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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harvey

Details

AGLC: R v Harvey [2020] VSC 496
Case: [2020] VSC 496
Decision Date: 13 August 2020

CaseChat Overview and Summary

The case of R v Harvey involved the defendant who, along with others, assaulted and restrained a victim in an incident that ultimately resulted in the victim's death. The victim, who was unknown to the defendant, was believed by the group to be a sexual offender. The defendant participated in the assault, which involved the use of weapons, before leaving the scene. Subsequently, co-accused further assaulted and murdered the victim. The defendant later assisted in disposing of the murder weapon. The defendant faced charges under the Crimes Act 1958 for false imprisonment, intentionally causing injury, and assisting an offender. The court was tasked with determining an appropriate sentence that would reflect the seriousness of the crime, the role of the defendant, and the principles of denunciation, general and specific deterrence, and rehabilitation.

The legal issues before the court included the appropriate weight to give to the various offences, the defendant's level of participation and culpability, and the considerations relevant to sentencing under the Verdins principles. The court had to balance the defendant's role in the initial assault and his assistance in disposing of the murder weapon against his departure from the scene before the fatal assault occurred. Additionally, the court needed to consider the potential for the defendant's rehabilitation and the broader societal impacts of the sentence, including denunciation and deterrence.

The court determined that the defendant's actions, while serious, did not place him at the epicentre of the criminal activity. It was noted that the defendant had left the scene before the fatal assault and did not participate in the murder itself. However, his initial involvement and subsequent assistance in disposing of the murder weapon meant he shared responsibility for the outcome. The court found that the defendant had moderate prospects for rehabilitation and that a sentence needed to serve both general and specific deterrence. After considering all relevant factors, the court imposed a total effective sentence of eight years and six months imprisonment, with a non-parole period of five years and six months. This sentence aimed to appropriately reflect the gravity of the crimes while also considering the defendant's potential for rehabilitation and the broader societal implications.

Orders