Director of Public Prosecutions v Bernath
[2025] VSC 668
•28 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0122
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| AARON JAMES BERNATH | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3 and 4 July 2025 |
DATE OF SENTENCE: | 28 October 2025 |
CASE MAY BE CITED AS: | DPP v Bernath |
MEDIUM NEUTRAL CITATION: | [2025] VSC 668 |
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CRIMINAL LAW – Sentence – Murder – 35 year old accused struck father repeatedly to the head with a baseball bat, causing severe skull fractures and brain damage – Reason for killing unclear – Account by accused in trial of having acted in self-defence rejected by jury – No material to indicate attack was provoked – Attack of marked savagery – No remorse – Defence contention that accused’s prospects of rehabilitation are good not accepted – Protection of the community an important sentencing purpose – Just punishment, denunciation and general and specific deterrence also important – Sentence of imprisonment for 28 years with a non-parole period of 23 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Shaw with Ms N Deltondo | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Sala with Mr J Dean | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
Aaron Bernath, you have been found guilty by the jury empanelled in your trial of the murder of your father, George Bernath, by striking him repeatedly and forcefully to the head with a baseball bat. You caused numerous separate injuries to your father whilst attacking him, most notably two very serious skull fractures to the back of his head which caused damage and bleeding to his brain, and ultimately lead to his death. The number, location, and nature of the injuries you caused reflect the very violent and brutal nature of your attack. Your motivation for your crime is unclear to me. You gave an explanation during your evidence before the jury, that your father had threatened to kill you, and moved to pick up the bat and strike you, and so you wrestled the bat from his hands and then struck him in self-defence. It is entirely unsurprising that the jury rejected your implausible account so speedily. I am satisfied that there was no truth to your claim of having acted in self-defence. I am also satisfied that you had no reason at all to fear an attack upon you by your father.
In light of the many aggravating features of your crime, including the domestic violence aspect to your offending and the associated breach of trust, the extreme nature of the violence you inflicted, the very great disparity in size, strength and age between you and your father, and your apparent complete lack of concern for the fate of your father which was clear in the immediate aftermath of your crime, and persisted until the day of the plea hearing, yours is an instance of the always-serious crime of murder which was very serious indeed.
The maximum penalty for murder is imprisonment for life.
Murder is a standard sentence offence, with a standard sentence of 25 years’ imprisonment.
Background
You had been living with Mr Bernath at his home, 154 Stonehill Drive Maddingley, for about two years, after selling the home which you shared with an ex-partner, following the breakdown of that relationship. On your account, the relationship between you and your father was tense, because he wanted you to move out and resented you for not paying rent. Your evidence was that as a result of this tension you did not speak to each other, though your father would often yell and swear, and you would typically attempt to de-escalate the situation by going to your room.
However, you also admitted in your evidence that a few months before you killed your father, you deliberately scratched his Mustang motor vehicle, in retaliation against his hostile behaviour towards you. Your father discovered this deliberate slight to a prized possession some weeks afterwards, further souring your relationship.
Facts
On the night of Friday 11 January 2024, you left Mr Bernath’s home to get some dinner, and returned just before 7pm. Mr Bernath was home when you returned.
At 7.20pm, CCTV from a neighbouring property records a 19 second incident where aggressive yelling and swearing can be heard, as well as at least 6 to 8 loud impacts, which have a high-pitched, cracking sound to them.
17 minutes later, at 7.37pm, you called triple 0 and requested an ambulance, telling the operator that your father had had a bad slip, or later in the call, that he had fallen off the couch; you said that he had been responding to you, but was now having a bit of a rest, and that there was a little bit of bleeding. You later gave a similar account to the first paramedics on the scene, about the circumstances in which your father was injured, the state he was in when you found him, and also reiterating that there was not much blood.
Paramedics attended the scene, assessed Mr Bernath, and promptly arranged for him to be airlifted to The Alfred Hospital. He was later pronounced dead at The Alfred Hospital on 12 January 2024.
On your account given to the jury, between the time when you returned home and when the ambulance arrived, you had come home and were sitting on the couch on your phone, next to your father. Mr Bernath appeared very agitated, as though he was ‘revving’ himself up,[1] while muttering words under his breath about you not paying rent and your being messy, among other things.[2] You described him as getting increasingly mad, and perceived that this anger was obviously directed at you, because you were sitting right there.
[1]T.250.30.
[2]T.250.31-32.
After ‘letting him go’ for a while, you said something in response, and then your father responded with extreme anger, standing up from the couch, threatening to kill you, and grabbing a baseball bat from the floor near the couch. You explained to the jury that the baseball bat was always kept in that spot, near the couch, for protection purposes. You indicated that you were the owner of the baseball bat.
You also told the jury that you had only seen your father that angry once before, in a bar fight, and that he had never threatened to kill you, or used the baseball bat before. You stated in cross-examination that he had never had a physical altercation with you other than smacking you when you were a child. You claimed that notwithstanding that, when he said he would kill you, you thought he would do so.
On your account, as your father swung the baseball bat towards you, you also stood up from the couch and then lifted your hands to protect yourself; the two of you locked hands on the bat. You managed to gain control of the bat, and you struck him with it to the head. You told the jury that you thought you had struck your father at least three times with the bat to the head, but that you were not sure how many blows there were because you were ‘just swinging’ and trying hard to protect yourself, [3] and that the last blow you delivered was after your father fell back onto the couch, and then as he ‘c[a]me up at [you] one last time…[you] hit him’.[4] You claimed that at no stage did you want him to die, [5] and that you delivered the final blow because you were scared that your father, who was unarmed, injured and much smaller than you, might grab the bat back from you and kill you with it. [6]
[3]T.263.20-21; reiterated in XXN at T.289.
[4]T.264.11-13.
[5]T.268.14.
[6]T.294.
Your evidence was that in the 17 minutes between when you committed these fatal acts, and when you called an ambulance, you first walked away from Mr Bernath, and placed the baseball bat in another room. You then returned to your father and spoke to him, and he was responding. His eyes were intermittently closing, and at times he was not talking to you. When he stopped responding, you rolled him on his side to prevent him choking on his tongue, and you called an ambulance. You told the jury that the explanation you gave to the triple 0 operator, summarised at [9], was fabricated, because you panicked.
While waiting for the ambulance, you then used a mop and bucket to wipe the substantial amount of blood from the living room floor. On your account, this was to try to help your father.
Once the paramedics had removed Mr Bernath from the house, in order to airlift him to hospital, you closed and locked all of the doors, then took a shower and changed into fresh clothing, before placing various bloodied items, including a cushion cover and a towel, into the washing machine, and starting a wash cycle.
The jury’s verdict reflects a clear rejection of your account, as set out at in these reasons. The findings on autopsy are instructive as to the true nature of your attack upon your father.
Mr Bernath’s death was caused by significant blunt force trauma to the brain and skull, which resulted in extradural, subdural and subarachnoid haemorrhages, as well as bilateral lacerations of the brain tissue, brain bruising, and brain herniation, including in the brain stem. The findings indicated that you struck your father a minimum of three separate and forceful blows to the head. One caused a laceration above the right ear with no underlying skull damage. One caused a serious fracture to the left posterior aspect of the parietal bone, which resulted in three fractures which radiated around his skull. Another, which the expert evidence indicated must have occurred after the blow to the left parietal bone, caused a very large comminuted and depressed fracture to the top right aspect of the parietal bone, which resulted in five bone fragments depressing inwards into the skull cavity. Each of the fractures was also accompanied by considerable laceration and bruising to the head. Mr Bernath also suffered injury to his jaw, a black right eye, and blunt force trauma injuries to his arms described as tram line bruises, which were indicative of his being struck with an elongated object, such as a rod, and consistent with being defensive injuries.[7] Together, the injuries you inflicted on your father resulted in significant blood loss.
[7]T.129.26-30.
Such was the force of your attack, that the baseball bat was cracked along the length of the handle, which you accepted must have occurred during the attack.[8]
[8]T.275.28.
It is clear that your evidence about placing the bat in another room, and mopping the blood up, in the minutes after the attack, is true, although your stated reason for mopping up the blood was clearly false. So, too, was your account of your father having been intermittently responsive during the period between the attack and your call to triple 0. His injuries no doubt rendered him quite incapable of communicating with you or anyone else.
The first paramedics who attended the scene described your demeanour as calm, and detailed observing a pool of blood on the living room floor, as well as a significantly larger ring of dried blood. Your father was unconscious and only responding to pain. He had significant haematomas on both sides of his head.
Once the paramedics had left Mr Bernath’s home, and you had performed the actions described at [17], at 8.41pm that night, after a police member called your phone and asked you to come out the front of your father’s home, you came out, in fresh clothes, and appeared calm, leaning against an external wall as you spoke to police. The police member greeted you with ‘Aaron how are you mate?’, and you responded, ‘Yeah good mate’. At no time did you express or display panic, fear or concern for your father in the ensuing interaction, as recorded on body-worn camera footage. You were arrested shortly afterwards.
Personal background
You are 36 years of age, having been born in Melbourne on 1 December 1988, to parents who were both teenagers at the time. You have one younger brother, with whom you have little contact. Your parents separated when you were one. It was indicated to me that you were not exposed to any family violence as a child, and although the personal details related to me were somewhat sparse, for which I in no way blame Mr Sala, who was limited by his instructions, it was not suggested that there was anything problematic about your background. You were brought up in the Taylors Lakes area. You attended Taylors Lakes Primary School before attending Essendon Keilor College and then Keilor Downs College where you completed year 10. You left school at the age of 15 and travelled to Queensland where you commenced a pre-apprenticeship in construction. At about the age of 17 you returned to Melbourne and commenced an apprenticeship as a cabinet maker. After three years doing that you left before completing the apprenticeship and started working as a painter and decorator, a field in which you worked for the remainder of your working life before being remanded in custody on the current charge. You have largely been in full-time employment throughout your adult life to date. For a time you had your own business as a painter, but the business collapsed during the COVID-19 pandemic. When you were 25, you met Suna Ozbeyhun, with whom you had a daughter in 2020. That relationship broke down at about the time your business collapsed, and those twin events led to you going to live with your father in his home in Maddingley. On your evidence during the trial, you lived somewhat unhappily with him for 18 months to 2 years leading up to his death.
No material was placed before the Court in connection with your medical or psychiatric history. In the written plea outline filed on your behalf, it was indicated that you had spent some time in Sunshine Hospital in 2019 or 2020, and that the details of that admission were unknown to your legal representatives. It was indicated in the outline that this hospital admission was concerning. A subpoena was later issued to Western Health by your solicitors and material was provided to your counsel in response. Mr Sala, who appeared for you during the trial and plea with Mr Dean, indicated that the material was of no assistance, and he did not seek to mount an argument that any of the principles in R v Verdins & Ors (‘Verdins’),[9] had application in your case. Furthermore, Mr Sala indicated that he had received firm instructions from you not to seek to adjourn the plea in order to seek further material.
[9](2007) 16 VR 269 (Buchanan and Ashley JJA and Smith AJA) (‘Verdins’).
Criminal history
A criminal record containing charges arising from five court appearances between 2013 and 2022 was filed in this case. Amongst other things, you were fined for recklessly causing injury in 2013, imprisoned for cultivating cannabis in 2014, and fined again for criminal damage and contravening a family violence intervention order (‘FVIO’) on 18 May 2022. The 2013 injury charge arose from an incident in a night club the year before in which you threw a glass at the head of your former girlfriend.[10] The charge of cultivating cannabis arose from your involvement in the setting up of a crop house for financial reward. The two charges of contravening a FVIO concerned an intervention order taken out on behalf of your former girlfriend Ms Ozbeyhun in November 2021. The charges did not involve the commission of violence.
[10]Not Ms Ozbeyhun.
Victim impact statements
Six victim impact statements were filed in this matter. These were from Mr Bernath’s partner, Ms Mazar-Vergers; the mother of his granddaughter and your ex-partner, Ms Ozbeyhun; three of his friends, Petina Keene, Darren Ellis and Carmel Ring; and his former employer, Harry Modric. All of the statements were read by the prosecutors at the plea hearing.
Ms Mazar-Vergers spoke of her horror at the senselessness of Mr Bernath’s death, and her loneliness following his absence, after spending decades of their lives together. After the initial shock wore off, Ms Mazar-Vergers experienced a flood of emotions, including grief and anger; she has also experienced a flare in her Type 2 diabetes, as a result of the stress arising from this incident. Ms Mazar-Vergers has become socially withdrawn, and is now more fearful and less tolerant of others, as a result of your shocking attack upon your father. And she spoke of the life which Mr Bernath still had ahead of him, to contribute to society through his strong work ethic and skills, and their shared plans to live together. Those prospects have now been taken from her, by your actions.
Ms Ozbeyhun spoke of how your actions have deprived your daughter of a relationship with her grandfather; she will never get to know Mr Bernath’s humour, love, or hear his stories. Her daughter has also been robbed of a safe, loving and present father figure in her life.
Mr Ellis described Mr Bernath as his best mate, and a bloke that you could always rely on. He also described the vital support that Mr Bernath provided to him after a personal loss, and the sadness he feels now in attending car shows, which was something the two of them used to do together.
Mr Bernath’s former employer and colleague, Harry Modric, spoke of Mr Bernath’s loyalty, reliability, humility and good character. Similarly, his friend Carmel Ring described Mr Bernath as kind and protective, humble and respectful, and as someone who valued connection with people through true conversations. Ms Ring bemoaned the fact that her family and friends had been robbed of a person who did not deserve to have his life cut short.
And in tragic irony, several of the victims spoke of Mr Bernath’s pride in you as his son. Ms Keene, who was a friend of Mr Bernath’s for over 15 years, said in her statement that Mr Bernath ‘always spoke so proudly about his son to the point that at times, I’d wished he’d had more children to share all the love he had for them’.
I reiterate what I said to the victims during the plea hearing, which is that I commend and thank them for their courage in being able to put into words the devastating effects of your crime.
And I take into account, as I am required to do pursuant to s 5(2) of the Sentencing Act 1991 (‘the Act’), the contents of the victim impact statements.
The nature and gravity of your crime
From the acceptable evidence before me, it is impossible to glean any motive for your murder of your father. Your exculpatory account was promptly, and unsurprisingly, rejected by the jury. I am satisfied that there is absolutely no truth to the claim you made that your father went to physically attack you with the baseball bat. Your account was far-fetched, and bore no realistic connection with normal human behaviour. It is preposterous to think that your father, a man in his 60s who had been good enough to permit you, his son in his thirties, to live rent-free in his home for an extended period, and who had no history of violence towards you, would have launched an attack upon you with a baseball bat for so little provocation as you claimed in your evidence. I am satisfied beyond reasonable doubt that there was no such attack commenced by your father. I am satisfied beyond reasonable doubt that a perceived desire to protect yourself from an attack upon you played no part in your offending. There is very little of your evidence which I would be content to rely upon, save for what you said as to the circumstances surrounding your commencing to live with your father, the duration of your residence with him, and the strained nature of your relationship with him, including the action you took some weeks before the incident to deliberately damage his motor vehicle. Also likely to be true is what you said about your past relationship with your father. You indicated that he had never physically assaulted you, with the exception of childhood disciplining. There is no evidence which I would accept that would suggest that in any way, your father offered any provocation to you in the lead-up to the attack. As to why you launched this attack upon him, the acceptable evidence is completely silent.
As to the nature of your attack, the findings from the autopsy conducted upon your father graphically illustrate the considerable ferocity of your attack upon him. As well as the forceful blows you struck to Mr Bernath’s head, as evidenced by the skull fractures, lacerations and bruising, there were several more blows which you inflicted upon your father, but which he was able to at least partially parry, leading to the defensive, tram line wounds to his arms. I think it is highly likely that these fended off blows occurred before the first of the head blows which fractured the skull to the left side. As noted already, the expert evidence indicates that by the time of your blow with the bat to the top right aspect of the parietal bone of your father’s head, you had already severely fractured his skull on the left hand side, with fractures radiating around the cranium. Although the evidence was silent on this point, it seems to me highly likely that your father was unconscious as a result of that blow to the left of the head. At the very least, you had rendered him completely helpless before you inflicted the horrific injuries to the right side of his head. The autopsy photographs and other imaging of the skull fractures made for sobering viewing, and the overall appearance is of an attack of marked savagery.
To strike a person once with a baseball bat to the head is a very serious mode of the infliction of serious injury. Your attack upon your father involving at least three separate and forceful strikes to the head and other strikes which were warded off as he desperately, but in vain, tried to protect his head, was a most brutal and violent one.
Your attack was upon a man in his 60s, who was much shorter and lighter than you, and was unarmed. And you were in a position of trust relative to your father. Your killing of your father was an act of family violence. He should have been able to look upon his son as someone who would protect and look after him, not treat him with violence and disdain as you did. The attack also occurred in your father’s home, which he had allowed you to live in for some time. Mr Bernath was entitled to feel safe within his home.
As you went about repeatedly striking your father, you must have felt, heard, and fully understood the great force of your blows, and the damage caused by them. Having inflicted these horrific injuries upon him, you knew that he was gravely injured and was in urgent need of medical attention. And yet your reaction was to wait for 17 minutes before calling for assistance. And then you lied to the triple 0 operator about what had happened, and about the dire medical condition you must have known your father to be in. Before the attendance of the ambulance officers, you made some attempts to clean up the blood at the scene, and when the officers arrived, you repeated your lies about what had happened to your father. Then, prior to the arrival of the police, you hid the weapon, had a shower, changed your clothes, and placed bloodstained items in the washing machine and turned it on, before belatedly, and calmly, walking outside the front of your house and greeting the police.
Mr Sala sought to make something of your having called for assistance from triple 0, albeit that you waited 17 minutes before doing so. He submitted that it would be unusual for someone in the aftermath of a murderous attack to summon assistance, and that your having done so reflected, to some extent at least, favourably upon you, showing you to be not completely callous.
I do not agree. Your eventual call to triple 0 reflects no more than a realisation on your part that your attack upon your father would soon come to the attention of the authorities, and that you had better report the incident. The fact is that from the time you carried out this murderous attack upon your father, right up to the day of the plea hearing, you displayed a somewhat unnerving, and very obvious, lack of concern for the fate of your father. This was apparent in your lies and unconcerned manner when you spoke to the triple 0 operator and attending paramedics. It was apparent in your statements made to and demeanour observed by the police upon their attendance. It was apparent throughout the trial, during which I had ample opportunity to make observations of you. It was apparent on the days of your plea hearing.
You ran a trial, which was your right, and put forward a dishonest defence which was correctly rejected by the jury. I do not hold it against you that you pleaded not guilty and ran a trial, which, as I said, was your right. Nor do I hold it against you that you advanced a dishonest and implausible defence. I simply make these observations in connection with the issue of remorse, which was addressed by Mr Sala, and in connection with the matters of your prospects of rehabilitation, and the need for community protection from you.
Mr Sala frankly and correctly conceded in his written and oral submissions that there is no evidence of remorse in your case. I would go a step further. I am satisfied that, even now, getting up towards two years since your crime, you continue to feel no regret or sadness about what you did. I hasten to add that the absence of remorse is not an aggravating feature in your case. Rather, it represents the absence of a feature which might have been mitigating. But a lack of remorse is relevant to the assessment of some of the purposes for which sentence must be imposed upon you.
Mr Sala submitted that I would not be able to be satisfied beyond reasonable doubt that you had an intention to kill at the time of the attack as opposed to an intention to inflict really serious injury. He pointed to your call to triple 0 in support of this contention, notwithstanding the delay before the call was made. Mr Shaw, who appeared during the trial and plea with Ms Deltondo for the Crown, did not urge me to find an intention to kill. He submitted that there would be no difference in a murder of this kind, from a sentencing perspective, whether the intention was to kill or cause really serious injury. He submitted I should simply assess the objective gravity of your crime and your moral culpability, and that the precise intention you had was not important.
As I indicated to your counsel during discussion, there are aspects of your case which would point towards the prospect of your having had an intention to kill at the time of this attack. These included the considerable ferocity of the attack, the long delay before you summoned assistance, and your uncaring demeanour from the time you attacked your father.
However, in the circumstances of this case, it is unnecessary for me to reach a concluded view about your precise state of mind. It is enough that it was a murderous one. It is true that in some cases, the evidence will clearly permit a sentencing judge to conclude that the offender’s intention was to kill, and this will be a matter which aggravates the seriousness of the offending. This is so, for example, in the case of a planned murder. But in many cases, especially cases of unplanned killings which may have been carried out on the spur-of-the-moment, there is no difference in gravity between a killing carried out with an intention to kill as opposed to an intention to inflict really serious injury. That is the case here. On any view, whether you intended to kill or cause really serious injury at the time of your attack upon your father, this was a serious instance of the crime of murder.
Mr Sala submitted that, based on its objective circumstances, your crime should be viewed as being in the middle of the range of seriousness. Mr Shaw submitted that in light of its many aggravating circumstances, your crime, based on its objective circumstances, ‘is clearly above the middle range’.[11]
[11]Transcript of Plea Hearing, DPP v Bernath (Supreme Court of Victoria, Tinney J, 4 July 2025) 63.
Whether the classification of a crime of murder into a particular band in the spectrum of seriousness will be helpful when it comes to formulating a sentence is questionable. Of course, what must be considered by a sentencing judge in arriving at an appropriate sentence is not which band a particular crime of murder falls within, but all of the features of the individual crime, and all of the aggravating and mitigating circumstances applicable to the offender.
In this case, it is obvious that your murder of your father, with its many aggravating features, was a very serious instance of the crime of murder. It is equally obvious that your moral culpability is very high. There is no evidence to suggest that you had any mental or drug-induced impairment which relieved you of a normal adult appreciation of the horrendous nature of your attack, and precisely how serious and unforgiveable your conduct was.
Standard sentence scheme
As your crime was 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.
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.
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.
The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen (‘Brown’).[12] 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.[13]
[12][2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
[13]Ibid [4].
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
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.
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.[14] 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.[15] I have endeavoured to do that in some detail during these reasons for sentence.
[14]Muldrock v The Queen (2011) 244 CLR 120 [29] (‘Muldrock’).
[15]Muldrock (n 14) [29].
In arriving at the sentence I will shortly pass upon you, 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 announce.
Current sentencing practices
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 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.
This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[16]
[16]R v Brown [2018] VSC 742 [111] (Champion J).
The prosecution, in an appendix to its written outline, set out brief summaries of seven cases in which sentences were passed upon offenders for murder since the coming into effect of the standard sentence legislation. Most of the cases concerned murders committed in a family violence context. Four of the seven cases involved pleas of guilty. Several of the cases involved Bugmy v The Queen (‘Bugmy’)[17] and/or Verdins issues.
[17](2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Bugmy’).
Mr Sala, in his written outline, set out summaries of four cases of sentences for murder. Two of the four cases were not standard sentence cases, and three of the four were cases of pleas of guilty.
In understanding current sentencing practices for murder, I have had regard to the sentences passed in those cases drawn to my attention which occurred after the standard sentence scheme came into effect. I have also had regard to sentences passed in other cases of murder since the standard sentence regime commenced in arriving at the appropriate sentence for you.
The few words I stated in respect of the cases specifically drawn to my attention by counsel serve to illustrate the obvious point that each case is to be decided on its own merits. Many of the cases referred to by counsel contained circumstances in mitigation, such as pleas of guilty or reliance upon the principles in Bugmy or Verdins, which are not present in your case. Of course, some of the cases involved offending even more serious than yours.
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.
Non-parole period
If I sentence you to a head sentence of 20 years or more, I am required by s 11A(4) 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 70 percent of the head sentence. The head sentence I impose will be greater than 20 years.
Mr Sala did not seek to argue that I should impose a non-parole period of less than 70 per cent of the head sentence.
Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, the non-parole period I will fix will exceed 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. I indicate that I have considered the magnitude of the non-parole period I will shortly announce relative to the head sentence. Whilst the law makes it clear that there is no ‘usual’ non-parole period for a given head sentence,[18] I am conscious of the fact that the non-parole period I will set will represent a higher proportion of the head sentence than would sometimes be the case. Nevertheless, I have decided that the non-parole period I will impose is the minimum term that justice requires you to serve, given all of the circumstances, before being eligible for parole.[19] It will still provide for the potential of a lengthy period of supervision in the community on parole, should you qualify for parole at the end of your minimum term.
[18]Wallace v The Queen (2012) 35 VR 520 [16] (Maxwell ACJ and Buchanan JA).
[19]DPP v Josefski (2005) 13 VR 85 [43] (Maxwell P) citing R v VZ [1998] 7 VR 693 (Phillips CJ, Callaway and Batt JJA).
Prospects of rehabilitation and question of need for community protection
Some attention was focused by Mr Sala during the plea hearing upon two related matters, namely, your prospects of rehabilitation, and the relevance of the need for community protection in your case. In respect of the first matter, he submitted that notwithstanding the circumstances of your crime and your lack of remorse, your prospects of rehabilitation ‘must be viewed as good’.[20] He relied upon your limited criminal history, especially for violent offences, your solid work history, and your pro-social life prior to your separation from your partner, in support of this contention. In respect of your criminal history, he described it as negligible, and submitted that you have not exhibited a propensity for violence.
[20]Defence Plea Submissions, 30 June 2025 [4].
In respect of the matter of community protection, Mr Sala relied upon the limited nature and extent of your criminal history, lack of any history of drug or alcohol abuse, and good prospects of rehabilitation, in support of his contention that you do not present an ongoing risk to the community, and that community protection therefore does not assume much significance in your case. He submitted that your crime was committed in a domestic setting, rather than against a stranger or unknown person, reducing the risk that you may offend similarly in future. He pointed also to the significant period of time you will undoubtedly be required to serve in custody before being eligible for parole as a factor which further reduces the risk you pose.
I accept that your criminal history is a relatively limited one, although I note that you do not come before the Court as a person of good character. You have been dealt with on several occasions for crimes of varying types, and received a significant term of imprisonment for drug offences. You have also been dealt with more than once for offences committed against former partners. Having said that, your criminal history is not of as much significance as is sometimes the case.
Your work history is of course to your credit, but as to the contention of your having led a pro-social life prior to your separation from your partner, no material was placed before me which threw light on that. There were also no character references provided in support of your plea.
In light of the gravity of your crime, the fact that your reason for murdering your father is entirely unclear, and your clear lack of remorse for your offending, I do not accept that your prospects of rehabilitation must be viewed as good. The onus was on you to satisfy me of that proposition on the balance of probabilities. You have not done so. I am far from satisfied that you have good prospects of rehabilitation. If you, a mature person, unaffected by alcohol, drugs or mental infirmity, were prepared to brutally murder your father as you did, for no apparent reason, and then, almost two years after the event, remain entirely unrepentant, I ask, rhetorically, why should I be confident that you may not commit an act of extreme violence in future? The fact that your offending in this case was in a family violence context, rather than directed towards a stranger, was a matter relied upon by your counsel. That would provide the Court with little comfort that you may not, at some time in the future, offend again in a family violence context, or indeed, that any future violent conduct in which you might engage would necessarily be limited to a family violence context.
As I made clear to Mr Sala during the plea hearing, my concerns about your prospects of rehabilitation do not mean I consider you to be beyond rehabilitation or redemption. Of course you are not. But your prospects of rehabilitation will no doubt be connected with the extent to which you become willing and able, with the passage of time, to accept responsibility for your crime, and acknowledge the serious criminality of your actions. You are not at that point now. As I see it at this stage, your prospects of rehabilitation are not positive. Rehabilitation will not cease to have relevance, however, and will hopefully be fostered by the lengthy period of time which you may spend in the community on parole, should you be deemed an appropriate candidate for that in future.
For similar reasons, I do not accept that community protection is unimportant in your case. On the contrary, I think it is one of the important purposes to be served by the sentence I impose upon you.
Important sentencing considerations
As I have already indicated, your murder of your father is a serious instance of an always-serious offence. The sanctity of human life can never be forgotten. There is nothing to indicate that your father was anything other than an entirely blameless victim of your unbridled aggression and violence. For mysterious reasons, in brutal and callous fashion, you bashed him to death with a dangerous weapon which you yielded to great effect. In doing so, you took away the life of a much-loved and valued member of his family and the community. It is a tragedy for which you are fully responsible.
Your crime was committed in a setting of family violence. In Felicite v The Queen,[21] a case which concerned the murder of a domestic partner rather than a parent, the Court of Appeal stated:
The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust, upon which our society rests. The sentence must reflect both the sanctity of human life and society’s abhorrence of violence towards vulnerable and trusting partners, who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress.[22]
[21](2011) 37 VR 329 (‘Felicite’) (Redlich JA, with whose judgment Harper JA and Robson AJA agreed).
[22]Ibid [20] (citations omitted).
Those principles have application in this case.
To my mind, the important purposes for which sentence must be passed in this case are just punishment, denunciation, general deterrence, specific deterrence and protection of the community.
You must be punished in a way which reflects the seriousness of your crime and amounts to an appropriate response to it. The sentence must communicate in clear terms this Court’s condemnation and disapproval on behalf of the community of your violent and senseless criminal conduct which took away the life of an entirely blameless man who, in his 60s, was good enough to permit you to live in his home when you were in a time of need. His life was precious to his partner, family and friends and to the community in which he lived. When you killed your father, you acted in the clear knowledge of the wrongfulness of your conduct. Your crime was not planned in any way, but it was nonetheless vicious and entirely uncalled for.
In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out an attack upon a family member, especially with the use of a dangerous weapon, that if such conduct results in the death of another, or injury to another, it will be met with very strong punishment. You must also be specifically deterred from any future violent actions to which you may be disposed. There is nothing about the circumstances of this case or your own circumstances which would indicate specific deterrence should not play its usual role in the sentencing synthesis.
As for rehabilitation, I do not ignore that as a sentencing consideration, but it must obviously take a back seat to more important sentencing purposes in your case.
Sentence
Aaron Bernath, for the murder of George Bernath, you are sentenced to be imprisoned for 28 years.
I fix a period of 23 years during which you will not be eligible to be released on parole.
I declare a period of 656 days up to and including yesterday, 27 October 2025, 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.
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