DPP v Thorn [2023] VSC 702

2 The crimes for which you fall to be sentenced are examples of vigilante justice inflicted by 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.

3 Your murder of BJ not only ended his life, but removed from the lives of his mother, his siblings, his children and his step-children a son, brother, father and step-father whom they loved and valued, no matter his faults. You have caused the family of BJ irreparable harm and have shattered many lives.

4 When speaking most dishonestly to the police in the aftermath of your crimes, you portrayed yourself as a benevolent citizen coming to the assistance of young children in need, when in reality, yours was conduct which showed a want of common human decency, and, as Taylor JA stated when sentencing one of those with whom you acted during some of the period in question, was 'imbued with the arrogant righteousness of vigilantism'.[1] Your behaviour was an affront to the rule of law.

5 There is no evidence before the Court which would suggest that at any time in the years since your murder of BJ, you have felt the slightest shred of remorse or regret.

6 The maximum penalty for murder is life imprisonment. The maximum penalty for kidnapping is 25 years' imprisonment. 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.

7 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.

8 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 St. Stefani was also your friend, and you became aware of the rumours. You were a person, I am satisfied, who had a strong hatred of paedophiles.

9 On the night of Saturday 1 December 2018, Jordan Bottom ('Bottom'), who at the time lived in a caravan on your property at Nyerimilang ('the farm') with Jessica MacFarlane, drove Stefani to the farm. A meeting was held involving you, Bottom, Stefani, and others, in a converted concrete water tank ('the Tank') located at the farm which was used as a place to socialise by you and others. 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 you and others 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.

10 There were many communications by calls and text messages between you, 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.

11 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.

12 In the meantime, you had been in communication with Stefani and Harvey on the Sunday morning and early afternoon, as you formulated a plan to attack BJ. It was arranged that a number of people would assemble at Stefani's bungalow in the afternoon in preparation for the attack.

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

14 Following discussions in the bungalow, you, along with Stefani, Smith and Harvey, entered BJ's home through the rear door. Harvey and Smith each wore one of the balaclavas you had purchased. Harvey was armed with a metal pole with bearings on it. Stefani was armed with a sawn-off shotgun. 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.

15 Varying accounts were given by you and others as to the details of the violent and protracted assault inflicted upon BJ in his home. It is possible to distil sufficient of the truth from the dishonest, self-serving account of the events in the house which you later provided to the police to conclude that whilst it is not possible to know what injuries were sustained by BJ in the house, and what precise part you played, he was subjected to a frightening and serious attack by a bunch of men, including you, who felt and exhibited utter disdain for his wellbeing. You described the other three as 'belting the fuck' out of BJ, with force described by you as being 'horrific'[2]. You falsely claimed to have acted to protect BJ during the attack because you thought he was going to be killed by the others. It is clear to me that the last thing in the world on your mind was protecting BJ. You admitted during your second interview that during the attack, Stefani kicked BJ, burnt his eye with a lit cigarette, threatened him with a sword, and held the shotgun to his head. You admitted striking BJ several times yourself. You stated that during the attack upon him, BJ grabbed a knife from under a pillow which you removed from him. There is no reason at all to think your claim about this was correct, and I reject it. BJ was, from the start, outnumbered and overwhelmed, with no chance to defend himself. He was left bleeding profusely and significantly injured by the attack. You were complicit in the entirety of the attack, no matter what your precise role was.

16 The duct tape you had purchased was used in conjunction with rope to bind BJ by the hands and feet. Harvey and Smith took the CCTV hard-drive from the house when they left. Stefani carried BJ to the boot of the Corolla. You then drove the Corolla to the farm and parked it there, leaving BJ in the boot. You informed Bottom of the fact that BJ was in the boot of the vehicle.

17 The false imprisonment to which you pleaded guilty concerned the period of time during which BJ was held against his wishes from the arrival of the Corolla back at the farm. The verdict of guilty by the jury on the charge of murder indicates that the false imprisonment of which you were actually found guilty covers the period from that time up until the point at which BJ, bound and shrouded, was shot dead many hours later.

18 While BJ was held captive, bound, helpless and no doubt increasingly distressed in the boot of the Corolla, you and others assembled in the Tank to discuss what to do with him. 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.

19 After BJ had been held for some time in the boot of the Corolla, he was removed from there and taken by Bottom and Smith into a shed on your property, in which he was then tied to a massage table in the shed. I am satisfied beyond reasonable doubt that this was done at your direction, and that despite your denials to police in the interview, you were intimately involved in the continuing assault inflicted upon the helpless BJ in the shed.

20 As against you, the precise extent of the assault upon BJ in the shed of which you have been found guilty is unclear. What is clear is that BJ, who had already been subjected to assaults at his own home, and the frightening ordeal, after you kidnapped him, 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, you left his body 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 BJ in the shed was a very serious one.

21 Once you felt enough had been done, and it was time for BJ to be removed from your property, you, as you admitted to police, grabbed BJ and placed him in the boot of your vehicle. The indications are that before BJ was placed in the boot, he was tied up afresh, with an array of bindings and cloths applied to his ankles and wrists which was extraordinary in its detail.

22 Having loaded BJ into the boot of the Corolla sometime after midnight, you set off in the vehicle with Bottom and Smith. You had with you in the vehicle a .410 shotgun, and at least one shovel. I am satisfied that the shotgun was yours. The evidence, including the later finding in the Tank of a shotgun cartridge fired from the murder weapon, would warrant this conclusion.

23 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, by you, because of that fact, and the general connection you had with the area. It was your intention to kill BJ and bury his body. The vehicle was stopped on the fire track. You and the other two men got out of the vehicle. BJ was removed from the vehicle and taken by you and the others to an area a short distance from the track, but hidden from view. This had been selected as an appropriate location for the digging of a grave. A shallow grave was dug at this location, either before or after you removed BJ from the car. With BJ either in or close to the grave, likely the former, the shocking coup de grâce was administered by him being shot with the shotgun to the back of the head from close range. He was buried, and branches and foliage were used to cover the grave. You and the other two men returned to the vehicle and drove back to civilisation.

24 These few words are wholly inadequate to convey the horror of your crime, to which I will return.

25 Having carried out these heinous crimes, you then played along with the efforts of Hooper and others to hide what had happened, and to pass off the disappearance of BJ as being innocent and of his own doing.

26 Later on the day of the murder, you told your 10 year old daughter that you had killed somebody the previous night. You said the person killed was the person who had been in the boot of your car. You said that you and others had driven the man out to the bush and bashed him with metal poles. He had been killed because of his sexual abuse of children.

27 A few days later, you hosted what might be termed a celebratory party at the farm, attended by Hooper, Stefani and Hooper's children.

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

29 You painted the floor of the shed in which BJ had been held captive, covering up bloodstains which had been visible on the floor.

30 A search warrant was executed at the farm on 19 December 2019. You were arrested and later interviewed. You lied extensively to the police, denying ever having laid eyes on BJ and denying any involvement in his disappearance. You indicated, however, a belief that he had sexually abused his children, and showed your distaste for any person who would do such a thing. Later in the interview, you stated that Stefani had confided in you about what was supposedly happening with the children. He sought your advice, and you claimed to have told him that he had to make sure the kids were safe.

31 You were released from police custody after the interview.

32 A couple of days afterwards, you dismantled and destroyed the massage table, cutting it into pieces and burning it in a drum.

33 You made some disclosures to your neighbour Kerri-Lee Whelan about what had happened to BJ.

34 On 13 March 2019, you were again arrested and interviewed by the police. You admitted involvement in the assault upon and kidnapping of BJ from McCullough St, and admitted knowledge of his having been removed from the boot of your vehicle by Bottom and Smith and tied to the massage table and assaulted, although you denied involvement in the ongoing assault. You admitted placing BJ back in the boot of the vehicle, but denied any involvement after he was driven away by Bottom and Smith. You claimed to have subsequently learnt of the fate of BJ. You denied any involvement in his murder.

35 The next morning, Bottom was arrested and taken to Bairnsdale Police Station for interview. During the interview, he agreed to take police to the grave site. He directed police to a location next to a large hollowed burnt-out tree trunk. The badly decomposed body of BJ was exhumed from the grave, and a fired .410 shotgun cartridge was found nearby.

36 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 BJ 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 BJ, secured by tape. The tape used matched tape located by police at the farm.

37 The cause of BJ's 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.

38 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 BJ's head.[3]

39 The decomposition of BJ's body prevented any analysis of soft tissue or other injuries short of skeletal injuries.

40 In the written Prosecution Sentencing Submissions, it was submitted that it would be open to the Court to find that your intention to kill BJ had been formed by the time you kidnapped him from McCullough St. Mr Anderson took issue with such a finding being open, whilst conceding that it would be open to the Court to find that the intention to kill existed at the time BJ was placed in the boot of the Corolla prior to the journey to Double Bridges commencing.

41 In the end, the prosecution did not press this point, being content to accept a conclusion that your intention to kill BJ was formed sometime before BJ was placed in the boot. Mr Anderson did not take issue with this approach.

42 I sentence you on the basis that by the time BJ was removed from the massage table and bound up in the extraordinary and telling fashion of which I have already made mention, prior to your placing him back in the boot of your vehicle, you had formed the intention to kill him.

43 This is relevant to the duration of the period of premeditation preceding your murder of BJ. Mr Anderson sought to make something of the brevity of this period, relative to the overall period since the assault upon BJ commenced, or indeed, compared with some cases where there would be a much longer period of premeditation. The fact remains, however, that whenever precisely it was that you decided to kill BJ, accepting for the purposes of the discussion that it was close to the time when you placed him back in the boot, you knew what had been done to him up to this point. You knew that this man had been set upon and seriously assaulted in his own home by a group of armed men, kidnapped by you in the boot of your car, transported by you to your farm where he was imprisoned for some time in the boot, moved to the shed where he was secured to the massage table and further assaulted and terrorised, removed from the massage table and further bound up, complete with a shroud over his head preventing him from seeing what was taking place, and then placed back in the boot and driven to the place of his eventual murder. You knew that he must, throughout his ordeal, have been utterly terrified of you and the others, and gravely concerned about his fate. You understood the extreme seriousness of what you had done every step of the way. Throughout the afternoon and evening, you had ample time to reflect and desist, and you did not do so. Rather, you decided to murder your helpless victim.

44 Throughout your long journey to Double Bridges, again, you had ample time to reflect upon the enormity of the decision you had made - to snuff out the life of a man - and to desist from that plan. You chose not to do so.

45 In the end, your murder of BJ was premeditated for a significant period of time and was a long way removed from a spur-of-the-moment, thoughtless crime.

46 Another factual matter which arose during the plea hearing was the question of whether or not I should be satisfied that you were the person who shot BJ in the back of the head. Mr Gibson submitted that the only reasonable conclusion that can be drawn from the jury's verdicts against you and your co-offenders is that you are the person who shot BJ. The verdict against you shows the jury were satisfied beyond reasonable doubt that you were at the scene at the time of the murder. Mr Gibson pointed to the different verdicts returned against Bottom and Smith. You admitted to your daughter that, 'Last night I killed somebody'. You took a very central role in all of the events including their organisation, and were substantially older than your co-offenders. You hosted the initial meeting in the Tank and played a central role in coordinating the attack thereafter, including purchasing the balaclavas and tape. You were the first to arrive and last to leave McCullough St. Yours was the property to which the kidnapped BJ was taken, and at which he was held captive for hours. He was tied to your massage table in your shed. The binding used came from your property. The shotgun was yours. The car used to transport your victim throughout proceedings was yours. These and other facts, it was submitted, were entirely consistent with the jury verdict, in light of the verdicts for the co-accused, being indicative of a conclusion by the jury that you fired the fatal shot. I should be satisfied beyond reasonable doubt on this matter. In any event, submitted Mr Gibson, nothing much would turn on the question of whether or not I can be satisfied you fired the shot. It would make no difference to the sentence.

47 Mr Anderson, on the other hand, submitted that given the way that the case was put by the prosecution, in which it did not undertake to prove who fired the fatal shot, and bearing in mind the burden of proof and the differing evidence against each offender, it would be 'logical fallacy' to say that the only reasonable conclusion to be drawn from the jury's verdict is that they were satisfied beyond reasonable doubt that it was you who shot BJ. The jury may well have been satisfied to a lesser standard that each offender including you was complicit in the offence, but reserved a reasonable doubt in the case of the other two accused. He submitted that there is insufficient evidence from which to draw an inference beyond reasonable doubt that you pulled the trigger. Mr Anderson did not go as far as to submit that a finding that you were the shooter would be inconsistent with the jury verdict.

48 Mr Anderson finished by saying that if a determination that you were the shooter is properly to be viewed as an aggravating feature, then I would need to be satisfied beyond reasonable doubt of the conclusion, and I should not be. In any event, Mr Anderson submitted that little if anything would turn on the answer to the question who fired the shot. It would make no difference to the sentence to be passed.

49 I think counsel on both sides were correct in saying little if anything turns on my decision whether you were the shooter. Indeed, I am not at all sure that such a conclusion would be a matter which would actually be an aggravating feature. In the circumstances of this case, bearing in mind your age relative to your co-offenders and your obvious influence over them, the central role you undoubtedly played in the offending, and your presence in Double Bridges when BJ was shot dead, I do not think your crime would be any less serious were it to have been one of your young co-offenders rather than you who fired the fatal shot.

50 Having said that, in my view there is sufficient evidence to warrant a conclusion beyond reasonable doubt that it was you who shot BJ. That conclusion would be perfectly consistent with the jury verdict against you and your co-offenders.

51 You are 58 years of age, having been born on 3 August 1965. You were 53 at the time of your offending. You do not know your biological parents, having been adopted by Jim and Beverly Thorn as a young infant. You were raised with a sister, who was also adopted and to whom you are not biologically related. Your father worked for the RAAF and you lived in Laverton until you were about 10, when the family moved to the farm, where your mother still resides. Your father continued to work at Sale before retiring. You did your secondary schooling at St Patrick's College in Sale. At 18, you moved to Western Australia where you worked principally as a commercial fisherman. You returned to Victoria when your father was ill. You have two daughters, now aged 13 and 12. Your father died shortly after the birth of your younger daughter. You returned to the farm to bury your father, and to provide care to your mother, which you continued to do until your incarceration. You worked in Lakes Entrance on fishing vessels, but were predominantly a stay-at-home carer for your mother and your children. The mother of the girls died of cancer shortly before your offending. You were separated at the time.

52 You were arrested and remanded in custody on 13 March 2019. Your time in custody therefore encompasses the entirety of the COVID-19 pandemic, during which, as submitted by Mr Anderson, time in custody was notoriously more burdensome. I take this into account, although I note that this period will necessarily be but a small portion of the sentence you will be required to serve.

53 You have used your time in custody productively. Since May 2021, you have been employed as a Disability Mentor in the Marlborough Disability Unit at Port Phillip Prison. The duties of that position are important and quite demanding, as evidenced by the letter from Michelle Enbom of G4S which was provided to the Court some weeks after the plea hearing. In addition, you have been trained in the position of Alcohol and Other Drug Peer Educator within the prison and have been part of the Peer Educator team since June 2022. You have shown some commitment and dedication in connection with the program, as evidenced in the letter from Kate Constance from the prison. I take these matters into account in your favour.

54 You have a lengthy criminal history which commenced in Victoria when you were 18 and comprises numerous separate hearings in Victoria, Western Australia and Tasmania for a range of offending including dishonesty, violence, weapons, public order and driving offences. No terms of imprisonment are indicated in the criminal record which was filed in Court. Although as I have said your history is a lengthy one, and may tend to indicate a lack of respect for the law, it is not particularly significant, and did not portend offending of the seriousness now before the Court.

55 Having said that, you were placed on an adjourned undertaking in Bairnsdale Magistrates' Court on 12 September 2018 on charges of possession of cannabis, possessing a prohibited weapon and failing to answer bail. The current offending was in breach of that undertaking, which is an additional aggravating feature of your offending.

56 Eight victim impact statements were filed in Court, all of them being read aloud in Court by either 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. 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 your offending, aside from BJ himself.

57 The siblings of BJ speak of their admiration for their brother, who protected them from some of the excesses to which they were subjected 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'. Her victim impact statement includes a poem by an unknown author entitled 'A Pair of Ugly Shoes', the last lines of which read:

Some women are like me and ache daily as they try and walk in them.

Some have learned how to walk in them so they don't hurt quite so much.

Some have worn the shoes for so long that days will go by before they think of how much they hurt.

No woman deserves to wear these shoes.

Because of these shoes they have made me who I am.

I will forever walk in the shoes of a woman who has lost a child.

58 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 descriptions 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 you had done, 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 won't 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.

59 In his submissions during the plea hearing, Mr Gibson emphasised the enormous impact of your crime upon the family members of BJ. He remarked on the fact that whilst you purported to act to protect the children from BJ, the very opposite has taken place. The removal of BJ from the household has had an impact on the lives of many which is nothing short of tragic. I accept that that is so.

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

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

61 I have said enough already to clearly illustrate the great seriousness of your offending. Your overall offending was well planned, carried out in company with others, involved the use of weapons, and was propelled by the malevolence of vigilantism, about which I will say more later. Your helpless and vulnerable victim was attacked in his own bedroom in his own home, and subjected to a drawn out and shocking series of assaults and a lengthy and frightening period of imprisonment in the boot of the Corolla, in your shed at the farm, and again in the boot of the Corolla as he was transported to the place of his eventual murder, trussed up, shrouded and alone. Throughout it all, BJ endured an ordeal of considerable terror, and he had ample time to contemplate and be resigned to his dreadful fate, a fate of which you arrogantly considered him to be deserving, and to which you, with your extreme views, believed you were entitled to consign him. The murder, when you committed it, was, as I have said, far from being some spur-of-the-moment crime. It was a premeditated, heartless crime which would shock any fair-minded member of the community.

62 The Crown argued that your murder of BJ falls into the worst category of murder. Your counsel did not cavil with yours being, as he described it, 'a grave instance of a grave crime',[4] but disputed that it should be considered to fall into the worst category, although approaching it. He referred to the table of comparable cases provided by the Crown, and submitted that your crime lacked some of the features present in those cases. The authorities do not dictate, he submitted, that vigilantism is to be treated as seriously as other common and more prevalent motives in premeditated murders. Whilst questioning the utility of the 'worst category' term, Mr Anderson, in the context of resisting the imposition of a head sentence of life imprisonment, a topic to which I will later turn, submitted that your case, whilst approaching that category, should not be viewed as reaching it.

63 As to whether your murder of BJ can be said to fall within the worst category of such offending, I would question whether there is actually much utility in seeking to divide up crimes of murder into a number of well-defined categories. As was said by the Court of Criminal Appeal in R v Dumas[5] as long ago as 1988, at a time not long after the removal of life imprisonment as the mandatory sentence for murder:

The crime of murder is a crime of the utmost gravity. In our opinion, it does not admit of categorising each offence into degrees of gravity. While the new legislation will permit courts to sentence persons convicted of murder to terms of years and even to fix relatively low minimum terms in appropriate cases having regard to various facts which may be taken into account in mitigation of penalty, nevertheless, the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings.[6]

64 In The Queen v Debs & Roberts,[7] Vincent JA, with whose judgment the other members of the Court agreed, reiterated, citing Dumas in support, that it is inappropriate to approach the sentencing task in a given case by reference to categories of murder. The practice of trying to determine whether a particular crime falls into any particular category or range of seriousness has also been deprecated in recent times.[8]

65 If there truly is a useful category which could be described as the worst category where the crime of murder is concerned, its boundaries would be difficult, if not impossible, to define or describe.

66 The requirement, of course, is for me to take into account all of the circumstances of these crimes in determining the nature and gravity of the offences, one of the matters to which I am required by law to have regard.[9] An appreciation of the nature and gravity of these crimes is not really advanced by a decision as to which category of murder your crime may fall within. Having said that, it seems clear to me that your crime of murder, with all of its surrounding circumstances, could comfortably be considered to be in the most serious class or category of the crime, whatever use such a classification may be. This is no less the case simply because even worse individual cases of murder may readily be envisioned.

67 That conclusion, of course, would not compel a decision one way or another on the question whether a sentence of life imprisonment should be imposed on that charge. I will turn to that matter shortly.

68 Turning briefly to the other offences for which you fall to be sentenced, these, too, are very serious examples of these crimes, for obvious reasons. In particular, the false imprisonment is an instance of this crime falling very high in the scale of seriousness. You kept BJ imprisoned for many hours and in terrifying circumstances, right up to the point in time when you shot him dead.

69 As for the matter of moral culpability, there is no reason why your moral culpability for your offending should be considered to be anything other than very high.

70 Murder is a category 1 offence pursuant to s 3 of the Sentencing Act 1991 ('the Act') and kidnapping is a category 2 offence. Sections 5(2G) and 5(2H) of the Act respectively require the sentencing court to impose terms of imprisonment when sentencing for either of these crimes.

71 Your crimes having been committed after 1 February 2018, the standard sentence scheme applies to the offence of murder of which you have been found guilty. The standard sentence for murder is 25 years.

72 Pursuant to s 5A(1)(b) of the Act, the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

73 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing.

74 The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen ('Brown').[10] The Court stated:

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:

• is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
• does not affect the established 'instinctive synthesis' approach to sentencing;
• does not require or permit 'two-stage sentencing'; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.[11]

75 I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you on the charge of murder by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown.

Section 5B(5) statement

76 Section 5B(4) of the Act requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

77 As I understand it, the applicable law does not require me in complying with the requirement of s 5B(5) to 'attribute particular mathematical values' to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[12] It does, however, require me to 'identify fully the facts, matters and circumstances' which bear upon the judgment I have reached as to the appropriate sentence.[13] I have endeavoured to do that in some detail during these reasons for sentence.

78 The sentence I will pass upon you on the charge of murder is higher than the standard sentence for the offence of murder. In arriving at this sentence, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I will shortly announce.

79 The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but s 5B(2)(b) dictates that in sentencing you for a standard sentence offence, I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

80 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[14]

81 The Crown provided the Court, at the time of the plea hearing, with a table of cases in which sentences have been imposed for murder as a standard sentence offence. I assumed the table was current at the time of the plea hearing. I have had regard to these sentences in arriving at the appropriate sentence for you on the charge of murder.

82 I have also had regard to current sentencing practices where the other charges are concerned.

83 I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentence I must pass.

Age, prospects of rehabilitation and the avoidance of a crushing sentence

84 On your behalf, Mr Anderson submitted that notwithstanding your lengthy criminal history, your previous convictions are of limited relevance, and do not demonstrate a propensity to commit crimes of anything approaching the magnitude of the current offending. He conceded that it is inevitable that upon your eventual release, you will be of relatively advanced years, and that in that context, your prospects of rehabilitation are reasonable. Putting this somewhat differently, he submitted that given your likely age upon release, your risk of reoffending would be relatively low.

85 He made further submissions as to the relevance of your age now. He submitted that your age must be taken into account in determining what justice requires. The age of an offender, he submitted, may permit a sentencing judge to impose a sentence which is shorter than might otherwise be the case. He detailed a number of considerations, including:

a. Whether any sentence will be crushing, that is, whether it will destroy any reasonable expectation of useful life after release;

b. Whether it may have the effect of requiring an offender to spend the whole of the remainder of their life in custody;

c. The fact that each year of the sentence will represent a substantial portion of the period of remaining life the prisoner has left to live;

d. That time served in later years will generally make the conditions of imprisonment more burdensome.

86 He referred to the decision of R v Cumberbatch,[15] in which the Court recognised that the age of an offender was a significant sentencing consideration.

87 Bearing in mind your age now, the considerable seriousness of your offending, the inevitability, as conceded by Mr Anderson, that a very substantial head sentence must be set, and the requirement for the fixing of a non-parole period which complies with the legislation, properly reflects the gravity of your offending, and pays due regard to the purposes for which sentence must be imposed in your case, there are obvious practical difficulties in avoiding a sentence which may seem crushing to you. In view of your current age of 58 years, the long non-parole period required to be passed would have you ineligible for consideration for parole until you are quite elderly. If the result of that is that you go forward from today with the expectation that you will likely die in custody, that is an unavoidable by-product of your heinous crimes, and the age at which you carried them out.

88 As indicated earlier, you pleaded guilty to the charges of ICI, kidnapping and false imprisonment before the jury at the start of the trial. Indeed, in your defence response on 5 November 2021, you indicated an intention to plead guilty to ICI and kidnapping, and in pre-trial argument on 15 August 2022, you indicated an intention to plead guilty to false imprisonment reflecting the period up until BJ was placed back in the boot of the Corolla after being removed from the shed. I am required by law to have regard to those pleas of guilty.[16] Normally, a plea of guilty by an offender will be viewed as a mitigating factor, and will result in some reduction in sentence. That is not always the case, however, as the authorities make clear.[17] In this case, it was conceded by the prosecution that whilst not obviating the need for a trial, your pleas of guilty had some utilitarian value in providing the certainty of outcome for the family of the deceased and witnesses for some of the charges and by virtue of the fact that you surrendered the chance of being acquitted on the charges to which you pleaded guilty. Mr Anderson did not disagree with this formulation, and referred the Court to Anderson v The Queen[18] in support of the proposition that the fact a plea of guilty does not reduce the length of a trial has no bearing on the sentencing discount to which an accused is entitled.

89 I sentence you on the basis, therefore, that you are entitled to a benefit for the utilitarian value of your pleas of guilty to the three charges I have mentioned. In terms of the subjective criteria of those pleas of guilty, however, I do not consider that your pleas of guilty reflected any remorse by you, a willingness to facilitate the course of justice, or acceptance of responsibility for what you had actually done. Rather, I think your guilty pleas were made in circumstances where you had already admitted your guilt of those charges when interviewed by the police, and saw it as being in your best interests to admit those charges before the jury, where your main aim was to secure an acquittal on the charge of murder of which you were actually guilty.

90 In my view, in the overall circumstances of this case, you are entitled to a reduction in sentence on the charges to which you pleaded guilty on account of those pleas, but the reduction will be relatively modest, as reflected in the declaration I will make pursuant to s 6AAA of the Sentencing Act 1991.

91 As I have already indicated, and has been conceded by your counsel, your crimes are exceedingly serious. All of 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,[19] 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, as noted earlier, Taylor JA described his offending as being 'imbued with the arrogant righteousness of vigilantism'.[20] 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.[21]

92 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.[22]

93 Yours were not spontaneous or impulsive criminal acts, committed in haste and without sufficient thought. These were well-planned, well-executed criminal offences, with the eventual murder of BJ carried out with truly chilling callousness and disregard for the sanctity of human life. You had ample time as you prepared to carry out this particular crime to reflect on what you were doing and to desist. You did not do so. Your crimes were an affront to normal, decent society.

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

95 In the immediate aftermath of the murder, you displayed a callous disregard for your victim, burying him in the hope he would never be found, and your crime would never be discovered.

96 You showed not the slightest hint of remorse or regret at any time between then and now. That, of course, is not a circumstance of aggravation, but represents the concerning absence even now, years later, of something which might have been a mitigating feature.

97 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 reflects the shocking 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. The life of BJ was precious to the community and those who loved him, as eloquently attested to in the victim impact statements. You took his life away deliberately and heartlessly. Before doing so, you subjected him to a truly horrifying ordeal over a long period of time. I am satisfied that you were at the heart of the whole enterprise, and that your influence over others who were much younger than you was critical to proceedings. 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 purpose will largely be met by the imposition of the long sentence of imprisonment which is inevitable for offending of this seriousness. Notwithstanding that, the protection of the community is still an important consideration. As for rehabilitation, whilst you have shown some promising signs by virtue of the positions of responsibility you have taken on in custody, the apparent lack of remorse manifested by you is concerning, but in any event, sadly, in the circumstances, rehabilitation must very much take a back seat to more important sentencing objectives.

98 I take into account, in sentencing you, the sentences passed by Taylor JA and myself on co-offenders in respect of charges on which you fall to be sentenced. I also have regard to the sentences I intend to pass on Bottom and Smith.

Question whether term of life imprisonment open and appropriate

99 The position of the Crown was that it would be open to me to pass a sentence of life imprisonment upon you for the charge of murder, with a non-parole period. It was submitted that a very significant term of imprisonment short of life would also be within the permissible range.

100 On your behalf, Mr Anderson submitted that whilst grave, your murder is not a 'worst category' case warranting a life sentence. It should be met with a very substantial period of imprisonment with a non-parole period that would provide you with a real and meaningful opportunity to return to the community in your advanced years.

101 A sentence of life imprisonment has not-infrequently been described as a dreadful sentence reserved for dreadful cases. In The Queen v DJH,[23] Brooking JA, with whose judgment the other members of the Court agreed, noted, 'The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration'.[24] Having set out a passage from Dumas to which I earlier referred, his Honour stated:

It seems to me, if I may say so, that on occasions sentencing judges have not given sufficient weight to the observation that the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings.[25]

102 It is obvious that any sentencing judge would think long and hard before passing a sentence of life imprisonment upon any offender. Having reflected carefully upon all of the circumstances which apply to you, and paying due regard to all of the matters to which I am required by law to have regard, I am moved clearly to the view that a sentence of life imprisonment for the crime of murder of which you have been convicted is both appropriate and necessary. In my view, this crime cannot be properly met with a sentence other than life imprisonment. I am driven to that conclusion by a consideration of the enormity of your offending, the extremely high level of the objective gravity of your crime, your substantial subjective culpability, and the relevant purposes for which sentence must be passed in your case.

103 I have decided to fix a non-parole period for you. Of course, I sentence you on the basis that you may be required to serve every day for the remainder of your life in custody under the head sentence. The non-parole period, like the head sentence, must pay due regard to, and adequately reflect, the purposes for which you are to be sentenced for these crimes. It is obvious, therefore, that the non-parole period must itself be very lengthy.

104 Indeed, upon the passing of a head sentence of life imprisonment, I am required by s 11A(4)(a) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 30 years. It is worth noting that that minimum period required as a non-parole period in a case in which the head sentence is life would apply to the sentence on a single charge of murder. In your case, you have been found guilty of further serious charges.

105 Mr Anderson submitted that it would be open to me, depending on the head sentence I arrive at, to consider whether it would be in the interests of justice to depart from the statutory prescriptions, in light of your age, the need so far as possible to avoid a crushing sentence, and the desirability of providing you the meaningful opportunity, if you acquit yourself well over the balance of your sentence, of a worthwhile life outside of custody upon your release. In support of this contention, he pointed out that in light of the COVID-19 pandemic which blighted the early years of your custody, and the advanced age which would make the later years more burdensome, your sentence will be bookended by onerous conditions of custody.

106 The prosecution, on the other hand, submitted that no matter what sentence I arrive at as the appropriate sentence for the charge of murder, it would not be in the interests of justice to fix a non-parole period below the relevant period specified in s 11A(4).

107 The High Court in Power v The Queen,[26] explained the purpose of parole as:

to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[27]

108 As Winneke P explained in R v Mulvale:[28]

The fixing of a minimum period is no sinecure but requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.

109 Notwithstanding the submissions of your counsel, I do not consider that it would be in the interests of justice not to fix a non-parole period of at least 30 years. Indeed, the non-parole period I will fix will exceed the period of 30 years. 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 this case.

110 I acknowledge that the length of the non-parole period I will fix will mean that there would be every chance that you will die in custody, and at the very least, that you will be very elderly before you would be entitled to apply for parole. That is an unavoidable consequence of the extreme gravity of your offences, and your age when you committed them.

111 By virtue of my decision to impose a life sentence upon you for the charge of murder, that sentence will dictate the total effective sentence. No sentence can be cumulated on a life sentence, and it is inappropriate to make any orders for cumulation in respect of the sentences on any of the other charges. All sentences will be served concurrently. That is not to say that I did not have regard to the submissions made before me about what the level of cumulation should be. In addition, I can indicate that I had regard to the sentencing principles of totality and proportionality in arriving at the overall sentence I will now pronounce.

112 Albert Thorn, for the murder of Bradley Lyons (charge 5), you are sentenced to be imprisoned for life.

113 For intentionally causing injury to Bradley Lyons (charge 1), you are sentenced to be imprisoned for 8 years.

114 For the kidnapping of Bradley Lyons (charge 2), you are sentenced to be imprisoned for 11 years.

115 For the false imprisonment of Bradley Lyons, (charge 3), you are sentenced to be imprisoned for 9 years.

116 For the common law assault of Bradley Lyons, (charge 4), you are sentenced to be imprisoned for 5 years.

117 By operation of law, these sentences will all be served concurrently.

118 The total effective sentence is life imprisonment.

119 I fix a period of 32 years during which you will not be eligible to be released on parole.

120 I declare a period of 1,727 days up to and including yesterday, 3 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.

121 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your pleas of guilty to the charges of ICI, kidnapping and false imprisonment, I would have imposed sentences of 9 years' imprisonment, 12 years' imprisonment and 10 years' imprisonment, respectively, on those charges.

122 I can indicate that your pleas of guilty and the resulting reduction in the sentences on those charges has had no impact on the total effective sentence passed or non-parole period fixed in this case.

[1] R v Harvey [2020] VSC 496 [6].

[5] [1988] VicRp 8; [1988] VR 65 ('Dumas') .

[7] [2005] VSCA 66.

[8] DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153; Lee v The Queen [2018] VSCA 343.

[9] Sentencing Act 1991 s 5(2)(c).

[10] [2019] VSCA 286.

[11] Ibid [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[12] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [29].

[14] R v Brown [2018] VSC 742 [111].

[15] [2004] VSCA 37.

[16] Sentencing Act 1991 s 5(2)(e).

[17] See R v Hall (1994) 76 A Crim R 454, 469-70; The Queen v Coombes [2011] VSC 407 [86]-[90]; Phillips v R [2012] VSCA 140; (2012) 37 VR 594 [24]-[25].

[18] [2013] VSCA 138.

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

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

[23] [1998] VSCA 108 ('DJH').

[26] [1974] HCA 26; (1974) 131 CLR 623.

[27] Ibid, 629 (Barwick CJ, Menzies, Stephen and Mason JJ).

[28] Unreported, Court of Appeal, Winneke P, 20 February 1996.