Harvey v The Queen

Case [2021] VSCA 84

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0189

ALEC TOBY HARVEY Applicant
v
THE QUEEN Respondent

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JUDGES: BEACH, NIALL and WHELAN JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 15 March 2021
DATE OF JUDGMENT: 1 April 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 84
JUDGMENT APPEALED FROM: [2020] VSC 496 (Taylor J)

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CRIMINAL LAW – Appeal – Sentence – False imprisonment (5 years) – Intentionally cause injury (5 years and 6 months) – Assisting an offender by disposal of murder weapon (4 years and 6 months) – Total effective sentence of 8 years and 6 months with non-parole period of 5 years and 6 months – Whether individual sentences on false imprisonment and intentionally cause injury charges manifestly excessive – Whether orders for cumulation on false imprisonment and assistance charges manifestly excessive – Whether total effective sentence manifestly excessive – Serious offending – Vigilante, mob behaviour – Ice use – Impact of PTSD – Moderating factors taken into account – Sentences within range.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr P J Smallwood Theo Magazis & Associates
For the Respondent Ms R L Harper Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

NIALL JA

WHELAN JA:

  1. The applicant pleaded guilty before a judge in the Trial Division to three charges: false imprisonment (charge 1), intentionally causing injury (charge 2) and assisting an offender (charge 3).

  2. After a plea in mitigation, he was sentenced as follows:

Charge Offence Maximum Sentence Cumulation
1 False imprisonment[1] 10 years[2] 5 years 1 year
2 Intentionally cause injury[3] 10 years 5 years and 6 months Base
3 Assisting an offender[4] 20 years[5] 4 years and 6 months 2 years
Total effective sentence: 8 years and 6 months’ imprisonment
Non-parole period: 5 years and 6 months’ imprisonment
Section 6AAA declaration: 10 years’ imprisonment with a non-parole period of 7 years

[1]Common law, Crimes Act 1958 s 320.

[2]Crimes Act 1958 s 320.

[3]Ibid s 18.

[4]Ibid s 325.

[5]Ibid s 325(4)(a).

  1. The applicant seeks leave to appeal on the single proposed ground that the individual sentences on charges 1 and 2, the orders for cumulation on charges 1 and 3, and the total effective sentence, are manifestly excessive.

  2. The offending occurred in two distinct stages.  On the afternoon of 2 December 2018, the applicant and a number of co-offenders went to the home of the victim, who the applicant believed was guilty of sexual offending against teenage daughters of the victim’s partner.  The victim was brutally assaulted.  The applicant participated in the assault, using a tyre lever as a weapon.  The applicant then bound the victim’s hands before leaving.  After the applicant left, the victim was further bashed and ultimately shot dead.  About three months later, in March 2019, the applicant disposed of the shotgun that had been used to kill the victim.  When he disposed of the gun the applicant knew that it had been used in the murder.

  3. For the reasons that follow, the applicant has failed…

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Details
AGLC
Alec Toby Harvey v The Queen [2021] VSCA 84
Case
[2021] VSCA 84
Decision Date

CaseChat Overview and Summary

The applicant, Bradley John Lyons, appealed against his sentence for false imprisonment, intentionally causing injury, and assisting an offender by disposing of a murder weapon. The sentences were imposed by the County Court of Victoria and the appeal was heard by the Court of Appeal. The appeal focused on whether the sentences were manifestly excessive, particularly considering the mitigating factors such as the applicant's post-traumatic stress disorder and drug use.

The court examined the severity of the crimes, which involved a violent mob assault on Mr. Lyons, who was falsely accused of being a paedophile. The assault was brutal, with the use of weapons and significant physical injuries inflicted. The court also noted the applicant's role in the disposal of evidence, which showed an attempt to cover up the crime. The appeal raised the question of whether the sentences, especially the cumulation orders and the total effective sentence, were outside the range of what was reasonably available to the sentencing judge.

In its reasoning, the Court of Appeal found that while the sentences might appear high, they were within the acceptable range given the circumstances and the legal principles applied by the trial judge. The court noted that the judge had appropriately considered all relevant factors, including the gravity of the crimes and the mitigating circumstances. The appeal court concluded that the sentences were not manifestly excessive and upheld the original sentences, including the non-parole period.

The final orders of the Court of Appeal were to dismiss the applicant's appeal against his sentences, confirming the sentences and non-parole periods imposed by the County Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The judge’s precis of the circumstances of the offending, drawn from an agreed prosecution summary, cannot usefully be improved upon and is set out below. The sentencing reasons were delivered orally, directed to the applicant and expressed in the second person.[Bradley John] Lyons lived at a house in Lakes Entrance with his wife, Jana Hooper, and eight children. Three of them, aged eight, six and four, were his biological children. Four of them, aged 16, 14, 13 and ten, were Hooper’s biological children. One, aged four months, was Hooper’s grandchild and child of her 16 year old daughter. Mr Lyons was aged 30 years. Hooper was aged 35 years.In November 2018 Hooper told a female friend that she believed Mr Lyons was the father of her 16 year old daughter’s child and had also made her 14 year old daughter pregnant. Hooper further stated her belief that Mr Lyons had installed a camera in the bathroom. Hooper also made these allegations to Albert Thorn.Thorn, together with Nicholas Stefani, who lived in a bungalow at the rear of the Lakes Entrance house, was a member of the ‘Australian Freedom Fighters’ anti-paedophile group. Stefani told Thorn that Hooper’s children had confided in him, making serious allegations against Mr Lyons.On 1 December 2018 Hooper took some Panadol and fell asleep next to Mr Lyons. Later in the evening she began to convulse and her two youngest daughters went to Stefani’s bungalow to alert him. Stefani later told police that the 13 year old girl also told him that Mr Lyons was sexually assaulting her. Stefani organised for the children to stay with Hooper’s mother for two nights.Stefani checked on Hooper several times during the night and noticed, on one occasion, that she was naked from the waist down. He concluded, absent any proper basis, that Mr Lyons had intentionally drugged and raped her.At about 11.30pm that night Stefani, along with Christopher Nowell, Jordan Bottom and Jessica MacFarlane, met at Thorn’s property to discuss the situation. Stefani and Thorn were adamant that something had to be done.A plan was formed. Mr Nowell and Ms MacFarlane refused to participate. You, who did not know Mr Lyons, had no such qualms.Telephone records show four exchanges between you and Stefani between 11.42pm and 2.06am. There was a further telephone conversation at 11.49am on 2 December 2018. You were at home. Rikki Smith was with you. Shortly thereafter you spoke with Jayden Ball and asked him to drive you and Smith to Mr Lyons’ house expressly for the purpose of assaulting Mr Lyons. He agreed.You arrived at the property just after 2.00pm. Ball left. You and Smith were greeted at the front gate by Stefani. You went to Stefani’s bungalow. Thorn was waiting. Stefani told you and Smith more about the allegations against Mr Lyons. Together you planned how to commit the assault. Stefani gave you and Smith each a balaclava. You armed yourself with a tyre lever. Stefani had a sawn-off shot gun. Smith had a cigarette lighter to use as a knuckle. Thorn had duct tape, purchased specifically to use as a restraint.The four of you walked to the backdoor of the house, through the kitchen and into the bedroom of Mr Lyons. Hooper, who was part of the plan, simply acknowledged your presence as you walked through.You immediately set upon Mr Lyons, who was lying on his bed. All four of you punched him several times to the face and head. You used the tyre lever and Smith the cigarette lighter between his fingers. Stefani forced the shortened barrel of the shotgun into Mr Lyons’ mouth and threatened to kill him if he did not confess to sexual assault. Mr Lyons sustained injuries to his head and face resulting in profuse bleeding.[6][6]The extent of the injuries sustained during this first assault were not able to be determined upon later post-mortem analysis.Hooper began to scream. You went to the kitchen. When you returned, Stefani had a pillow against Mr Lyons’ head and was pressing the barrel of the shotgun against the pillow. You pushed Stefani away. You then helped Thorn to apply the duct tape so that Mr Lyons’ hands were tied in front of his body.Shortly thereafter you telephoned Ball to come and collect you and Smith. You threw the tyre lever behind the couch in the bungalow. You took the CCTV recorder from the bedroom intending to dispose of it. You did later that day by placing it in a wood burner and, when it was substantially destroyed by fire, discarding the remnants at a location that remains unknown.You initially threw the balaclava out of the window of the car as you departed the scene, but later retrieved it and burnt that also.You were intoxicated by methylamphetamine or ‘ice’ throughout your involvement in these events, and later reported that you had not slept the previous night.You did not participate in the further assault and eventual murder of Mr Lyons. Nor did you have contact during that time with those involved. You believed at the time you left that the then restrained Mr Lyons was to endure a further assault.He was further assaulted by Stefani and Thorn before being taken in the boot of a car to Thorn’s property where Thorn, Stefani, Hooper, Smith and Bottom gathered. Mr Lyons was made to remain in the boot for some hours before being strapped to a table and tortured by Thorn.Thorn, Stefani, Bottom and Smith then put Mr Lyons back into the boot and took him to a remote area of dense bushland in East Gippsland. A shallow grave was dug. Mr Lyons was put in the grave and shot once in the leg and then once to the back of the head with a 0.410 calibre shotgun. Mr Lyons’ body was buried. Thorn, Stefani, Bottom and Smith returned to Thorn’s property.The following day, 3 December 2018, you and Thorn exchanged five text messages. The Crown assert that these concerned the murder of Mr Lyons and disposal of incriminating material. You say that you cannot recall the exchange, but it was likely to have been about ‘ice’.Mr Lyons was reported as missing by his brother Zachary on 11 December 2018.You participated in a formal police interview on 20 December 2018, following the execution of a search warrant at your house. You were told that police suspected Mr Lyons had been murdered. Initially you denied any involvement in the assault on Mr Lyons. You then partially admitted your role and said that the assault had been organised by Hooper because Mr Lyons was accused of being a paedophile. You said that Mr Lyons’ hands were bound so that Stefani and Thorn could give him ‘a bit of a touch up’ after your departure. You denied the use of weapons and any knowledge of what had happened to the CCTV recorder hard drive. You claimed no contact with Thorn, Stefani or Hooper since 2 December 2018. At the conclusion of the interview you were released by police pending further investigations.Thorn, Smith and Bottom were arrested for murder on 13 and 14 March 2019. On 15, 16 and 17 March 2019 you participated in a number of intercepted telephone conversations concerning the disposal of the murder weapon. During that period you and Ball came into possession of the .410 shotgun. Believing that Thorn, Bottom, Smith, Stefani and Hooper were guilty of murdering Mr Lyons, you either destroyed or hid it to prevent it ever being found. It has not been recovered.[7][7]R v Harvey [2020] VSC 496, [7]–[28] (‘Reasons’).The medical evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent accepted that the sentences imposed on charges 1 and 2 ‘arguably sit high in the range’ but submitted that they are not wholly outside the range of sentences reasonably available to the judge and nor were the orders for cumulation, the total effective sentence or the non-parole period.Consideration The hurdle that the applicant must overcome in demonstrating that the sentence, or its components, were manifestly excessive is a high one. The task of this Court is not to substitute its own assessment as to an appropriate sentence. In order to establish manifest excess, the applicant must demonstrate that the sentence was wholly outside the range available to the judge in the sound exercise of her sentencing discretion.[25] Consideration of the ground proceeds on the premise that the applicant has not been able to identify any specific error on the part of the judge. That is, the judge correctly articulated the applicable legal principles, turned her mind to all the relevant considerations, and addressed all the relevant facts and circumstances.[25]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA). We have set out a large portion of the judge’s reasons because, with respect, her reasons, and the process of reasoning they disclose, are impeccable. The judge referred to all of the matters that bore on the sentence, including those that worked in favour of moderation. Save for the issues of remorse and rehabilitation, to which we refer below, we would adopt without qualification her Honour’s analysis of the relevant issues. The question for this Court is whether, having regard to the sentence imposed, error can be inferred. In order to deal with the arguments, it is necessary to deal with the sentence imposed on each charge separately. The orthodox approach required the judge to impose the appropriate sentence on each charge and address questions of totality, informed by the overall level of criminality involved, through cumulation and concurrency.[26] However, each sentence cannot be examined as if the conduct which made up one charge was entirely divorced from the conduct comprising the other charges.[26]DPP v Grabovac [1998] 1 VR 664. Charges 1 and 2 arose out of a single incident and the gravity of the offending in relation to that incident requires consideration of the entire event in which the applicant was involved. Charge 3 was distinct. Unlike the other charges, the offending constituting charge 3 was not affected by the applicant’s PTSD; and the nature of that offence, and the circumstances in which it was committed, are relevant to an overall assessment of the applicant’s remorse and prospects of rehabilitation. The judge’s assessment of the objective gravity of the offending was entirely correct. Each offence was a serious instance of the charge. The judge correctly identified the aggravating factors relevant to charges 1 and 2: the applicant was in company, he was motivated by vigilantism, and he wielded a tyre lever as a weapon. The victim was vulnerable and was savagely beaten in his own home. The combination of those factors meant that, objectively, this was a serious example of the offence.