DPP v Bottom & Smith [2023] VSC 717

2 The victim of your crimes was Bradley Lyons, known to his friends as BJ, by which moniker I will refer to him in these reasons for sentence.

3 The crimes for which you fall to be sentenced are examples of vigilante justice inflicted by the two of you in company with others upon a helpless and outnumbered man who, throughout the many hours of the terrifying ordeal leading up to his shocking death, was treated by you with violence and disdain, reflecting the hatred you felt for him because of your belief that he was a paedophile, and your strongly-held view that you should be entitled to deal with him as you wished.

4 The maximum penalty for intentionally causing injury is 10 years' imprisonment. The maximum penalty for false imprisonment is 10 years' imprisonment. The maximum penalty for common law assault is 5 years' imprisonment.

5 BJ was born on 12 May 1988 and was 30 years' old at the time of his death. He married Jana Hooper ('Hooper') in 2011 and at the time of his death, lived with her, their three young children, and a number of her children from previous relationships, in a house at 53 McCullough Street, Lakes Entrance ('McCullough St'). The relationship between BJ and Hooper was strained in the 12 months leading up to his death.

6 In the time leading up to BJ's kidnapping and death, rumours were afoot in the Lakes Entrance area of BJ having supposedly sexually abused one or more of his step-children. Such allegations had not been aired to Victoria Police, but nonetheless the rumours came to the attention of a number of local people including a man named Nick Stefani ('Stefani'), a friend of Hooper who lived in a bungalow at the rear of McCullough Street, and Thorn. The subsequent actions and statements of both of you indicate that you had a strong hatred of paedophiles.

7 At the time of these events, you, Bottom, were living in a caravan on Thorn's property at Nyerimilang ('the farm') with Jessica MacFarlane. On the night of Saturday 1 December 2018, you drove Stefani to the farm. A meeting was held involving you, Thorn, Stefani, and others, in a converted concrete water tank ('the Tank') located at the farm which was used as a place to socialise. Methylamphetamine ('ice') was used by some of those in the Tank. The topic of the allegations against BJ was discussed. The view was expressed by some of those present that something had to be done about it. On the prosecution case, this was the genesis of the plan which arose to seriously assault BJ.

8 There were many communications by calls and text messages between Thorn, Stefani and Alec Harvey ('Harvey') late that night and into the next morning. On the prosecution case, these were to discuss arrangements for an attack upon BJ.

9 Hooper drove BJ to his job at Woolworths in Lakes Entrance at 5.00am on the morning of Sunday 2 December 2018. Having dropped him off, she arranged with her mother to keep her children with her until the Monday. Hooper returned to pick BJ up from Woolworths later in the morning, and Hooper and BJ arrived back at McCullough St just before midday.

10 In the meantime, Thorn had been in communication with Stefani and Harvey on the Sunday morning and early afternoon, as they formulated a plan to attack BJ. You, Smith, were apparently present at Harvey's house during some of this communication. You later told police that Harvey asked you to come along. It was arranged that a number of people would assemble at Stefani's bungalow in the afternoon in preparation for the attack.

11 On his way to McCullough St, Thorn visited a disposals store in Lakes Entrance and purchased two balaclavas and two rolls of duct tape for use in the attack. He arrived at McCullough St at 12.55pm driving his mother's Toyota Corolla motor vehicle ('the Corolla'). At 2.11pm, Jayden Ball ('Ball') drove Harvey and you, Smith, over to McCullough St. He dropped you and Harvey off and then drove away. Stefani greeted you and Harvey at the front gate and the three of you then went to the bungalow.

12 Following discussions in the bungalow, you, Smith, along with Stefani, Thorn and Harvey, entered BJ's home through the rear door. Some of those present wore balaclavas and some possessed weapons. You all walked past Hooper who was standing in the kitchen, and was expecting your attendance and complicit in what followed at McCullough St. The four of you entered the master bedroom in which BJ lay resting on his bed. You set upon him.

13 Varying accounts were given by those involved as to the details of the violent and protracted assault inflicted upon BJ in his home. You admitted attending inside the house with the other three and punching BJ five or six times to the top of the head, cutting him open. As you put it, you were 'just throwing a few head punches to a paedophile'.[1] You admitted holding a cigarette lighter between your fingers to assist you in punching BJ.[2] You said that the other three also punched BJ. You described the attack as 'pretty bad'.[3] You denied observing anyone with duct tape or balaclavas and denied seeing anyone with a weapon.

14 At some point during the attack upon BJ, you and Harvey were picked up by Ball and driven away from McCullough St. At this stage, Thorn and Stefani remained with BJ and the attack upon him continued.

15 The evidence indicated that having been bound up, BJ was moved to the boot of the Corolla and then driven by Thorn to the farm. Thorn and Stefani were the only two offenders charged with the kidnapping which covered this conduct. Thorn parked the vehicle and then knocked on the door of your caravan, Bottom, informing you of the fact that BJ was in the boot of the vehicle. Hence began your direct involvement in the events of that day, although, of course, as noted earlier, you were present at the planning meeting on 1 December 2018 in the Tank. You told police that when you observed him in the boot, BJ appeared to have been badly beaten.

16 While Lyons was held captive, bound, helpless and no doubt increasingly distressed in the boot of the Corolla, Thorn and others including the two of you, assembled in the Tank to discuss what to do with BJ. In your case, Smith, you later told police in your second interview that you went to the farm because you had read some Facebook messages about BJ and wanted to see what was happening. In the Tank, it would seem there was some discussion about further beating BJ in order to attempt to extract a confession from him as to his inappropriate conduct towards the children.

17 After BJ had been held for some time in the boot of the Corolla, he was removed from there and taken into a shed on Thorn's property where he was secured to a massage table by tape and perhaps other means. The evidence would suggest the movement of BJ from the boot to the massage table was done at Thorn's direction, and that both of you were involved in these steps. You, Bottom, admitted removing BJ from the boot with the assistance of Smith and securing him to the table. You, Smith, admitted presence in the shed when BJ was placed and secured on the table. Both of you, in what you said to police and through your counsel during the trial, admitted involvement in the ongoing assault upon BJ in the shed.

18 As against the two of you, the precise extent of the assault upon Lyons in the shed of which you have been found guilty is unclear. You, Bottom, admitted that BJ had been tortured by Thorn in the shed, including by having boiling water poured upon him and Deep Heat applied to him. What is clear is that BJ, who had already been subjected to assaults at his own home, and the frightening ordeal, after he had been kidnapped, of being held captive in the boot of the Corolla for some hours during a summer's day and evening with his existing wounds untended, was subjected to the further terrifying experience of being removed from the boot, moved to the shed, tied to the massage table, and then assaulted by a group of men intent on punishing him and extracting a confession from him. Precisely what was done to him during this episode and for that matter, the earlier one, could not be determined because later, as I will turn to, his body was buried in a shallow bush grave, and by the time it was recovered, the decomposition prevented meaningful findings on autopsy at least as to soft-tissue injuries. I am satisfied, however, that the continuing assault upon Lyons in the shed was a very serious one. This was not challenged by your respective counsel.

19 Once it was felt that enough had been done, and it was time for Lyons to be removed from the property, BJ was removed from the massage table and tied up afresh with an array of bindings and cloths applied to his ankles and wrists which was extraordinary in its detail. I am satisfied that each of you was aware of these steps being taken, and complicit in them.

20 By this time, Thorn had formed the intention of murdering BJ. I sentence you on the basis that you were not parties to a plan for him to be murdered, notwithstanding the fact that each of you travelled in the Corolla with Thorn to Double Bridges and were present when BJ was shot dead.

21 After BJ was loaded into the boot of the Corolla sometime after midnight, bound, and no doubt completely terrified, the two of you set off in the vehicle with Thorn. A .410 shotgun, and at least one shovel were in the vehicle.

22 The vehicle was driven to a fire track leading from Gin Creek Road, Double Bridges, about 10km north of Bruthen. This was an exceedingly isolated area, chosen, I am satisfied, because of that fact. You, Bottom, admitted being present when BJ was removed from the boot and moved to the grave site. You admitted helping to clear the area for the grave to be dug by Thorn. You admitted being present when BJ was shot in the head by Thorn while BJ was lying face down in the grave. You said that you and Smith then helped fill in the grave.

23 You , Smith, told police that you became aware that BJ may be killed when the vehicle stopped at Double Bridges. You said that BJ was left in the boot while you, Bottom and Thorn found a spot for a grave to be dug. You agreed that you and Bottom had cleared an area for the grave to be dug, claiming that it was dug by Thorn. You admitted being present when BJ was moved from the boot to the grave site. You admitted being present when BJ was shot, and then helping to fill in the grave, as you said, at the direction of Thorn.

24 After BJ had been buried in the shallow grave, branches and foliage were used to cover the grave. The two of you and Thorn returned to the vehicle and drove back to civilisation.

25 BJ was reported missing by his brother on 11 December 2018. A police investigation commenced. Over the next few weeks, the two of you and others were identified as suspects.

26 You, Bottom, were first spoken to by police on 22 January 2019. You swore a witness statement in which you falsely stated that you had nothing to do with BJ's disappearance. You indicated that you had heard rumours about BJ supposedly molesting his stepchildren.

27 On 14 March 2019, you were arrested by police and interviewed. You made various admissions about your involvement in these matters. You indicated that you had been woken by Thorn in your caravan on 2 December 2018 to be told that he had a present for you in the boot of his car. You looked in the boot and saw the bound and injured BJ, who was protesting his innocence. You admitted getting BJ out of the boot and tying him to the massage table. You said that Thorn wanted you to torture BJ and take him into the bush and kill him. At one stage during your interview, you claimed that you and Smith had driven BJ into the bush and that you were the one who had shot him. Later, you changed your account, claiming that Thorn had been present and was the one who shot BJ. In your final version, you admitted presence in the vehicle which transported BJ to the location where he was shot, killed and buried.

28 Your interview was suspended at 4.31pm on 14 March 2019, and during the suspension, you guided police to the location where the body of BJ was found.

29 You, Smith, were interviewed by police for the first time on 20 December 2018. You admitted having attended McCullough St, having, as you put it, tagged along with Harvey. As indicated earlier, you admitted involvement in the attack upon BJ in his home. You claimed that after you left McCullough St, you had no further involvement.

30 Shortly after the arrest of Bottom on 14 March 2019, you, too, were arrested and interviewed. You maintained your false story of not having seen BJ after the McCullough St attack, but did admit attending the farm later in the evening. When later confronted with the fact that your friend had not supported an aspect of your account about when you left the farm, you admitted involvement in the false imprisonment of and attack upon BJ at the farm, and presence in the car as it was driven to Double Bridges, but claimed you had remained in the car. When further confronted with the account which Bottom had by that time given to police, you admitted presence when BJ was shot, and involvement in the preparation and filling in of the grave after the shooting.

31 An autopsy was conducted by Dr Michael Burke. Detailed evidence was given as to the numerous bindings and coverings which had been applied to the ankles, wrists and head of Lyons before his murder. His hands were tied behind his back with a quite extraordinary array of tape, cord, and cable ties. His tracksuit pants had been pulled down and were wrapped around his feet and then yellow and green duct tape had been wrapped around the pants three times. Underlying the tracksuit pants, the ankles had been bound, again, with an extensive array of cords, cloth, tape and cable ties. Two towels had been wrapped around the head and face of Lyons, secured by tape.

32 The cause of death was ascertained to be a shotgun injury to the back of his head. Also observed was a fractured left mandible (jawbone) and fractured left zygoma (cheekbone). Both of these were likely the result of blunt force trauma.

33 A large number of shotgun pellets and some shotgun wadding were recovered from inside his skull. Expert evidence indicated that the fatal shot was fired from within a few metres of the back of Lyons head.

34 As I indicated earlier, I am satisfied that the two of you were complicit in the application of bindings to BJ before he was placed back into the boot of the Corolla.

35 You, Bottom, are now 25 years of age, having been born on 26 February 1998. You were therefore only 20 at the time of your offending. You are the oldest of four children born to your parents. Your parents separated when you were five years old and your mother had two further children with her new partner. You maintained contact with your father, who was a commercial fisherman. When you were 11, one of your younger brothers died in a motor vehicle collision. You were present in the vehicle. You struggled to cope emotionally with your brother's tragic death. You moved out of home when aged about 15, in the context of having commenced to use drugs. You were educated in Lakes Entrance, struggling academically in primary school after the death of your brother, and exhibiting behavioural problems in secondary school, said to be related to your feelings of anger over the death of your brother. You have a significant substance use history. You commenced daily cannabis use at 15, continuing until your remand. You started smoking ice when you were 16, soon afterwards commencing daily use. You used ecstasy as well, and tried heroin. You also abused prescription medications. During a period of abstinence from drugs when you were 18, you drank alcohol heavily. You do not have much of an employment history, beyond a period of time working with a bricklayer when you were 18. You had one long-term partner from whom you separated after your offending.

36 You have a reasonably modest criminal history set out in the criminal record filed against you. Your history contains no convictions for violence and is of no great significance.

37 You, Smith, are now 26 years of age, having been born on 2 May 1997. You were therefore only 21 at the time of your offending. Your personal background is detailed in the psychological report of Naomi Cameron which was tendered during the plea hearing.[4] She noted you to be the third child in a sibship of four who was brought up in Bairnsdale. She considered you to have had:

an impoverished, unstable, and traumatic childhood marred by parental substance abuse, early parental death, out-of-home care and transience, and a lack of stable and consistent caregivers.[5]

38 You witnessed your father die of a heart attack when you were very young. Your mother was in hospital at the time being treated for a brain tumour. She died six months later when you were four. You and your siblings were placed in foster care for a time, during which you were mistreated. Then you were placed for six years with your older cousin which was not a satisfactory arrangement. After this, you and your siblings lived with your paternal grandmother which was a much better situation, but you were exposed to drug use in the family. You spent periods of time couch surfing with friends. You were educated to year 10 level in secondary school before completing years 11 and 12 in a TAFE college. You report frequent truancy from school and behavioural issues that led to a number of suspensions. You claim to have been bullied and to have struggled to make friends. You struggled academically, contributed to by your attention and concentration difficulties. You still struggle with your learning limitations. After leaving school at 16, you lived with your sister in Sale, and then in private rental accommodation. You had periods of homelessness. You have maintained contact with your siblings, who occasionally visit you in custody. Your family members have no involvement with the criminal justice system, although you brother-in-law had a criminal history and died by suicide while in custody in December 2018. Your grandmother died in 2019 after your remand, and you described feeling guilty at not having seen her in the lead-up to her death. You have had a sporadic and unstable employment history. You have relied on Centrelink payments since leaving school, supplemented by some periods of employment in a fast food outlet and as a furniture removalist. You have had a number of intimate relationships, the last one of which broke down shortly after your offending.

39 You have a history of chronic polysubstance abuse detailed by Ms Cameron in her report. You were a binge drinker from the age of 14 and started smoking ice when you were 16. You also abused over-the-counter and prescription medications. You never participated in any drug-treatment program. You used ice and buprenorphine once after being incarcerated, before commencing on a methadone program.

40 You have a criminal history as set out in the criminal record filed against you. That history commenced in the Children's Court in 2014 when you were 17. You were released on a youth supervision order without conviction on charges of violence and dishonesty. You were released on a like order for affray and assault in 2015. Drugs, driving and bail offending flowed from two subsequent appearances in the Magistrates' Court.

41 On 5 September 2018, you were released on a 12 month adjourned undertaking at Bairnsdale Magistrates' Court on driving, drugs and bail offences. The current offending breached that order, which is an aggravating feature of your offending.

42 Both of you were arrested and remanded in custody on 14 March 2019 and have remained in custody since that time. Your time in custody therefore encompasses the entirety of the COVID-19 pandemic, during which, as submitted by each of your counsel, time in custody was notoriously more burdensome. I take this into account in sentencing you.

43 Eight victim impact statements were filed in Court, all of them being either read by one of the prosecutors, the victim or another family member on behalf of the victim. There were statements from the mother, brother and sister of BJ, two of BJ's step-daughters, and his three children. I make the obvious point that these statements were prepared with particular reference to the death of BJ and its effects upon the authors. An important feature of a number of the statements is the effect that knowledge the loved ones of BJ had of the way in which he was treated in the hours leading up to his death had upon them, and specifically, the great trauma that that aspect caused them. Of course, in having regard to the contents of the victims impact statements, I am mindful of the fact that you are not responsible for the murder of BJ, and I view the content of the statements accordingly.

44 As is usually so in cases of murder, the victim impact statements in this case open a window into the suffering and trauma suffered by the victims of an unlawful killing.

45 The siblings of BJ speak of their admiration for their brother, who protected them from some of the excesses to which they were involved as children, and whose role they consider was important in their very survival. His sister Jessica describes a loving, caring and supportive older brother whose loss is felt acutely and has caused her great trauma and ongoing health issues. Family members including BJ's siblings and mother are haunted by the way he died. His mother Kim, in particular, can't rid her mind of thoughts of what her son must have gone through in his final hours. As she put it, 'the images of what was done to him invade my sleep as vividly as if I had witnessed it myself'.

46 The statements of the children and step-children of BJ, some of whom are those on whose behalf you and your confederates purported to act, are full of the disastrous effects the loss of BJ has had upon them. These events were widely spoken about in Lakes Entrance and the children were made to bear the brunt of rumour and innuendo in a small town, and made to feel almost responsible for what had been done to BJ, as if they had some input into it. A number of these statements were read aloud by BJ's second oldest step-daughter, whose own statement sets out the anguish and humiliation she has felt flowing directly from the loss of BJ. As she eloquently put it:

I want you to understand the massive impact all of this has caused. I'm humiliated over a crime I didn't commit and felt like I have had to pay time for something I never did. Life will never be the same. I'll always be the one that's looking over my shoulder in fear...that I will either be judged, spoke bad about or even worse, hurt. I can't and wont ever be the same again. You...have robbed me of my childhood I should have enjoyed. Instead I'm left broken, damaged and alone...I hope you hear what I am saying because my voice deserves to be heard along with my siblings. Bradley was not your only victim.

47 I will take the profound loss and damage suffered by these victims of your crimes into account in the appropriate way in arriving at the appropriate sentence to pass upon you.

48 In your case, Bottom, a report from Alison Mynard, a clinical psychologist, was tendered during the plea hearing.[6] Having set out your history, Ms Mynard expressed the view that diagnoses of complex bereavement disorder and post-traumatic stress disorder ('PTSD') are appropriate in your case. The PTSD symptoms are from a combination of the death of your brother many years ago, an incident of a sexual assault upon you when you were still a teenager, and the circumstances of the current offending. She opined that you continued to experience the long-term symptoms of PTSD at the time of your crimes, impairing your reasoning skills and reducing your ability for sound judgment. She stated that you have found custody to be quite onerous because of the conditions from which you suffer. Furthermore, your mental health is likely to deteriorate if you are required to spend further time in custody.

49 Mr Cronin did not argue that limbs 1 to 4 in R v Verdins & Ors[7] would be enlivened in your case, although the matters spoken of by Ms Mynard would provide some context to what you were going through at the time of your offending. Mr Cronin submitted that limbs 5 and 6 would have some application, although conceding that Verdins issues are of limited significance in your case.

50 In response on that matter, Mr Bourbon for the Crown conceded that it would be open for me to find limbs 5 and 6 enlivened, but submitted that they would warrant limited weight.

51 In your case, Smith, a number of psychological reports were tendered during the plea hearing. I have already mentioned the report of Naomi Cameron. This was the report principally relied upon by your counsel. Ms Cameron carried out a range of psychometric tests upon you and applied the HCR-20,[8] a well-known violence risk assessment tool. By reference to this measure, she found you to pose a moderate risk of future violence, with a moderate risk of committing serious physical harm. She considered you to have a history of reactive violence and violence as an act of retribution and revenge, usually occurring in group contexts. Your future risk scenarios of violent reoffending would most likely occur with other co-offenders and in the context of substance intoxication. Your willingness to participate in violence may be underpinned by implicit attitudes that condone violence and by your desire for approval and acceptance by peers. She considered that the risk you pose is reduced by the absence of recent and dynamic (i.e. changeable) risk factors, as you have demonstrated no serious problems with insight, violent ideation, or treatment or supervision response. Ms Cameron considered that your self-reported functioning and learning deficits may be 'indicative' of a provisional diagnosis of attention-deficit/hyperactivity disorder requiring further assessment. She considered that you may be 'predisposed' to a diagnosis of PTSD for a number of reasons, and to the development of major depressive disorder and generalised anxiety disorder. She also considered you to qualify for a diagnosis of alcohol use disorder and various other drug use disorders. Taking into account your history, the circumstances leading up to your offending and your functioning at that time, she considered that a number of factors likely precipitated your offending. She opined that at the time, your capacity to engage in rational decision making and appreciate the wrongfulness and consequences of your conduct were likely impaired. Your polysubstance use would have heightened your risk-taking behaviour, impulsivity, and behavioural disinhibition. She asserted that imprisonment would likely weigh more heavily on you than on a person without your trauma history. Furthermore, the prison environment could lead to an exacerbation of your existing symptoms.

52 A report from Dr Annie Cantwell-Bartl, another psychologist, was also tendered on your behalf.[9] This report, although dated 27 September 2023, was largely based on the memories and notes of the psychologist of her treatment of you between 2002 and 2004. She also spoke with you once online when you were in Port Phillip Prison. In the circumstances it is unnecessary to summarise the contents of this report.

53 Finally, a neuropsychological report of Dr Mathew Staios was also tendered.[10] Dr Staios assessed your level of general intelligence to fall in the extremely low range overall. There was no evidence to indicate the presence of an intellectual disability or cognitive impairment. He expressed the opinion that you are a vulnerable individual susceptible to the influence of negative peers, particularly while under the influence of substances. He considered you to meet the criteria for a range of conditions, including mood and substance related disorders.

54 Mr Saunders relied on the psychological material, particularly the contents of the report of Ms Cameron, as providing important background to your offending, and as going to the assessment of your moral culpability for your crimes. He did not submit that the first four limbs in Verdins would be enlivened in your case. Nor did he submit that the troubled background summarised by Ms Cameron would enliven the principles in Bugmy v The Queen.[11] He did, however, submit that limbs 5 and 6 in Verdins would have application. When asked, in respect of limb 6, which concerns the serious risk of imprisonment having an adverse effect on an offender's mental health, whether there is any evidence to suggest that the long period of time you have spent on remand to this point has led to a deterioration in your mental health, Mr Saunders could point to no such evidence.

55 In response on this issue, Ms Goding conceded that limb 5 of Verdins would have some application, but submitted that the evidence in the report of Ms Cameron is insufficient to enliven limb 6.

56 In your case, Bottom, I do have regard to the applicability of limbs 5 and 6 in Verdins, but consider this to be of limited importance in sentencing you. In your case, Smith, I have regard to limb 5, but again, attach little weight to it in the circumstances. As for limb 6, I consider the evidence is insufficient to enliven that limb.

57 In the case of each of you, I do have regard to the contents of the psychological reports insofar as they throw light on your behaviour and mental state at the time of your offending.

Plea of guilty, offer to plead guilty, invitation to jury to convict, remorse

58 In your case, Smith, you pleaded guilty in front of the jury to the charge of ICI, which you had indicated that you would do in the defence response dated 5 November 2021. I take that plea of guilty into account in your favour. There is some utilitarian value attaching to it, and to an extent it may be indicative of remorse. In the case of the charges of false imprisonment and common assault, where there was no plea of guilty, it was asserted on your behalf that you did not contest those charges before the jury in any meaningful way. I don't think that accurately represents the position. You pleaded not guilty to those charges, and it was not until the closing address of Mr Saunders that the jury were invited to find you guilty of those charges. Mr Saunders submitted that whilst not entitling you to a discount as such, your approach to those charges is a relevant matter touching on the issue of remorse. He submitted that there were good forensic reasons why it was wise for you to dispute those charges until you saw how the evidence fell in the trial. The fact that you did not plead guilty did not indicate an absence of remorse, he submitted. In seeking to establish remorse, Mr Saunders pointed to expressions of regret made to the psychologists, and your plea of guilty to ICI. He did not advance your asserted feelings of remorse as a significant factor warranting a large discount, submitting, rather, that it should not be entirely dismissed.

59 Whilst not suggesting that remorse should be considered to be extinguished in your case, the Crown submitted that any remorse you feel for your criminality should be assessed in light of the fact you pleaded not guilty to charges 3 and 4, notwithstanding your plea of guilty to charge 1. Furthermore, I should have regard to the comments you made in the second police interview, including your statement, 'we were just throwing a few head punches to a paedophile, that's it'.

60 In your case, Bottom, emphasis was placed on your offer to plead guilty to manslaughter on 3 September 2021. It was submitted that your plea offer indicated an acceptance by you of the conduct which founded the charges of which you were ultimately found guilty. You should therefore have the benefit of a plea offer prior to the trial and the sentencing considerations flowing from that. Mr Cronin did not place emphasis on the invitation extended to the jury during his closing address to find you guilty of false imprisonment and assault. Rather, he emphasised your conduct in the police interview, in which you accepted responsibility and indicated remorse, expressions of remorse you made to family and friends and to Ms Mynard, and particularly, your conduct in taking the police to the body of BJ which would not otherwise have been located, hence saving the family and friends of BJ the anguish of not knowing what had happened to him or the location of his remains.

61 The Crown acknowledged that you should receive some benefit for your offer to plead guilty to manslaughter. It was accepted that the Court could infer some remorse from this plea offer. You should receive no benefit, however, from Mr Cronin's invitation to the jury to find you guilty of charges 3 and 4. It was submitted that was no more than your recognition of the overwhelming case against you on those charges.

62 In your case, Bottom, I do have regard to the important co-operation you extended to the police in taking police to the body of BJ. I also have regard to your offer to plead guilty to manslaughter. I think that bearing in mind these matters and some other expressions of remorse you have made, there is reason to believe that you are somewhat remorseful for your offending. I take that into account in your favour.

63 In your case, Smith, whilst I accept that your plea of guilty to the charge of ICI is indicative of a measure of remorse, there is little reason to believe you are remorseful in relation to the other crimes of which you have been found guilty. Mr Saunders was right, in my view, to make submissions in respect of remorse which were quite circumspect. I do not entirely dismiss the matter of remorse on your part, but it is not a very important feature of your case.

64 I make the point, however, that even a complete absence of remorse, had I found that, which I do not, would not have amounted to an aggravating feature, but rather, the absence of a possible mitigating feature.

65 It was submitted on your behalf, Bottom, that your prospects of rehabilitation are good. This submission was based on your strong family support, your acceptance of responsibility and remorse, your youthfulness, and the period of time during which you have remained drug-free in custody, which would provide a solid foundation for continued drug counselling while subject to parole. The prosecution accepted that you have relatively good prospects of rehabilitation should you remain drug free.

66 I sentence you on the basis that your prospects of rehabilitation are reasonably good. Those prospects would, however, quickly diminish should you relapse into drug use.

67 On your behalf, Smith, it was acknowledged by your counsel that for a number of reasons, your prospects of rehabilitation must be viewed with a degree of caution. However, some emphasis was placed upon the long period during which you have been drug-free in prison, with the exception of one drug incident early on in that period, the fact that you have been working for most of your time in custody, and some other steps you have taken whilst in prison. The prosecution submitted that the Court should be 'guarded' about your prospects of rehabilitation.

68 I sentence you, Smith, on the basis that it is necessary to be cautious concerning your prospects of rehabilitation. You are not without any hope of rehabilitation, but your position is not as positive as that of Bottom.

69 Counsel for each of you made reference to your young age at the time of your offending and now.

70 A long line of authority dictates that the youthfulness of an offender may be a primary consideration in sentencing, and that in such a case, rehabilitation is usually far more important than general deterrence.[12] That is not always the case, however, and the law has recognised that there will be cases in which factors such as youth and rehabilitation would take a 'back seat' to other sentencing considerations.[13] In considering the authorities on the topic in Azzopardi v The Queen,[14] Redlich JA (with whose judgment the other members of the Court of Appeal agreed), stated:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.[15]

71 There was a later confirmation of the principle by the Court of Appeal in Siilata v The Queen,[16] a case concerning an offender sentenced for aggravated carjacking who was 18 years old at the time of the offence and 19 at the time of sentence:

True it is that the applicant was young but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes. Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offence increases. That must be so in this case.[17]

72 In the case of each of you, whilst the mitigatory significance of your youth at the time of your crimes and now is not entirely extinguished, the seriousness of your offending - conceded by your counsel - means that your youth has much less of a part to play in sentence than would usually be the case. It is clear that the sentencing objectives of deterrence, denunciation, just punishment and protection of the community must be very prominent in the sentencing calculus in each of your cases, and that the weight to be attached to your youth is correspondingly reduced. That is not to say that I disregard your youth. I still have regard to it.

73 Each of you has been in custody since your arrest on 14 March 2019. I take into account the long delay in this case, which is not attributable to the acts of either of you.

74 Furthermore, you have spent your time in custody in quite difficult circumstances. You have felt the brunt of the entirety of the period during which our community, and our custodial system, was afflicted with the COVID-19 pandemic. I take into account in sentencing each of you the onerous conditions under which you were held in custody on account of steps taken by the authorities to prevent the spread of the COVID-19 virus within the prison population. The limitations which those steps placed on custodial conditions are well known to this Court. Fortunately, those restrictions have now eased, and hopefully, will not return.

75 In addition, each of you, through no fault of your own, has been subjected to, and may continue to be subjected to, a restrictive regime imposed upon you for your own protection. Fortunately, that regime would not be as strict as was the case in years gone by, but nonetheless, I do have regard to the fact that there may be some restrictions on your custodial arrangements.

Nature and gravity of offending and moral culpability and degree of responsibility

76 The offending for which each of you is to be sentenced is serious, as acknowledged by your counsel. Each of your crimes were planned, committed in company with others, and propelled by the malevolence of vigilantism, about which I will say more later.

77 You, Bottom, attended the meeting in the Tank on 1 December 2018. Although you, Smith, did not attend that meeting, you were present in the bungalow at McCullough St immediately preceding the attack upon BJ in his home.

78 The attack upon BJ at McCullough St to which you, Smith, pleaded guilty, was exceedingly serious. It was carried out in company with others, and you yourself admitted the use of a cigarette lighter to strengthen the repeated and cowardly blows that you inflicted to the head of your victim. You admitted drawing blood to the extent of needing to wash the blood from your hands before you left the address. Your helpless and vulnerable victim was attacked in his own bedroom in his own home, and subjected to a drawn out assault which culminated in his kidnapping, in which neither of you was involved.

79 When you, Bottom, were notified by Thorn of the fact that BJ was in the boot, you saw for yourself that BJ had been badly beaten and was denying any guilt. You were well aware of the seriousness of what had already taken place, and what the motivation for it was. You chose to become involved in what followed, which was in keeping with what had been discussed at the planning meeting in the Tank the day before. As for you, Smith, your attendance at the farm in the knowledge that BJ was being held captive there, and of what had already befallen him, showed your ongoing support for this enterprise.

80 After his arrival at the farm in the boot of the Corolla, BJ was subjected to a further frightening period of imprisonment in the boot before being removed by the two of you to the massage table where he was further restrained and assaulted. That assault was carried out for the purpose of extracting a confession from a man who apparently maintained his innocence. Throughout the further assault at the farm, BJ was restrained, entirely helpless, and undoubtedly terrified. This was a very serious instance of common assault. It was carried out upon a man who had already been assaulted and kidnapped. He was restrained on the massage table when further assaulted by a group of men. The continuing assault undoubtedly caused not only injury and pain, but the terror which was its purpose.

81 When BJ was removed from the massage table, again tied up and restrained in the extraordinarily detailed fashion apparent on the evidence, and placed into the boot of the vehicle, he must have had a sickening apprehension about what was going to occur. As he was transported to the place of his eventual murder, trussed up, shrouded and alone, BJ endured an ordeal of considerable terror, and he had ample time to contemplate and be resigned to his dreadful fate.

82 The false imprisonment of which each of you was found guilty by the jury is one stretching from the time of the arrival of BJ in the boot of the Corolla at the farm right up to the point when, bound up, with his pants pulled down around his ankles, and shrouded, no doubt to increase his terror, he was brutally shot dead in that isolated, bush location.

83 It was put on behalf of each of you to the jury that all of this, right down to the digging of the grave, may have represented nothing more, in your minds, than an elaborate continuation of the conduct earlier engaged in of menacing and intimidating your victim; 'putting the ultimate frighteners' on him, as Mr Saunders put it in your case, Smith. The jury verdict does not necessarily mean that the jury gave any credence to that ostensibly unrealistic sounding contention. One thing is clear, however, and that is that the jury were not satisfied beyond reasonable doubt that either one of you was a party to a plan to murder. Therefore, I will sentence you on the basis that what was in your mind throughout that journey into the bush and right up to the point of the shooting of BJ was to inflict complete terror upon him. I have no doubt that you achieved that aim.

84 The Crown submitted that the false imprisonment of which you were both convicted is an instance of the crime sitting at the very high end of the range of seriousness for that offence. There is no doubt in my mind that that is correct.

85 It is true that you were both young men at the time of these events, and that there were matters in your backgrounds and psychological functioning which may have had some part to play in your involvement in these crimes. Your drug use, also no doubt, clouded your judgment and affected your behaviour. But there is no evidence that would suggest that you had anything less than a full understanding of the seriousness of what you were doing over the many hours of your offending.

86 There is no reason why your moral culpability for your offending should be considered to be anything other than very high.

87 It was submitted on your behalf, Bottom, that when I come to fix a non-parole period in your case, I should fix it at a level that would enable a long period on parole to promote your rehabilitative prospects and to reflect the great assistance you provided to the police in taking them to the body of BJ, and your pre-trial offer to plead guilty to manslaughter.

88 In your case, Smith, Mr Saunders submitted that a substantial gap between the head sentence and non-parole period would accommodate the principle of rehabilitation which he submitted is important in your case.

89 On behalf of each of you, it was submitted that I should sentence you in a way which would have you eligible for parole immediately.

90 It was submitted by Mr Bourbon in your case, Bottom, that the importance of general deterrence should not be undermined by an unduly short non-parole period.

91 The Crown took issue with the sufficiency of a non-parole period which would make you eligible for parole immediately.

92 The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in each of your cases. The submission made by Mr Bourbon to the effect that the importance of general deterrence should not be undermined by an unduly short non-parole period is correct, and has application to both of you. The non-parole period fixed must pay due regard to, and adequately reflect, the purposes for which sentence should be passed. Having said that, the non-parole period I will fix in the case of each of you will allow for a significant period of time on parole should you be released on parole, hence fostering your prospects of rehabilitation in the community.

93 In deciding upon the appropriate sentence for each of you, I have had regard to the sentences passed by me on Stefani, Hooper, and Thorn, and by Taylor JA upon Harvey and Ball. Of course, in the case of each of you, I have also had regard to the sentence I will pass on the other one of you.

94 I could spend a great deal of time reflecting on the various similarities and differences between the various co-offenders in this case. It would be pointless to do so. Whilst of course, there are many features in common between these cases, differences abound. Numerical equivalence is not what is required, and the search for an infallible formula would be fruitless.

95 Having said that, I make the following observations. Harvey, Ball, Stefani and Hooper all pleaded guilty to the charges upon which they were sentenced. In the case of Harvey, his moral culpability was viewed by Taylor JA as being reduced on account of the PTSD from which he suffered at the time of the offending, which was accepted by her Honour as having a realistic connection with his offending. In Hooper's case, her sentence was significantly reduced on account of Bugmy considerations.

96 The false imprisonment to which Harvey pleaded guilty was constituted by his involvement in BJ being restrained at McCullough St, in the expectation he was going to be further assaulted. His conduct, other than the assist offender charge relating to the weapon, did not extend beyond McCullough St. Notwithstanding that, Taylor JA described the false imprisonment as 'grave', and the Court of Appeal agreed.

97 In Stefani's case, whilst the false imprisonment extended to the farm, it ended there. As for the common assault upon BJ in the shed, it was not alleged that Stefani was directly involved in or present during any of that. He accepted guilt on a complicity basis.

98 In Hooper's case, she played no direct physical part in any of the crimes to which she pleaded guilty. In respect of the false imprisonment, she attended the farm after the events at McCullough St, but did not see BJ there or play any direct part in the ongoing false imprisonment. She left the farm before the removal of BJ in the Corolla.

99 It seems to me that in the case of each of you, the instance of false imprisonment for which you fall to be sentenced is at the very upper end of the range of seriousness. It encompassed the entirety of the period that BJ spent at the farm, both in the boot of the Corolla and in the shed, and the truly frightening and quite lengthy journey to the isolated location at which he met his death. Throughout it all, BJ was entirely helpless, defenceless and alone. It is quite confronting to contemplate his dark thoughts as his ordeal proceeded to its truly shocking conclusion. Not only would you have fully appreciated the effect all of this was having on BJ, but you sought and welcomed that outcome. Your conduct was drawn out and heartless.

100 These comments about the great seriousness of the false imprisonment charge do not detract from the obvious seriousness of the other charges, about which I have already made some comments.

101 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, and current sentencing practices. I have applied the principles of totality, proportionality and parsimony.

102 I make the observation, where cumulation is concerned, that I have considered it appropriate and necessary to cumulate a significant portion of the sentence of each of you on the charge of common law assault upon the false imprisonment sentence, reflecting the separate and distinct criminality involved, and its considerable seriousness.

103 The offending of each of you cannot be viewed as being anything 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 that people had about the conduct of BJ towards his step-children, each of you willingly became a party to the violent, cowardly and heartless behaviour that the group as a whole determined to carry out. The crimes you committed were serious examples of those crimes. The fact that they were committed in the context of organised vigilante action by a gang of violent and vindictive thugs is a substantial aggravating feature. In Director of Public Prosecution v Whiteside and Dieber,[18] Brooking JA observed that appellate courts have made it clear that vigilante enterprises must be suppressed, referring to a series of cases in which appellate courts have stated, amongst other things, that such action calls for serious reaction from any court anxious to preserve the rule of law. In sentencing Harvey, Taylor JA described his offending as being 'imbued with the arrogant righteousness of vigilantism'.[19] 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.[20]

104 The Court of Appeal in accepting Taylor JA'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.[21]

105 Yours were not spontaneous or impulsive criminal acts, committed in haste and without sufficient thought. These were well-planned, well-executed criminal offences, carried out with truly chilling callousness and disregard for the wellbeing of a fellow human being. You had ample time throughout that afternoon and evening to reflect on what you were doing and to desist. You did not do so. Your crimes were an affront to normal, decent society.

106 Nothing stopped you from being fully able to appreciate the serious nature of your crimes, and being fully responsible for your offending.

107 To my mind, the important reasons for which sentence must be passed on you are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community. You must be punished in a way which adequately reflects the seriousness of your crimes and amounts to an appropriate response to them. The sentence must communicate in clear terms this Court's condemnation and disapproval on behalf of the community of your violent criminal conduct, which was motivated by an arrogant and misguided desire for vengeance. BJ, whatever may have been his faults, and whatever may have been your thoughts or suspicions about him, was a person deserving of the full protection of the law. His life and wellbeing were precious to the community and those who loved him, as eloquently attested to in the victim impact statements. You saw fit to treat him with absolute disdain. You subjected him to a truly horrifying ordeal over a long period of time. You acted in the clear knowledge of the unlawfulness of your conduct, and in circumstances where you had ample time to reflect upon what you were doing and desist. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out serious crimes of violence under the guise of vigilante justice that such conduct will be met with very strong punishment. You must be deterred personally from any future violent actions to which you may be disposed. As for the protection of the community, that is also important, and I have regard to it.

108 As for rehabilitation, that has a part to play in sentence, but in the circumstances must take a back seat to more important sentencing objectives. Having said that, as mentioned earlier, the non-parole period I will fix in each case will allow for the prospect of a significant period of conditional freedom in the community under the supervision of parole.

109 Jordan Bottom, for the false imprisonment of Bradley Lyons (charge 3), you are sentenced to be imprisoned for 7 years. This is the base sentence.

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

111 I order that 2 years of the sentence on charge 4 be served cumulatively upon the sentence on charge 3.

112 The total effective sentence is therefore 9 years' imprisonment.

113 I fix a period of 6 years during which you will not be eligible to be released on parole.

114 I declare a period of 1,730 days up to and including yesterday, 7 December 2023, 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.

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

116 For the false imprisonment of Bradley Lyons (charge 3), you are sentenced to be imprisoned for 7½ years. This is the base sentence.

117 For the common law assault of Bradley Lyons (charge 4), you are sentenced to be imprisoned for 3½ years.

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

119 The total effective sentence is therefore 10½ years' imprisonment.

120 I fix a period of 7 years during which you will not be eligible to be released on parole.

121 I declare a period of 1,730 days up to and including yesterday, 7 December 2023, 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.

122 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the charge of ICI, I would have imposed a sentence of 7 years' imprisonment on that charge.

[7] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[8] Historical, Clinical and Risk Management - Version 3.

[11] [2013] HCA 37; (2013) 249 CLR 571 ('Bugmy').

[12] R v Mills [1998] 4 VR 235.

[13] R v Wright [1998] VSCA 84 [6]; Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125 [60].

[14] [2011] VSCA 372; (2011) 35 VR 43.

[16] [2019] VSCA 277.

[18] (2001) 1 VR 331.

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

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