Bedson v The Queen
[2011] VSCA 379
•17 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0071 |
| DEREK SCOTT BEDSON |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN, HARPER and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2011 | |
DATE OF JUDGMENT/ORDER: | 17 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 379 | |
JUDGMENT APPEALED FROM: | [2011] VSC 101 (Curtain J) | |
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CRIMINAL LAW – Sentence – Manslaughter and reckless conduct endangering life – Offender’s intention to shoot at a motorcycle clubhouse – Co-offender deliberately shot persons outside the clubhouse – Sentence of 12 years’ imprisonment with a minimum term of 8 years’ imprisonment manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Ellinghaus & Lindner |
| For the Respondent | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
The appellant is the half‑brother of John Bedson, who was a member of a group affiliated with the Rebels motorcycle club. At the Geelong Cup races, an altercation took place between members of the group and members of the Bandidos motorcycle club. The appellant was told of the fight and became angry that a member of his brother’s group had been assaulted and arrested by the police. The brothers and other members of the Rebels club drove to the Bandidos clubhouse. The appellant brought with him a .22 semi‑automatic rifle. The appellant and the driver were in the front seat of the appellant’s vehicle, a dual cab utility. John Bedson was in the back seat.
The utility stopped in the street near the Bandidos clubhouse. John Bedson aimed the rifle at a group standing outside the clubhouse. He shot two of them. One of the Bandidos was shot in the head and died early the next day. The other victim was shot in the thigh and spent two days in hospital.
After a trial, John Bedson was found guilty of murder and intentionally causing serious injury. The appellant pleaded guilty to a presentment containing a count of manslaughter and a count of reckless conduct endangering life.
At his trial, John Bedson gave evidence that he knew his brother wanted to shoot up the clubhouse and knew that he was armed. He said that he resolved to do the shooting in order to protect his brother. John Bedson admitted firing the shots and said that his actions were in defence of himself and others in the utility, as he knew that the deceased had a reputation as a person who carried a knife and a gun.
The shooting was captured on CCTV footage. The sentencing judge said that the film showed the deceased walking out of the clubhouse, standing and reaching down into his trousers. The Crown contended that that was either to tuck in his shirt or do up his fly. At that point he was shot and fell to the ground.
The sentencing judge described the appellant’s offending in the following terms:
It would appear that the conduct contemplated by each of you up until the point the firearm was discharged was to shoot up the clubhouse but that your actions, John Bedson, were accompanied by an intention to cause really serious injury and your actions, Derek Bedson, were performed in circumstances where a reasonable person in your position would appreciate that you were exposing another to an appreciable risk of serious injury.
A plea was conducted and the appellant was sentenced to be imprisoned for a term of 10 years on the count of manslaughter and for a term of four years on the count of reckless conduct endangering life. Two years of the sentence on the count of reckless conduct endangering life were ordered to be cumulated on the sentence on the count of manslaughter, creating a total effective sentence of 12 years’ imprisonment. It was ordered that the appellant serve a term of eight years’ imprisonment before he was to be eligible for parole.
The appellant has been granted leave to appeal against sentence. The ground of appeal which was pursued is as follows: the individual sentences, the total effective sentence and the non‑parole period are manifestly excessive in that they, (a) fail properly to take into account the applicant’s youth, his intent not to cause injury to others and his prospects of rehabilitation and, (b) stand contrary to current sentencing practices and sentencing in like cases.
The appellant was aged 23 years at the time he was sentenced and 21 years when the offences were committed. The appellant completed Year 12 and obtained an apprenticeship as a carpenter. The appellant completed his apprenticeship and was twice made his employer’s apprentice of the year. The director of the appellant’s employer gave evidence on his behalf, describing him as outstanding, skilled and committed. The appellant’s mother and a former partner of the appellant gave evidence at the plea and spoke of his good character. In addition, a number of testimonials were tendered. The sentencing judge said that it was apparent from that material that the appellant had the support and care of his immediate and extended family.
In the course of the plea, a report by a psychologist was tendered. The psychologist said that the appellant suffered a generalised anxiety disorder and suffered from paranoia, which he attributed to the physical abuse which the appellant suffered at the hands of his brother during his childhood. The psychologist said that the appellant had positive prospects for rehabilitation.
Until recently, the appellant spent his custody in protection. He is now housed in a unit with intellectually disabled prisoners, where he acts as a mentor.
The appellant appeared before a Magistrates’ Court in 2007 on firearms charges and possession of cannabis. The weapons were an air rifle and an imitation handgun and a set of samurai swords. The appellant was fined but not convicted.
Counsel for the appellant at the plea submitted that the appellant had good prospects for rehabilitation, relying upon the opinion of the psychologist. The sentencing judge recounted this submission and said:
Indeed, this must be so. You are a young man, a qualified tradesman and you have shown diligence in completing your apprenticeship where these matters remain outstanding. I accept also that you are remorseful for your conduct and that you acknowledge the stupidity of your actions, which are factors which must ultimately go towards your rehabilitation.
The sentencing judge also accepted that serving custody in protection had made incarceration more onerous for the appellant than for other prisoners and that the appellant was remorseful.
I think that there is substance in the ground of the appeal. In effect, the appellant was to be sentenced for a crime which did not occur, firing shots into a building to create fear and possibly property damage. The crime that occurred was the deliberate shooting of two persons. In my opinion, the sentencing judge did not appear to recognise the significance of this dichotomy and its consequences.
As Nettle JA said in R v Mohamed:
The nature of the crime of manslaughter is such that it may vary from ‘the very confines of murder’ down to a merely nominal offence of involuntary homicide. Consequently, although the maximum sentence for manslaughter is 20 years’ imprisonment, the range of possible penalty is very wide indeed. But although there is no established sentencing tariff, cases in which the intended level of harm is slight and the consequences are great tend to be towards the lower end of the scale.
This was a case where the difference between the level of harm intended by the appellant and the consequences of the actions of his brother were significant indeed.
The appellant could pray in aid significant mitigating factors: he pleaded guilty, he was relatively youthful, he had good prospects of rehabilitation, he had a good work history and was well regarded, his prior convictions were minor and he had strong family support.
I would allow the appeal, set aside the sentence passed below and re‑sentence the appellant to be imprisoned for a term of seven years on the count of manslaughter and for a term of three years on the count of reckless conduct endangering life. I would cumulate one year of the sentence on the count of reckless conduct endangering life on the sentence on the count of manslaughter. The total effective sentence is eight years’ imprisonment. I would fix a minimum term of five years’ imprisonment. Were it not for the plea of guilty, I would have re‑sentenced the appellant to a total effective sentence of 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment.
HARPER JA:
I agree.
HANSEN JA:
I also agree.
BUCHANAN JA:
The orders of the Court are as follows:
1. The appeal is allowed.
2. The sentence passed below is set aside and in lieu thereof, the appellant
is sentenced to be imprisoned for a term of 7 years on count 1 and for a term of 3 years on count 2.
3. One year of the sentence on count 2 is to be served cumulatively upon the sentence on count 1.
4. The total effective sentence is 8 years’ imprisonment.
5. A minimum term of 5 years’ imprisonment is fixed before the appellant is to be eligible for parole.
(Discussion ensued)
I will add to the orders which I have pronounced this declaration:
6. It is declared that a period of 781 days, not including today, is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
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