Director of Public Prosecutions v Hooper & Stefani

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 0175
S ECR 2020 0177

DIRECTOR OF PUBLIC PROSECUTIONS

JANA HOOPER
NICK STEFANI

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JUDGE:	TINNEY J
WHERE HELD:	La Trobe Valley and Melbourne
DATES OF HEARING:	8 & 9 August 2022
DATE OF SENTENCE:	22 December 2022
CASE MAY BE CITED AS:	DPP v Hooper & Stefani
MEDIUM NEUTRAL CITATION:	[2022] VSC 821

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CRIMINAL LAW – Sentences – Co-accused Jana Hooper (‘Hooper’) and Nick Stefani (‘Stefani’) guilty of false imprisonment, kidnapping, and intentionally causing injury – Stefani guilty also of common law assault – Victim the husband of Hooper and a friend of Stefani – Victim suspected of having sexually abused his step-daughters – Co-accused and other offenders acted in concert to attack the victim in his home and remove him to another location – Aim of enterprise to extract a ‘confession’ from him – Hooper’s crimes committed in a setting of family violence – Good prospects for rehabilitation in the case of Hooper and reasonable prospects in the case of Stefani – Bugmy and Verdins considerations enlivened in Hooper’s case – Hooper an indigenous woman with a history of deprivation and trauma – General principle in Bugmy applicable to Hooper – Seriousness of vigilantism – General deterrence – Just punishment – Denunciation - Protection of the community - Total effective sentence for Hooper of seven years and six months with a non-parole period of four years and six months – Total effective sentence for Stefani of ten years with a non-parole period of eight years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson KC with Mr T Bourbon and Ms B Goding	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused Hooper	Mr J McMahon SC with Ms D Price	Law & Advocacy Centre for Women
For the Accused Stefani	Dr T Alexander with Ms A Sharpley	Slades & Parsons

HIS HONOUR:

Introduction

Jana Hooper and Nick Stefani, you have pleaded guilty to charges concerning the kidnapping and assault of Bradley Lyons (‘Lyons’) on Sunday 2 December 2018. Mr Lyons was your husband, Hooper.

You, Hooper, have pleaded guilty to charges of intentionally causing injury (‘ICI’), kidnapping, and false imprisonment (‘FI’). You, Stefani, have pleaded guilty to those three charges, and an additional charge of common law assault. Your charges were contained on a separate indictment.

Your offending, in each case, arose in the course of appalling vigilante action taken against Lyons because of the belief that you and others had that he had been involved in sexually assaulting one or more of his step-children. This action culminated in Lyons being brutally murdered by being shot in the head with a shotgun and then buried in a shallow bush grave. It is not alleged that either of you was complicit in that conduct.

The maximum penalty for each of ICI and FI is 10 years’ imprisonment. The maximum penalty for kidnapping at common law is 25 years’ imprisonment. The maximum penalty for common law assault is imprisonment for five years.

Kidnapping is a Category 2 offence under the Sentencing Act 1991 (‘the Act’). Pursuant to s 5(2H) of the Act, I am required to impose a sentence of imprisonment on that charge unless one or more of the exceptions set out in the section applies. I note that, unsurprisingly, it has not been submitted on behalf of either of you that anything other than a term of imprisonment would suffice on any of the charges you face.

Background to your crimes

Lyons was 30 years of age at the time of his death. He lived at 53 McCullough Street, Lakes Entrance (‘McCullough St’) with you, Hooper, your three children with him, your four children from an earlier relationship (his step-children), and your grandson. You and Lyons married in 2011. Your relationship was marked by periods of volatility, with police intervention required on a number of occasions due to the violence that each of you directed towards the other in the context of drug use. Your relationship was particularly strained in the 12 months leading up to these events.

You, Stefani, lived with Lyons and Hooper at the time of these events, sleeping in a bungalow at the rear of their property. You were friends with Jordan Bottom (‘Bottom’) and Alec Harvey (‘Harvey’). Through them, you met Albert Thorn (‘Thorn’) about two years before the events in question. Thorn lived on a rural property at Nyerimilang (‘Nyerimilang’). Bottom, who was a friend of Thorn, lived with his girlfriend Jessica MacFarlane in a caravan on that property.

Suspicions about Lyons

In November 2018, you, Hooper, in an apparently distressed state, disclosed to your friend Patricia Evans, that you believed Lyons was responsible for getting one of your daughters pregnant and was the father of another of your daughter’s child.[1] Evans spoke with Thorn in the lead-up to the events about rumours concerning Lyons behaving inappropriately towards your children and having got one of the girls pregnant. Thorn apparently said that this did not sit well with him.
[1]The evidence indicated that there was no truth to those propositions.

You, Stefani, spoke with Thorn a number of times about the allegations against Lyons. You told him that Hooper’s children had confided in you and made serious allegations against Lyons.

On Friday 30 November 2018, you informed a friend, Christopher Nowell (‘Nowell’) about the allegations. When Nowell suggested that you should report the matter to the police, you disagreed as you said you believed that the police would not act immediately. You also told Nowell that you and Thorn were starting the Australian Freedom Fighters group, a self-styled vigilante group whose mission was to target paedophiles.

On the night of Saturday 1 December 2018, there was an incident during which you, Hooper, apparently convulsed while you were in bed with Lyons. This was observed or at least heard of by you, Stefani. Your mother, Hooper, Debra Saunders (‘Saunders’) came over and took your children to stay with her. You, Stefani, apparently formed the belief that Lyons had drugged and raped Hooper. You called Bottom and Nowell and requested that they come to McCullough St so that you could detail your suspicions to them. You also contacted Thorn and informed him what had happened.

Formation of plan

Later that evening, Bottom drove you, Stefani, and Nowell to Thorn’s residence. You met with Thorn, Bottom, Nowell, and Bottom’s girlfriend, Jessica MacFarlane, in The Tank, a converted concrete water tank which had been set up as a place to gather. You outlined the allegations against Lyons. You and Thorn expressed the view that something had to be done about him. On the prosecution case, this was the genesis of the plan to kidnap and seriously assault Lyons in order to extract a confession from him of having sexually abused his step-daughters. Nowell and MacFarlane refused to participate in the enterprise.

Late that night and into the next morning, there were communications between you, Stefani, and each of Harvey and Thorn in relation to the planned attack upon Lyons on 2 December 2018.

Lead-up events on 2 December 2018

At about 5.00am on Sunday 2 December 2018, you, Hooper, drove Lyons to work as was your practice. When you arrived home, you spoke on the phone with your mother and acceded to a request from the children to stay with Saunders until Monday.

Following this, you, Hooper, and you, Stefani spoke at the house about the beliefs you both had as to Lyons’s conduct. You, Stefani, informed Hooper of a plan to elicit a confession from Lyons. Others would be involved and Lyons would be assaulted at McCullough St and taken away. You, Hooper, agreed to become a party to the plan to assault and kidnap your husband.

You, Hooper, picked up Lyons when he had finished work. You arrived back home with him at 11.55am.

Preparations for the assault and kidnapping

You, Stefani, exchanged a series of phone calls and text messages with Thorn through the late morning and early afternoon of 2 December 2018, planning the attack upon Lyons.

On his way to McCullough St, Thorn visited a camping and disposals store and purchased two balaclavas and two rolls of duct tape. He arrived at McCullough St at about 12.55pm.

At 11.49am, you, Stefani, called Harvey and spoke with him. During that conversation, on the prosecution case, you confirmed with Harvey the plan to assault Lyons. Rikki Smith (‘Smith’) was with Harvey at the time, and it was at this point that he became involved in the agreement.

Harvey, Smith, and a another person Jayden Ball (‘Ball’) arrived at McCullough St at 2.11pm. Ball drove away after Harvey and Smith got out of his vehicle. They walked up to the front gate and were greeted by you, Stefani. All three of you then walked to your bungalow. Thorn was already there. He had in his possession the duct tape purchased to use in restraining Lyons. You provided further information to Harvey and Smith about the allegations against Lyons. The four of you discussed the plan. You, Stefani, gave each of Harvey and Smith a balaclava to wear. Harvey armed himself with a pole he found at the property. You were armed with a sawn-off shotgun which apparently resembled more a pistol than a shotgun.

The crimes
The initial attack on Lyons

You, Stefani, in company with Thorn, Harvey and Smith, went to the back door of the house. You all walked inside. You walked past Hooper who was standing in the kitchen. She ‘gave the nod’ to the group of you as you walked past her towards the master bedroom. The four of you entered the bedroom and found the unsuspecting Lyons lying on the bed.

The four of you immediately set upon Lyons. All four of you punched him to the face and head. Harvey struck him with the metal pole. Smith punched Lyons while holding a cigarette lighter between his fingers as a sort of knuckle duster. You, Stefani, forced the barrel of the shotgun into Lyons’ mouth and threatened to kill him if he didn’t confess to the sexual assault allegations.

Thorn and Harvey bound Lyons’ hands in front of his body with the tape. Shortly after this, Harvey called Ball and asked him to pick himself and Smith up. They then left the premises, but not before Harvey requested the CCTV hard drive which you, Stefani, gave to him. Harvey and Smith then walked to the front of the property where Ball collected them in his car. They then drove away.

You, Stefani, and Thorn remained in the bedroom, further assaulting Lyons. This included you, Stefani, kicking him and holding a lit cigarette to his face, seeking to extract a confession.

During this overall assault to which you, Hooper, and you Stefani, have both pleaded guilty as a charge of ICI, Lyons sustained injuries to his face and head, and bled profusely.

At 2.46pm, Thorn walked outside the property and moved your white Kia Rio, Hooper, out of the driveway. At 3.22pm, Thorn reversed his mother’s Toyota Corolla (‘the Corolla’) up the driveway deep into the carport so that the rear of the Corolla was obscured from the view of any passers-by in the street. He got out of the vehicle and opened the boot. Shortly afterwards, you, Stefani, carried Lyons outside and placed him in the boot of the vehicle. You closed the boot.

Lyons taken to Nyerimilang

Approximately five minutes later, Thorn got back into the Corolla. He drove away from the property with Lyons still in the boot. This was the culmination of the charge of kidnapping to which both of you pleaded guilty before me.

A few minutes afterwards, you, Hooper, came out of the house. You walked to the front of the property, moved a trailer which had been moved onto the lawn by Thorn, and shut the front gate. You then went back inside.

Upon his arrival at Nyerimilang, Thorn parked the Corolla next to Bottom’s caravan. He woke up Bottom and told him that he had a present for him. Bottom went to the Corolla and opened the boot, revealing Lyons inside with his hands and feet tied together. He had been badly beaten. Bottom closed the boot. Lyons called out for help.

At 3.50pm, a friend of yours, Hooper, Royanna Nicholas (‘Nicholas’), attended at your property after speaking with you on the phone. You appeared to be upset and crying. You said to her, ‘BJ’s gone’.[2] Nicholas asked you if you had reported the matter to the police. You stated that you had not done so because 24 hours had not passed so he would not be classified as a missing person. You told her that he may have gone to Sydney or Brisbane or to see his mother.
[2]This was a nickname by which many people knew Lyons.

At 5.56pm, both of you, Hooper and Stefani, left the property in your vehicle, Hooper, bound for Nyerimilang. On the way, you stopped at Woolworths in Lakes Entrance where you encountered and spoke with Evans. You, Hooper, told Evans, ‘He’s gone, he’s gone…BJ, he is gone, they have taken him’. You, Stefani, introduced yourself to Evans and said, ‘It’s all sorted. We are going to get a confession. We’ve got BJ and we’re going to get a confession out of what BJ has done to the kids’.

At Nyerimilang, where the two of your arrived shortly after speaking with Evans, Lyons was retained in the boot of the vehicle for some hours while there were discussions about the plan to extract a confession from him.

At 9.15pm, Evans attended at Nyerimilang. She parked next to the Corolla and was then told by Bottom to move her vehicle. She refused to do so then proceeded to The Tank. Inside, she sat next to you, Hooper. Evans asked if you were okay and you told her that they had come to the house in the morning and ‘fucked Lyons up’ and that Lyons ‘didn’t even tell [her] that he loved [her] as he was taken’. You told Evans that you would never forget the look in Lyons’ eyes as he was being taken out of the house.[3]
[3]Summary of Prosecution Opening for Plea, 9 March 2022 [69] (‘SPO’).

While Evans was present in The Tank, Bottom and Smith arrived there. Evans asked the others where Lyons was. You, Stefani, said that the group were going to get a confession out of him and then dump him at the police station with the confession. Evans questioned the sense of the plan, suggesting that the confession would not stand up in court. You, Stefani, insisted that the plan would work.

While you, Hooper, were at Nyerimilang, you exchanged text messages with one of your daughters. At 10.20pm, you sent a message which read, ‘Ok things will change now my girl and just know how amazing and strong you are and none of anything that you had to go through is your fault xoxo’.

Both of you, Hooper and Stefani, left Nyerimilang shortly before midnight, returning to McCullough St.

Torture of Lyons at Nyerimilang

You, Stefani, before you left the property, were involved in a plan with others for Lyons to be further assaulted in an attempt to extract a confession from him. After you and Hooper had left, Lyons was removed from the boot and tied down to a metal massage table in a shed at the property. He was subjected to a further assault containing a number of elements. A chainsaw was held over his head to make him talk, he was punched, hot water from a kettle was poured on him, and Deep Heat was put on his body. The specifics of the assault were later recounted to you by others including Thorn. You, Stefani, later still made admissions to one of Hooper’s daughters that at the farm, a chainsaw had been held over Lyons and that they kept making Lyons ‘piss himself’.

Killing of Lyons

Sometime after the departure of the two of you from the property and the further assault upon him, Lyons was placed back into the boot of the Corolla. He was driven to a remote area next to a dirt track in Double Bridges where he was shot in the head with a shotgun and buried in a shallow grave.

Events after your crimes
Communication and events after the disappearance of Lyons

You, Stefani, were in regular communication with Thorn and Bottom after the events. From these communications, you became aware of the details of the assault upon Lyons at Nyerimilang. Telephone intercept and other records indicate that the two of you continued to talk to people about the disappearance of Lyons and your knowledge that you were persons of interest to investigators in the months following the disappearance.

When Saunders returned your children to you on the Monday morning after the disappearance, you, Hooper, informed her that Lyons was gone, but you did not elaborate. When one of your daughters returned to the property on 3 December 2018, you told her that Lyons had left because he had had enough.

On 11 December 2018, Evans visited McCullough St while you were both present. You spoke about blood being on the wall of the bedroom and on the mattress, and that the mattress needed to be disposed of. You, Hooper, told Evans, ‘I gave them the nod to say I’m ready, come and get him’. You also told her that some of the men wore balaclavas and had guns with them. You, Stefani, laughed and told Evans that you had burnt Lyons’ face with a cigarette and ‘gave him a flogging’.

On 20 December 2018, a friend, Nathan Callow (‘Callow’), visited you, Hooper. You told him that on the day he disappeared, Lyons went for a drive with some unnamed people and that that was the last you saw of him.

In the days and weeks following the disappearance, you, Hooper, told numerous people that Lyons had sexually abused some of your children, had returned to heavy drug use and had spiked your drugs. You claimed to a friend that Lyons was part of a paedophile/child pornography ring and put pictures of your children on the dark web.[4] You continued to tell people that you did not know what had happened to him.[5]

Admissions by Stefani to children of Hooper

[4]There was no evidence that supported the truthfulness of these claims.

[5]SPO [92].

You, Stefani, made a number of admissions to two of Hooper’s children after the events in various conversations. Those admissions are set out in some detail in the SPO. Amongst other things, you admitted having been involved with a group of people who took Lyons in broad daylight. The attack had been planned in your bungalow before you and others, some of them wearing balaclavas, entered the house and proceeded to the master bedroom. You put a cigarette to Lyons’ face and held a sawn-off shotgun down his throat and told him to confess about touching the kids. You said that you had cable-tied Lyons’ feet before throwing him in the boot of Thorn’s car. He was then taken to Thorn’s home in the boot of a car and held in the boot for 18 hours. You claimed that the plan was that Lyons was to be tortured before being dropped off at a police station. You said that you and others had held a chainsaw over Lyons’ head trying to get him to confess, and that he had been made to ‘piss himself’. You said to one of the girls that it was your expectation that before the end of the night, Lyons would have the tattoos of the girls’ names cut off him and would ‘be a few knuckles down’. You told one of the girls that it made you sick what you ‘had to do’.[6]
[6]SPO [96] – [97].

You showed one of the girls a pool of blood which was on Lyons’ side of the mattress in the bedroom. The other girl observed blood in a number of areas in the bedroom and elsewhere in the house.

After Lyons had been reported missing but prior to her first VARE with police, you, Stefani, asked one of the girls to lie to cover for you. When she told you that she was going to make a statement to police, you threatened to tell Thorn. You had previously told her that no one would believe her if she told the truth as it would be her word against yours.

Cleaning up of McCullough St

After she had been shown the bloodied mattress in the master bedroom, one of the children gave you, Hooper, her mattress as a replacement. You, Stefani, obtained a new mattress. You cut up the bloodied mattress in the shed. You burnt the fabric part and hid the springs in a chest of drawers in the shed, where they were later located by the police. The two of you made efforts to clean up blood around the house.

Barbecue at Nyerimilang

On Wednesday 5 December 2018, you and your children, Hooper, and you, Stefani, went to Thorn’s property for a barbecue.

Lyons reported missing

Lyons’ brother Zachary Lyons contacted Bairnsdale police on 11 December 2018 and reported Lyons as a missing person. First Constable Luke Zwiersen (‘Zwiersen’) spoke with you that morning, Hooper. You told him that you had last seen Lyons when you went to bed together on the Sunday night. By the morning he was gone. In a later conversation with Zwiersen, you stated that Lyons had not taken his phone or his wallet with him. You claimed he had said to you that if he ended his life you would get $380,000. You said that you had recently confronted him about alleged sexual abuse of one of your daughters and he had become nasty as a result. You said nothing about the true circumstances of his disappearance.

Police attend property of Hooper on 11 December 2018

Police attended McCullough St on 11 December 2018 and searched the premises. They noted the master bedroom appeared to have been recently cleaned. In a conversation with Detective Senior Constable Verity you, Hooper, stated that Lyons had started using drugs and saying sickening things around the children. You were suspicious he had impregnated one of your daughters. You believed he had placed cameras in the bathroom. You claimed that when you awoke on Monday morning, he was gone. You made no mention of anyone else coming to the property on 2 December 2018.

Statement by Hooper to police on 11 December 2018

You, Hooper, made a detailed statement to the police on 11 December 2018 in which you lied about the events of 2 December 2018 to cover up your involvement in the assault and kidnapping of Lyons.

Statement by Stefani to police on 13 December 2018

You, Stefani, made a detailed statement to the police on 13 December 2018 in which you lied about the events of 2 December 2018 to cover up your involvement in the assault and kidnapping of Lyons. You told the police about the occasion of Hooper having fitted on the night of Saturday 1 December 2018. You claimed that one of Hooper’s children had disclosed to you that ‘the girls’ had been sexually assaulted by Lyons. You said you only went into the house once on the Saturday night at about 7.00 – 8.00pm to use the bathroom. You did not see or speak to anyone at that time. The next morning, you saw Hooper at lunchtime. She said to you, ‘He’s left me. He doesn’t even love me.’

Arrest of Hooper and Stefani; 19 December 2018

Police executed a search warrant at McCullough St on Wednesday 19 December 2018. They observed blood staining on the hallway wall. They seized items including a roll and separate piece of grey duct tape.

Hooper’s first police interview; 19 December 2018

In your first interview with the police, you, Hooper, gave a detailed account of the supposed deterioration in Lyons’ behaviour and the relationship between you. You accused him of having drugged you on the Saturday night, and later of saying ‘weird shit’ about going to gaol. You canvassed your suspicions of him where the girls were concerned. As for the night of 2 December 2018, you said you last spoke to Lyons at about 6.00pm. After that, he remained in the bedroom. You slept in the lounge room. It was not until about 8.30 the next morning that you realised he had left. You made no attempt to contact him because he had left on previous occasions. When challenged by police during the interview as to your account, you denied any prior knowledge that Lyons was going to be assaulted or kidnapped, and any involvement in the events. You said that there was an altercation. Five to six people had come in the back door and you had been told to get out and go down the back. You did not hear the noise of any assault or screaming. You did not know how Lyons had been taken from the address. After the event, you noticed no sign of an assault, and denied there was anything for you to clean up. You denied leaving the house after the events, but later admitted you might have gone to Thorn’s property with Stefani, but stayed in the car other than perhaps to go to the bathroom. You denied that you wanted Lyons hurt.

Stefani’s first police interview; 19 December 2018

You, Stefani, were interviewed by police at Bairnsdale Police Station on 19 December 2018. You said:

I’ll say that I can’t tell you what I do know and, yeah, I just – I want you to know that I know that I’m – it looks – it’s pointing towards me and whatnot but – and I know my word doesn’t mean anything to you or whoever watches the tape but I hundred per cent solemnly swear that I didn’t take his life, I never wished his life to be taken ---and yeah. I’m just sorry for the way it’s all gone out, I s’pose.[7]

[7]Depositions, Appendix AD, Transcript of DVD recorded interview on 19 December 2018, 11,244 – 11,245.

You said that the last time you had seen Lyons, he was conscious and healthy.

At the conclusion of the interview, you made some admissions in off-the-record comments.

Discovery of remains of Lyons; 14 March 2019

Lyons’ remains were located by police on 14 March 2019 following admissions made by Bottom during a police interview.

Hooper’s second police interview; 4 April 2019

You, Hooper, were arrested on 4 April 2019 during the course of a police search of McCullough St. You were interviewed for a second time at Bairnsdale Police Station. Again, you lied about the events of 2 December 2018. You claimed that a group of men whom you did not know came into the house through the back door. Someone held a gun to your head and told you to get down the back. You went to the bungalow. You observed someone carrying Lyons over their shoulder up the driveway. You did not see what happened to him. You admitted going to Nyerimilang on the night of 2 December 2018 and being in The Tank, but denied there was any discussion about what had happened to Lyons that day or the plan to elicit a confession from him. You denied having told Evans that you ‘gave them the nod’, and denied any such event.

Stefani’s second police interview; 4 April 2019

Having been arrested in Cann River on 4 April 2019, you, Stefani, were taken to Bairnsdale Police Station where you were interviewed for a second time. You said that you had known Lyons for years and were good friends. You had never spoken to him about allegations that he had sexually assaulted the children. As far as you were aware, the contents of your statement to police on 13 December 2018 were true and correct. You had no memory of being in The Tank on 1 December 2018. You denied being part of an organisation run by Thorn. You denied having made any threats to one of Hooper’s daughters to discourage her from speaking to police.

Personal background Hooper

You, Hooper, were born in 1983 and are now aged 39. You were 35 at the time of your offending. You are from the Walbanga people of the Yuin Nation near Braidwood, traced through your father and paternal grandmother. You have one brother Clinton and three paternal half-siblings. Your father Ernie was a truck driver who drank heavily and perpetrated significant physical and psychological violence upon your mother Debra. The family relocated from Lakes Entrance to Dandenong when Ernie’s trucking business failed. You remained there until Ernie took his own life when you were six. After this, the family returned to Lakes Entrance where you lived in a Housing Commission home. When you were seven, your mother re-partnered with Graham Saunders, to whom she is now married. You attended a local primary school where you were bullied. You then attended Lakes Entrance Secondary College but truanted in year 10. After a brief period at Nagle College in Bairnsdale, you left school altogether in year 11. At school you were assisted by indigenous workers.

The individual trauma you experienced, and the intergenerational trauma present throughout your family as detailed on your behalf by Mr McMahon SC led you to develop mental health and addiction issues which had a profound effect on your schooling and relationships with others. You struggled to cope with the suicide of your father. You blamed yourself, unable to understand why he would have suicided if he loved you and your brother. Your grief was not recognised or addressed professionally, leading to self-harming behaviour when you were as young as seven. You were the victim of sexual abuse perpetrated by older cousins over a protracted period. You attempted suicide in your late teens. Many of your family members similarly struggled with mental health and addiction issues.

You moved out of home at 15 due to conflict with your mother and step-father arising from your behaviour. You rented a caravan and became eligible for Centrelink payments. Your school attendance dropped. After you transferred to Nagle College, you only completed three months of year 11 before leaving school altogether. For a time you lived with you older half-sister Debbie in Pambula where you worked in a hairdressing salon. Upon your return to Lakes Entrance you obtained a Certificate II in commercial cookery. At the age of 17 you moved in with your paternal uncle and his wife in Taree. They were both drug users.

Throughout your life you have used drugs and alcohol as a form of self-medication to block out negative emotions. You commenced drinking alcohol and using cannabis when you were 12, and continued to do so on and off until your remand on these matters. At 15 you abused dextroamphetamine and by 18 were using speed. In your early 20s you switched to methamphetamine (‘ice’) and had several periods of intense usage, including at the time of your offending when you were also engaging in substantial alcohol consumption.

Upon your return to Lakes Entrance from Taree you entered into the first of a string of long-term relationships with males which were marred by drug addiction and physical violence towards you. Ms Carla Lechner (‘Lechner’), a clinical psychologist whose report was tendered on the plea hearing, noted there appeared to be trans-generational issues with domestic abuse.

You became pregnant with your first daughter just after your 18^th birthday. You left your then partner at 19 when he became aggressive towards your daughter. Shortly thereafter you became pregnant with your second child.

You commenced a relationship with Lyons after a number of relationships had led to the birth of four children in total. You and Lyons had three children yourselves. Your relationship with Lyons was a tumultuous one. You both regularly used drugs. Lyons perpetrated some violence towards you resulting in police obtaining a family violence intervention order (‘FVIO’) to protect you in 2016. There was Department of Families, Fairness and Housing (formerly DHHS) involvement due to family violence and parental drug use. You sometimes worked as a cleaner and Lyons worked at a supermarket in Lakes Entrance. The family moved to Metung and then later Buchan before moving into McCullough Street in 2015.

Criminal history Hooper

Your relatively modest criminal history commenced in 2006 when you were aged 23 with a charge of indecent language. Convictions for six charges from three subsequent court appearance followed. The charges included recklessly causing injury, behaving in a riotous manner and assaulting police. Fines were the outcome of the convictions.

Psychological material Hooper

Lechner considered you to have been exposed to multiple traumatic experiences, including successive instances of domestic abuse, multiple sexual assaults, and the death of Lyons. She determined that you fulfilled the criteria of a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’) and Complex PTSD, noting that the notion of Battered Person Syndrome came to mind when documenting your history. She opined:

Her learned helplessness, depression, anxiety, chronically low self-esteem and self-confidence and constant feelings of hopelessness and helplessness, can however, also be understood through the lens of Complex Developmental Trauma and Complex PTSD. Ms Hooper’s exposure to abuse, commencing in her formative years, has rendered her lacking in a sense of self and strong belief that somehow, she ‘deserves’ the treatment that she receives, that she has brought it on herself and that she has to ‘protect’ the perpetrator - ‘it’s always been my fault’. Her personality development has been severely compromised with her exhibiting symptoms and behaviours of a Borderline Personality Disorder. She is emotionally and behaviourally dysregulated, impulsive in nature, highly dependent on others to function effectively (and often against her own best interests) and she has an intense fear of being abandoned and alone. In this set of circumstances, she felt unable to raise the issue of possible sexual abuse of her children with her intimate partner and in fact, ‘didn’t want to know’ for fear of the repercussions.[8]

[8]Psychological report by Carla Lechner, 23 March 2022, 5.

Lechner noted that you had accepted responsibility for your offending, expressing immense shame and regret. That observation about accepting responsibility does not sit comfortably with the account you apparently gave her of your involvement in the offending, including that you expected that Stefani would ‘stand beside me when I confronted Brad’, that ‘I didn’t want to leave him, wanted to save the marriage’ and that you did not appreciate the nature of the intervention that would occur or the potential consequences.[9] She did note, however, your inclination to minimise your role and opined, ‘I suspect that she finds it hard to take on responsibility for her part in the unfolding events as she feels immense guilt and complicated grief’.[10]
[9]Ibid page 7.
[10]Ibid page 8.

Lechner expressed the view that you are:

in need of long-term and intensive psychological support that focuses on mood management, trauma debriefing and management and AOD counselling that assists her in minimising the risk of relapse to drug and alcohol abuse. Participation in a support group for victims of domestic violence is also strongly advised.[11]

[11]Ibid page 9.

She expressed the opinion that a return to custody at this juncture is likely to undermine the gains that you, Hooper, have made since being released on bail, further undermining your mental health and significantly limiting your access to treatment.

Personal background Stefani

You, Stefani, were born in 1994 and are now aged 28. You were 24 at the time of your offending. You were born in Frankston and lived in the Mornington Peninsula area with your parents and younger brother until your parents separated when you were three. You and your brother then moved to live with your mother in Gippsland and you had no contact with your father until you were 15. You lived in numerous residences in Gippsland. You were educated at Fish Creek Primary School and then Leongatha Secondary College until year 10. You always did well academically but struggled socially and behaviourally. You received suspensions for drinking and fighting. Your mother re-partnered when you were 10 and you took your step-father’s surname.

You left school at 15 and moved to live with your father and his partner and children in Cann River in an attempt to build a relationship with him. You briefly attended Cann River Secondary College. Unfortunately your relationship with your father did not progress as you had hoped and you soon moved out to live with friends. You spent your teenage years living an itinerant existence, couch-surfing and working casual jobs. When you were 18 you attempted year 12 at Gippsland Technical School but did not complete it.

You commenced a relationship with Caitlin, the sister of Ms Hooper, when you were 18. You remained together for four years.

At around this time, you commenced using ice having at the age of 15 commenced cannabis use.

Your relationship with Caitlin ended in 2016. Throughout 2017 and 2018, you resided sporadically at McCullough St with Hooper and Lyons. By 2018, you were using ice and cannabis daily. You were friends with Lyons and were close to and felt protective towards Hooper’s and Lyons’ children.

It was submitted on your behalf that you have little employment history, a long-term pattern of drug use, and have made little use of your natural intelligence over your life to date.

Criminal history Stefani

You have a modest criminal history commencing in the Children’s Court in 2013 with your release on a non-conviction supervision order for arson, theft and burglary. On 16 October 2018, you received a community correction order (‘CCO’) for firearms and bail offending. You were subject to the CCO at the time of the present offending.

Psychological material Stefani

A report of a forensic psychologist Patrick Newton (‘Newton’) was tendered during the plea hearing.[12] Newton reported your engagement in the process as somewhat lackadaisical and superficial. He found you to be an immature person not accustomed to reflecting on your feelings. He set out your history in some detail, noting your report of having shown precocious talents throughout your schooling. The onset of drug use in your mid-teenage years led to your school performance plummeting and behavioural issues becoming more pronounced. You became enmeshed in a group of drug-using associates. By way of an explanation for your offending, you provided a brief account of having asked a group of others to assist you in convincing Lyons to leave the property in circumstances where you believed that he had sexually abused his step-children whom you described as your ‘ex-partner’s nieces’. The plan had been supposedly to video-record a confession and leave Lyons and the recording at the local police station. You indicated you had been willing to use violence to extract the confession, admitting having burnt Lyons’ face with a lit cigarette. When asked by Newton for your response to the events which unfolded, you said:

The main thing at the end of the day is that I was trying to do the right thing and went the wrong way about it. I have to live with the fact that I have affected so many people. I was trying to get one person [the deceased man] away from the girls but it’s ended up that so many other people have been hurt.[13]

[12]Exhibit NS2,

[13]Exhibit NS2, page 7.

Newton did not diagnose any mental disorder at the time of his assessment of you or at the time of your offending, noting that in his view the most important factor influencing your mental state at the time was your drug use. There was no indication that you did not have a full appreciation of the wrongfulness of your conduct. In terms of personality, Newton did not diagnose any disorder. He carried out an analysis of your risk of future violent offending using the HCR-20, Version 3,[14] a widely-used structured professional judgment instrument. Based on this assessment and considering your overall circumstances, Newton assessed you as posing a moderate-high risk of further violent offending, substantially elevated relative to other violent offenders. He pointed to the need for you to participate in a men’s violence reduction program.
[14]The Historical Clinical and Risk Management (‘HCR-20’) tool.

In summarising your position, Newton described you as an introverted man with limited social skills. He indicated that your personality and life experiences had led you to ‘internalise a view [of] the world as harsh and unfeeling’.[15] Your negative view of the world and society had been reinforced by your immersion in drug culture and involvement in the edge of the criminal world. These factors had underpinned your decision to resort to vigilantism to resolve your concerns for the children of Hooper rather than to rely on legitimate measures.
[15]Ibid, page 15.

Pleas of guilty and remorse

You, Hooper, offered to plead guilty to the current charges on 21 December 2021 and pleaded guilty on arraignment on 31 January 2022. Mr McMahon submitted that your plea of guilty should be regarded as having been made at an early opportunity.

He submitted that your plea is indicative of remorse, further supported by comments you made to Lechner about the immense shame and guilt you feel, notwithstanding the absence of the ‘language of remorse’ in her report. He noted that the precise meaning of remorse is a ‘relatively elusive concept’[16] but submitted that the combination of your determination to change and to improve your life and turn it around, the shame and guilt you have expressed and your plea of guilty should be viewed as indicative of genuine remorse on your part.
[16]Transcript 99.

You, Stefani, offered to plead guilty to the current charges on 9 February 2022 and were arraigned on 16 February 2022. Prior to that, you offered to plead guilty to aggravated home invasion, kidnapping and ICI on 3 May 2021. In those circumstances, Dr Alexander submitted, in the written outline at least, that your plea of guilty was entered at the earliest practicable stage.

In your case, Hooper, Mr Gibson KC who appeared with Ms Goding and Mr Bourbon for the Prosecution, challenged the contention that your plea should be considered to be an early one, but did not contest its importance. As for remorse, he submitted that yours should be assessed in light of your ongoing minimisation of your role and continued positioning of yourself as a passive victim in the context of the offending. In particular, he submitted that your comment to Lechner that you did not appreciate the nature of the intervention which would occur when you asked Stefani for help is inconsistent with your acceptance of responsibility and the presence of genuine remorse.

In your case, Stefani, Mr Gibson submitted that your plea of guilty should not be considered to have been made at the earliest opportunity, putting the timing of the resolution as lying between those of Harvey and Ball on the one hand and Hooper on the other. As with Hooper, the Crown did not contend that your plea of guilty was not an important matter in mitigation.

I do not believe in the circumstances, Hooper, that your plea of guilty can be said to have been made at an early time. That is not to say that it is not still an important matter in mitigation. It showed a willingness by you to facilitate the course of justice and had significant utilitarian benefit, all the more so because of the delays in the criminal justice system brought about by the COVID-19 pandemic.[17] Your plea of guilty also can be viewed as an indicator of some remorse on your part. As to any further evidence in that regard, I am satisfied that you do feel great sadness for the death of Lyons, but I am concerned that you have continued to show an inclination to minimise your involvement in what occurred to him and to portray yourself as almost a victim of events beyond your control. I am not sure that you have fully accepted the seriousness of your involvement in what befell your husband. However, I am prepared to find that you do feel some remorse for your offending.
[17]Worboyes v The Queen [2021] VSCA 169 (Priest, Kaye and T Forrest JJA).

In your case, Stefani, not taking away from the importance of your plea of guilty, which is considerable, I do not accept that it was made at the earliest practicable stage. You were in custody charged with murder and other charges from 4 April 2019. Whilst you made some off-tape admissions during you first police interview on 19 December 2018, in the interview itself you denied involvement in the kidnapping and other offending. In your second interview you said that what you had said in your dishonest statement to the police was correct, and again denied involvement. Therefore your acknowledgment of involvement and guilt did not occur for two years after you were charged and incarcerated.

Having said those things, as already noted, your eventual plea of guilty is still an important matter in mitigation. I accept that there is significant utilitarian benefit attaching to it. I also accept that it is an indication of the remorse you now feel for your offending, which was also evidenced by a number of comments you made to Newton. I also in your case note the enhanced utilitarian value of a plea of guilty in these days of significant trial backlogs as a result of the COVID-19 pandemic.

Nature and gravity of your offending

In addressing the Court on the nature of your offending, Hooper, Mr McMahon noted that your decision to become complicit in the agreement to assault, kidnap and falsely imprison Lyons was made in the context of the unresolved question of whether he had sexually abused your daughters. He submitted that it is significant that the agreement between the co-accused to commit the offences was formed before you became involved. You became involved only belatedly in a plan that was already well-developed, to whose content you did not contribute, and in whose execution you were not an essential part. Also significant, so he submitted, was the fact that you did not physically engage in any of the offending, and did not even observe the assault upon Lyons as you were elsewhere in the property at the time, notwithstanding the fact that you nodded at your co-offenders upon their entry, acknowledging that they were present to elicit a confession from Lyons by means of assaulting and kidnapping him. Mr McMahon submitted that whilst you were complicit in the kidnapping and false imprisonment of Lyons, your role can be contrasted with that of the co-accused. Furthermore, you did not participate and nor were you complicit in any further offences committed by the co-accused on Lyons at Nyerimilang.

In your case, Stefani, Dr Alexander submitted that matters in aggravation of the seriousness of your offending were the fact that it was planned rather than being spontaneous or opportunistic, that it was relatively protracted, that it was carried out in company, and that it was motivated by vigilantism. It was accepted that the acts attributed to you in the lead-up to the offending in the SPO, including your having given balaclavas to Harvey and Smith and placed a sawn-off shotgun in the mouth of your victim, did occur. On the other hand, Dr Alexander submitted that the sawn-off shotgun used by you during the assault at McCullough St was brought to the scene by Harvey and was not loaded. Whilst you were involved in the assault, directly responsible for taking Lyons to the boot of the Corolla, and present during subsequent discussions at The Tank, your purpose throughout was to obtain a confession from Lyons and you neither knew nor suspected that he would be killed. Dr Alexander did not take issue, however, with the proposition that you were an important participant in the crimes to which you have pleaded guilty.

Moral culpability and degree of responsibility

In your case, Hooper, as well as pointing to your deprived and difficult upbringing, Aboriginality, and other aspects of your circumstances as reducing your moral culpability for your offending, Mr McMahon pointed to two aspects of your offending as being relevant to an assessment of your moral culpability. First, he relied upon the apparent distress you showed during the assault upon your husband at McCullough St as indicated by the accounts of some of your co-offenders. He submitted that this placed you in a less serious position than would have been the case had you simply had a callous disregard for what was happening to your husband. Secondly, he submitted that rather than simply viewing your conduct as vigilante conduct aimed at punishing Lyons, I should consider it to be aimed at getting answers from Lyons about his past conduct towards your daughters.

Far more importantly than the above, Mr McMahon relied strongly on the principles enunciated in the key decisions of Bugmy v The Queen[18] and DPP v Herrmann[19] in contending that your moral culpability for your offending should be considered to be significantly reduced on account of your deprived background and identity as an indigenous woman.
[18][2013] HCA 37 (‘Bugmy’).
[19][2021] VSCA 160 (Maxwell P, Kaye, Niall, T Forrest and, Emerton JJA) (‘Herrmann’).

Mr McMahon submitted that your deprived background is relevant to the assessment of your moral culpability in the general way considered in the authorities as represented by the first principle in Herrmann. He submitted that your moral culpability is less than would be the case with an offender whose formative years were not marred in the way in which yours were marred. No nexus or causal connection between your background and the offending would be required to be proved for this general principle to come into play.

He further submitted that your moral culpability is reduced in the specific way discussed in the second principle in Herrmann. Your deprived background, it was submitted, provides an explanatory or causal nexus with the offences which you committed. As he put it, you developed PTSD and complex PTSD as a result of your history, as outlined by Lechner. Those diagnoses and your borderline personality traits were linked with the factors leading to the commission of the offences. In addition, you are of relatively low intelligence and your capacity to engage in reflective and consequential thinking was undermined by your substance abuse and emotional dysregulation. Mr McMahon submitted:

This provides an evidentiary link between Ms Hooper’s own experience of trauma and her inherited intergenerational trauma, and commission of the offences. It is both explanatory and causative of the offending…
Ms Hooper simply did not possess the judgment, emotional strength or decision making skills to navigate a situation where her daughters alleged sexual abuse by her husband. Nor did she have the judgment, emotional strength or decision making skills to extricate herself from the plan formed by the co-accused, let alone a sense of power or independence to intervene to thwart that plan. She was entirely out of her depth to affect the outcome of the plans instigated by an angry mob of men.[20]

[20]Outline [64]-[65].

Mr McMahon also relied on the principles in R v Verdins & Ors,[21] in particular principles one, three and four, submitting that your moral culpability should be considered to be reduced pursuant to those principles, meaning that less weight should be given to the need for deterrence, just punishment and denunciation. Mr McMahon did concede that his reliance on the Verdins principles was ‘a bit unorthodox’.[22] He noted the strong connection between those principles and the Bugmy considerations and submitted that not much turned on whether I accorded you a reduction in sentence in accordance with the Verdins principles in light of Bugmy’s application.
[21](2007) 16 VR 269 (Buchanan and Ashley JJA and Smith AJA) (‘Verdins’).
[22]Transcript 104.

In addition to the principles which I have already noted, Mr McMahon initially submitted that in your case, the general principle that intoxication will not reduce a person’s moral culpability for criminal offending should give way under the principle considered in R v Fernando[23] because your abuse of drugs is a reflection of the environment in which you were raised. He submitted that your moral culpability is further reduced due to your intoxication at the time of your offending. Mr McMahon conceded that he could not establish that you were substantially affected by drugs at the time of your crimes, but submitted that you were living a life ‘saturated by drug taking’[24] and ‘chaotically affected by drugs’.[25] As his submissions continued, Mr McMahon seemingly backed away from reliance on your asserted intoxication at the time of your offending as reducing your moral culpability, settling on the proposition, which I might say I can readily accept, that your drug use is not an aggravating feature.
[23](1992) 76 A Crim R 58 (Wood J) (‘Fernando’).
[24]Transcript 140.
[25]Ibid 141.

In your case, Stefani, in connection with the degree of your moral culpability for your offending, Dr Alexander submitted that it occurred in the context of your severe drug abuse which, whilst not mitigating its seriousness, provided important context to your actions and thinking. Your conduct was motivated by a desire to see Lyons removed from his home and brought to justice for his behaviour towards children with whom you had a close connection. Notwithstanding these submissions, Dr Alexander accepted that your crimes amounted to acts of vigilantism which were ‘utterly wrong and worthy of condign criminal punishment’.[26]
[26]Outline [69].

Prosecution position on offence seriousness and moral culpability

As concerning you, Hooper, the prosecution relied upon a number of aggravating features of your offending. Notwithstanding the fact that your criminal responsibility arises from your complicity in the actions of your co-accused who had already formulated a plan to assault Lyons before you became a participant, you entered into the agreement with Stefani in advance of the attack, in the knowledge that a group of men was going to attack Lyons and take him away from the safety of his home. In that knowledge, you picked Lyons up from his work and returned him to the location where you knew the attack was going to commence. You had the ability and opportunity to prevent the attack from occurring and chose not to do so. You knew your husband would be vulnerable, unsuspecting and outnumbered. The assault upon Lyons at McCullough St was a serious one, carried out by a group of armed and disguised men, leading to injury of a level that would remove it safely from the lower end of the range of injuries covered by the crime of ICI. The assault continued after the initial attack upon Lyons after he had been restrained and already injured. Your offending was prolonged, with the false imprisonment of Lyons continuing over the afternoon and night of 2 December 2018. Lyons, suffering the effects of the injuries inflicted upon him at McCullough St, was left restrained and imprisoned in the boot of the Corolla over the course of a summer’s day and evening. Your demeanour after the assault and kidnapping of Lyons belied any suggestion that you were shocked or scared by what had occurred. You walked to the gate and closed it after he had been taken away in the boot of the Corolla. You told lies to others to deflect blame. You attended at Nyerimilang while your husband was being held a prisoner there. You took steps to cover up the offending by the disposal of the bloodied mattress and the cleaning up of the crime scene. In your case, your crimes represented serious examples of family violence.

In your case, Stefani, in emphasising the objective seriousness of your offending, the prosecution pointed to your instrumental involvement in the planning of the attack. You were a driver of what took place, albeit below Thorn in importance. Your position of leadership in the planning was evidenced by the numerous phone calls and text messages in which you were involved in the lead-up to the crimes and your having recruited others into the enterprise. The final details of the attack were confirmed in your bungalow immediately prior to the offending. You provided balaclavas to Smith and Harvey for use during the assault. You committed the assault at McCullough St in company with other armed and disguised offenders. You yourself were armed with a shotgun which you used to threaten and intimidate Lyons. The circumstances of that offending were as I have already noted in connection with Hooper. After his removal to Nyerimilang, you were complicit in Lyons being further assaulted notwithstanding his previous injuries. Efforts were made to cover up your offending as already noted. At the time of your crimes, you were only two months into a CCO for various firearms related crimes.

In the case of each of you, the prosecution submitted that your offending is properly to be characterised as vigilante action, involving you and others acting on rumour and innuendo in ambushing, restraining, assaulting and kidnapping your victim to exact vengeance against him. Whilst each of you had your reasons for acting as you did, to be found in the suspicions of sexual impropriety by Lyons against his step-children, as the authorities make clear, the vigilante action in which you each engaged must be condemned in the strongest possible terms.

In your case, Stefani, the Crown submitted that your moral culpability for your crimes is high.

As for you, Hooper, the Crown acknowledged that the matters as to your background set out in the material on your behalf should mean that your moral culpability is less than would be that of an offender whose formative years had not been marred by the childhood deprivation and hardship you encountered. There was no dispute that the first, general principle considered in Bugmy would have application. Not so, however, with the second, more specific limb. It was submitted by the Crown that the required nexus or realistic connection between your offending and your relevant background for this principle to be enlivened had not been established in your case.

So, too, in the case of the Verdins principles. The necessary nexus or connection between any impairment from which you suffered and your offending for the principles to come into play has not been established, so it was submitted.

In respect of your moral culpability, in light of the admitted reduction that would be appropriate in accordance with the general principle in Bugmy, Mr Gibson noted that the cases of Bugmy and Herrmann concerned extreme examples of offenders who had been brought up in circumstances of severe deprivation, institutionalisation and trauma. Whilst issue was not taken with the unfortunate aspects of your background, these could be contrasted with the far more extreme cases recognised in the authorities. As an example, Mr Gibson noted the quiet and constant support you have always received from your mother relative to the lack of parental support present in many of the cases. In the end, notwithstanding the Bugmy considerations, bearing in mind the many aggravating features of your offending, your moral culpability, whilst reduced somewhat, must still be seen to be high.

Analysis of offence seriousness and moral culpability

In your case, Hooper, notwithstanding the matters forcefully advanced on your behalf by Mr McMahon, your offending cannot be viewed as being anything less than extremely serious. Unlike any of the other offenders, including Stefani, you were in a position of substantial trust relative to you husband Lyons. You had been married for many years, and you shared three children together. When you acted against him, you acted against a person who should have been able to look towards you for protection and support, rather than violence and betrayal. Albeit that you were not the originator of the plan, at a time early enough to provide you ample opportunity for reflection and withdrawal, you became complicit in a plan to engage in what the prosecutor aptly described as naked and brutish vigilante action against Lyons.

I reject Mr McMahon’s characterisation of your offending as motivated by a desire to obtain answers from Lyons about his suspected misconduct towards your daughters. If it was answers you wanted, resorting to a group attack upon your husband by a number of angry, armed, and disguised men, was the last thing to which you would have resorted. Whilst of course your involvement in this enterprise occurred in the context of a desire to protect your children, in reality you conduct was principally directed at exacting retribution and punishment against your husband, and perhaps removing him from your life and the lives of your children, not about gaining knowledge.

Your lack of direct physical involvement in the attack upon your husband at McCullough St says little about the seriousness of your offending. You did all that was required of you as part of the overall team. You communicated your support for the plan to at least Stefani. You picked up your husband from work and brought him home to the scene of the intended attack in the knowledge that it would occur. You ‘gave the nod’ to those whom you knew would carry out the attack as they entered your home. You sat by while Lyons was attacked and did not lift a finger or say a word to help him. In doing so, you metaphorically turned your back upon your husband. You did all of this in circumstances where you fully appreciated in advance that the attack was to be carried out by a group of armed and angry offenders upon a man lying on his bed in his bedroom, entirely unsuspecting and completely helpless.

Mr McMahon submitted that there is no evidence that you contributed to the plan or were essential to its execution. The fact is that of course you contributed to the plan by delivering the intended victim to the location at which he was to be attacked and permitting the attackers to enter your home to carry out the attack. In my view, there is every reason to believe that this overall attack upon Lyons would not have occurred without your concurrence and support, although that is a matter about which I need reach no formal conclusion.

Mr McMahon relied upon your apparent distress during and after the attack as being in some way mitigatory. In my view it was not. If you were somewhat taken aback by the severity and brutality of the attack upon your husband in your home, it says nothing about the degree of your involvement and the level of your support. And by your actions in the aftermath of the assault and kidnapping of Lyons, you showed a continuing lack of concern and regard for his wellbeing, and continuing support not only for the attack upon Lyons at McCullough St, but also for the ongoing false imprisonment of a man you knew to have been significantly injured in the initial attack and forcibly detained for some hours in the boot of a motor vehicle, conduct which could only have magnified the terror he must have felt throughout the many hours of his ordeal.

As I said, your offending was extremely serious.

As for your moral culpability, I accept that it is reduced by your past history, consistent with the general principle in Bugmy. That reduction, though significant, however, would not be of the order required in such cases as Bugmy itself, reflecting the fact that the tribulations of your prior history were of nowhere near the same order.

I do not accept that your moral culpability is further reduced in the specific way considered in Bugmy. The required causal connection or nexus has not been established on the evidence. Your offending had nothing to do with an inability to control an impulse towards violence due to frustration born of your deprived background, and everything to do with a willingness to enter into a planned, violent and entirely unacceptable response to the suspicion held by you and others that Lyons had sexually abused your children. There was nothing inexplicable or difficult to comprehend about your crimes. For whatever reason, you decided that your husband should be violently punished for his suspected conduct, either as an end in itself, or as a means towards the end of having him forcibly removed from his home and your life.

Mr McMahon submitted that you did not possess the judgment, emotional strength or decision making skills to navigate a situation where your daughters alleged sexual abuse by your husband, or to extricate yourself from the plan formed by the co-accused. I do not accept those contentions. In circumstances where you suspected your husband of sexually abusing your children, the way forward was perfectly clear. You had had the experience in the past of police intervention leading to the resolution of such a situation. You knew that a report to the police would protect the children. You also had the options of speaking to your husband and raising your concerns, or kicking him out of your home, or leaving him and taking the children with you. Instead, you chose the extreme path of vigilante conduct. Having embarked along that path, you had the opportunity to reflect and desist. You could readily have called a halt to the enterprise. You chose not to do so, and not because of your deprived background, but because you had fixed upon your course and decided that it was justified.

Notwithstanding the reduction in your moral culpability due to the general Bugmy principle, I believe that your moral culpability is still high.

In your case, Stefani, you were not in the same position of trust relative to Lyons as Hooper was, but the fact is that he was meant to be your friend, and you lived in a bungalow at the rear of his property. No doubt he trusted you and looked at you as a friend. You betrayed him in this respect.

It is clear that you were an important figure in the formation of the plan to attack and kidnap Lyons in retribution for his suspected conduct. You were an active participant in the meeting at The Tank at which the plan was initially formed, in the recruitment of others into the team, and in planning for the ultimate carrying out of the attack. You brought Hooper into the team, and your bungalow was the marshalling area for the participants in the crimes immediately before the events. You handed out balaclavas, used a shotgun yourself in brutal and frightening fashion, applied a lit cigarette to your helpless victim, and manhandled him, bound and helpless, into the boot of the Corolla. You were then complicit in the further acts of violence inflicted upon Lyons once he was eventually removed from the boot after long hours of frightening imprisonment.

Your conduct represented a serious example of vigilante justice.

In my view, your offending was of a very high order of seriousness. Furthermore, there is no doubt that your moral culpability for your offending was very high.

Victim impact statements

Two victims impact statements compiled by siblings of Mr Lyons were placed before the Court, in the case of the statement of Shane Lyons, by being read aloud by the prosecutor, and in the case of the statement of Jessica McCarthy, by being read aloud by her in Court.

It must be noted, of course, that a large part of the content of each of these statements concerns the anguish, trauma and devastation caused by the death of Mr Lyons, for which the accused before me are not responsible.

In her statement Ms McCarthy paid tribute to her brother, whom she described as loving, caring and special. She described the anguish caused by the loss of her brother and her knowledge not only of the way he died but what he endured before he died. She made particular reference in her statement to being haunted by the fact that you, Hooper, a person who she thought would always look after her brother, were involved in his being assaulted, kidnapped and falsely imprisoned prior to his murder. You were someone Ms McCarthy trusted, and considered to be family. You knew Mr Lyons like not many other people could, knowing in particular about his difficult upbringing. She believes that Mr Lyons loved you and thought that being with you was saving him from his own demons. You knew this, and yet in the end you betrayed him.

Shane Lyons also paid tribute to his brother’s role in helping himself and Jessica through a rough childhood. BJ was integral in their survival. He described his severe depression in the aftermath of the death of his brother.

I take into account, as I am required to do pursuant to s 5(2) of the Act, the contents of the victim impact statements.

Progress since being charged

Mr McMahon submitted that your conduct, Hooper, since being charged, both before and after your release on bail, was excellent and a positive indicator where your prospects of rehabilitation are concerned, also lessening the need for specific deterrence. In fact, Mr McMahon described your progress since being charged as a ‘giant transformation’.[27]
[27]Transcript 90.

You spent over two years and four months in custody at the Dame Phyllis Frost Centre prior to being granted bail by me on 9 August 2021.[28] Mr McMahon submitted that you used your time in custody productively, in many ways which he set out in his written and oral submissions. This was your first time in custody, some of the period spent from the onset of the COVID-19 pandemic when conditions in custody were especially onerous, and you found it incredibly difficult being separated from your children, grandchildren and family. Notwithstanding your concerns during this period, you were able to use your time to strengthen your connections with your indigenous culture, pursue your talent for art by becoming an active participant in the Torch Project, an agency providing art and cultural support to indigenous offenders and ex-offenders, and strengthen and improve your relationships with your mother and children with the assistance of Allison Elliott and Kelly Tsorlinis, family therapists. You remained drug-free.
[28]Re Hooper (No 2) [2021] VSC 476.

Upon your release, your priority was your children, and you did all that you could to be a stable and reliable mother to them, a goal which it was submitted you achieved. You remained the primary carer for your five youngest children and played an active role as grandmother to the children of your oldest two daughters. You continued to have the support of Ms Elliott and Ms Tsorlinis. As noted by Ms Elliott in a letter of support submitted to the Court, you:

demonstrated a strong commitment to the therapeutic process, trauma work, emotional regulation and rebuilding/repairing family connection and has the capacity to reflect and problem solve effectively despite great adversity/challenges.

You are proud of the achievements of your children, including those of your youngest son who was recently chosen as the ‘Indigenous Leader’ at his primary school.

You have actively planned for the future of your children, amongst other things being in discussion with the Department of Families, Fairness and Housing about a future move to a different home, as residing at McCullough St is distressing for everyone.

You have remained drug free and engaged in counselling in that regard. It was submitted that you have successfully overcome your long-standing drug addiction.

Furthermore, you have received mental health counselling from a psychotherapist since your release.

You have continued to strengthen your connection to your indigenous heritage, amongst other things by painting regularly in connection with the Torch Project, contributing to the development of an Aboriginal Healing Program at DPFC, and speaking regularly at the Aboriginal Home Connect Program.

You have formed and maintained many positive relationships with friends and supporters in the community, a number of whom provided character references to the Court.

I take into account in sentencing you the excellent progress you have made in many respects since being charged with this offending. In my view, what you have been able to achieve increases your prospects of rehabilitation, and does reduce the need for specific deterrence in your case.

Mr McMahon relied on the circumstance you face of being potentially removed from the care of your children, not in the sense considered in Markovic v The Queen[29] which would require the presence of exceptional circumstances, but pursuant to the separate principle whereby your anguish at being unable to care for your children will make your experience of imprisonment more burdensome. I do take that matter into account. It is clearly a significant matter that if further incarcerated, you will again be removed from a position of being able to provide care for your children, which no doubt would be a source of great sadness and concern to you. This hopefully may be moderated somewhat by your knowledge that during your previous period in custody, excellent care was provided for your children by your mother and other family members.
[29](2010) 30 VR 589 (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) (‘Markovic’).

You, Stefani, have made excellent progress in custody. You have spent the bulk of your time on remand in the Youth Unit at Port Phillip Prison (‘PPP’), in which setting you assumed roles of Peer Educator, Youth Mentor and Kitchen Billet. You have been constantly employed throughout your remand. You have completed many educational and vocational courses in custody. You have performed the role of Prisoner Representative for the Youth Unit for some of your time there. You coordinated a music program for over two years in the Unit, resulting in the Unit being awarded grants from G4S towards the building of a new recording studio.

You have remained drug free during your incarceration.

You were described by Anne Hooker, Youth Development Officer at PPP, as having been ‘an extremely positive influence on other young prisoners who have come into the unit’, and as having ‘maintained a positive attitude and response to everything that he has involved himself in’.[30] You have presented as polite, well-mannered and respectful.
[30]Prison Progress Report by Anne Hooker, 24 May 2022, 2.

As well as your good progress in prison as indicated in the report of Ms Hooker, Dr Alexander relied upon a reference provided by Amanda Ventry, the manager of a motel in Cann River who has known you for many years, has noted the changes in you for the better with you since your incarceration, and has provided an offer of employment with her in Cann River upon your release.

Dr Alexander submitted that there are positive signs in your case so far as rehabilitation is concerned, notwithstanding the reservations expressed by Mr Newton in his report. The prospects of rehabilitation should be viewed as being reasonable, particularly in light of your age.

Parity between co-offenders

Two of your co-offenders have already been sentenced in this court by Taylor J. Harvey[31] received a total effective sentence (‘TES’) of 8½ years’ imprisonment with a non-parole period (‘NPP’) of 5½ years for ICI, FI and assisting an offender following a murder. He was involved in the attack upon Lyons at McCullough St up to the point where he was restrained, then left the scene before the occurrence of the kidnapping. He did not thereafter participate in the torture and murder of Lyons, but in the knowledge of the murder, disposed of the murder weapon.
[31][2020] VSC 496.

Ball[32] pleaded guilty to ICI only and received a sentence of two years’ imprisonment with a NPP of 15 months. His involvement extended only to the driving of Harvey and Smith to the scene of the attack at McCullough St in the knowledge that their purpose in attending was to assault a man, and collection them after their participation in the attack.
[32][2020] VSC 623.

I have read and taken into account the sentences in those two cases, as well as the decision of the Court of Appeal in respect of Harvey’s sentence.[33]
[33]Harvey v The Queen [2021] VSCA 84 (Beach, Niall and Whelan JJA).

Dr Alexander submitted that your criminality, Stefani, was at a similar level to that of Harvey, with the latter’s involvement in disposing of the murder weapon compensating for your more extensive involvement in the planning and implementation of the offending, and your involvement in the kidnapping.

In connection with a comparison with your position, Hooper, and that of Harvey, Mr McMahon submitted that there should not be much cumulation between the sentences on the charges of FI and kidnapping. He contrasted your position with that of Harvey who was sentenced also on the charge concerning the disposal of the murder weapon, a distinct offence committed several months later which attracted cumulation of two years. Mr McMahon submitted that the Court of Appeal had noted the sentences of Harvey to be high in the range, and that it would not be appropriate in the circumstances for you to received sentences that are high in the range. He relied on the contention that specific deterrence was considered to be important for Harvey, in contrast with your position. This, he submitted, is a striking difference between your position and that of Harvey. So too was the fact, he submitted, that you were not directly involved in the violence at McCullough St and were not even in the room when it was committed, whereas Harvey was directly involved, to the extent of using a weapon and binding the hands of Lyons. Harvey’s offending, he submitted, was much more serious. Mr McMahon pointed out the lack of remorse by Harvey and his only moderate prospects of rehabilitation as other differences.

Mr Gibson submitted that your role, Stefani, should be assessed as being more serious than those played by Harvey, Smith and Hooper. In addition, you pleaded guilty at a later stage than Harvey and Smith. He pointed out that in the case of each of you, unlike Harvey, you were involved in the kidnapping of Lyons, and your involvement in the FI was longer. In addition, he submitted that neither one of you can call in aid a number of the mitigating factors present in Harvey’s case, including the psychological condition from which he suffered which was seen as having a nexus with his offending.

Mr Gibson submitted that your role in the offending, Stefani, should be seen as sitting above that of Hooper in the scheme of things, notwithstanding her very central role in the overall offending.

In your case, Hooper, I do not accept the contention that your offending is less serious than that of Harvey. In my view, on objective measures, your offending is more serious for a number of reasons, including the substantial breach of trust it involved, your involvement in the kidnapping, and the duration of the FI where you were concerned. Harvey was able to call in aid a number of mitigating features not available to you. Were it not for the mitigating factors in your case, most notably the reduction in your moral culpability due to the Bugmy considerations and the relevance of your Aboriginal heritage and the considerations raised by that, you would have attracted a longer overall sentence than Harvey, notwithstanding the contribution to his sentence of a component for the assist offender charge.

In my view, it is necessary that there be a degree of cumulation between the sentences on each of the charges that you face reflecting the separate offences involved. The assault upon Lyons reflected in the ICI charge was supplemented by the additional steps of the binding of Lyons’ hands, the movement of him to the boot of the Corolla, and then his being held captive in the boot for some hours. As for the kidnapping charge, it involved his being transported away from his home to another location, under the full control of his captors.

Mr McMahon submitted on your behalf, Hooper, that I should sentence you in a way which would have you serve no further period in custody, or at most, a very short period. He urged upon the Court the imposition of a very low non-parole period relative to the head sentence.

I do not accept Mr McMahon’s submission. The period of time you have thus far spent in custody would not in any way be an appropriate response to the seriousness of your crimes, notwithstanding the mitigating circumstances which you can call in aid. Furthermore, I note that both the head sentence and non-parole period passed upon you must properly and adequately reflect the features of your crimes, and the purposes to be achieved by your sentence. Sadly, it will be necessary for you to spend a further significant period in custody.

In your case, Stefani, I do not accept the submission of your counsel that your criminality was at a similar level to that of Harvey. For a number of reasons which should be apparent from what I have said thus far, your offending was considerably more serious. Unlike Harvey, you were a very central person in the planning and carrying out of the overall offending. You were involved earlier than Harvey, recruited him into the enterprise, were involved in the kidnapping, were involved for much longer in the FI, and were complicit in the torture of Lyons which occurred at Nyerimilang.

In arriving at the appropriate sentences on the individual charges for each of you, as well as the degree of cumulation between the charges, I have had regard to all of the submissions made on behalf of each of you, the sentences passed on your co-offenders sentenced thus far, and current sentencing practices. I have applied the principles of totality, proportionality and parsimony.

Important sentencing considerations

As I have made clear in what I have already said, the offending of each of you cannot be viewed as being other than very serious. At its heart was a decision each of you made to engage in totally unacceptable vigilante behaviour. Based on the suspicions you had about the conduct of Mr Lyons towards his step-children, each of you willingly became a party to the violent and heartless behaviour that the group as a whole determined to carry out. In sentencing Harvey, Taylor J described his offending as being ‘imbued with the arrogant righteousness of vigilantism’.[34] She went on to say:

Your behaviour was deliberate, pre-meditated thuggery in pursuit of private vengeance and conducted in concert with others. As such it was an affront to the rule of law.[35]

[34]The Queen v Harvey [2020] VSC 496, [6].

[35]Ibid [46].

Acknowledging that in your case, Hooper, your decision to become involved perhaps had more complexity to it than that of you, Stefani, Taylor J’s words are apt to describe the conduct of each of you.

The Court of Appeal in accepting Taylor J’s characterisation of Harvey’s offending as ‘pre-meditated thuggery’, noted:

It is clearly established that the law cannot countenance individuals taking the law into their own hands, meting out punishment for perceived wrongdoing…
There is no place for such behaviour…
Because of the insidious nature of vigilante behaviour, and the risk that offenders, through some misguided notion of justice, might seek to justify their behaviour, general deterrence is very important. A sentencing judge is entitled to give it great weight.[36]

[36]Harvey v The Queen [2021] VSCA 84, [52]-[54].

Accepting as I do in your case, Hooper, that your moral culpability is reduced on account of the mitigating circumstances which apply to you, I think general deterrence would also be moderated somewhat. It would remain, however, an important sentencing consideration. In your case, Stefani, it was accepted that general deterrence would be a significant sentencing consideration.

The sentences passed upon each of you must be such as to bring it clearly home to any person who might be minded to carry out the type of violent and lawless vigilante behaviour in which each of you engaged that such conduct will be met with very strong punishment.

Other important sentencing considerations common to both of you are the need for just punishment and denunciation. You must both be punished in a way which reflects the considerable seriousness of your crimes and amounts to an appropriate response to them. The sentence must also communicate in clear terms this Court’s condemnation and disapproval on behalf of the community of your violent criminal conduct. Bradley Lyons, whatever may have been your thoughts or suspicions about him, was a person deserving of the full protection of the law.

Because of the particular nature of your offending, and your limited criminal backgrounds, I do not believe that the need for specific deterrence looms as large in the case of either of you as would often be the case although it still has a part to play.

In your case, Stefani, you counsel conceded that community protection is a relevant consideration.

As for rehabilitation, I act on the basis that you, Hooper, have good prospects of rehabilitation, and that in your case, Stefani, your rehabilitative prospects are reasonable.

Sentence

Jana Hooper, for intentionally causing injury to Bradley Lyons, (charge 1), you are sentenced to be imprisoned for 4 years.

For the kidnapping of Bradley Lyons (charge 2), you are sentenced to be imprisoned for 5½ years. This is the base sentence.

For the false imprisonment of Bradley Lyons (charge 3), you are sentenced to be imprisoned for 4 years.

I order that one year of the sentence on charge 1 and 1 year of the sentence on charge 3 be served cumulatively upon each other and upon the sentence on charge 2.

The total effective sentence is therefore 7½ years’ imprisonment.

I fix a period of 4½ years during which you will not be eligible to be released on parole.

I declare a period of 995 days up to and including yesterday, 21 December 2022, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your pleas of guilty, I would have sentenced you to be imprisoned for 10 years with a non-parole period of 7½ years.

Nick Stefani, for intentionally causing injury to Bradley Lyons, (charge 1), you are sentenced to be imprisoned for 6 years.

For the kidnapping of Bradley Lyons (charge 2), you are sentenced to be imprisoned for 7 years. This is the base sentence.

For the false imprisonment of Bradley Lyons (charge 3), you are sentenced to be imprisoned for 6 years.

For the common assault upon Bradley Lyons (charge 4), you are sentenced to be imprisoned for 3 years.

I order that 1 year of the sentence on charge 1, 1 year of the sentence on charge 3 and 1 year of the sentence on charge 4 be served cumulatively upon each other and upon the sentence on charge 2.

The total effective sentence is therefore 10 years’ imprisonment.

I fix a period of 8 years during which you will not be eligible to be released on parole.

I declare a period of 1358 days up to and including yesterday, 21 December 2022, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your pleas of guilty, I would have sentenced you to be imprisoned for 14 years with a non-parole period of 11 years.

[2022] VSC 821

22 December 2022