DPP v Lyons [2019] VSC 602

1 David Ronald Lyons, on 2 September 2019, you pleaded guilty to one count of assisting an offender and one count of intimidation of a person involved in a criminal proceeding. You were originally charged with murder in relation to the death of Joshua DiPietro on 3 September 2017, and you have spent 16 months in custody on remand.

2 At the plea hearing, I also heard the prosecution opening as well as submissions of counsel on your behalf and from the prosecutor in relation to the sentence that should be imposed on you. I also received a victim impact statement from Fiona DiPietro.

3 The maximum penalty for assisting an offender where the principal offence is attempted murder is five years' imprisonment.[1] The maximum penalty for intimidation of a person involved in a criminal proceeding is ten years' imprisonment.[2]

4 It is now my responsibility to sentence you for these offences.

5 I now summarise the facts you accept for the purpose of sentencing and on which you have based your pleas of guilty.

6 By way of background, you had previously been in a relationship with Tracey Godfrey, who is the mother of both Craig Williams and John Godfrey. You are the father of John Godfrey and helped raise Craig Williams. At the time of this offence, Ms Godfrey and Mr Williams lived at 71 Ocean Street, Rosebud.

7 In the weeks leading up to the killing of Joshua DiPietro, animosity had developed between him, Mr Williams and Mr Godfrey. The animosity between them grew significantly after an incident involving Mr Godfrey in late July 2017 where Mr Godfrey made disparaging remarks about the deceased in the presence of a person who will be referred to as 'SH'. Mr Godfrey also hit SH in the face. SH then told others, including the deceased, what Mr Godfrey had said. The deceased and Mr Williams contacted each other at various times, exchanging insults and threats.

8 On 10 August 2017, you went to the Ocean Street residence to discuss the situation with Mr Williams. Mr Williams called the deceased in your presence. During this conversation, you overheard them make threats to each other. Mr Williams apparently told the deceased to come to Ocean Street that day, but the deceased declined.

9 In the morning of 3 September 2017, the deceased attended 71 Ocean Road and spoke to Ms Godfrey to ask whether Mr Williams was home. When Ms Godfrey informed the deceased that he was not, the deceased asked her to tell Mr Williams that he had come by. It is alleged that when Mr Williams returned home, Ms Godfrey informed him that the deceased had attended the house and Mr Williams became angry.

10 At 7:31 that evening, Mr Williams contacted you to ask you to come to the Ocean Street residence because the deceased had been there and was going to return. You and Mr Godfrey left shortly after receiving that call and drove towards the residence.

11 Around that same time, SH contacted the deceased and informed him about being assaulted by Mr Godfrey and that Mr Godfrey had called the deceased 'a dog', which upset the deceased.

12 There were then a series of contacts between the deceased and others, inevitably leading to the likelihood that Mr Williams and the deceased would come into confrontation with each other. Those contacts have been set out in detail in the prosecution opening. At the conclusion of one particular telephone call for which you were present, the deceased is alleged to have said, 'I'm coming around. You're going to get shot. I'm going to shoot you'. To which Mr Williams responded, 'Bring it on. Come around'.

13 As this was happening, Mr Williams, Mr Godfrey and you began preparing for a confrontation with the deceased. Mr Williams then armed himself with a .22 calibre rifle and gave a handgun to Mr Godfrey. He also told Ms Godfrey to turn off the CCTV cameras at the residence, and she did so. You, in the meantime, had gone to the front yard of the premises. You picked up a car shock absorber and placed it on the back seat of your car, which was parked in the driveway, along the fence line.

14 By 8:10 pm, the deceased, along with SH and two other associates, decided to drive to 71 Ocean Street. All four men got into a Mitsubishi Pajero. The deceased was sitting in the front passenger seat, while SH was seated in the rear of the vehicle. None of the men in the vehicle were armed. The driver took the Pajero slowly past the residence before performing a U-turn to park in front of 71 Ocean Street.

15 You, Mr Williams and Mr Godfrey were standing between the side fence and a parked car in the driveway. Mr Williams and Mr Godfrey were holding firearms. As the deceased exited the vehicle, Mr Williams appeared from behind the car and asked who was there. The deceased identified himself. The parties began yelling, including a male voice which said, 'You're gone'.

16 It is alleged that Mr Williams pointed the rifle at the deceased, who saw the gun and said words to the effect of, 'Put that away. Don't be silly'. The deceased then got back into the car and closed the door. He told the driver to drive away.

17 Before that could occur, Mr Williams and Mr Godfrey both fired their guns at the vehicle. A bullet passed through the front passenger-side window and struck the deceased in the left side of his head. The deceased was immediately unresponsive and slumped forward. The driver accelerated quickly. You, Mr Williams and Mr Godfrey moved out onto the street. Mr Williams and Mr Godfrey continued to shoot at the vehicle as it drove away.

18 The vehicle continued along Ocean Street before breaking down several blocks away. Paramedics later attended, and the deceased was airlifted to the Alfred Hospital. He died at about 4 pm on 4 September 2017 from the single gunshot wound to his head.

19 Over the next few days, you committed a number of acts to assist Mr Williams and Mr Godfrey, which are at the basis of the offences you have pleaded guilty to. Shortly after the shooting, you and Mr Godfrey searched for discharged ammunition cartridges in the front yard of 71 Ocean Street. Two were located and given to Mr Williams.

20 At about midnight on 3 September, Mr Williams met with you and Mr Godfrey at Mr Godfrey's residence in Rye. Mr Williams instructed you to escort him back to 71 Ocean Street in separate cars. The intent of this convoy was to allow you to call Mr Williams in the event that police were at the residence. You agreed to do so. You and Mr Godfrey also buried the handgun he had used in a paddock in Spray Street, Rosebud.

21 On 4 September 2017, you and Mr Godfrey returned to 71 Ocean Street where you found a further spent cartridge in the driveway and disposed of it.

22 The following day, you were spoken to by police. You made a false statement to police in which you said that Mr Williams had shot the deceased and that you did not know where Mr Godfrey was when the shooting happened. You would later make further false statements to police, to which I will return.

23 On 5 January 2018, you and a friend, Michael Swift, were at the Safeway supermarket in Rosebud. You observed SH exiting his vehicle and began yelling at him along with Mr Swift. You told him that you knew he had made a statement against Mr Williams and repeatedly called him a 'dog'. While he was in the Safeway, you moved your vehicle next to his in the parking lot. Upon his return, you and Mr Swift began harassing him again and saying he was a 'dog'. Mr Swift began hitting the roof of SH's vehicle with a hammer, saying, 'I'm going to get you, cunt.' SH got into his vehicle and drove off. You and Mr Swift followed him in your vehicle until he arrived at his residence. You then drove slowly past his house, while yelling that he was a 'dog' and a 'lagger'. Unsurprisingly, SH was frightened for his safety.

24 On 19 April 2018, you were arrested at your home in Rosebud. You were spoken to by members of the Homicide Squad on the drive to Melbourne. In the course of that conversation, you now claimed that you alone had shot the deceased, and that Mr Williams and Mr Godfrey were either in the house or the backyard at the time of the shooting. You described shooting him with two firearms, a pistol and a rifle. You also told police you disposed of the bullets and the spent casings, but missed the one that the police later found on Ocean Street. You said the reason you shot the deceased was because he was threatening your sons.

25 In relation to the allegation of intimidation, you claimed that SH had started laughing at you, saying, 'There's Craig's mates'. You admitted saying to SH, 'You're a fucking piece of shit, cunt'. You also admitted that you said, 'You should fucking think about it. Your mate's fucking not here anymore because of your mouth, and it's still running'. You said that you followed SH because he had carried on. You then said to him, 'You wanna fucking think about what you say, fuckhead, and then no more'.

26 Later that day, at the Melbourne West Police Station, you were interviewed again. You recanted your previous statements from the initial conversation with police. You now told police that you did not have possession of a firearm during the shooting and had no part of it. You said that you had anticipated that, at worst, a brawl would occur. You claimed that you heard the deceased tell Mr Williams to meet him at another location. You said that you expected to drive to that location and placed the shock absorber in the vehicle to use in the brawl.

27 You told police that Mr Williams had a rifle and Mr Godfrey had a handgun. You said Mr Williams fired two shots at the deceased as he tried to get out of the vehicle and then fired two more shots at the car from the roadway. You also described where you and Mr Godfrey buried the handgun. You admitted to finding one fired cartridge in the driveway the following day and disposing of it.

28 In my opinion, these were serious offences. Impeding the investigation of a serious offence is significant offending, as is the intimidation of SH. Your offending occurred in the context of most serious offending by others resulting in the death of Joshua DiPietro. I make clear that you are not to be sentenced on any basis suggesting you contemplated that event.[3] However, you did contemplate serious violence.

29 The Court received a victim impact statement from the mother of Joshua Dipietro, Fiona Dipietro. She read her statement to the Court herself, displaying substantial strength in the face of the emotional catastrophe that the death of her son has been for her. You, of course, were not directly involved in that death. However, her victim impact statement vividly portrays the loss that she feels and the wound that she will carry for the rest of her life. I have taken Ms Dipietro's victim impact statement into account in determining the sentence that I should impose on you to the extent that it relates to your particular offending.[4]

30 You are now 47 years of age. You grew up in the suburb of Chelsea as one of seven children to your parents. Your father died when you were seven and, by age nine, you became a ward of the State. Apparently, your childhood was without structure or supervision, as you and your fellow wards roamed the streets.

31 You had little formal education. At age 15, you attended Dromana Technical School but, after only nine months, you began doing casual work and then commenced a life as a career burglar.

32 At age 21, you formed a relationship with Tracey Godfrey, who had already given birth to Craig Williams, and that was a difficult relationship. With her, you had two children, one of whom died some 12 years ago. The two of you remained close, and you have acted as a father figure to her other children.

33 At the time of this offence, you were living with your parents. Your mother has dementia and your stepfather has Parkinson's disease. I received a letter from your sister, Robyn Lyons, in which she describes the support that you have provided your mother as well as Tracey Godfrey.

34 Unfortunately, your prior criminal history demonstrates that long periods of your life have been spent in custody. That history began with a conviction in the Melbourne County Court for armed robbery on 7 October 1993, for which you received a sentence of 12 months, suspended for two years.

35 There followed a large number of offences, including handling and receiving stolen goods, criminal damage, attempted burglary, unlawfully on premises, burglary and theft, continuing until 1 June 2012.

36 Your last offence for burglary, theft and theft from a motor vehicle earned you an aggregate sentence of two years' imprisonment with a non-parole period of 12 months. Until these offences for which you have now pleaded guilty, you had not offended after your release on parole for those matters.

37 It is a very unsatisfactory criminal record and, although your counsel placed some reliance on burglaries as being your stock-in-trade, it is a record that does you no credit at all. Though, I accept that the offending is a consequence of your personal circumstances.

38 On your behalf, Mr Mandy of Senior Counsel urged me to conclude that there were a number of matters about your conduct that stood to your credit.

39 First, he submitted that your plea of guilty represented a display of remorse and, as he put in the submissions that he made, that you are deeply and profoundly sorry that Joshua Dipietro died. I am willing to accept that you feel that way but, as I pointed out to him, given your criminal history and your alleged resolution to avoid criminal activity, your willingness to be involved in these matters - notwithstanding your personal interest in them - is very hard to understand, and is relevant to the assessment of your prospects of rehabilitation.

40 It was also submitted that, at the time of the committal hearing, you had offered to plead guilty to the offences that did not allege complicity in the death of the deceased, but the offer was rejected by the prosecution. After ultimately downgrading your charges from murder to assisting an offender and intimidating a witness, you again offered to plead guilty and this matter was resolved. I do accept, and the prosecution has conceded, that this was a guilty plea made at the earliest reasonable opportunity. Though the trial of the other parties is still to be heard in 2020, there is considerable utilitarian benefit in your plea

41 Second, it was submitted on your behalf that your offending was at the lower end of offending conduct of a similar nature. It was submitted that your conduct when assisting the primary offenders was of a less serious nature, including the fact that the police were not misled by your false statements and that you recanted shortly after. Be that as it may, the reality is that you set out to mislead.

42 Further, counsel on your behalf submitted that you blamed SH as the cause of the entire incident, and that but for his complaint to the deceased about Mr Godfrey's comments, the original altercation would not have occurred. In my view, however, whilst it may explain your conduct, it in no way justifies the threats and intimidation that you levelled against him.

43 General deterrence and denunciation are particularly significant sentencing factors for this kind of offending as I made clear in discussions with your counsel. Providing assistance to an offender where a very serious offence has been committed is conduct that, wherever possible, the Court should endeavour condemn in the strongest possible terms by the imposition of significant penalties. This is also true for intimidation of a justice system participant. As it was submitted by the prosecution, this conduct undermines and frustrates the proper administration of justice. There must be meaningful consequences to deter you and others from such conduct.

44 I am willing to accept your counsel's submissions that specific deterrence is a less significant sentencing factor in your case; though your criminal history as I have outlined it and your willingness to participate in these offences do not suggest that your lesson has been entirely learned. I remain guarded about your prospects for the future.

45 It is a fact that you are the father of John Godfrey and a father figure to Craig Williams. That relationship explains your involvement, but there are other steps that you could have taken. You could have done what you could to prevent this incident occurring at all. You could have cooperated with the police when they began their investigation, or you could have at least stood back and left the police to carry out their own investigation. Instead, you actively assisted by concealing the identity of those responsible and impeding the investigation of what had occurred.

46 In my view, it is necessary for an immediate custodial sentence, as the prosecution submitted. Further, I am not prepared to impose a sentence the effect of which is that you immediately be released.

47 On the charge of assisting an offender, you will be sentenced to be imprisoned for a period of 18 months. On the charge of intimidating a person involved in a criminal proceeding, you will be sentenced to be imprisoned for a period of two years.

48 I direct that six months of the sentence imposed on charge one be served cumulatively with the sentence imposed on charge two. That makes a total effective sentence of two years and six months.

49 I direct that you serve a period of 20 months before you are eligible to apply for release on parole.

50 I declare that your pre-sentence detention is a period of 510 days, including this day, and direct that those days be reckoned as time already served.

Section 6AAA

51 I declare that, but for your plea of guilty, the total effective sentence I would have imposed on you would have been a period of three years, and that I would have directed that you serve a period of two years before you were eligible to apply for release on parole.

[1] Crimes Act 1958 (Vic) s 325(4)(b).

[2] Ibid s 257(1).

[3] See, eg, Landmark v The Queen [2015] VSCA 178 [26]-[35].

[4] See, eg, R v Swift [2007] VSCA 52; [2007] 15 VR 497; DPP v Richardson [2007] VSC 221.