R v Ball
[2020] VSC 623
•28 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0179
| THE QUEEN | Crown |
| v | |
| JAYDEN BALL | Accused |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2020 |
DATE OF SENTENCE: | 28 September 2020 |
CASE MAY BE CITED AS: | R v Ball |
MEDIUM NEUTRAL CITATION: | [2020] VSC 623 |
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CRIMINAL LAW – Sentence – Intentionally causing injury – Accused drove co-accused to and from scene of assault – Accused knew a man was to be assaulted by at least three men – Accused did not participate in assault – Denunciation – General deterrence – Specific deterrence – Moderate prospects for rehabilitation – Crimes Act1958 ss 18 and 323(1)(b) – Sentence of two years’ imprisonment with non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson QC with Ms B Goding | Office of Public Prosecutions |
| For the Accused | Mr J Hannebery QC with Ms S Joosten | Victorian Aboriginal Legal Service |
HER HONOUR:
Jayden Ball, you have pleaded guilty to one charge of intentionally causing injury.
The maximum penalty for this crime is imprisonment for ten years.
Summary of Offending
On 2 December 2018 you were asked by your friend Alec Toby Harvey to drive him and Rikki Smith to a residential address in Lakes Entrance. You understood that their purpose in attending that address was to assault a man. You thought that man was called ‘Beau’ and the planned assault was in retaliation for his alleged bad treatment of a woman called ‘Bec’.
In fact, the victim of the assault was, and was always intended to be, Bradley John Lyons.
Harvey had been asked by an associate, Nicholas Stefani, to assist in the assault and restraint of Mr Lyons after telling him that Mr Lyons had been drugging his own wife, Jana Hooper, and sexually assaulting Hooper’s daughters. Harvey agreed to do so during a telephone call with Stefani at 11.49am on 2 December 2018. Harvey and Smith, who was with Harvey at the time of the telephone call, then together attended your house.
You drove Harvey and Smith in your car to the residential address of Mr Lyons, arriving at 2.11pm. They were greeted at the front gate by Stefani, who lived in a bungalow at the rear of the property. You departed the scene, understanding you would receive a telephone call from Harvey to collect him and Smith when the assault was over. Meanwhile, Harvey, Smith and Stefani went to the bungalow where a fourth man, Albert Thorn, was waiting. Together they planned the imminent assault.
Stefani provided Harvey and Smith with balaclavas. Harvey armed himself with a tyre lever. Stefani was armed with a sawn-off shot gun. Smith had a cigarette lighter to use as a knuckle. Thorn had duct tape to use as a restraint.
Together the four men 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 their presence as they walked through.
Mr Lyons, who was lying on his bed, was taken by surprise. All four men punched him several times to the face and head. Harvey 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.
Hooper began to scream. Harvey left the bedroom to attend to her. Upon his return, Stefani had a pillow against Mr Lyons’ head and was pressing the barrel of the shotgun against the pillow. Harvey pushed Stefani away. He then helped Thorn to apply the duct tape so that Mr Lyons’ hands were restrained in front of his body.
At 2.39pm Harvey telephoned you to ask you to return to the property. At 2.41pm you drove up the street and stopped in front of the property. Harvey and Smith rushed towards your car. Harvey had with him the CCTV recorder hard drive from the master bedroom. You drove to Harvey’s house, stopping first at McDonald’s. Harvey threw his balaclava out of the window of the car en route.
In the car you found out that the victim of the assault had been Mr Lyons and it had occurred because your co-accused thought he was a paedophile. You congratulated Harvey and Smith on their actions.
Later that day Harvey was at your property. You assisted him to destroy the CCTV recorder hard drive by putting it in a wood burner. You asked to view the footage first, but did not do so. You understood it to show the movement of people at the Lakes Entrance property at the time of the assault.
Also later that day, but unknown to you, Mr Lyons was removed from his Lakes Entrance house to Thorn’s Nyerimilang property in the boot of a car driven by Thorn. Stefani, Hooper, Smith and Jordan Bottom were present in Nyerimilang. Mr Lyons was tortured then taken to a remote area of dense bushland in East Gippsland, where he was executed by shotgun to the back of the head and buried in a shallow grave.
Mr Lyons was reported as missing by his brother Zachary on 11 December 2018.
On 19 December 2018 police executed a search warrant at your residential address in Nowa Nowa. Your vehicle was seized. You participated in a formal police interview on 27 December 2018 during which you admitted driving Harvey and Smith to and from the Lakes Entrance property, knowing that an assault was to take place, but stating your belief that intended victim was ‘Beau’. You said that you also believed Thorn to be the instigator of the attack. You also said that after you had collected Harvey and Smith they told you the true identity of the victim and that they had ‘slapped the shit out of this bloke’ because he was a paedophile. At the conclusion of the interview you were released by police pending further investigation.
You were arrested on 5 April 2019 and participated in a further police record of interview. Again you stated your belief that the intended victim of the assault was Beau and admitted your knowledge that Harvey and Smith were going to the Lakes Entrance property to ‘give him a touch up’ and a ‘slap around’.
A post-mortem examination conducted on 16 March 2019 found Mr Lyons to have suffered a fractured left mandible and left zygoma, both likely to have been caused by blunt force trauma, but no fractures to the eye sockets, nose or teeth sockets. The extent of injuries sustained by Mr Lyons during the assault at the Lakes Entrance property cannot be determined with certainty.
Impact on Victims
Ms Jessica Byrne and Mr Shane Lyons, the sister and brother of Mr Lyons, each made and read victim impact statements to the Court. They are each shattered by their brother’s death and the nature of the attack he endured prior to it.
It is clear that these siblings endured a difficult childhood, with Mr Lyons often willingly bearing the brunt of the physical and emotional hardships they encountered. As adults, he kept the family together and was a beloved uncle to their children. Ms Byrne describes him as her ‘hero’. Mr Shane Lyons states that his brother was the person he loved most in the world.
Personal Circumstances
It is necessary to say something of your personal circumstances.
You were born on 24 May 1996. You were 22 years old at the time of this offence and are currently aged 24 years.
You are Aboriginal. Your mother, Susan Camm, originates from the Nuenonne people in Tasmania.
You were raised in Nowa Nowa, East Gippsland. Your parents separated when you were about 4 years old, at which time you moved with your mother to Orbost for approximately one year. You then returned with your mother to the Nowa Nowa family home. Since then your parents have lived together, but not in an intimate relationship.
You have a number of step-siblings from your parents’ previous relationships. Your mother has another son, Trenton Camm. Your father has three daughters and another son. You have a close relationship with your maternal grandfather, Robert Hoskinson.
Your mother, grandfather and brother Trenton Camm have each written references on your behalf that speak of their willingness to support you upon your release from custody.
Your mother is currently studying and has been previously employed as a children’s cultural teacher at the Gippsland and East Gippsland Aboriginal Co-Operative. Your father, Wayne Ball, worked in commercial fishing and is now retired.
Your childhood was not marked by physical or sexual abuse. You did witness heavy alcohol use by your parents and violence by your father’s criminal associates. Aged 15 years, you and a friend were kidnapped and assaulted after stealing petrol from local loggers. You were threatened with a firearm and suffered a broken nose and eye socket.
Although you completed school to Year 10, you found the environment difficult and you are not confident reading and writing.
After leaving school you worked as a commercial fisherman for various employers. You have worked with both your father and your brother Trenton. Mr Camm has offered you full time employment as a deck hand upon your release.
You commenced drinking alcohol at the age of 15 years. Aged 17 you began to consume illicit substances including MDMA, speed, cannabis and methylamphetamine with friends at weekends. By the age of 19 or 20 years you were consuming methylamphetamine daily. Since your remand you have been prescribed methadone. You have remained drug free and the dosage of methadone has been reduced.
While you acknowledge some symptoms of anxiety and depression, you have no mental health diagnosis.
Analysis
I find the following factors to be relevant to the assessment of the seriousness of your offending.
The offence was planned. Mr Lyons was attacked in his home by four men by design. At the time you agreed to drive Harvey and Smith you were aware that there were to be at least three: Harvey, Smith and Thorn. Further, you saw Stefani greet Harvey and Smith when they alighted from your car.
You were utterly indifferent to the vulnerability of a man to be subjected to an assault in his own home. You must have known that he would be scared as well as physically hurt. While you believed the intended victim to have been Beau rather than Mr Lyons, you were prepared to become involved in an attack on a man with whom you had no personal grievance. When apprised of the true identity of the victim and Harvey’s belief that Mr Lyons was a paedophile, you congratulated Harvey and Smith for what they had done.
At the same time, you were not present during the assault. You did not enter the Lakes Entrance property. You were not involved in any planning or discussion as to the anticipated course of the assault. You had no knowledge of the nature and extent of the violence to be done, including the decision to use weapons. Rather you knew that it was probable that injury would be intentionally caused to the victim during the course of the assault.
While your conduct does involve an element of vigilantism, that is taking the law into your own hands to punish a fellow citizen for alleged wrongdoing, you were unaware in advance that the motive of your co-offenders was the alleged sexual offending of Mr Lyons against his wife and step-daughters.
It follows that your role in the enterprise was necessary but is less serious than that of the four men who planned and perpetrated the attack.
The extent and nature of the physical injuries that were inflicted upon Mr Lyons during the assault cannot be specifically determined. It is accepted that they were sufficient to cause profuse bleeding. I sentence you on the basis that the injuries suffered by Mr Lyons were not at the lowest level of the spectrum covered by the offence to which you have pleaded guilty.
Your conduct is aggravated by the fact that you were subject to a Community Correction Order at the time of your offending.[1]
[1]DPP v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA).
I note that while you were involved in the destruction of the CCTV hard drive recorder, you have not been charged with any offence relating to that conduct and you are not sentenced for it.
Sentencing Considerations
I turn now to factors relevant to your sentence.
Your offending as described above is such that factors of general deterrence, denunciation and just punishment are relevant sentencing considerations.
You pleaded guilty prior to the date upon which committal proceedings had been listed. I accept that as being made early. Your plea involves an acceptance by you of your actions and shows a willingness to facilitate the course of justice. It has utilitarian benefit, particularly at the present time in light of public health measures taken in response to the COVID-19 pandemic.[2] It has also spared the family of Mr Lyons the ordeal of your trial.
[2]DPP (Vic) v Bourke [2020] VSC 130, [32] (Jane Dixon J).
I accept your plea also demonstrates a measure of remorse on your part, as do your full admissions made to police during your initial interview with police on 27 December 2018, and again upon your arrest on 5 April 2019. While the references tendered on your behalf note your sorrow for the effect of your actions upon your family, and do not mention their impact upon Mr Lyons, I give appropriate weight to the contrition you have demonstrated.
Now aged 24 years, you are still a young man. Your involvement in this offence bears the hallmark of immaturity. You have a limited prior criminal history, concerned mainly with driving offences and drug use. Notably, you do not have any prior convictions for offences of violence and there is no suggestion that drug use played a role in this offending. That said, your involvement with drugs led to increased criminal offending throughout 2019. Specific deterrence has a limited role to play in the sentencing exercise.
It is obvious that drug use is an ongoing risk factor with respect to you re-offending. But the period you have served in custody has been drug free. You have complied with your methadone treatment. It is to be hoped that the obvious support you have in the community from your family will help you to remain drug free upon your release. It is also to be hoped that you have gained insight into the consequences of your actions. Certainly your grandfather believes you to have attained a new level of maturity during your time in custody. On the whole I consider your prospects for rehabilitation to be reasonable.
Like all prisoners you are affected by restrictions necessary due to the COVID-19 virus. Particularly, you have been unable to receive visits from your family and there has been a reduction in the rehabilitative and educational programs available. I give appropriate weight to these matters.
I also consider the issue of parity of sentence with your co-offender Harvey.[3] As already stated, I consider your offending to be markedly less serious than his.
[3]R v Harvey [2020] VSC 496.
I have considered, to the extent I am able, comparative cases to assist in determining the appropriate range of sentences for offending of this type. I have considered current sentencing practices.[4]
[4]Including the Sentencing Advisory Council Sentencing Snapshot No. 240, Causing Injury Intentionally – 2014-15 to 2018-19, 28 April 2020.
Sentence
Mr Ball, would you please stand.
Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 (Act) and having regard to the matters I have just discussed, for the offence of intentionally causing injury I sentence you to imprisonment for two years. You must serve a minimum of 15 months before being eligible for parole.
I declare that you have already served 398 days of that sentence by way of pre-sentence detention.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of three years with a non-parole period of two years.
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