in terms of any “physical assault upon the victim”, whilst Judge Grant found that there was actual bodily harm inflicted at the warehouse, there were no particular findings about Mr Saafi’s role in how they came about, beyond being a participant in the joint criminal enterprise.

23. [142]

    Unlike three of his co-offenders (Mr Feilo, Mr Gillett and Mr Schaaf), Mr Saafi pleaded guilty to the same offence that the applicant did – namely, the specially aggravated form of kidnapping under s 86(3) of the Crimes Act. However, there were three significant differences between the applicant and Mr Saafi in connection with this offence, and the offending more generally. First, when Judge Grant sentenced Mr Saafi, his Honour only took into account the least serious of the injuries to the victim (see [98], above), in contrast to the full range of injuries taken into account when sentencing the applicant. Secondly, the common “objective seriousness” finding made across the four offenders sentenced by his Honour was that he was “unable to discern any particular role of the offenders, other than that they were present, and were present pursuant to a joint criminal enterprise” (J6 – Feilo; J35 – Saafi). Thirdly, and importantly, Judge Grant considered the respective roles of the applicant and Mr Saafi, finding that the “role played by [Mr Saafi] … [was] different to that of” the applicant (J40-41).

24. [143]

    Thus, whilst there is a difference between the undiscounted sentence imposed on the applicant when compared to Mr Saafi, that difference is not material, in my view, but merely the product of differentiation that was reasonably open in the exercise of the sentencing discretion vested in Judge Grant and informed by the particular findings made about the role Mr Saafi had in the criminal enterprise.

25. [144]

    It is also important to note some further differences between the offending and the resultant sentencing: first, Mr Saafi, unlike the applicant, was not sentenced in relation to the break and enter offence – an offence that carried a maximum penalty of 25 years imprisonment; and, secondly, unlike the applicant, no Form 1 offending was relevant to the sentence imposed upon Mr Saafi for the kidnapping offence.

26. [145]

    The applicant also argued that, unlike his case, there was no finding of a causal connection between Mr Saafi’s “mental state and the commission of his offences” (applicant’s submissions at [56]). Although not explicitly stated, the applicant’s argument was to the effect that he secured a favourable finding about reduced moral culpability for the offending, whereas no such finding was made in connection with Mr Saafi.

27. [146]

    Although it may be accepted, as the applicant submitted, that the sentencing judge made a finding about reducing his moral culpability and, in consequence, a reduction in his sentence (see [43], above), I do not accept that these findings indicate unjustifiable disparity between the respective sentences. That is because Mr Saafi himself advanced a relatively strong subjective case, as earlier noted: see [99]ff, above. In particular, Judge Grant made a finding that Mr Saafi’s moral culpability was reduced – viz., Mr Saafi “had a disadvantaged upbringing, enlivening the Bugmy principles and reducing his moral culpability, necessitating moderation of specific and general deterrence” (see [99](1), above).

28. [147]

    In my view, contrary to what the applicant argued, the matters relied upon by him do not demonstrate that there is unjustifiable disparity between the applicant’s sentence and the one imposed upon Mr Saafi. Further, the difference in the sentencing outcomes is readily explained by differences in the offending and the subjective cases of each, and in no way impermissibly disparate: Green at [32].

29. [148]

    In relation to the sentence imposed upon Mr Gillett, the applicant raised four matters that were argued to evidence unjustifiable disparity, given Mr Gillett received a lower head sentence and non-parole period (applicant’s submissions at [58]-[59]).

30. [149]

    The applicant’s first argument was that, whilst he entered an early guilty plea, Mr Gillett “went to trial and was found guilty of 3 offences” (applicant’s submissions at [58]). That course of events may be accepted. But, contrary to what the applicant argued, those events are not demonstrative of unjustifiable disparity. Rather, for sentencing purposes, they evidence that, unlike the applicant, Mr Gillett was not entitled to a sentencing discount given his pleas; nevertheless, that he chose to contest his guilt is not a basis upon which to impose a longer sentence.

31. [150]

    The applicant’s second argument was that Mr Gillett “was on parole at the time of his offending” (applicant’s submissions at [58]). That submission may be accepted. But so too was the applicant: see [40], above.

32. [151]

    The applicant’s third argument was that Mr Gillett “was involved in the detention and assault upon the victim” (applicant’s submissions at [58]). I do not accept this submission. That is because, as the Crown submitted, whilst Mr Gillett’s conviction in relation to the basic kidnapping offence under s 86(1)(a) of the Crimes Act involved the detention of the victim, that offence did not involve an element of an assault and there was no finding made by Judge Grant that there was beyond being a participant in the criminal enterprise.

33. [152]

    Again, as with the sentence imposed upon Mr Feilo, there are significant differences in the offending between the applicant and Mr Gillett and the offences for which each was sentenced. Those differences were earlier set out and discussed: see [126]-[127], above. That discussion applies equally here and will not be repeated.

34. [153]

    The applicant’s submissions also pointed out features of Mr Gillett’s subjective case, albeit did not extend to identifying why those features were demonstrative of unjustifiable disparity. This aspect of Mr Gillett’s sentencing case was earlier summarised: see [88], above. In my view, they provide a further basis for differentiating the sentences imposed, notably through Judge Grant’s finding about the engagement of the principles in Bugmy and his history of sexual abuse.

35. [154]

    For completeness, it should be noted that Judge Grant specifically addressed issues of parity in relation to Mr Gillett and the applicant: see [89], above.

36. [155]

    In my view, contrary to what the applicant argued, the matters relied upon by him do not demonstrate that there is unjustifiable disparity between the applicant’s sentence and the one imposed upon Mr Gillett. Further, the difference in the sentencing outcomes is readily explained by differences in the offending and the subjective cases of each, and in no way impermissibly disparate: Green at [32].

37. [156]

    In relation to Mr Schaaf, the applicant’s complaint relates to “the finding of parity between [Mr Gillett] and [Mr Schaaf]” made by Judge Grant (applicant’s submissions at [62]). Specifically, this argument, which was not developed during the hearing, focuses upon Judge Grant’s finding that he saw “no differentiation between Mr Gillett and [Mr Schaaf]” (J8).

38. [157]

    In my view, the following matters confront acceptance of this submission.

39. [158]

    First, to the extent that the submission should be understood as advancing a challenge to the above “parity” finding made by Judge Grant, it should be rejected in point of principle. That is because it is not open in a parity appeal for the applicant to challenge that finding; rather, as explained in Martellotta v R [2021] NSWCCA 168 at [58] (‘Martellotta’), he is bound to accept it:

40. [159]

    Secondly, putting the impermissibility of the challenge to one side, the materiality of that finding to the applicant’s ground of appeal is, I consider, doubtful. Whether the sentencing cases of Mr Gillett and Mr Schaaf were relevantly identical is not the issue; rather, in the context of a parity appeal, the substantive question is whether the sentencing cases of either or both are relevantly identical to the applicant’s case so as to require an “identity of outcome”: Wong at [65].

41. [160]

    Thirdly, there are a number of substantive differences between the applicant’s offending and Mr Schaaf’s offending – that have been noted in relation to Mr Feilo (see [126]-[127], above) and Mr Gillett (see [152], above) – that apply equally here.

42. [161]

    In my view, contrary to what the applicant argued, the matters relied upon by him do not demonstrate that there is unjustifiable disparity between the applicant’s sentence and the one imposed upon Mr Schaaf. Further, the difference in the sentencing outcomes is readily explained by differences in the offending and the subjective cases of each, and in no way impermissibly disparate: Green at [32].

43. [162]

    In relation to the sentence imposed upon Mr Finau, the applicant argued that there were “significant differences between [their] objective criminality” – namely, that the applicant’s “objective criminality” was lower than Mr Finau’s and, despite that difference, Mr Finau received a shorter sentence than the applicant (applicant’s submissions at [66]). The applicant’s ultimate submission was that, given that each pleaded guilty to the same two principal offences, stepping back and assessing the circumstances of their respective involvement, at a minimum, they should have received the same sentence.

44. [163]

    To recap: in relation to the applicant, the sentencing judge imposed, for the two offences (including the further offences placed on a Form 1), an aggregate sentence of 8 years imprisonment, with a non-parole period of 5 years (see [49], above); in relation to Mr Finau, Judge Turner imposed, for the two offences (including the further offence placed on a Form 1), an aggregate sentence of 7 years and 7 months imprisonment, with a non-parole period of 4 years and 7 months imprisonment: see [67], above.

45. [164]

    The applicant sought to make good his submission – that, in effect, his objective criminality was less than Mr Finau’s – by referencing and calling in aid the finding made by Judge Grant, when sentencing Mr Schaaf, about Mr Finau’s role (applicant’s submissions at [66]). In particular, the applicant relied upon the finding made by his Honour that Mr Finau “featured prominently in the evidence in the trial. He was the central figure in both the home invasion and the detention at [the warehouse]” (J7).

46. [165]

    Self-evidently, given the trial of the four offenders post-dated Mr Finau’s sentence, Judge Grant’s remarks do not reflect the facts upon which Mr Finau was sentenced, nor do they reflect the factual findings made by Judge Turner when she sentenced him. During the submissions in this Court, Mr Wendler accepted that the proper approach, given the ground of appeal, was to focus upon the findings made by Judge Turner about Mr Finau, not the findings made about him by Judge Grant (T4.5-4.10).

47. [166]

    The findings made by Judge Turner about Mr Finau’s role in the offending were:

    1. (1)

       That Mr Finau, given his “intellectual disability … did not play any managerial role in the offending or [assist] in the planning of it” (J14).

    2. (2)

       That there was no evidence as to what he did “at the house” or “at the warehouse” (J14-15).

    3. (3)

       That Mr Finau “did go into the house” (J14).

    4. (4)

       That Mr Finau “was more likely a follower in the offending than a leader” (J16).

48. [167]

    When considering issues of parity, and the kidnapping offence in particular, Judge Turner accepted that “[o]ther than the period of three hours difference between [Mr Finau] and the [applicant] in terms of presence at the warehouse, their roles could be said to be similar” (J37).

49. [168]

    Perhaps recognising that the findings made by Judge Turner about Mr Finau’s role in the offending sat inconsistently with his argument, the applicant sought to challenge the finding referred to in [167], above (applicant’s submissions at [65]). However, as I have noted, when addressing the similar argument advanced in relation to the sentencing of Mr Schaaf (see [158], above), it is simply not open, in a parity appeal, for him to challenge that finding: Martellotta at [58].

50. [169]

    The applicant’s final parity submission was that his objective criminality was lower than Mr Finau’s and, in consequence, he ought to have received – but did not – a lower sentence than Mr Finau. In my view, this submission should be rejected. There is no warrant for its premise – namely, that his objective criminality was lower than Mr Finau, as I will next explain.

51. [170]

    The findings made by the sentencing judge about the applicant’s “objective criminality” for both offences has earlier been addressed: see [33]-[37], above. By way of brief summary, in relation to the kidnapping offence, the sentencing judge found: the offences “were highly planned and organised joint criminal enterprises” (J4-5); that the applicant committed the offence for financial gain (J5); that, accepting the applicant arrived some hours after the other offenders, “there is no precise evidence of what he did in the warehouse” but, by his plea, the applicant accepted “his joint involvement …” (J6-7); and, that the applicant was aware that the home invasion “involved an abduction and relocation of the victim” (J8). In relation to the specially aggravated break and enter offence, the sentencing judge noted that although she was unable to find that the applicant had prior knowledge that the victim would be injured, found that he was aware the offence “involved an abduction and relocation of the victim, and it was committed for financial gain” and his role was “quite significant. Both items he supplied were used in the commission of the offence” (J8).

52. [171]

    The findings made by Judge Turner about Mr Finau’s role in the offending have also been earlier set out: see [166]-[167], above. Given these findings, there is simply no basis to conclude, as the applicant argued, that his criminality was lower than Mr Finau’s.

53. [172]

    Given the role of Mr Finau was considered by several sentencing judges and that the finding about his involvement was, or at least was argued to be, different, the following should be noted. As sometimes occurs when different sentencing judges sentence different offenders, differing or even inconsistent findings of fact are made. That there are, however, does not give rise to a basis for intervention by this Court given that “[s]entencing does not take place on the basis of objective singular established truth, but on the basis of the evidence before the sentencing judge”: PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [24], [70] (‘PG’); Teece v R [2022] NSWCCA 265; (2022) 374 FLR 201 at [63]-[64]. As Basten JA explained in PG at [23]:

54. [173]

    Further, Judge Turner gave detailed consideration to issues of parity between the applicant and Mr Finau: see [64], above. Her Honour, when fixing the sentence, emphasised features that distinguished the applicant’s offending to Mr Finau’s offending, and other factors including their age and the “significant point of difference … that the [applicant] does not have an intellectual disability as [Mr Finau] does” (J37). The difference in the sentence imposed is, I consider, simply the product of differentiation that was reasonably open in the exercise of the sentencing discretion vested in judge Turner.

55. [174]

    In my view, contrary to what the applicant argued, the matters relied upon by him do not demonstrate that there is unjustifiable disparity between his sentence and the one imposed upon Mr Finau. Further, the difference in the sentencing outcomes is readily explained by differences in the offending and the subjective cases of each, and in no way impermissibly disparate: Green at [32].

Orders

1. [175]

   For the above reasons, I propose the following orders:

   1. (1)

      Extend the time for the applicant to file his Notice of Appeal to 7 August 2025.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [176]

   RIGG J: I agree with Chen J.