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Court of Criminal Appeal 2 July 2025

R v Liavaa; Liavaa v R

[2025] NSWCCA 101

Assault & violenceTheft & propertyPublic order & justice offences
CRIME A PPEALS C ROWN APPEAL NO MANIFEST INADEQUACY CRIME A PPEALS APPEAL AGAINST SENTENCE

Citation: R v Liavaa; Liavaa v R [2025] NSWCCA 101
Court: Court of Criminal Appeal, New South Wales
Date: 2 July 2025
Judge(s): Stern JA; Cavanagh J; Rigg J

Background

Between 9 and 14 March 2023, the offender (aged 19 at the time) participated in two joint criminal enterprises involving the armed invasion of a home in Smithfield, the abduction of a 26-year-old man, and the detention of that man at a house in Belmore for ransom. The victim was held for nearly six days in his underwear, hands bound, head covered in a bloodied pillowcase, subjected to severe violence, and fed minimal food and water. His teeth were extracted with pliers and a hammer, and footage of his injuries was sent to the intended target as part of ransom demands.

The offender sourced a sledgehammer used to force entry, transported the victim and co-offenders on multiple occasions, and was kept informed of the violence through a group chat receiving photographs and videos of the victim. He was arrested on 14 March 2023 after police conducted a covert operation involving $150,000 in cash. He pleaded guilty to specially aggravated break and enter with intimidation in company while armed with a dangerous weapon (s 112(3) of the Crimes Act 1900 (NSW)) and specially aggravated kidnapping with intent to hold for ransom in company occasioning actual bodily harm (s 86(3)).

In December 2024, the offender was sentenced in the District Court to an aggregate term of 8 years and 6 months with a non-parole period of 5 years and 4 months, reflecting a 25% guilty plea discount. His co-accused, who had received an identical sentence, was the subject of a Crown appeal on grounds of manifest inadequacy. The offender also sought leave to appeal his own sentence.

  • Whether the sentencing judge erred by failing to find a material causal link between the offender's PTSD diagnosis and the commission of the offences, thereby failing to reduce the assessment of objective seriousness and moral culpability
  • Whether the offender had a justifiable sense of grievance about parity with his co-accused, given their identical sentences
  • Whether the offender's sentence was manifestly inadequate (the Crown appeal against the co-accused's sentence)

Decision

On the PTSD and mental health issue, the Court held unanimously that the sentencing judge had not failed to engage with the contention. Her Honour had clearly and deliberately rejected the submission that the offender's mental health condition contributed in a material way to the commission of the offences. The sentencing judge was prepared to find only that the offender's background of dysfunction and exposure to violence was connected to his attachment to antisocial peers and drug use, both of which bore on his moral culpability. Given that limited finding, there was no error in declining to factor mental impairment into the assessment of objective seriousness.

On parity, the Court found no justifiable sense of grievance. The sentencing judge had considered that the two co-accused shared comparable criminality, while also weighing subjective differences particular to each. Those differences did not point strongly in either direction: the offender's reduced moral culpability was counterbalanced by the co-accused's stronger post-offending rehabilitation. Precise equivalence between co-offenders is inherently difficult to establish, and the identical sentences disclosed no error warranting appellate interference.

On the Crown appeal (manifest inadequacy of the co-accused's sentence), the Court divided. Stern JA, with Rigg J agreeing, dismissed the Crown appeal in relation to the offender's sentence. While the sentence was clearly lenient given the objective gravity of the offending, their Honours concluded it did not constitute an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system. The sentencing judge had properly considered the offender's youth, immaturity, vulnerability to peer pressure, and the need to promote rehabilitation and avoid a crushing sentence.

Cavanagh J dissented on the Crown appeal, concluding the sentence was manifestly inadequate. His Honour would have allowed the Crown appeal against the co-accused and imposed an aggregate sentence of 13 years and 6 months with a non-parole period of 8 years and 6 months, noting particularly egregious conduct including holding a gun to the victim's head during the ransom video.

Orders Made

The orders below reflect the dissenting position of Cavanagh J, which did not form the majority. The majority (Stern JA and Rigg J) dismissed both the Crown appeal and the offender's appeal against sentence. Cavanagh J's proposed orders (applicable to the co-accused) were:

  • Crown appeal on sentence allowed
  • Quash the sentence imposed in the District Court on 6 December 2024
  • In lieu thereof, sentence the respondent to imprisonment of 13 years and 6 months commencing 14 March 2023 and expiring 13 September 2036
  • Non-parole period of 8 years and 6 months; eligible for parole on 13 September 2031

Key Takeaways

  • A sentencing judge is not required to treat a diagnosed mental health condition as reducing objective seriousness or moral culpability unless a material causal connection between the condition and the offending conduct is established; the Court of Criminal Appeal confirmed that a clear rejection of that causal link at first instance will not constitute appellate error.
  • Where two co-offenders share broadly comparable criminality but differ in their subjective circumstances, a sentencing judge may lawfully impose identical sentences, and the parity principle will not be engaged merely because those individual differences do not precisely cancel out.
  • A sentence that is clearly lenient does not automatically constitute manifest inadequacy; to succeed on a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW), the sentence must be so low as to constitute an affront to the administration of justice and risk undermining public confidence in the criminal justice system.
  • In sentencing a young offender (aged 19), factors including youth, immaturity, vulnerability to peer pressure, and the need to promote rehabilitation without imposing a crushing sentence remain properly available mitigating considerations, even where the underlying offending is extremely serious.
  • The Court divided on manifest inadequacy, with Cavanagh J dissenting and proposing a substantially higher sentence for the co-accused, illustrating that assessments of where a sentence falls on the spectrum of adequacy can attract genuine disagreement even among appellate judges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(3), 112(3)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Cases
- AA v R [2024] NSWCCA 132
- Allen v R [2010] NSWCCA 47
- Banat v R [2020] NSWCCA 321
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JL v R [2024] NSWCCA 246
- Lee v R [2