Harvey v The Queen [2021] VSCA 84

1. The judge's precis of the circumstances of the offending, drawn from an agreed prosecution summary, cannot usefully be improved upon and is set out below. The sentencing reasons were delivered orally, directed to the applicant and expressed in the second person.

[Bradley John] Lyons lived at a house in Lakes Entrance with his wife, Jana Hooper, and eight children. Three of them, aged eight, six and four, were his biological children. Four of them, aged 16, 14, 13 and ten, were Hooper's biological children. One, aged four months, was Hooper's grandchild and child of her 16 year old daughter. Mr Lyons was aged 30 years. Hooper was aged 35 years.

In November 2018 Hooper told a female friend that she believed Mr Lyons was the father of her 16 year old daughter's child and had also made her 14 year old daughter pregnant. Hooper further stated her belief that Mr Lyons had installed a camera in the bathroom. Hooper also made these allegations to Albert Thorn.

Thorn, together with Nicholas Stefani, who lived in a bungalow at the rear of the Lakes Entrance house, was a member of the 'Australian Freedom Fighters' anti-paedophile group. Stefani told Thorn that Hooper's children had confided in him, making serious allegations against Mr Lyons.

On 1 December 2018 Hooper took some Panadol and fell asleep next to Mr Lyons. Later in the evening she began to convulse and her two youngest daughters went to Stefani's bungalow to alert him. Stefani later told police that the 13 year old girl also told him that Mr Lyons was sexually assaulting her. Stefani organised for the children to stay with Hooper's mother for two nights.

Stefani checked on Hooper several times during the night and noticed, on one occasion, that she was naked from the waist down. He concluded, absent any proper basis, that Mr Lyons had intentionally drugged and raped her.

At about 11.30pm that night Stefani, along with Christopher Nowell, Jordan Bottom and Jessica MacFarlane, met at Thorn's property to discuss the situation. Stefani and Thorn were adamant that something had to be done.

A plan was formed. Mr Nowell and Ms MacFarlane refused to participate. You, who did not know Mr Lyons, had no such qualms.

Telephone records show four exchanges between you and Stefani between 11.42pm and 2.06am. There was a further telephone conversation at 11.49am on 2 December 2018. You were at home. Rikki Smith was with you. Shortly thereafter you spoke with Jayden Ball and asked him to drive you and Smith to Mr Lyons' house expressly for the purpose of assaulting Mr Lyons. He agreed.

You arrived at the property just after 2.00pm. Ball left. You and Smith were greeted at the front gate by Stefani. You went to Stefani's bungalow. Thorn was waiting. Stefani told you and Smith more about the allegations against Mr Lyons. Together you planned how to commit the assault. Stefani gave you and Smith each a balaclava. You armed yourself with a tyre lever. Stefani had a sawn-off shot gun. Smith had a cigarette lighter to use as a knuckle. Thorn had duct tape, purchased specifically to use as a restraint.

The four of you walked to the backdoor of the house, through the kitchen and into the bedroom of Mr Lyons. Hooper, who was part of the plan, simply acknowledged your presence as you walked through.

You immediately set upon Mr Lyons, who was lying on his bed. All four of you punched him several times to the face and head. You used the tyre lever and Smith the cigarette lighter between his fingers. Stefani forced the shortened barrel of the shotgun into Mr Lyons' mouth and threatened to kill him if he did not confess to sexual assault. Mr Lyons sustained injuries to his head and face resulting in profuse bleeding.[6]

Hooper began to scream. You went to the kitchen. When you returned, Stefani had a pillow against Mr Lyons' head and was pressing the barrel of the shotgun against the pillow. You pushed Stefani away. You then helped Thorn to apply the duct tape so that Mr Lyons' hands were tied in front of his body.

Shortly thereafter you telephoned Ball to come and collect you and Smith. You threw the tyre lever behind the couch in the bungalow. You took the CCTV recorder from the bedroom intending to dispose of it. You did later that day by placing it in a wood burner and, when it was substantially destroyed by fire, discarding the remnants at a location that remains unknown.

You initially threw the balaclava out of the window of the car as you departed the scene, but later retrieved it and burnt that also.

You were intoxicated by methylamphetamine or 'ice' throughout your involvement in these events, and later reported that you had not slept the previous night.

You did not participate in the further assault and eventual murder of Mr Lyons. Nor did you have contact during that time with those involved. You believed at the time you left that the then restrained Mr Lyons was to endure a further assault.

He was further assaulted by Stefani and Thorn before being taken in the boot of a car to Thorn's property where Thorn, Stefani, Hooper, Smith and Bottom gathered. Mr Lyons was made to remain in the boot for some hours before being strapped to a table and tortured by Thorn.

Thorn, Stefani, Bottom and Smith then put Mr Lyons back into the boot and took him to a remote area of dense bushland in East Gippsland. A shallow grave was dug. Mr Lyons was put in the grave and shot once in the leg and then once to the back of the head with a 0.410 calibre shotgun. Mr Lyons' body was buried. Thorn, Stefani, Bottom and Smith returned to Thorn's property.

The following day, 3 December 2018, you and Thorn exchanged five text messages. The Crown assert that these concerned the murder of Mr Lyons and disposal of incriminating material. You say that you cannot recall the exchange, but it was likely to have been about 'ice'.

Mr Lyons was reported as missing by his brother Zachary on 11 December 2018.

You participated in a formal police interview on 20 December 2018, following the execution of a search warrant at your house. You were told that police suspected Mr Lyons had been murdered. Initially you denied any involvement in the assault on Mr Lyons. You then partially admitted your role and said that the assault had been organised by Hooper because Mr Lyons was accused of being a paedophile. You said that Mr Lyons' hands were bound so that Stefani and Thorn could give him 'a bit of a touch up' after your departure. You denied the use of weapons and any knowledge of what had happened to the CCTV recorder hard drive. You claimed no contact with Thorn, Stefani or Hooper since 2 December 2018. At the conclusion of the interview you were released by police pending further investigations.

Thorn, Smith and Bottom were arrested for murder on 13 and 14 March 2019. On 15, 16 and 17 March 2019 you participated in a number of intercepted telephone conversations concerning the disposal of the murder weapon. During that period you and Ball came into possession of the .410 shotgun. Believing that Thorn, Bottom, Smith, Stefani and Hooper were guilty of murdering Mr Lyons, you either destroyed or hid it to prevent it ever being found. It has not been recovered.[7]

1. Given the importance of the evidence of the applicant's mental state to the applicant's arguments it is convenient at this point to refer to the evidence of Mr Ian Mackinnon and Dr Anthony Cidoni, each of whom provided a written report, dated 21 May 2020 and 25 June respectively, which was tendered on the plea. Mr Mackinnon also gave evidence before the judge.
2. Mr Mackinnon is a forensic psychologist. He assessed the applicant as suffering from longstanding post-traumatic disorder ('PTSD') of mild to moderate intensity with associated substance abuse. The PTSD appeared to have been triggered by the applicant being sexually abused by a friend of his father when he was seven years of age and which led to the applicant abusing alcohol and drugs from an early age. In his report, Mr Mackinnon noted that the symptoms of the applicant's condition may include:

anxiety, depression, guilt, shame, avoidance behaviour, flashbacks, nightmares, paranoia and mistrust, psychosexual problems, identity disturbance, emotional lability, sensitivity to environmental cues and triggers, re-living and rumination, intrusive thoughts, low frustration tolerance, chronic interpersonal difficulties, intense fears of personal rejection, anger management problems, destructive and self-destructive impulses and substance abuse (although his substance abuse appears to be in partial remission, at present).

1. Mr Mackinnon considered that the applicant's PTSD 'was the major contributor to his offending' and that the offending arose in the context of a 'rage reaction' in response to hearing that Mr Lyons was abusing children. Mr Mackinnon said that when the applicant was told about Mr Lyons this caused him 'to relive his own historical traumas, bringing on flashbacks and general distress, clouding his judgement, elevating his anxiety and driving an angry reaction that led him into the violent offences against Mr Lyons'. Mr Mackinnon noted that the applicant now acknowledges that the assault was not justified but at the time he appeared 'to have also been swayed by a "mob mentality" that entailed "taking the law into their own hands" to exact violent "justice" on their victim'.
2. Mr Mackinnon believed that the applicant would 'probably cope well enough' in prison but would benefit from treatment for his chronic PTSD and associated anxiety, depression and substance abuse.
3. In his evidence Mr Mackinnon acknowledged that the applicant had not described all of the symptoms identified in the report, which are extracted at para 8 above, but he said that they were based on what the applicant had described and what Mr Mackinnon thought would be likely to have occurred based on the applicant's history. He agreed that he could not rank the respective contributions that the PTSD, ice use and peer pressure had made to the offending. He assessed the applicant's PTSD as mild.
4. Dr Cidoni, a forensic psychiatrist, agreed with the diagnosis of PTSD and also diagnosed a dysthymic disorder, that is, a chronic depressive illness which he believed had worsened in custody. Dr Cidoni concluded:

In terms of the offending, in my opinion, hearing about the alleged childhood sexual abuse of Mr Lyons is likely to have significantly triggered Mr Harvey in relation to his previous childhood sexual abuse and his post traumatic symptoms which is likely to have put him in a highly agitated state and contributed to his conduct. He is likely to have been intoxicated at the time with methamphetamine and despite his chronic use and a degree of tolerance this may also have contributed to aggressive behaviour.

1. Dr Cidoni agreed with Mr Mackinnon that the applicant's '[PTSD] played a significant role in his behaviour in the offending' although it was difficult to quantify because peer influence and substance intoxication also contributed.

1. The applicant had appeared before the Bairnsdale Magistrates' Court on 9 August 2018. He was convicted of trafficking methylamphetamine, trafficking heroin, possession of a prohibited weapon without exemption or approval, and dealing with property suspected to be the proceeds of crime. The applicant was sentenced to a combination sentence of 10 days' imprisonment (declared as time served) and a 12-month Community Corrections Order ('CCO') which included, among others, a condition that the applicant undergo treatment and rehabilitation for drug abuse or dependency. The assault on Mr Lyons occurred less than four months after his appearance and conviction on 9 August 2018.
2. Other than the convictions from 2018, the applicant has no other prior criminal history.

1. The judge commenced her reasons with the observation that the circumstances of the offending were 'extremely serious'.[8]
2. Her Honour assessed the objective gravity of the offending as 'very high' and found the following factors to be relevant to that assessment:

With respect to the offence of intentionally causing injury, Mr Lyons was totally unknown to you. You did not and could not have known whether the accusations made about him by Stefani were true. Nonetheless, following lengthy discussion and planning, you were prepared to participate in a serious assault upon him. You did so as part of a group of four men, two of whom, including you, were armed with weapons. Two, including you, were wearing disguises. Your victim was vulnerable, lying on his bed in his home and taken utterly by surprise. The injury caused by your offending was sufficient to produce profuse bleeding from the head. Mr Lyons can only have been terrified.

With respect to the false imprisonment, it is significant that the taping of Mr Lyons' hands occurred after he had already been assaulted. You participated in the act of restraint believing that the injured and now helpless victim would be further assaulted by two men, one of whom had already threatened to kill him while holding a gun in his mouth. Indeed, you taped Mr Lyons' hands after you had pushed Stefani away as he pressed the barrel of the shotgun against Mr Lyons' head through a pillow, ostensibly used to muffle the sound of the blast. While this action is to your credit, it aggravates the conduct constituting the false imprisonment. While you did not know that Mr Lyons would be killed, you did know that a further, serious assault would occur. Your conduct in restraining him to better facilitate that beating is grave.[9]

1. The judge also identified three further matters, relevant to both those offences, that she said were 'additional factors of gravity'.[10] They were that the applicant was heavily intoxicated by ice, the offending was premeditated, and it was vigilante behaviour. In relation to the last aspect, the judge said:

As you told police, you did not mind that he 'copped a punch in the head' at your hand and again at the hand of others if it turned out to be true that Mr Lyons was a paedophile. Acts of vigilantism must be both condemned and attract significant penalty. Your belief that paedophiles should be 'put down' or 'erased' is significant in my consideration of deterrence. It is a legitimate expectation of our society that no one person or group take the law into their own hands by harming perceived wrongdoers. 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.[11]

1. In relation to the charge of assisting an offender, the judge noted that the applicant had 'knowingly disposed of a murder weapon' that had been used in a particularly grave murder.[12] In doing so, he denied the police and prosecution services 'a key piece of evidence'.[13]
2. The judge also observed that the gravity of the offending was aggravated because the applicant was serving a CCO at the time of the offending.[14]
3. The judge recognised that the applicant's PTSD was an important element to be considered.[15] After referring to the medical evidence described above, the judge accepted that the applicant's PTSD had 'some realistic connection' with the offending comprehended by charges 1 and 2.[16] The judge said that, '[t]o some extent it reduce[d] [the applicant's] moral culpability and moderate[d] the issues of just punishment, denunciation and both specific and general deterrence in the sentencing exercise'.[17] Importantly, the applicant did not suggest that the PTSD was causally connected to charge 3.
4. The judge also noted the parties' acceptance that the applicant's chronic depressive illness would increase his experience of hardship in prison and justified a less severe sentence due to the risk that imprisonment would have a significant adverse effect on his mental health.[18]
5. The judge set out the personal circumstances of the applicant in so far as they were relevant to sentence.[19] The applicant was 24 years old at the time of the offending, and 26 at the time of sentence. The judge recorded that he has some contact with his parents, who are separated, but little contact with his siblings. He has a partner of seven years with whom he has two children, aged four years and eight months respectively, and two step daughters aged nine and 11.
6. As already noted, the applicant reported that he was sexually abused at the age of seven by a family friend.
7. The applicant left school after Year Seven due to his disruptive behaviour. At 18 he enrolled at the Australian Maritime College in Launceston. After working as a deckhand on a trawler in Lakes Entrance, he was promoted to captain a boat and crew of four. The judge accepted that the applicant was 'a skilled and respected skipper, maintaining that role for approximately three years'.[20]
8. The judge noted that the applicant has 'a long history of illicit drug use'.[21] By the time the applicant was 10, he was smoking cannabis regularly. At the age of 12, he commenced amphetamine and methylamphetamine use. That has continued ever since, with the applicant consuming up to three or four grams of ice daily. He has also used heroin and other opiates, GHB, cocaine, ecstasy, benzodiazepines and psychedelic substances such as LSD and magic mushrooms. When first remanded for these offences the applicant was found to have used buprenorphine in prison and lost visiting privileges as a result.
9. The judge accepted that the applicant had pleaded guilty at the earliest opportunity and that this had utilitarian benefit and demonstrated 'a measure of remorse'.[22]
10. In addition to the plea of guilty, the judge said:

While not a youthful offender, you are still a young man. You have a limited prior criminal history and that arose in the context of an escalation in your drug use, particularly of 'ice'. The use of that drug has had a serious impact upon your past life. You lost your job because of it. Your relationships with your partner and children were endangered by it. You committed these serious offences whilst under its influence. Your ability to cease its use will also be significant in your future life. Indeed I consider it to be the most important factor in your prospects for rehabilitation.

While you are currently drug free in the controlled custodial environment, your ability to remain so upon your eventual release will not be easy. You will return to a small community where, it seems, heavy alcohol and illicit drug use is common. You will face the stress involved in rebuilding your relationships and gaining employment. While the many character references tendered on your behalf demonstrate that you will return to an extended family who will support you, the difficulty of you remaining drug free should not be underestimated.

In your favour it seems that you have now gained a degree of insight into your PTSD and other issues and accept the need to use professional help. Your use of rehabilitative programs in custody prior to their cessation due to the COVID-19 pandemic bodes well. You also have an impressive work history. Given the difficulties of your childhood, the work you have done to gain the necessary qualification to become the captain of a fishing boat is noteworthy. It is demanding work but you are equal to it. You are respected and liked. You will, it seems, return to the fishing industry.[23]

1. The judge considered 'with caution' that the applicant's prospects of rehabilitation were 'moderate'.[24]

1. The applicant relied on eight matters that were said, in combination, to render the sentences on charges 1 and 2 and the total effective sentence obviously excessive. Those matters were:

(a) the applicant was sexually abused as a seven year old and had a history of substance abuse, starting prior to his teenage years, as a form of self-medication;

(c) the connection between the mental illness and the offending that constituted charges 1 and 2;

(d) the hardship the applicant will experience in gaol;

1. The respondent accepted that the sentences imposed on charges 1 and 2 'arguably sit high in the range' but submitted that they are not wholly outside the range of sentences reasonably available to the judge and nor were the orders for cumulation, the total effective sentence or the non-parole period.

1. The hurdle that the applicant must overcome in demonstrating that the sentence, or its components, were manifestly excessive is a high one. The task of this Court is not to substitute its own assessment as to an appropriate sentence.
2. In order to establish manifest excess, the applicant must demonstrate that the sentence was wholly outside the range available to the judge in the sound exercise of her sentencing discretion.[25] Consideration of the ground proceeds on the premise that the applicant has not been able to identify any specific error on the part of the judge. That is, the judge correctly articulated the applicable legal principles, turned her mind to all the relevant considerations, and addressed all the relevant facts and circumstances.
3. We have set out a large portion of the judge's reasons because, with respect, her reasons, and the process of reasoning they disclose, are impeccable. The judge referred to all of the matters that bore on the sentence, including those that worked in favour of moderation. Save for the issues of remorse and rehabilitation, to which we refer below, we would adopt without qualification her Honour's analysis of the relevant issues. The question for this Court is whether, having regard to the sentence imposed, error can be inferred.
4. In order to deal with the arguments, it is necessary to deal with the sentence imposed on each charge separately. The orthodox approach required the judge to impose the appropriate sentence on each charge and address questions of totality, informed by the overall level of criminality involved, through cumulation and concurrency.[26] However, each sentence cannot be examined as if the conduct which made up one charge was entirely divorced from the conduct comprising the other charges.
5. Charges 1 and 2 arose out of a single incident and the gravity of the offending in relation to that incident requires consideration of the entire event in which the applicant was involved. Charge 3 was distinct. Unlike the other charges, the offending constituting charge 3 was not affected by the applicant's PTSD; and the nature of that offence, and the circumstances in which it was committed, are relevant to an overall assessment of the applicant's remorse and prospects of rehabilitation.
6. The judge's assessment of the objective gravity of the offending was entirely correct. Each offence was a serious instance of the charge.
7. The judge correctly identified the aggravating factors relevant to charges 1 and 2: the applicant was in company, he was motivated by vigilantism, and he wielded a tyre lever as a weapon. The victim was vulnerable and was savagely beaten in his own home. The combination of those factors meant that, objectively, this was a serious example of the offence.
8. It is often the case that the extent of the injury will inform the gravity of the offending on a charge of intentionally causing injury or serious injury.[27] The offence of intentionally causing injury is capable of capturing conduct that ranges from a minor injury to something just falling short of serious injury. In Rivera v The Queen,[28] a sentence of 5 years and 11 months on a charge of intentionally causing injury was upheld where the injuries were said to be potentially life threatening. In Byrne v The Queen,[29] this Court upheld a sentence of 5 years and 6 months on a charge of intentionally causing injury. In that case, the offender, when in prison, brutally set upon another prisoner, striking and kicking him to the head multiple times. The injuries sustained included serious facial fractures and were at the very high end of the range for offending of that kind, and the attack was held to be particularly vicious and deliberately brutal. The offender had a significant criminal history that demonstrated an ongoing propensity to commit violent offences of a serious nature.
9. In this case the extent of injury caused by the applicant's assault cannot be established because of the subsequent assault and fatal gunshot wound to the victim's head. The applicant both punched the victim and used a tyre lever to inflict injury. The victim was struck on the head and was left bleeding. The judge noted that it would have been terrifying for the victim. Although the extent of the injury sustained could not be ascertained, the evidence left no doubt that the applicant intended to harm Mr Lyons and not simply inflict some minor or insubstantial injury.
10. The false imprisonment charge was also serious. The conduct of the applicant that formed the basis of the charge was binding the victim's hands. It occurred after the applicant had assaulted Mr Lyons, and after he had seen him threatened with the shotgun. Putting charge 3 to one side, the applicant was not charged with any conduct after he left the victim's home. He was not to be punished for the further grievous assault, torture and ultimately the murder of the Mr Lyons.
11. At one level it might be said that the false imprisonment for which the applicant was responsible was of short duration, comprising the period between when he bound the victim's hands with tape and when he left the house. The applicant arrived at the property at 2:11pm and left 30 minutes later at around 2:41pm. However, in assessing the gravity of the false imprisonment it must be recognised, as the judge did, that the applicant knew that a further serious assault would occur and by restraining the victim the applicant facilitated the assault that was to follow. Once the applicant was bound, and left in the company of the co-offenders, the victim was in a helpless state and faced the spectre of a further assault. The fact that he was restrained would have added significantly to the terror that the victim must have experienced. Before the applicant left the premises he took no steps to bring the false imprisonment to an end.
12. In Best v The Queen,[30] this Court accepted that given the purpose and duration of the false imprisonment, the sentencing judge could treat as circumstances of aggravation of the false imprisonment the likelihood that violence would be employed. That reasoning applies here.
13. As noted, charge 3 was distinct. It occurred a number of months later, after the police had charged the co-offenders with murder. The applicant knew that the shotgun had been used to murder Mr Lyons. It was also a serious example of the offence.
14. The evidence supporting charge 3 included telephone intercepts involving the applicant, extracts of which were contained in the prosecution opening.
15. On 15 March 2019, the applicant spoke to an unknown male. The conversation between the two men included the following exchange:

(After discussing the arrests of Thorn, Smith, and Bottom, and the discovery of Lyons' remains)

Unknown male: Um, yeah, I just asked Anthony if he can come down and see me and he reckons he'll come down within halfer. And then I can, um, ask him. Apparently he knows where that thing is.

Unknown male: Uh, hang on, Jayden said it, that whatsaname pointed it out to him but apparently ... apparently Anthony knows where it is, apparently.

The applicant: 'Cause that needs to fuckin' come back to my hands and I can disappear it pretty fuckin' quick.

The applicant: Nah, fuck that, I'll do something smarter with it.

The applicant: Well, you can't - they can't be - it can't be traced, right, it's just somethin' that needs to be put away.

The applicant: Do you know what I mean? And, yeah, like I said to fuckin' all them silly cunts I've never fuckin' lost one yet so I think (laughs).

The applicant: I think I've got a pretty good track record not to lose it.

The applicant: So that's - and - and out of all fairness I said George, it's not up to youse, it's fuckin' mine.

1. The following day, on 16 March 2019, the applicant had a telephone conversation with another unknown male, which included the following:

The applicant: I'm gonna get woken up so (inaudible) get these guns and shit.

Unknown male: (Inaudible) You don't (want) me to come down?

The applicant: No, no, fuck driving that thing around.

1. Later that morning, the applicant spoke to Casey Hooper, with whom he was having an on again off again sexual relationship. His conversation with Casey Hooper included the following:

Casey Hooper: But, um, yeah, I just had Jayda call me. I've gotta go and see her (inaudible).

Casey Hooper: Yeah, well, I dunno. She won't talk to me over the phone. So she just said, can you come to my place within half an hour? I said, yeah, sure, no worries.

Casey Hooper: So, she's getting her head chewed off about it, or some shit.

Casey Hooper: She's been getting her head chewed off. Anthony's been having ...

Casey Hooper: I don't know. She's gonna tell me when I get there. So, I don't know whether it's - it's being given to me or fuckin' what the go is.

The applicant: Well, if you get it, just call me and I'll come in straightaway, no stress.

Casey Hooper: Yeah, I'm not stressing about it. I'm just saying I don't want her to get into trouble.

The applicant: Yeah, well, fuck him. If he had fuckin' listened to me last night or listened to Matty last night, what I said, we could have had it picked up, it would've been out of their hands.

1. On 17 March 2019, the applicant spoke to an unknown male after he and Ball had disposed of the shotgun that was used to murder Lyons. Below is an extract from that conversation.

Unknown male: I told Rick, I said, fuckin', um, uh, there's the fucking thing's gone.

And he's like, yeah, cool, 'cause I was - he's worried about that. But I'm like, yeah, no, it's all good.

The applicant: Yeah, they should've known that it fuckin' - that would have been it.

The applicant: I was playin' around with it this mornin'. Scared the fuck out of Jaydo.

The applicant: Put it out the window as - just as we were drivin' along (laughs).

The applicant: Scared - scared the piss out of him.

1. There are a number of features of these recorded passages which seem to us to be relevant. First, the applicant displays no remorse. He knows that a murder has been committed and his co-offenders charged. His sole concern is to eliminate the murder weapon. Second, he refers to the weapon as his own: 'come back to my hands', 'it's fuckin' mine'. Third, he describes himself as having 'a pretty good track record' on the matter being discussed.
2. In that context, and mindful of the fact that the offending occurred while the applicant was on a CCO for drug trafficking and possession of a prohibited weapon, the judge's conclusion that the applicant's prospects of rehabilitation were 'moderate' and that he had shown 'a measure of remorse' were generous to the applicant, and are not findings that we would necessarily accept on a resentence.
3. The judge was correct to regard the motivation for the assault and false imprisonment as particularly important in the assessment of the overall gravity of the offending. The judge's characterisation of the behaviour as 'pre-meditated thuggery' was apt.[31] It is clearly established that the law cannot countenance individuals taking the law into their own hands, meting out punishment for perceived wrongdoing.
4. There is no place for such behaviour. The facts in this case are, in some respects, not dissimilar to those considered by this Court in Director of Public Prosecutions v Whiteside & Dieber.[32] In that case, a group of men had been told falsely that a woman had been sexually assaulted by two men. In response, the group set upon two men who happened to be walking in the vicinity and one of them died from the injuries he sustained. This Court deprecated, in the strongest terms, such vigilante conduct. Brooking JA said:

Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on 'rumour and innuendo', assaulted a fifth for 'messing with kids', the Court of Appeal endorsed the judge's description of the 'vigilante action' and said that it called for serious reaction from any court anxious to preserve the rule of law: R v Sheeky.[33] Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Re Attorney-General's Reference (Nos 17 and 18 of 1994)[34] ('That is what this case was about, people taking the law into their own hands. It has to be stopped'); R v Kennedy[35] ('vigilante enterprises of this kind are simply not tolerated by the community'); R v Demittis[36] ('The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.'); R v Brelsford,[37] ('Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.')[38]

1. 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.
2. The judge accepted that the applicant's PTSD played a role in the offending the subject of charges 1 and 2, although the findings in that regard are somewhat qualified. The development of the applicant's PTSD was entirely outside of his control, and appears to have arisen because he was a victim of sexual abuse at a young age. To the extent that the condition manifested itself in the offending, the applicant's blameworthiness must be reduced. Further, the presence of a psychiatric reason for the offending may reduce the appropriateness of general deterrence. However, the impact on moral culpability and general deterrence is not binary. It is informed by the nature of the impairment and the extent to which it was an operative factor in the offending.
3. The judge found that there was 'some realistic connection' between the applicant's PTSD and the offending caught by charges 1 and 2. In that respect, the judge referred to the medical evidence that the PTSD was likely to have fuelled a 'rage reaction' which impaired the applicant's ability to make calm and rationale choices or think clearly.
4. The judge was not able to quantify the impact of the PTSD, and the extent that the applicant was acting in a rage induced by his illness. It is relevant to that assessment that there was planning and foresight, and the applicant had the presence of mind to take the CCTV recorder from the crime scene and later destroy it. Similarly, he went back for, and later destroyed, the balaclava that he had discarded from the window of the car when leaving the victim's house.
5. Although there may have been a degree of rage arising from his PTSD, there was also the heady mix of 'vigilante behaviour, mob mentality and heavy "ice use"' that drove the offending.[39] The applicant was intoxicated from ice which was also a contributing factor to his judgment that carried no mitigatory weight. Indeed, each of those matters was aggravating.
6. It is also important to reiterate that the PTSD played no role in relation to the applicant's disposal of the murder weapon. That does not necessarily undermine the applicant's submission that his PTSD contributed to the earlier offending because the rage reaction from PTSD may have been episodic. Nevertheless, it does reinforce the capacity and willingness of the applicant to engage in serious criminal offending and underscores the need for specific deterrence.
7. Although the impact of the applicant's PTSD served to reduce the importance of deterrence and moderate culpability, once the motivation for the offending and the attitude of the applicant - as revealed in relation to the disposal of the shotgun - is taken into account, it is clear that general and specific deterrence remained very important factors in the sentence. The fact that the applicant was on a CCO for drug and weapon offences at the time of the offending also assumes importance in this context.
8. The applicant's early guilty plea was an important matter that needed to find reflection in the sentence. The judge accepted that it had utilitarian value. Plainly, that was correct. However, unlike the judge, we are not persuaded that it was informed by considerations of remorse or a more general acceptance of responsibility.
9. The applicant's conduct in disposing of the murder weapon was inconsistent with a desire to facilitate the administration of justice. The gun has never been recovered. Further, as the telephone intercepts show, the applicant displayed no reticence in being further involved in the course of events even though he knew that Mr Lyons had been murdered and arrests had been made. Whatever lay behind his decision to dispose of the shotgun it was not inhibited by remorse.
10. Within the above context, the issue that must be confronted is whether, having regard to the serious nature of the offending, the sentence gave due allowance to the mitigatory factors, including the plea of guilty, the impact of PTSD, the absence of prior convictions for violence and the applicant's age.
11. There can be no doubt that the individual sentence imposed on charge 2 was high. That conclusion is reinforced once the sentence is compared to sentences imposed in the vast majority of cases concerned with that offence. Sentences of 5 years or more on a guilty plea are rare and have generally been reserved for those instances where the injury is at the gravest end of the spectrum and the offender has a violent history.[40]
12. The factors relied on by the applicant to moderate the sentence were all taken into account by the judge. We are not persuaded that, having regard to the sentence imposed, the judge must have failed to give those matters proper weight.
13. Ultimately, given the objective seriousness of the offending, we are not persuaded that the sentence on charge 2 was manifestly excessive. The need to address specific and general deterrence and denunciation adequately called for a lengthy prison term and left open a sentence of the length ordered by the judge.
14. The sentence on charge 1 was also high. It was grave offending. It was committed against an injured victim, in circumstances where one of the co-offenders had threatened the victim while holding a gun in his mouth, and in the knowledge that a further assault would occur. The offending was separate from the injury charge and it was necessary that this be reflected in the sentence. The cumulation ordered was modest.
15. No legitimate complaint could be made about the individual sentence on charge 3 which was plainly within range. As was the order for cumulation in respect of that charge.
16. Considering the criminality as a whole, and mindful of all the mitigating factors, we are not persuaded that the total effective sentence of 8 years and 6 months was outside the range of sentences open to the judge.
17. For these reasons, we would give leave to appeal, but we would dismiss the appeal.

[1] Common law, Crimes Act 1958 s 320.

[2] Crimes Act 1958 s 320.

[3] Ibid s 18.

[4] Ibid s 325.

[5] Ibid s 325(4)(a).

[6] The extent of the injuries sustained during this first assault were not able to be determined upon later post-mortem analysis.

[7] R v Harvey [2020] VSC 496, [7]-[28] ('Reasons').

[15] Applying R v Verdins (2007) 16 VR 269; [2007] VSCA 102.

[25] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA).

[26] DPP v Grabovac [1998] 1 VR 664.

[27] See, eg, Nash v The Queen (2013) 40 VR 134; [2013] VSCA 172, a case concerning intentionally cause serious injury.

[28] [2020] VSCA 5.

[29] [2020] VSCA 289.

[30] [2015] VSCA 151; (2015) 46 VR 196, 199 [10]; [2015] VSCA 151 (Ashley, Redlich and Priest JJA).

[32] (2000) 1 VR 331; [2000] VSCA 142.

[33] [1996] EWCA 385.

[34] (1995) 16 Cr App R (S) 418 at 421.

[35] [2000] QCA 48 per McMurdo P.

[36] (Unreported, Qld Court of Appeal, 29 May 1997) at 5-6 per McPherson JA.

[37] (Unreported, Qld Court of Appeal, 14 September 1995) at 4 per McPherson JA.

[38] DPP v Whiteside & Dieber [2000] VSCA 142; (2000) 1 VR 331, 339 [24]; [2000] VSCA 142. The citations at nn 33 to 37 above are as they appear in the original.

[40] We have considered the cases referred to by the judge as being potentially comparable, being DPP v Godfrey [2020] VSC 197; Turney v The Queen [2020] VSCA 131; Rivera v The Queen [2020] VSCA 5; DPP v Lyons [2019] VSC 602; DPP v Smith [2019] VSCA 266; DPP v Marmo [2018] VSC 31; DPP v Vega [2015] VSC 683; and Landmark v The Queen [2015] VSCA 178. We have also considered some others, being DPP v JK [2020] VSC 510; R v Ball [2020] VSC 623; and Salmi v The Queen [2020] VSCA 250. None of those cases are of much assistance. The combination of circumstances here is unusual