Bedson v The Queen
[2013] VSCA 88
•26 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0287
| JOHN RUSSELL BEDSON |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | REDLICH, WEINBERG and COGHLAN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 4 March 2013 | |
| DATE OF JUDGMENT | 26 April 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 88 | 1st Revision, 26 April 2013 -Catchwords |
| JUDGMENT APPEALED FROM | R v Bedson & Anor [2011] VSC 101 (Curtain J) | |
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CRIMINAL LAW — Appeal against conviction — Appellant found guilty on one count of murder and one count of intentionally causing serious injury — Appellant fired shots from a car towards a group of rival motorcycle club members — One victim shot in forehead and killed — Bullet entered right buttock and thigh of second victim — Jury directions as to lesser alternative counts — Alternative of intentionally causing injury left to jury in respect of second victim — Whether trial judge erred in directions as to lesser alternative — Whether trial judge failed to inform jury that lesser alternative may be made out where appellant intends to cause serious injury but only injury results — Directions as to lesser offence did not affect jury’s consideration of primary offence — Little, if any, evidence suggesting lesser alternative rationally open — Appeal dismissed.
CRIMINAL LAW — Appeal against sentence — Total effective sentence of 23 years’ imprisonment with non-parole period of 18 years — Appellant’s brother, also present in car from which shots fired, resentenced on appeal to total effective sentence of eight years with non-parole period of five years — Appellant sentenced on basis of intent to cause really serious injury — Whether sentence manifestly excessive — Whether parity principle infringed by reason of sentence ultimately imposed on appellant’s brother — Firearm discharged in public street in context of dispute between motorcycle clubs — Importance of general deterrence and denunciation — Appellant’s brother dealt with for less serious offences — Harm inflicted by appellant out of all proportion to that intended by his brother — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC | Ellinghaus & Lindner |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA
COGHLAN JA:
On 23 September 2010, the appellant, John Russell Bedson, was found guilty of one count of murder (count 1) and one count of intentionally causing serious injury (count 3). There was also a count of attempted murder on the presentment (count 2). The appellant was acquitted of that count.
On 23 March 2011, he was sentenced to 20 years’ imprisonment on count 1, and seven years’ imprisonment on count 3. The trial judge ordered that three years of the sentence imposed on count 3 be served cumulatively upon the sentence imposed for murder. The total effective sentence was therefore one of 23 years’ imprisonment. A non-parole period of 18 years was fixed.
The appellant, by leave, now appeals against both conviction and sentence. His conviction ground is confined to count 3. It is as follows:[1]
The learned trial judge erred in failing to direct the jury that the [appellant] might be found guilty of intentionally causing injury even though he intended to cause serious injury to the witness Szerwinski.
[1]The judge who heard the leave application refused leave on three further conviction grounds. A notice of election was filed, but the Court was informed by counsel on the hearing of the appeal that that notice would not be pursued.
In relation to sentence, the appellant relies upon the following two grounds:
(a)The individual sentences, the total effective sentence and the non-parole period are manifestly excessive;
(b)There is disparity between the [appellant’s] sentence and the sentence passed on Derek Bedson by the Court of Appeal
Circumstances of the offending
The offending occurred on 22 October 2008, the day of the Geelong Cup. The appellant’s younger brother, Derek Bedson, had attended the races while the appellant remained home in Ocean Grove. While there, the appellant’s brother heard second-hand of an altercation between some members of ‘Death Before Dishonour’, a group with which he was associated and which was affiliated with the Rebels Motorcycle Club (‘the Rebels’), and some members of the Bandidos Motorcycle Club (‘the Bandidos’).
Derek Bedson became incensed that a member of Death Before Dishonour had been assaulted. He decided to retaliate by ‘shooting up’ the Bandidos clubhouse.
The appellant gave evidence at the trial. He said that he knew nothing of the events at the Geelong races. However, he decided, later that same day, to go to the Rebels clubhouse in order to meet with friends. He said that while driving into Geelong, he received a text message to the effect that other members of the Rebels (or of affiliated groups) wanted to meet with him at the Boundary Road shops. There, he met with two companions and was told of the incident that had occurred at the races. The group then drove to the Geelong racecourse. There, they were joined by another member of the Rebels. The group then returned to the Boundary Road shops, where they met two more gang members.
The group (now comprising six people), after briefly going to the house of the Death Before Dishonour member who had been assaulted at the races, then drove in the appellant’s car to the Bandidos clubhouse in Breakwater. The appellant said that by this stage he was aware that his brother had become ‘worked up’ about what had happened earlier that day. He said that he, and the other members of the group, had gone to the Bandidos clubhouse to look for him because they thought he would be there.
Upon their arrival at the clubhouse, at least two of the occupants of the appellant’s car got out to remonstrate with the Bandidos. However, nothing of any great consequence transpired. Those two Rebels soon returned to the appellant’s car and he drove off.
In the meantime, Derek Bedson had returned home from the races. He enlisted the aid of a friend to drive him to a rendezvous with the appellant at Buckley’s Tabaret in Breakwater. Upon arrival, the appellant got out of his car and joined his brother and his brother’s driver. Derek Bedson was in the front passenger seat, and the appellant sat in the rear.
There was a .22 semi-automatic rifle in the back seat of the car, next to the appellant. He claimed that it was his understanding that his brother intended to damage the Bandidos clubhouse by firing shots towards it. However, being concerned about his brother’s welfare in what seemed to him to be a risky enterprise, he decided that he would fire the shots himself. He then directed the driver towards the clubhouse.
The driver gave evidence that the appellant told him to stop in front of the clubhouse. The appellant, on the other hand, denied this and insisted that he had told the driver merely to slow down. He claimed that the driver’s decision to stop had been sudden and unexpected. He said that this had placed both himself and the other occupants of the car in danger.
The appellant said that when the car stopped, he saw four members of the Bandidos standing at the front of the clubhouse. He admitted that he had, at that point, fired shots out of the right passenger rear window towards that group, which comprised Paul Szerwinski, Gregory Gray, Matthew Quarrel and Ross Brand. CCTV footage, played to the jury, showed Mr Brand reaching into his trousers at about the time he was shot, and falling to the ground. The other members of the group were seen to run towards the door of the clubhouse, during which time Paul Szerwinski was also shot.
It appears that the appellant fired six shots in total. Mr Brand was shot in the forehead. Mr Szerwinski was shot in his right buttock, with the bullet passing into his left thigh. He also suffered two minor flesh wounds to his left forearm. Szerwinski, Quarrel and Gray dragged the wounded Brand into the clubhouse.
Mr Brand was taken to hospital but died from his injuries. Mr Szerwinski remained in hospital for two days. He declined surgery. It seems that the bullet that passed through his buttock is still in his left thigh. His physical injuries took about three months to heal. In his victim impact statement, he described the incident as the single most traumatic event he had ever experienced. He claimed that he had been left with ongoing psychological injury.
The appellant’s evidence was that he saw Mr Brand ‘storm out’ of the clubhouse and ‘reach forward’. He recognised Mr Brand and assumed, because of his reputation for violence, that he was reaching into his trousers for a gun. He said that he feared for his life and panicked. He therefore picked up the rifle and began shooting. He claimed that while he was firing in the general direction of the Bandido group, he urged the driver of the car to flee the scene. He said that he had not aimed at anyone in particular, and indeed that he had not intended to hit anyone.
The appellant’s co-offender
Derek Bedson pleaded guilty to one count of manslaughter and one count of reckless conduct endangering life. He was sentenced to ten years’ imprisonment for manslaughter, and to four years’ imprisonment on the remaining count. The sentencing judge ordered two years’ cumulation, resulting in a total effective sentence of 12 years’ imprisonment. A non-parole period of eight years was fixed.
On appeal, Derek Bedson was resentenced by this Court to a total effective sentence of eight years’ imprisonment with a non-parole period of five years. Among the matters taken into account on appeal were his youth, his plea of guilty and his prospects of rehabilitation. The Court also noted that ‘the difference[s] between the level of harm intended by [Derek Bedson] and the consequences of the actions of his brother were significant indeed’.[2]
[2]Bedson v The Queen [2011] VSCA 379, [17] (Buchanan JA).
The appellant’s submissions
In essence, the appellant’s argument in relation to conviction is that owing to a misdirection as to the lesser alternative of intentionally causing injury, his conviction for having intentionally caused serious injury cannot stand.
Mr Tehan QC, who appeared for the appellant, submitted that the trial judge had erred in directing the jury that, in relation to the offence of intentionally causing injury (which was an alternative to intentionally causing serious injury), it was:
very similar to the offence of intentionally causing serious injury with one important difference. The accused only needs to have caused and to have intended to cause Mr Szerwinski to suffer injury rather than serious injury.[3]
[3]T1012 (line 27) -1013 (line 1) (emphasis added).
Mr Tehan submitted that her Honour misdirected the jury by telling them that to be guilty of the lesser offence the appellant only needed ‘to have caused and to have intended to cause’ injury, rather than serious injury.
Mr Tehan did not challenge her Honour’s direction, given at an earlier point in her charge, as to the elements of intentionally causing serious injury. He submitted, however, that by stating the elements of the lesser offence in the way that she had, her Honour had denied the jury the opportunity to acquit the appellant of intentionally causing serious injury unless they found that he had both caused and intended to cause injury, rather than serious injury. The true position was that the accused was entitled to be acquitted of the more serious count if he either caused injury, rather than serious injury, or if he intended to cause injury rather than serious injury.
It was submitted that the direction given meant that the jury might have convicted the appellant on count 3 even though one or other of these two conditions had not been met.
Mr Tehan further submitted that this matter was ‘of real importance’ since there was a ‘real issue’ as to whether the injury caused to Mr Szerwinski was a ‘serious injury’, or whether it should be viewed as something short of that. In these circumstances, her Honour should have directed the jury that if they were satisfied that the appellant had intended serious injury, but not satisfied that serious injury had resulted, they were obliged to acquit the appellant on the more serious charge and convict him instead on the lesser alternative. The failure to so direct, he submitted, robbed the appellant of a real chance of conviction on the lesser alternative.
On the sentence appeal, Mr Tehan drew attention to the fact that the appellant had been aged only 24 at the time of the offending, and to various testimonials tendered on his behalf. He also pointed to various personal and domestic circumstances (as detailed in a report by a forensic psychologist, Dr Aaron Cunningham), the appellant’s history of drug use, and Dr Cunningham’s diagnosis of paranoid personality disorder. He also drew attention to Dr Cunningham’s opinions that the offending was connected to the appellant’s disorder, and that this condition caused a significant impairment in reasoning in the context of a perceived threat.[4]
[4]The trial judge had ‘very real difficulties’ accepting this aspect of Dr Cunningham’s report: R v Bedson [2011] VSC 101, [14] (‘Sentencing Remarks’).
Mr Tehan acknowledged that counsel who appeared for the appellant at his trial had not sought to rely upon R v Verdins[5] on the plea. He also noted that the appellant had admitted 17 prior convictions from six court appearances, including convictions for drug offences, unlawful assault and possession of a controlled weapon.
[5](2007) 16 VR 269.
Mr Tehan submitted that, in all the circumstances, a sentence of 20 years’ imprisonment on the count of murder was manifestly excessive. That was particularly so in light of her Honour’s finding that the offence had not been premeditated.
Mr Tehan added that the sentence of seven years’ imprisonment on the count of intentionally causing serious injury was also manifestly excessive. He submitted that this was ‘not a bad case’ of intentionally causing serious injury. He further submitted that the sentence on that count was only explicable on the basis that her Honour had erroneously taken into account the fact that far greater injury might have resulted had the bullet entered Mr Szerwinski’s thigh just a fraction closer to the femoral artery.
Further, Mr Tehan submitted that the non-parole period of 18 years was itself manifestly excessive, having regard to the appellant’s youth and his prospects of rehabilitation.
Finally, he submitted that, having regard to this Court’s decision to reduce Derek Bedson’s sentence, there was now a ‘manifest disparity’ between the punishment meted out to the two brothers for their respective roles in the offending.
The Crown’s submissions
The Crown submitted that the trial judge’s charge to the jury regarding both count 3, and the lesser alternative of intentionally causing injury, was free of error.
In support of that submission, the Crown pointed to the following passage in her Honour’s charge, which immediately followed her directions to the jury on the elements of intentionally causing serious injury:
However, if your view of the evidence is that Mr Szerwinski suffered an injury only, or that Mr Bedson intended to cause injury only, then you would need to consider the alternative offence not on the presentment and that is the offence of intentionally causing injury. So, you come to consider this if you are not satisfied that he intended to cause serious injury. Or you are not satisfied that Mr Szerwinski suffered a serious injury.[6]
[6]T1012, lines 19-26 (16 September 2010) (emphasis added).
The Crown noted that that passage immediately preceded that specifically relied upon by the appellant. It noted also that the passage was expressed in the disjunctive, and not the conjunctive.
The Crown contended that her Honour’s directions, viewed as a whole, appropriately instructed the jury that they were required to consider the lesser alternative of causing serious injury if the Crown had failed to prove either the physical or mental element with respect to the charge of intentionally causing serious injury. There was nothing in the judge’s directions which suggested that the jury were precluded from considering the lesser charge if they found that the appellant intended to cause serious injury.
The Crown further relied upon the fact that experienced trial counsel saw nothing wrong with her Honour’s charge regarding these two alternative offences, and did not, at any stage, seek a redirection. It submitted that it was most unlikely that the jury could have entertained a reasonable doubt about the characterisation of Mr Szerwinski’s injuries as serious. In those circumstances, even if the use of the word ‘and’ amounted to a misdirection, it could have had no effect upon the outcome of the jury’s deliberations.
In relation to sentence, the Crown noted that the appellant had pleaded not guilty and stood his trial. He was not entitled to any discount for having pleaded guilty. Further, while the trial judge found that the appellant was to be sentenced for murder on the basis that he had intended to cause really serious injury, and not on the basis that he had intended to kill, that fact alone did not mitigate the seriousness of the offence.[7]
[7]Citing Barrett v The Queen (2010) 27 VR 522, 528 (Maxwell P and Neave JA).
The Crown next submitted that her Honour had properly taken into account all of the mitigating factors relied upon by the appellant. Those factors had to be weighed against the objective gravity of his offending, which her Honour correctly characterised as ‘very serious’. General deterrence and denunciation had to ‘loom large’ because of the community’s abhorrence of public shootings and the level of fear that they engendered.
The Crown accepted that the injuries suffered by Mr Szerwinski were not ‘at the higher end of serious injury’. However, other features of this offending were said to justify the sentence imposed, including the discharging of a firearm in a public place.
As to parity, the Crown submitted that there was no unjustifiable disparity between the sentence imposed on the appellant and that imposed on his brother by this Court. Derek Bedson had pleaded guilty, and the appellant had not. It was the appellant who had actually pulled the trigger. Further, there was a significant difference in the nature of the offences for which each fell to be sentenced. Derek Bedson had been dealt with for manslaughter and reckless conduct endangering life. These were lesser offences than murder and intentionally causing serious injury. Finally, Derek Bedson was resentenced by this Court on the basis that the level of harm he intended was very different from that actually inflicted by his brother.
The judge’s documentary aids to the jury
On the hearing of the appeal, it emerged that her Honour had provided the jury with a flowchart and a list of elements concerning the charge of intentionally causing serious injury and its lesser alternative. These documents were subsequently obtained by the Court, and the parties provided with an opportunity to make submissions as to their contents.
The judge’s flowchart contained the following passage, directed to what the jury were to do depending upon their verdict on the count of intentionally causing serious injury:
Guilty: No further determination is required of you.
Not Guilty: Because the Crown has failed to prove beyond reasonable doubt that Paul Szerwinski suffered serious injury. Then[8] consider the alternative count not on the presentment Intentionally Causing Injury to which your verdict would be either Guilty or Not Guilty.
[8]Emphasis in original.
In a separate document, the elements of the offence of intentionally causing injury were set out as follows:
1. That Mr Szerwinski suffered an injury.
2. That the act or acts of the accused were a cause of that injury.
3. In doing so, he intended to injure Mr Szerwinski.
4. He acted without lawful justification or excuse.
Mr Tehan submitted that her Honour’s written directions were incomplete as they did not specify that the jury ‘would have to consider the alternative offence of intentionally causing injury even if they were satisfied that the appellant intended to cause serious injury’. Mr Tehan then referred to the direction in the judge’s flowchart that, if the jury were to find the appellant guilty of intentionally causing serious injury, ‘no further determination’ was required of them. This, he submitted, ‘would have had the effect of positively dissuading the jury from considering the alternative in circumstances where they were satisfied that the appellant intended to cause serious injury’.
Mr Tehan also submitted that her Honour’s written direction as to what the jury should do if they found the appellant not guilty of intentionally causing serious injury would have been interpreted by the jury ‘to mean that if, and only if, they were not satisfied that Mr Szerwinski’s injuries were serious were they to consider the alternative offence’.
The Crown submitted that her Honour’s written directions contained no misdirection. The jury would have understood that they would move to the alternative charge of intentionally causing injury if they were not satisfied that the injury was serious, or, alternatively, not satisfied that the appellant intended to cause serious injury. The emphasis that her Honour gave, throughout her charge and in the written direction, to whether the injury was serious simply reflected the way in which the trial had been conducted. In the end, if the jury were satisfied of all the elements of intentionally causing serious injury, as they plainly were, there was no requirement that they consider the alternative.
Conclusion on conviction appeal
It is first useful to set out in full the passages from her Honour’s charge which concern the ground raised by the appellant, so that the passages relied upon by both parties can be read in context:
However, if your view of the evidence is that Mr Szerwinski suffered an injury only, or that Mr Bedson intended to cause injury only, then you would need to consider the alternative offence not on the presentment and that is the offence of intentionally causing injury. So, you come to consider this if you are not satisfied that he intended to cause serious injury. Or you are not satisfied that Mr Szerwinski suffered a serious injury.
So the offence of intentionally causing injury is very similar to the offence of intentionally causing serious injury with one important difference. The accused only needs to have caused and to have intended to cause Mr Szerwinski to suffer injury rather than serious injury.
In order for you to be satisfied of the offence of intentionally causing injury as an alternative to Count 3 on the presentment, the Crown must satisfy you beyond reasonable doubt that Mr Szerwinski was injured and that Mr Bedson caused that injury and that he intended to injure Mr Szerwinski and that he acted without lawful justification or excuse.[9]
[9]T1012-13.
On our reading of the transcript, coupled with the documents provided to the jury, there was no misdirection as to the elements of intentionally causing injury. Her Honour told the jury, in perfectly clear terms, that they were to consider that lesser alternative if they were not satisfied that the appellant intended to cause serious injury or they were not satisfied that the injury sustained was ‘serious’.
The particular passage about which the appellant complains appears in the context of the trial judge’s explication of the elements of intentionally causing injury. In that context, it is undoubtedly true that elements of that offence are intent to cause injury and resultant injury. The Crown correctly submitted that her Honour, in this passage, was ‘merely emphasising the elements with respect to the lesser statutory alternative relative to the more serious offence’. The elements of that more serious offence were used as an aid in explaining the elements of the lesser offence.
Her Honour had already set out the circumstances in which the jury would be required to deliver a verdict upon the alternative charge in the immediately preceding passage. The jury would not have understood the particular passage relied upon by Mr Tehan as the basis for his challenge to this conviction as meaning that they were only to consider the lesser alternative if they found that the appellant both lacked the requisite intent, and that Mr Szerwinski’s injuries were not serious.
Her Honour’s direction that the jury were to ‘come to consider’[10] the lesser alternative if they were not satisfied that the appellant intended to cause serious injury, or that Mr Szerwinski suffered a serious injury, was, and is, unimpeachable.[11] The direction clearly required the jury to consider that lesser alternative if they found either of those elements of intentionally causing serious injury not to be present. This appeal largely arises from a mischaracterisation of the remarks which her Honour made, in a different context, following an impeccable direction.
[10]Mr Tehan’s submissions — particularly those in relation to the passage of the judge’s flowchart dealing with the situation in which the jury were to find the appellant guilty of intentionally causing serious injury — appear, in essence, to complain that the judge impermissibly directed the jury not to consider the alternative charge until they had decided the more serious charge: see Stanton v The Queen (2003) 198 ALR 41 (‘Stanton’); L L W v The Queen [2012] VSCA 54. In our view, the judge did no more than ‘inform the jury of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them’: see generally Wong v Western Australia [2011] WASCA 56. What the judge said is certainly far removed from the principal passage complained of in Stanton, namely the judge’s direction that the jury could not come to consider the alternative unless they were unanimously satisfied that the accused was not guilty of the primary charge.
[11]T1012 (lines 19-26).
The fact that the flowchart provided to the jury only referred to the possibility of their finding that the Crown had failed to prove beyond reasonable doubt that Mr Szerwinski suffered serious injury, and not to a failure to prove the intent to cause that level of injury, does not greatly assist the appellant’s argument. It is a reflection of how the case was run, and indeed the only realistic assessment of the facts. As was pointed out during the hearing of the appeal, in cases such as this, which involve the firing of multiple shots, the possibility of a jury inferring merely an intention to cause injury — rather than serious injury — must surely be remote.
If we had been persuaded that her Honour had misdirected the jury by using the word ‘and’, rather than ‘or’, in the passage that is impugned, we would nevertheless have dismissed the appeal on the basis that there had not been a substantial miscarriage of justice.
It is true that, in some circumstances, misdirection on a lesser alternative charge may vitiate a conviction upon the principal charge on the indictment. However, unlike some other cases, it cannot be suggested that her Honour failed to put the alternative to the jury at all.[12] In any event, it might be open to question whether, in light of recent authority, the trial judge was obliged to leave the alternative of intentionally causing injury to the jury.[13] There was little, if any, evidence which cogently raised the lesser alternative as being rationally open. In particular, it was always mere sophistry to contend that the injury suffered by Mr Szerwinski was not serious.
[12]Cf Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1.
[13]See James v The Queen [2013] VSCA 55, [82] (Whelan JA).
In R v Kane,[14] Ormiston JA[15] said of the situation where there is a misdirection as to a lesser charge, but an impeccable direction as to the main offence:
I am prepared to accept that, where a judge gives an incorrect direction as to an alternative verdict of which the jury has been made aware, then a question must arise as to the effects that may have had on the jury's deliberations, bearing in mind that the jury will have attempted to apply the judge's directions on each charge but will have been misled, to a greater or lesser extent, as to what they might find in relation to the alternative charge.[16]
[14](2001) 3 VR 542.
[15]Dissenting in the result, but not as to this point of principle.
[16]Ibid 545-6.
In the present case, it is difficult to see what possible effect any misdirection as to the lesser alternative might have had upon the jury’s deliberations. In our opinion, nothing that was said in relation to the alternative could conceivably have diverted the jury from properly considering the charge of intentionally causing serious injury. Her Honour’s direction did not affect the jurors’ understanding of the elements the Crown had to establish in order to prove that the appellant had committed that more serious offence. It was not a case, for example, in which the criminality necessary to make out the lesser offence was diluted to such an extent that the jury would have considered it an inappropriate reflection of the appellant’s criminality.[17]
[17]See generally Kingv The Queen (2012) 245 CLR 588.
The jury, by their verdict, plainly found that the injury was serious. It is hard to imagine how, having so determined, they might not have been satisfied that the appellant intended serious injury. That is particularly so given their verdict of guilty on count 1. If the appellant intended to kill or cause really serious injury to Mr Brand, it is difficult to see how his firing shots in the general direction of the group would lead to any other conclusion in relation to count 3.
Counsel at trial did not seek any redirection following the trial judge’s charge as to intentionally causing serious injury and the lesser alternative. As French CJ, Crennan and Kiefel JJ said in King v The Queen:[18]
That judgment [not to seek a redirection], which may have been made for a variety of reasons, informs consideration of the extent to which, taken in context, the direction was likely to confuse or mislead the jury.[19]
[18]Ibid.
[19]Ibid 611 [55].
In this case, as in many others, the failure to seek a redirection is a useful gauge as to whether the jury were, in fact, confused, or misled, by what her Honour said.
The trial judge herself raised this very issue with counsel, saying:
Mr [Prosecutor], I didn't raise with the jury that concept of if you intend to cause serious injury but cause injury only… Perhaps you could look at that over lunch.[20]
[20]T1026 (16 September 2010).
The prosecutor replied:
I think that the way that you have directed covers that in any event as a matter of necessary logic and I don't think Your Honour would necessarily need to go over it again but I will think about it over lunch.[21]
[21]Ibid.
Defence counsel did not disagree with what the prosecutor had said.
For these reasons, we would dismiss the appeal against conviction.
Conclusion on the appeal against sentence
As noted earlier in these reasons, the appellant received a total effective sentence of 23 years’ imprisonment with a non-parole period of 18 years. That sentence comprised a term of 20 years’ imprisonment for the count of murder, and a term of seven years’ imprisonment for the count of intentionally causing serious injury. It was ordered that three years of the sentence on count 3 be served cumulatively upon the sentence imposed on count 1.
In our opinion, the individual sentences, the total effective sentence and the non-parole period were all within range. The sentence was not ‘so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[22]
[22]R v Hanks [2011] VSCA 7, [22] (Bongiorno JA).
As the sentencing judge noted in summarising the Crown’s submissions on the plea:
These offences occurred in the public streets of Geelong on a public holiday. The firearm was discharged in a public street, across a public area, into those men that were standing there and you, John Bedson, at the time had the intention to inflict really serious injury to whomever those bullets struck…[23]
[23]Sentencing Remarks [29].
As indicated earlier, counsel for the appellant did not rely upon Verdins. It follows that he accepted that the appellant was an appropriate vehicle for general deterrence. Her Honour also took into account the appellant’s extensive criminal record. We have already noted that the appellant had 17 prior convictions, for offences including unlawful assault and possession of a controlled weapon. The unlawful assault charge involved the brandishing of a knife whilst intoxicated. The appellant had also been convicted of criminal damage, relating to his having kicked three cars while intoxicated.
Mr Tehan placed significant emphasis upon her Honour’s finding that the murder of Mr Brand had not been premeditated. That finding was in the following terms:
It appears that your conduct was motivated by misguided loyalty to the honour of the Rebels or Death by Dishonour and, in that distorted perception, you came to the view that you were justified in taking retaliatory action, that is, shooting up the clubhouse and, as the prosecutor described it, in a moment of madness you resolved to discharge the gun into the men who were standing at the doorway.[24]
[24]Ibid [15] (emphasis added).
There is not always a significant distinction to be drawn between cases where murder is premeditated and those where the offender had planned to go to a place, which he knew to be occupied, with a loaded weapon intending to use it and to cause, at the very least, property damage. The appellant’s intention to cause really serious injury to Mr Brand, although formed ‘in a moment of madness’, was made in the context of his having decided moments before to fire a loaded weapon in the direction of a group of people on a public street. We are not persuaded that the sentence of 20 years’ imprisonment imposed on the murder count was ‘wholly outside the range’.[25] Indeed, we consider it to have been well within the range.
[25]DPP v Karazisis (2010) 31 VR 634, 663 (Ashley, Redlich and Weinberg JJA).
The sentence of seven years’ imprisonment imposed on the count of intentionally causing serious injury may, on the other hand, be described as ‘stern’. However, the fact that the offence occurred in a public street, coupled with the fact that a gun was used, and that the victim suffered a penetrating bullet wound, in our view demonstrates that the sentence imposed on that count was also within range. We would say, however, that it was at the upper end of the permissible range.
General deterrence was of the utmost importance in this case. Not only did the shooting occur in a public street. It was carried out in the context of a dispute between two rival motorcycle gangs. Any sentence imposed upon the appellant had to adequately reflect the community’s abhorrence of such conduct, and to deter members of such gangs from resolving their disputes in this way.
The sentencing judge took into account all of the mitigating factors put on the appellant’s behalf. Perhaps the most pressing of these factors were his relative youth at the time he committed these offences, and the fact that, to the date of sentencing at least, he had served his time in protective custody. Her Honour also found that the appellant had ‘good’[26] prospects of rehabilitation. All of those factors, however, had to be considered against the objective seriousness of this offending.
[26]Sentencing Remarks [30].
The sentencing judge noted that the appellant, by reason of the sentence imposed upon him on count 1, was to be regarded as a serious violent offender.[27] The consequence was that he was to be sentenced as a serious offender on count 3. In determining the length of that sentence, her Honour was therefore obliged to have regard to the protection of the community from the offender as the principal purpose for which the sentence was to be imposed. In having regard to that purpose, her Honour was entitled to impose a sentence longer than that proportionate to the objective gravity of the offence.[28] Her Honour did not adopt that approach, considering that due to the length of the sentence she was to impose, it was not necessary to impose a disproportionate sentence.[29] It may be open to question whether any lesser sentence would achieve the statutory aim of securing the protection of the community from the appellant.
[27]Sentencing Act 1991 s 6B.
[28]Ibid s 6D.
[29]Sentencing Remarks [32].
A second consequence of the fact that the appellant fell to be sentenced as a serious offender was that any sentence imposed on count 3 had to be served — unless otherwise ordered by the court — cumulatively upon that being served on count 1. Her Honour did, in fact, otherwise order. That was to reflect the fact that ‘the two offences arose out of the one episode’.[30] Seen in light of s 6E of the Sentencing Act 1991, which implicitly requires the principle of totality to be moderated, the order for cumulation made by her Honour was entirely appropriate.
[30]Ibid [34].
As for parity, there were significant differences between the appellant’s criminality and that of his brother. Derek Bedson pleaded guilty, whereas the appellant stood his trial. Further, Derek Bedson was more than two years younger than the appellant at the time of the offending.
The most significant difference, however, was that noted by Buchanan JA in resentencing Derek Bedson. The harm actually inflicted by the appellant was entirely out of proportion to that which his brother intended. Further, the appellant’s brother had been dealt with for less serious offences, namely manslaughter and reckless conduct endangering life. It was the appellant, and not his brother, who fired the rifle. It was the appellant, and not his brother, who intended to kill or cause really serious injury, and to cause serious injury. His brother intended nothing more than property damage.
For those reasons, the appellant cannot have a ‘justifiable sense of grievance’[31] concerning the disparity between his sentence, and that which was ultimately imposed upon his brother.
[31]See Lowe v The Queen (1984) 154 CLR 606, 613-14 (Mason J).
We would accordingly dismiss the appeal against sentence.
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