R v Harvey
[2020] VSC 496
•13 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2020 0093
| THE QUEEN | Crown |
| v | |
| ALEC TOBY HARVEY | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 August 2020 |
DATE OF SENTENCE: | 13 August 2020 |
CASE MAY BE CITED AS: | R v Harvey |
MEDIUM NEUTRAL CITATION: | [2020] VSC 496 |
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CRIMINAL LAW – Sentence – False imprisonment – Intentionally causing injury – Assisting an offender – Accused in company assaulted and restrained victim – Weapons used –Victim unknown to accused - Victim thought to be a sexual offender – Accused departed and co-accused further assaulted and murdered victim – Accused later disposed of murder weapon – Vigilantism – Denunciation – General deterrence – Specific deterrence – Moderate prospects for rehabilitation – Verdins considerations – Crimes Act1958 ss 18, 320 and 325 – Total effective sentence of eight years and six months with non-parole period of five years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson QC with Mr T Bourbon | Office of Public Prosecutions |
| For the Accused | Mr J Saunders | Theo Magazis & Associates |
HER HONOUR:
Alec Toby Harvey, you have pleaded guilty to charges of false imprisonment, intentionally causing injury and assisting an offender.
The maximum penalties for these crimes are imprisonment for ten years, ten years and twenty years[1] respectively.
[1]Where principal offence is punishable by life imprisonment: Crimes Act 1958, s 325.
Summary of offending
The circumstances of your offending are extremely serious.
On 2 December 2018 you were part of a group of four men who attacked, restrained and assaulted Bradley John Lyons in the bedroom of his home. You were armed with a tyre lever. Another was armed with a sawn-off shot gun.
While you left the scene with one other man – and the hard drive of the CCTV recorder which had captured your behaviour – and did not thereafter participate in the torture and execution of Mr Lyons, you did later, in full knowledge of his murder, dispose of the murder weapon, a .410 calibre shotgun.
Your offending is imbued with the arrogant righteousness of vigilantism.
Mr 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 11.49 am 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.[2]
[2]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 methylamphetaime 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.
You were arrested on 3 April 2019 and participated in a further police record of interview. You made admissions to your participation in the assault and false imprisonment of Mr Lyons and to disposing of the murder weapon. You said that you were under the influence of methylamphetamine at the time. You said that you were not concerned that there was no evidence that Mr Lyons was a paedophile because he was just going to get a hiding. You said actual paedophiles should be ‘put down’ or ‘erased’.
Impact on Victims
Mr Shane Lyons, the brother of Mr Lyons, made and read a victim impact statement to the Court. It was deeply affecting.
Mr Shane Lyons says that his heart shattered when he heard of his brother’s disappearance. He described their difficult childhood and the importance of his brother in his life, both as boys and men. As a result of Mr Lyons’ death, Mr Shane Lyons has experienced difficulties in his employment, marriage, mental health and with drug and alcohol consumption. His son, who has Down’s Syndrome, does not understand why he cannot see his Uncle BJ.
It is very plain that Mr Shane Lyons grieves deeply for his brother and experiences great difficulty in accepting his death.
Personal Circumstances
It is necessary to say something of your personal circumstances.
You were born in Bairnsdale on 8 February 1994. You are now 26 years of age and were 24 years at the time of your offending. You grew up in Gippsland and on the southern coast of New South Wales. Your parents separated when you were aged three years, reconciling a few years later. They permanently separated when you were in your early teens. Your father works with boats. Your mother is a disability support worker. You maintain contact with each of them. You have a younger sister and three older stepbrothers, with whom you have little contact.
You have a partner of some seven years. Together you have two children aged 4 years and eight months. The baby was born after your arrest. You have yet to hold her. You also have two stepdaughters of your partner aged nine and 11 years. Although currently separated by your incarceration, you hope to resume that relationship and make amends on your eventual release. You have frequent contact with your family by Skype.
You reported to Mr Ian Mackinnon, who prepared a psychological report on your behalf, that at the age of seven you were sexually abused by a friend of your father. Apart from mentioning that abuse to ‘a mate once’, you have not hitherto revealed it to anyone else, including your partner.
Your schooling ended after year seven when you were asked to leave due to your disruptive behaviour. You started working with your father who was then a skipper of a tug-boat, involved in construction work in New South Wales and Queensland. Your recreational pursuits included rugby league, motorbike racing, hunting and fishing.
At age 18 you stopped working with your father and enrolled at the Australian Maritime College in Launceston. Despite your truncated education, you are both numerate and literate. By self-directed application, you completed all requirements to become a boat captain and, after some time working as a deckhand on a trawler in Lakes Entrance, you were promoted to captain a boat and crew of four. You are clearly a skilled and respected skipper, maintaining that role for approximately three years.
You have a long history of illicit drug use. You started stealing alcohol from your father at the age of eight. At nine years of age you stole cannabis from an uncle. Within a year you were smoking cannabis regularly. At the age of 12 years you commenced amphetamine and methylamphetamine use. It has continued ever since, up to three or four grams of ice daily. You have also used heroin and other opiates, GHB, cocaine, ecstasy, benzodiazepines and psychedelic substances such as LSD and magic mushrooms. When first remanded for these offences you used buprenorphine but lost visiting privileges as a result. You have now ceased drug use, the longest period for which you have been clean.
Mr Mackinnon diagnoses you as suffering from Post-Traumatic Stress Disorder (PTSD) of mild to moderate intensity as a result of the sexual abuse you suffered on several occasions as a seven year old. It is a diagnosis with which Dr Anthony Cidoni, who prepared a psychiatric report on your behalf, agreed. Dr Cidoni also considers you to suffer from a dysthymic disorder which has worsened since your incarceration. I will return to the issues raised by these diagnoses below.
You have four prior convictions arising from a single court appearance. On 9 August 2018 you were convicted of drug, weapon and proceeds of crime offences and placed on a Community Corrections Order (CCO) for a period of 12 months. Accordingly you were subject to the CCO at the time of this offending.
Analysis
The objective gravity of your offending is very high. I find the following factors to be relevant to that assessment.
With respect to the offence of intentionally causing injury, Mr Lyons was totally unknown to you. You did not and could not have known whether the accusations made about him by Stefani were true. Nonetheless, following lengthy discussion and planning, you were prepared to participate in a serious assault upon him. You did so as part of a group of four men, two of whom, including you, were armed with weapons. Two, including you, were wearing disguises. Your victim was vulnerable, lying on his bed in his home and taken utterly by surprise. The injury caused by your offending was sufficient to produce profuse bleeding from the head. Mr Lyons can only have been terrified.
With respect to the false imprisonment, it is significant that the taping of Mr Lyons’ hands occurred after he had already been assaulted. You participated in the act of restraint believing that the injured and now helpless victim would be further assaulted by two men, one of whom had already threatened to kill him while holding a gun in his mouth. Indeed, you taped Mr Lyons’ hands after you had pushed Stefani away as he pressed the barrel of the shotgun against Mr Lyons’ head through a pillow, ostensibly used to muffle the sound of the blast. While this action is to your credit, it aggravates the conduct constituting the false imprisonment. While you did not know that Mr Lyons would be killed, you did know that a further, serious assault would occur. Your conduct in restraining him to better facilitate that beating is grave.
With respect to both the assault and the false imprisonment, there are additional factors of gravity. First, you were heavily intoxicated by methylamphetatime. Second, your behaviour was premeditated. You were first told of the plan in the early hours, and then again in the late morning. You, who lack a driver’s licence, then organised Ball to drive you and Smith both to and from the scene. You also participated in a planning discussion in Stefani’s bungalow immediately before the attack took place.
Third, this was vigilante behaviour. As you told police, you did not mind that he ‘copped a punch in the head’ at your hand and again at the hand of others if it turned out to be true that Mr Lyons was a paedophile. Acts of vigilantism must be both condemned and attract significant penalty. Your belief that paedophiles should be ‘put down’ or ‘erased’ is significant in my consideration of deterrence. It is a legitimate expectation of our society that no one person or group take the law into their own hands by harming perceived wrongdoers.[3] Your behaviour was deliberate, pre-mediated thuggery in pursuit of private vengeance and conducted in concert with others. As such it was an affront to the rule of law.
[3]Director of Public Prosecutions v Whiteside (2000) 1 VR 331, [24] (per Brooking JA); Hamid v The Queen [2019] VSCA 5, [48]-[49] (Whelan and Kyrou JJA).
With respect to the offence of assisting an offender, you knowingly disposed of a murder weapon. The murder in question was particularly grave[4] and you were aware of its broad details. The gun has never been found. Police and prosecution services are thereby denied a key piece of evidence in the prosecution of your co-accused as well as the real possibility that the gun would have yielded further crucial evidence, such as fingerprint or DNA evidence. Your decision to dispose of the weapon was not momentary. You participated in numerous conversations over several days concerning the gun and boasted of your ability to do something smart with it.
[4]The Queen v Kitchin [2001] VSCA 66, [36] (Brooking JA).
It was said on your behalf that you moved the gun from its original hiding place at Smith’s residence because he had moved from the property and the new occupiers had no connection to these events. It was said that you disposed of the gun due to your concern that it would have your forensic traces from when you had given it to Thorn about a year earlier. I consider this explanation implausible. You had already partially confessed to your role in the assault and false imprisonment. But you were not involved in the murder and could have had little concern that analysis of the gun would implicate innocent third parties or you.
Finally, the gravity of all of your offending is aggravated by the fact that you were subject to a 12 month CCO.[5]
[5]Director of Public Prosecutions v Milson [2019] VSCA 55, [66] (Priest and Weinberg JJA).
Accordingly, I consider just punishment and denunciation to be important sentencing factors. I must impose a sentence that will both deter others from similar conduct and you from future offending.
I must consider the application of certain Verdins[6] principles to you. It is accepted that you have PTSD and that it was operative at the time of your actions on 2 December 2018. The evidence is that it was not relevant to your actions in disposing of the murder weapon.
[6]The Queen v Verdins (2007) 16 VR 269.
Mr Mackinnon considers that you have had PTSD since you suffered sexual abuse at the age of seven. Its severity has fluctuated throughout the course of your life. It is currently of a mild to moderate intensity. He states that this abuse and your PTSD were likely to have fuelled a ‘rage reaction’ when you were told that Mr Lyons had abused children. He acknowledged that the strength of that reaction was affected by the quality and certainty of that information. Further, your PTSD was concomitant with vigilante behaviour, mob mentality and heavy ‘ice use’. He could not say which factor was the most significant. Nor am I able to determine that. All had a part to play, your PTSD being but one.[7]
[7]Wright v The Queen [2015] VSCA 333; DPP v Davis [2017] VSCA 341.
Ultimately I accept, as does the prosecution, that the effect of the PTSD as described by Mr Mackinnon and accepted by Dr Cidoni has some realistic connection with your offending. To some extent it reduces your moral culpability and moderates the issues of just punishment, denunciation and both specific and general deterrence in the sentencing exercise, with respect to the offending of 2 December 2018.
It is accepted between the parties that the evidence of Dr Cidoni as to your chronic depressive illness means that your experience of hardship in prison will be increased and justifies a less severe sentence due to the risk that imprisonment will have a significant adverse effect on your mental health.
Sentencing Considerations
I turn now to other factors relevant to your sentence.
You pleaded guilty at the earliest opportunity. 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 concerns regarding the COVID-19 pandemic.[8] It has also spared the family of Mr Lyons the ordeal of a trial. I accept that your plea demonstrates a measure of remorse on your part.
[8]DPP (Vic) v Bourke [2020] VSC 130, [32].
While not a youthful offender, you are still a young man. You have a limited prior criminal history and that arose in the context of an escalation in your drug use, particularly of ‘ice’. The use of that drug has had a serious impact upon your past life. You lost your job because of it. Your relationships with your partner and children were endangered by it. You committed these serious offences whilst under its influence. Your ability to cease its use will also be significant in your future life. Indeed I consider it to be the most important factor in your prospects for rehabilitation.
While you are currently drug free in the controlled custodial environment, your ability to remain so upon your eventual release will not be easy. You will return to a small community where, it seems, heavy alcohol and illicit drug use is common. You will face the stress involved in rebuilding your relationships and gaining employment. While the many character references tendered on your behalf demonstrate that you will return to an extended family who will support you, the difficulty of you remaining drug free should not be underestimated.
In your favour it seems that you have now gained a degree of insight into your PTSD and other issues and accept the need to use professional help. Your use of rehabilitative programs in custody prior to their cessation due to the COVID-19 pandemic bodes well. You also have an impressive work history. Given the difficulties of your childhood, the work you have done to gain the necessary qualification to become the captain of a fishing boat is noteworthy. It is demanding work but you are equal to it. You are respected and liked. You will, it seems, return to the fishing industry.
In all the circumstances I consider, with caution, your prospects of rehabilitation to be moderate.
You are, like all prisoners, affected by the restrictions necessary due to the COVID-19 virus but, particular to you, the necessary lack of personal visits has meant that you have yet to touch your now eight month old baby. I also consider that you are somewhat disadvantaged by the suspension of rehabilitative programs.[9] I give appropriate weight to these factors.
[9]R v Khoder (No 2) [2020] ACTSC 76, [12].
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.[10] I have considered current sentencing practice. I have applied the principles of totality, proportionality and parsimony.
[10]Neither counsel referred me to any comparable cases, but I have considered numerous authorities including DPP v Smith [2019] VSCA 266; Rivera v The Queen [2020] VSCA 5; Turney v The Queen [2020] VSCA 131; Landmark v The Queen [2015] VSCA 178; DPP v Vega [2015] VSC 683; DPP v Marmo [2018] VSC 31; DPP v Lyons [2019] VSC 602; DPP v Godfrey [2020] VSC 197.
Sentence
Mr Harvey, would you please stand.
Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 and having regard to the matters I have just discussed, for charge 1, the offence of false imprisonment I sentence you to imprisonment for five years. For charge 2, the offence of intentionally cause injury, I sentence you to imprisonment for five years and six months. For charge 3, the offence of assisting an offender, I sentence you to imprisonment for four years and six months.
I direct that 12 months of the sentence on charge 1 and two years of the sentence on charge 3 be served cumulatively upon the sentence for charge 2 and each other.
Thus the total effective sentence is eight years and six months.
You must serve a minimum of five years and six months before being eligible for parole.
I declare that you have already served 499 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 total effective sentence of ten years with a non-parole period of seven years.
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