R v Heron

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0007

Between:
THE KING
-and-
STUART LINDSAY HERON	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2023
DATE OF SENTENCE:	8 September 2023
CASE MAY BE CITED AS:	R v Heron
MEDIUM NEUTRAL CITATION:	[2023] VSC 539

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CRIMINAL LAW — Sentence — Murder — Accused, infatuated with NC’s girlfriend HB, agreed with her to confront and assault NC — Accused believed NC abusive to HB, including filming of sexual acts with her and distributing to others — Pursuant to plan with HB, accused stalked NC, laid in wait in carpark near his apartment, then accosted him, albeit being armed was beyond plan with HB — NC resisted — In course of struggle, accused departed radically from plan and assaulted NC repeatedly with hammer and knife, for ten minutes, killing him — Assault premeditated for days, but murder spontaneous — Horrific injuries — Brutal killing — Intention to kill — Motive for confrontation plain, but motive for murder unclear — Objectively serious instance of murder — Offer to plead guilty to statutory murder rejected — Plea of guilty to common law murder — Remorse — Attempted suicide in prison — No prior convictions — Positively good character — Strong prospects of rehabilitation — Hardship of prison conditions given mental ill‑health and pandemic restrictions — Significant weight to general deterrence, denunciation and just punishment — Significant but lesser need for specific deterrence and community protection — Importance of rehabilitation — Parsimony — Current sentencing practices — Standard sentence offence — Sentence of 22 years’ imprisonment with non‑parole period of 15 years — But for plea of guilty, sentence of 27 years’ imprisonment with non‑parole period of 21 years — Sentencing Act 1991 (Vic), ss 5, 5A, 5B, 6AAA, 11A & 18; Crimes Act 1958 (Vic), ss 3 & 3A.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E Ruddle KC with Ms A Singh	Abbey Hogan, Solicitor for Public Prosecutions
For Mr Heron	Mr R Backwell	May Lawyers

HIS HONOUR:

Overview

It was just past midnight when Nicholas Cameron stepped out of his twentieth‑floor apartment in Southbank with his little white terrier, Misty. They headed down to his red hire car, which was parked on the third level of the adjacent carpark. As they neared the car, Misty’s quizzical look and brief pause suggested she sensed a foreboding presence. She was right. Mr Cameron, however, failed to notice a thing. He had no idea that Stuart Heron, a man he did not know and had never met, was lying in wait for him in the shadows with violence on his mind.

Mr Heron first walked, then ran, towards Mr Cameron. He had agreed with Mr Cameron’s girlfriend Heide Bos to confront and assault him, perhaps to kidnap him, but nothing more. Ill‑conceived though it was, the aim was to put the frighteners on Mr Cameron to ensure he left town and let his troubled girlfriend be.

But, at some point during Mr Cameron’s inevitable spirited resistance, Mr Heron snapped and went way beyond that plan, by attacking him with a knife and a ball‑peen hammer, ferociously and brutally. While CCTV in the carpark shows Mr Heron approaching Mr Cameron, their confrontation and the attack are out of camera range. All that can be seen is the red car rocking every now and then as one or both of the men must have bumped up against it during the struggle. Incredibly, this went on for around ten harrowing minutes. Mr Cameron had no chance. Unsurprisingly, Misty took fright and scampered away.

Upon hearing screams for help, neighbours rang police, who arrived within minutes. Almost immediately, they came across Mr Heron, and cornered him near a lift. A blood‑soaked knife was next to him on the floor. On his person, he had a hammer, also covered in blood, as well as handcuffs, a Leatherman, and a dog lead. He told police he “stabbed a fuckin’ ice dealer”.

With the help of neighbours, police found Mr Cameron beside the car, bloodied and in a very bad way. Paramedics tried desperately to save him, but his head injuries, which were horrific, were far too grave. Tragically, he died there and then. He was only 39.

Unbeknown to Mr Cameron, two months earlier, Mr Heron and Ms Bos had met on Fetlife, a social networking website for those interested in BDSM, fetishism, and kink. Thereafter, Ms Bos acted as a domme, and Mr Heron as her slave, in a fantasy dominant/subservient relationship conducted via messaging services.

Their hare‑brained scheme had its genesis in Ms Bos’s complaints about the way Mr Cameron treated her. While sometimes nice and understanding, Mr Cameron was often nasty and controlling, seemingly incessantly belittling, albeit never physically violent. Disturbingly, though, he had filmed her participating in sexual acts, and had shared the recordings with others, without her consent. Ms Bos told Mr Heron these things. She had had enough. About a week before the killing, while at her CBD apartment, she raised with Mr Heron the idea that he might physically confront her boyfriend. Could you make him leave town? Yes, my lady, I can be very persuasive.

A few days later, armed with information provided by Ms Bos, Mr Heron stole Mr Cameron’s lockbox, entered his building, and staked out his apartment. He conducted further creepy surveillance on another occasion as well.

By the night of 9 July 2021, Mr Heron had agreed with Ms Bos that he would confront Mr Cameron at his building, with violence, so as to make him skip town or otherwise leave her be. Right up until just before the fatal attack, Ms Bos was aware that Mr Heron was lurking in the carpark, waiting for the unwitting Mr Cameron so that he could carry out their flawed plan. But she had no idea that he had weapons or that he would attack him so mercilessly, let alone kill him.

I am unable to say with confidence what caused Mr Heron to depart from the plan so radically. He was infatuated with Ms Bos, and sympathised with her deeply. He was very lonely, and knew his love for her was not reciprocated, but he was hopeful for the future. In the short term, he was concerned for Ms Bos’s safety, as he believed Mr Cameron’s behaviour was escalating. He took the knife to threaten him and the hammer to smash the recordings of Ms Bos’s private sexual acts. But why he snapped and beat Mr Cameron so viciously, to the point of murdering him, may remain a mystery for all time. He has admitted that Mr Cameron resisted, that he struggled with him for ten minutes, and that he hit him with the hammer and stabbed him with the knife, but he has not really explained why he murdered him. He may not know, or even want to find out.

What he does know is that he now wishes he had never gone there and had notified the police instead. He is distraught at what he has done, to the point of attempting suicide soon after his arrest, for he now fears he may have killed an innocent man. It is as if he wishes he could have known enough of love to leave love enough alone.[1]
[1]Apologies to Australian singer-songwriter Doug Ashdown and British songwriter Jimmy Stewart, who wrote Leave Love Enough Alone in 1974, with quite a different theme in mind. Sung by Mr Ashdown, the song was re‑released as Winter in America in 1976, and became a hit in Australia, the Netherlands and Belgium.

For her part, Ms Bos pleaded guilty to manslaughter following a sentence indication late last year. On 22 February, I sentenced her to six years and three months’ imprisonment with a non‑parole period of three years and three months.[2]
[2]See R v Bos [2023] VSC 68.

On 14 March, Mr Heron was arraigned, and he pleaded guilty to murder.

On 17 August, I heard a prosecution opening from Ms Ruddle KC, who appeared with Ms Singh for the Director of Public Prosecutions. I also heard victim impact statements from members of Mr Cameron’s family, who, naturally, are devastated at their loss. Then I heard a plea in mitigation delivered by Mr Backwell, who appeared for Mr Heron.

It is now my duty to impose sentence. I have found it more difficult than usual to arrive at what I consider to be a just and appropriate sentence in this particular case. Objectively, Mr Heron’s crime is dreadful and disturbing, and deserving of heavy condemnation and condign punishment. Yet he is, in essence, a good person who is terribly troubled at the horror of what he has done, and wishes to take responsibility for his crime. He has otherwise led a blameless life and, I am persuaded, has strong prospects of rehabilitation in the longer term.

Before announcing the sentence on which I have settled, I shall set out, in greater detail, the relevant circumstances and discuss the competing considerations that must be synthesised in performing this task.

Summary of offending and surrounding circumstances

Agreed summary

The following summary of facts is taken largely from the opening read by Ms Ruddle.[3] As I understood it, the facts alleged in the opening were accepted by Mr Backwell.

Nicholas Cameron

[3]Much of what I am about to say regarding the facts also appears in my reasons for the sentence imposed on Ms Bos (R v Bos [2023] VSC 68), although, of necessity, there are some differences.

Nicholas Cameron was born on 1 November 1981, and would have turned 40 on his next birthday. He was the first of two children of Mary O’Brien and Christopher Cameron.

He grew up in the Warragul area and went to St Joseph’s Primary School before attending Marist Sion Catholic College.

He adored his sister Gemma. They were very close growing up, and lived together for three years in their twenties.

Mr Cameron was a keen and talented country footballer. He played in premiership teams and won best and fairest awards.

In June 2020, he commenced a relationship with Marnie McAlister. Their child was born in November 2021, only four months after he died.

In September 2020, Mr Cameron and Ms Bos met on a dating website and formed a relationship. While they did not live together, Ms Bos would stay with him at his apartment in Southbank around three to five nights a week.

Mr Cameron had his own business as a landscaper. This work stopped suddenly as a result of lockdowns during the pandemic. Subsequently, he was unemployed and in receipt of Centrelink payments.

Mr Cameron was a long‑term user of methamphetamine (or “ice”). At the time of his death, he was engaged in selling the illicit drug at a low level in his local area to supplement his income and support his habit.

Stuart Heron

Stuart Heron was born in Canberra in June 1973. He was 48 at the time of the offending, and is now 50.

After moving to Victoria, he built a house on a rural property in Castella, about 80 kilometres east of Melbourne, near Kinglake, where he lived alone. He worked from home in his trade as a diesel mechanic.

Heide Bos

Heide Bos was born in Melbourne in March 1985. She was 36 at the relevant time. She was living alone in an apartment in the Melbourne CBD.

The killing of Mr Cameron

I turn now to the offending in more detail, commencing with the killing of Mr Cameron.

Mr Cameron knew nothing of Mr Heron, and they had never met. But Ms Bos had told Mr Heron plenty about Mr Cameron.

At 8:05 p.m. on 9 July 2021, Mr Heron went to Mr Cameron’s apartment building at 152 Sturt Street in Southbank. He waited on the street near a red car he thought was leased by Mr Cameron.

At 10:37 p.m., when he realised he had the wrong red car, he entered the building’s adjacent carpark through an open roller door. He walked up the ramp to the third level and waited there near what he now understood was the right car.

At 12:01 a.m., Mr Cameron left his apartment on the twentieth floor with his little white terrier, Misty. He exited the building onto the third level of the carpark and made his way to his car, with Misty in tow.

When they arrived, Mr Heron, who had been waiting behind a pillar, emerged from the shadows, walking, then running, towards Mr Cameron with a knife in his hand. He attacked his helpless victim with the knife and a hammer for what must have been the best part of ten minutes. I say ten minutes because, according to the timestamp on the CCTV, seconds after Mr Cameron reached the driver’s side of his car and then went out of camera shot, Mr Heron ran to the same spot at 12:01.40, when he too went out of shot. Then, Mr Heron came back into shot as he left the scene at 12:12:04. Further, during much of that period, the red hire car, only the front of which is visible, rocked slightly every now and then, which must have resulted from Mr Heron and/or Mr Cameron coming into contact with it during the attack.

As I indicated earlier, Misty’s quizzical look suggested she sensed Mr Heron’s presence as she and Mr Cameron approached the car. In any event, soon after the attack started, she took fright and ran away. Later, she was found, unharmed, on the third level of the building.

At the same time, neighbours heard shouting emanating from the carpark, and the car alarm. Mr Cameron was screaming for help, saying “oh, no, no, no, no” and “stop, stop”. Neighbours called triple‑zero.

At about 12:07 a.m., Senior Constable Todd Fowler and Constable Patrick Carroll arrived on the scene. They activated their body‑worn cameras.

Dene‑Marie Middleton, a neighbour, met police in the foyer of the building and gave them access to the third level. She had heard moaning coming from the carpark. She then noticed a man push past her and press the lift button to go down. It was Mr Heron. She screamed out to the police, “It’s him, go!”

The officers then apprehended Mr Heron in front of the lift. A large knife covered in blood was on the floor next to him. Nearby were also a torch and a key fob attached to a set of keys belonging to Mr Cameron. Mr Heron said, “I stabbed a fuckin’ ice dealer.” He was arrested, for assault initially. He said he had a hammer in his pocket. During a pat‑down search, Senior Constable Fowler found the hammer, which was also covered in blood. In addition, he was in possession of a Leatherman, silver handcuffs with blood on them, a dog lead, a smart phone, and a lighter. When asked where the victim was, Mr Heron said, “In the carpark, right up the end of Level 3.”

Senior Constable Fowler directed Ms Middleton and other neighbours to find the victim and come back. They found Mr Cameron lying on the floor in the narrow gap between a concrete wall and his hire car. It can be inferred that at least some of the attack occurred in that position. He was covered in blood, panting heavily and groaning.

Paramedics attended the scene and tried desperately to resuscitate him, but he could not be saved. They ceased resuscitation at 12:38 a.m., and declared Mr Cameron deceased at 12:45 a.m.

Mr Heron was taken to Melbourne West Police Station, where he was charged with murder. When interviewed, he exercised his right to silence.

Later, police searched his white Landcruiser, which was parked near the apartment building. In the centre console, they found a notebook containing personal information about Mr Cameron, including details concerning his address, his movements, and locations of his valuables and drugs.

Autopsy

The next day, pathologist Dr Linda Iles conducted an autopsy. Mr Cameron had sustained extensive blunt force head injuries, including fourteen discrete areas of lacerations to the scalp, open comminuted skull fractures, a haemorrhage, and disruption of brain tissue. He also had suffered two stab wounds, one to the right side of the face, and the other a penetrating wound on his anterior abdominal wall. Dr Isles found that his death was caused by multiple blunt force head injuries.

Connection between Ms Bos and Mr Heron

On the evening after the killing, Ms Bos’s friends Samantha Roberts and Timothy Hale comforted her over the death of Mr Cameron, who was their friend too. They looked up the name Stuart Heron after a news service had reported that he was the person responsible. Ms Bos said she did not know the name and had not met anyone meeting his description. These were lies.

On a later occasion, Ms Bos told Mr Hale that Mr Cameron had parked his hire car in the space allocated to another apartment, and that his killer was probably waiting in the corner of the carpark. These details were not in the media at that time.

On 24 July 2021, in a statement to police, Ms Bos repeated the lies she had told her friends. She also said that, two nights before he was killed, Mr Cameron told her that his lockbox had been stolen. This was true, but she deliberately omitted that she knew Mr Heron was the culprit. She also suggested, falsely, that the local council might have removed it.

On 4 August, police found a connection between Mr Heron and Ms Bos by identifying a bank transaction in which he had paid her $2,000 for “rent”.

In Mr Heron’s mobile phone, police found two significant folders: one marked “Heide”; the other, “target”. The “Heide” folder included photos of Ms Bos, screenshots of Snapchat messages of her talking about Mr Cameron, a receipt for the $2,000 payment Mr Heron made to her, and screenshots of KIK messages. In one of the messages, Ms Bos had said how she “love[d] that dumb cunt and I hate him for treating me like he has”. In the “target” folder, relevant information included screenshots of an internet listing for Mr Cameron’s apartment and a floor plan, photos of Mr Cameron and Misty, messages between Ms Bos and Mr Cameron under the name “Dermott the Kid”, and a code for his lockbox.

As we have seen, Mr Heron and Ms Bos met two months earlier on Fetlife. Ms Bos’s handle was “Hedonisticsiren”. She described herself as a domme, and said the following in her profile:

I am above you in every single way possible … [If] you honestly believe that I would be contented by simply punishing you or having you do my dishes you are truly deluded and entirely living in a fantasy of your own making. You are a pathetic scrap of an excuse mimicking human life.

Mr Heron’s handle was “slavepinto”. In his profile, he said this:

[I] pride myself in my service, which includes being Her personal play toy, cook, cleaner, masseuse, handyman, builder, and mechanic, among other things.

From 9 May, Ms Bos and Mr Heron would communicate on an almost daily basis, several times a day. They did so via SMS, KIK and Snapchat. From this time, they were in a dominant/subservient relationship or dynamic. Mr Heron thereby became Ms Bos’s “slave”. He told her he was into:

humiliation, degradation and objectification slut my Lady! Can’t get enough! TPE. Bondage, chastity, punishment. Sissification.

In response, Ms Bos said, “Lol I can work with all of those hahaha.” He also told her he was into “being forced to do anything my Lady desires, with no regard for my opinion or desire”.

On 31 May, Mr Heron and Ms Bos had arranged to meet up. Mr Heron went to Ms Bos’s apartment building and waited for nearly an hour. However, she never answered the door. Later, Ms Bos messaged Mr Heron and said:

Omg!!! I am so sorry I fell asleep and didn’t hear the buzzer at all!! Oh I feel so terrible I am so so sorry.

Mr Heron responded:

[P]lease don’t be sorry my lady… I will be your slave for life my lady, whether you want me or not! I will always be here, ready to serve your every command, if you want me my lady!

Events leading up to the murder

Ms Bos and Mr Cameron had a volatile relationship. They were verbally abusive to one another, and had periods of estrangement.

Commencing on 10 May, Ms Bos divulged to Mr Heron, via messages, the difficulties she was having with her boyfriend. She said he made her laugh but also made her “feel so dreadful and so insecure and needy and stupid”. On 26 May, she called him an “ungrateful fuckwit”. On 5 June, she said she had “a shit time with the old fuckface loser … he’s just got a way of hurting me that’s very unique and nasty”.

In a message, Mr Heron told Ms Bos:

[S]eriously, Heide, if you need anything at all, or just want to take your mind off the shit, or don’t want to be alone and just need some company, just let me know!

On about 1 July, Mr Heron went to Ms Bos’s apartment in the CBD. Her friend James Frey was there too. At this meeting, Ms Bos first raised the plan that Mr Heron might physically confront “Chad” (viz, Mr Cameron). She asked Mr Heron whether it was “possible to get someone to leave town, and it not to come back to me”. He said he had done it before and could be very persuasive, and that Chad would be hurt and in pain but would be able to leave within twelve hours.

On the same day, in messages to Ms Bos, Mr Cameron claimed, falsely, that she had stolen cash and drugs from him, said that she was a master slut and manipulator, and a “sad piece of work”, and also that she had done a good job of fucking up his life. Ms Bos sent screenshots of these messages to Mr Heron.

As her slave in their fantasy relationship, Ms Bos’s unhappiness was Mr Heron’s unhappiness. As she explained in her interview with police after her arrest:

[T]hey’re beneath you and [their], like, happiness is your happiness, so anything they can do to make your life more simple, easy, whatever — yeah. I mean, … in an ideal world, … that’s what they would do. … They just want to kind of, like, cater to your whim.

From the time of the meeting on 1 July, the plan to confront Mr Cameron was developing. Ms Bos told Mr Heron her boyfriend’s real name and that he lived in the west tower of the Sturt Street apartments. Between 1 and 2 July, Mr Heron searched for these details on the internet. Ms Bos also told him that, on a power pole outside the building, Mr Cameron kept a lockbox containing an access key fob and his apartment key.

On 4 July, Mr Heron went to Mr Cameron’s building and familiarised himself with the complex. He stole the lockbox from the power pole, and then used the access key fob to enter the building. He took the lift to the twentieth floor and stood outside Mr Cameron’s door. He removed a weapon from his backpack but did not enter the apartment. He then poked around the building’s adjacent carpark. He was in and around the complex for about seven hours.

On the prosecution case, by 8 July, the two accused had come to an agreement that Mr Heron would physically assault Mr Cameron, steal valuables from his apartment, and also potentially kidnap him. Ms Bos messaged Mr Heron about this plan and said:

I wish I could come and give this cunt a good kick in … [I’d love him] to watch while we took all the valuation out [of] the apartment … [He] accused me of stealing such little things which I never did … I always said if I were to take [from] him I [would fucken] take everything from him … cunt.

By this time, Ms Bos had also told Mr Heron where Mr Cameron’s two safes were located, and at what times he would be home. Mr Heron recorded this and other information in the notebook later found by police in his Landcruiser.

On 8 July, Ms Bos borrowed Mr Cameron’s hire car and went to visit their friend Mr Hale. Meanwhile, Mr Heron went to the apartment complex again, where he watched Mr Cameron exit the building with his dog. Just before he left, he messaged Ms Bos, saying this:

I just saw the shit cunt bring down Misty for a wee, so I’m going to assume that you’re not there anymore and that you’re either asleep or busy. So, I’ll head home. But if you wake up or something and you’re up for it, let me know and I’ll come back in, my lady.

Later that day, Ms Bos returned to Mr Cameron’s apartment, and stayed the night with him.

The next morning, on 9 July, Ms Bos and Mr Cameron argued. Ms Bos left the apartment at around lunchtime. They exchanged messages and voice clips throughout the day, and continued to argue. Mr Cameron accused her of fishing for an argument, and said, nastily, it was because of her mental health. She accused him of gaslighting her, and of seeing other women. She rejected his offer of a massage.

From 3:57 p.m., Ms Bos messaged and called Mr Cameron, asking for help. He responded to those messages and attempted to return her calls. At 3:59 p.m., Ms Bos also sent a message to Mr Hale saying, “Help.” She spoke to Mr Hale on the phone, and told him her back was hurting. Mr Hale then called Mr Cameron and told him he needed to go and check on Ms Bos. Mr Cameron said he had spoken to her, that she was probably seeking attention, and that there was nothing wrong with her.

The night of the killing

During the night of 9 July, Mr Heron decided with Ms Bos that he would act on their plan to confront Mr Cameron physically and violently at his apartment building. It was not clear at this point whether it was part of their plan that he might be captured and kidnapped.

Ms Bos gave Mr Heron details of Mr Cameron’s red hire car and where it was parked. She told him that, if it was not parked on Sturt Street, it would be on Level 3.

Later, Ms Bos attempted to lure Mr Cameron out of his apartment to his car on Level 3. She told Mr Heron that she had told Mr Cameron that someone they both knew wanted to catch up to pay him back some money.

When Mr Heron sent her a picture of a red car parked on Sturt Street that he believed to be Mr Cameron’s car, her response was, “[I’ll] go with whatever you decide.” He responded that he was “99.9% certain I can convince him never to contact you or speak about you ever again my Lady! Lol”. She said, “Cool.”

Mr Heron then realised he had the wrong car. Ms Bos told him to go to Level 3 of the carpark instead. At 11:00 p.m., he found Mr Cameron’s red hire car on Level 3, and sent Ms Bos a picture. She said, “Nice.” He said that this was “[six] metres from [his] hiding place”.

In the meantime, in order to lure Mr Cameron from his apartment, Ms Bos messaged him to come by her place at 12:30 a.m. She told Mr Heron she sent this message, and that, in response, Mr Cameron said, “maybe … cunt… I said maybe not then eh.” Mr Heron said, “what a fuck head.”

As we have seen, just after midnight, Mr Heron ambushed Mr Cameron beside his car, and then attacked him using a knife and a ball‑peen hammer, killing him. Ms Bos was not present when this occurred.

Victim impact statements

I turn to the victim impact statements. They were made by Mr Cameron’s parents Mary O’Brien and Christopher Cameron; his sister Gemma Bentley; and his ex‑partner Marnie McAllister. This is the second time I have heard from Mr Cameron’s family in this way, as their statements were delivered in the case against Ms Bos as well. A short summary of their remarks follows.

Mrs O’Brien’s statement was read by Ms Singh. She said that the joy in her life is gone. She has no appetite, and has lost so much weight as to be unhealthy. Trained as a registered nurse, for many years she held responsible positions in her work, but the most she thinks she can do now is clean houses. Everything she does is overlaid with depression and sorrow. She misses her son terribly.

Christopher Cameron’s statement took the form of a touching poem, which he read with great passion. He focused on his love for his son, and the joy and pride he gave him, including through his involvement in sports and family events, and in his mateship and loyalty. Mercifully, then, he still has “dream comfort memory to spare”.[4] While he did not say so in terms, the way in which he recounted his endearing memories of his son served to prove the magnitude of his loss.
[4]As I said when sentencing Ms Bos, I have taken these words from the lyrics of Helpless, a nostalgic and ethereal song released in 1970 by the famous Canadian singer‑songwriter Neil Young.

Ms Bentley’s statement was also read by Ms Singh. She was devastated when she heard of her brother’s death. She is heartbroken, and feels empty. She is also often scared that someone might be following her, and won’t get out of her car until her garage is closed. She thinks that nothing in her family’s lives will ever be the same again.

Ms McAllister read her statement. For her, nothing could describe the pain she felt upon learning that the life of the father of their unborn child had been so cruelly taken. Daily, she wakes in tears. She no longer feels safe in her own home. She misses him so much.

Each of the victim impact statements is replete with profoundly moving sentiments. All convey, ever so eloquently, the aching grief Mr Cameron’s loved ones are suffering, and the immeasurability of their loss. As far as it is permissible to do so, I have had regard to them in considering sentence.

I wish to add this. I know there is nothing this Court can say or do to lessen the grief suffered by those close to Mr Cameron. The sentence to be imposed is not a reflection of the worth of his life or what it might have been. It cannot be. It simply reflects, as it must, the many and varied factors I am required by law to take into account, only one of which is the impact on victims.

Mr Heron’s account

Account to professionals

Before turning to assess the gravity of Mr Heron’s offence of murder and his level of culpability, it is necessary to consider the account he gave of his offending, and its context, to neuropsychologist Martin Jackson and psychologist Mariese Bovenkerk. Their reports were received in evidence without objection.

Mr Jackson described Mr Heron’s account in this way:[5]

He stated that he somehow became infatuated with [Ms Bos] and believed everything that she said. … Ms Bos told him that she was still in a relationship, but that her boyfriend had raped[6] her, had videoed it and was distributing the videos to other people. … Ms Bos asked him to confront her boyfriend to scare him and get the video.
Mr Heron … took the hammer to smash the camera and the memory cards with the video on it. He took the knife just to scare Mr Cameron. He stated that things “got out of hand” and they ended up being on the ground struggling for ten minutes. He admitted that he did hit him with the hammer, as well as stabbing him with the knife, which resulted in Mr Cameron dying. He stated that this incident occurred in the context of him doing what a woman he was infatuated with told him to do. …

[5]Mr Jackson’s report (7 June 2023) at p 4; see also p 16.

[6]In context, I understood the word “raped” to have meant that he filmed private sexual acts with Ms Bos without her knowledge and had distributed the recordings without her consent. See below.

Mr Heron’s account to Ms Bovenkerk was consistent with the foregoing, but was far more extensive. It included the following.[7]
[7]Ms Bovenkerk’s report (14 August 2023) at pp 8[86]‑10[107].

Mr Heron said he was lonely and living on his own. One of his dogs (who were like children to him) died in February that year, and he became very depressed. He was also finding it difficult to operate his business during pandemic lockdowns, which led to significant financial stress, which only added to his depression.

When he met Ms Bos in May, this was a “big thing” for him, and he started to feel a bit better. However, Ms Bos and her friend Mr Frey told him “horror stories” about Mr Cameron. Included among them was that he had taken explicit films of Ms Bos without her knowledge, which he had shared with other people without her consent. Mr Heron was “genuinely worried” for Ms Bos’s safety, believing that she “painted him out to be some sort of lunatic who just could not let her go”. He gave her $2,000 for bond and rent money so that she could move into a new apartment.

At this point, I should add that Mr Frey was also concerned for Ms Bos’s safety “when it came to [Mr Cameron] because of the stories she told [him]”.[8] In addition, Mr Frey personally witnessed Mr Cameron buzzing at Ms Bos’s door incessantly for up to an hour between 2:00 a.m. and 4:00 a.m. one morning, which really frightened them.[9]
[8]Statement of Mr Frey (25 August 2021) at p 3[14] (Depositions at p 170).
[9]Statement of Mr Frey (25 August 2021) at p 1[4] (Depositions at p 168); and record of interview between police and Mr Frey (25 August 2021) at pp 4‑5 & 7‑10 (Depositions at pp 936‑937 & 939‑942).

Mr Heron considered that he and Ms Bos were friends, and that she was “not ready” for a romantic relationship with him. But he was “hoping for more in the future”, and was “probably” in love with her.

After the pair met for the first time, Ms Bos broached the topic of confronting Mr Cameron, but she did not want him harmed. Rather, she wanted him to leave her alone and to have the video and photographs of her destroyed. Mr Heron offered to help.

Following that meeting, Mr Heron was “quite worried for her”, as Mr Cameron’s texts suggested his behaviour “seemed to be escalating”. Mr Heron admits he “came up with the idea of going to see him at his building” and that he began following him for a “few days”. Ms Bos gave him Mr Cameron’s address, car registration, and details of where he parked his car. Mr Heron believed he was an “ice dealer” and therefore regularly changed hire cars to avoid detection.

The week leading up to the offence, Mr Heron began following Mr Cameron with the aim of finding a “good spot to have a conversation with him”, though an opportunity did not present itself, as he was never alone. He accepted that, the night prior to the offence, he had followed him in the afternoon and was watching his apartment building “for a while”. He recalled messaging Ms Bos who was with Mr Cameron in his apartment. Mr Heron reassured her that he was “not too far away” if she needed him.

Following a conversation with Ms Bos, Mr Heron thought he “could not wait any longer” and “decided to do something about it”, as he was worried she was at imminent risk of being harmed. He saw messages in which Mr Cameron was abusing Ms Bos calling her a “slut” and a “thief”. His impression was that Ms Bos had “hinted” that Mr Cameron was a rapist, who had been violent towards her, and had a history of family violence intervention orders and of “bashing women”.

When questioned by Ms Bovenkerk, he said he had considered contacting police with his concerns. However, Ms Bos said she did not want police involved as she was likely to be “slut shamed” given the nature of her profiles on dating applications.

Mr Heron said he made the decision to go to Mr Cameron’s apartment, as he was “worried if [he] waited any longer she would be harmed”. He said he was in constant communication with Ms Bos through text messages and considered that she was “encouraging” of him. He denied that he had any intention of killing or harming Mr Cameron. His intention was to “scare him off, [to] confront him”. He said he “was not going to bash him”, and he has “never bashed anyone in [his] life”.

He brought the hammer with him to “smash up” anything containing images of Ms Bos in an effort to “make sure the images … were destroyed and never used again”. He said he wished he had never brought the knife with him, which was “stupid”, but had done so “just for a threat … in case”. He denied any previous history of concealing or carrying weapons.

While waiting for Mr Cameron, Mr Heron was “jamming” himself up, which he explained to mean getting ready for a possible confrontation, as he believed he was an “ice addict” and therefore could respond aggressively based upon what he had seen on television. He considered leaving multiple times, though was fearful Ms Bos would “get seriously hurt”.

He accepted that, upon reflection, he was “bloody naive in [his] thinking” and that he did not think through the scenario properly, as he just expected Mr Cameron would comply with his demands.[10] He did not consider the consequences of his actions and the “ways it could go wrong”.
[10]As Ms Bovenkerk observed, this might be thought to be inconsistent with his claim of fear of aggression from an “ice addict”.

Mr Heron said he had a “very brief conversation” with Mr Cameron, “shoved him up against the car” and said, “You and me gotta talk.” Mr Cameron told him to “fuck off”, before throwing a punch at Mr Heron’s head. They began fighting and the situation “all turned to shit”. He said he “started fighting for [his] life” and that he just “wanted to get out of there”, but could not break Mr Cameron’s hold “no matter what [he] did, [as] he had the strength of bloody ten men”.

Mr Heron said that, at this point, he decided to “tap” Mr Cameron with the hammer so that he would let go. He said that he realised that he had “made a big mistake [and] was out of [his] depth”. He began panicking, hitting him “a couple of times”.

Mr Heron said that the offending was “so out of character” and that he has “no idea how it all went wrong … [he was] trying to help”. He considered that his personality type was someone who was “always willing to help” others, though in this situation he had “made an epic mess”. He said he was not affected by substances at the time.

In Ms Bovenkerk’s view, Mr Heron expressed remorse for his conduct, including saying he feels “dreadful”, and that, while he was trying to help Ms Bos, “in the end [he] did entirely the wrong thing” . He said, “I’m so bloody sorry; wish I could go back in time.”

He has regular nightmares about the offence in which he relives the incident and is “stuck there again, [and] can’t get away”. He said, “I wake up feeling like his blood is on my hands.”

Mr Heron said he is uncertain whether he had been “manipulated” by Ms Bos, and he does not know if he is “responsible for killing someone that was completely innocent”.

He said he wished he did not go to Mr Cameron’s property and had notified the police instead.

Submissions

Ms Ruddle submitted that, when regard is had to the CCTV showing Mr Heron running towards Mr Cameron with the knife in his hand, the duration of the attack, and the nature and extent of the injuries, I should be satisfied beyond reasonable doubt that he formed a murderous intent as he was approaching him, and not in the course of a struggle.

She also submitted that, to the extent that Mr Heron’s account might suggest that it was “just a struggle gone wrong”, I should reject that aspect of his account as well.

Consideration

I turn to my conclusions on these and related issues.

First, I reject Mr Heron’s version that he merely “tapped” Mr Cameron initially in the course of the struggle, for that is utterly unrealistic. The same goes for his claim that he began hitting him “a couple of times”. He struck him many more times than that. That said, I recognise that he admitted he struggled with Mr Cameron for ten minutes.

Second, I accept that Mr Heron had no intention to kill Mr Cameron as he approached him. I also accept that he shoved him up against the car. This accorded with his plan with Ms Bos.

Third, I accept that, naturally enough, Mr Cameron resisted by telling him to “fuck off” and by trying to defend himself physically as best he could.

Fourth, while I cannot say precisely why Mr Heron did so, I am satisfied, beyond reasonable doubt, that, at some point soon afterwards, he completely lost control, and then stabbed at Mr Cameron more than once with the knife and struck him repeatedly with the hammer to the head.

Fifth, I accept that, during this part of the attack, Mr Cameron fought for his life, and was saying “no, no” and “stop, stop”, as might be expected. I do not doubt Mr Cameron was strong, as Mr Heron said. He certainly looked like a strong man on the CCTV and in the photos. But, of course, he was caught unawares and unarmed, and, sadly, he succumbed to Mr Heron’s brutal, frenzied and relentless armed attack.

Sixth, for reasons I shall explain in a footnote, while the attack may have started and continued on the driver’s side and/or at the rear of the car for up to a minute or two, it appears that the balance of the assault is likely to have occurred in the narrow gap between the concrete wall and the passenger side of the car.[11] If that is correct, there would have been difficulty in striking Mr Cameron in that narrow gap. This, then, might go some way to explaining the duration of the attack, and the intermittent rocking of the car as depicted on the CCTV. Another explanation for both is that, consistent with Mr Heron’s account, the two men did struggle with each other for a substantial part of that period. Either way, it is still an inordinate amount of time for one person to be assaulting another. Further, Mr Heron must have had the better of the fight for a significant period to have inflicted as many grave injuries as he did.
[11]First, Mr Cameron was found, in a pool of blood, in the narrow gap between the wall and the passenger side of the car. Second, there appears to be no obvious blood around the driver’s side or at the rear of the car. Third, the rear door of the car was dented on the passenger side, which might happen if two men were fighting in that gap. Fourth, much of the blood spatter and smearing was on the front quarter-panel, the front wheel and the forward half of the front door on the passenger side of the car, and was also on the wall adjacent to those areas. Fifth, just before Misty scampered away, from the front passenger side of the car, between 12:01.55 and 12:02.07, she peered into that narrow gap and moved into it for a moment, and then moved to the front corner of the driver’s side, from where she twice looked under the car towards the passenger side or perhaps the rear, as if she could see something there (presumably, the feet of Mr Cameron and/or Mr Heron). Sixth, from about 12:03.24, moving shadows and flashes of light can be seen emanating from the gap between the front corner of the passenger side of the car and the wall. Finally, it will be remembered that Mr Heron went out of camera shot at 12:01.40 and reappeared (from the driver’s side) as he was leaving at 12:12:04. Thus, collectively, these factors tend to suggest that the assault was occurring in the narrow gap on the passenger side for perhaps eight to ten minutes, whereas it may have commenced and continued on the driver’s side and/or at the rear of the car for 15 seconds and up to a minute or a bit more.

Finally, the injuries Mr Cameron suffered are extensive and shocking. The gravity, number and position of the injuries inflicted to the head with the ball‑peen hammer, together with the duration of the attack, satisfy me, beyond reasonable doubt, that Mr Heron must have intended to kill Mr Cameron when he repeatedly delivered those blows. This is not a murder by an intent merely to cause really serious injury.

Nature and gravity of offence

Murder in general

I turn now to the nature and gravity of murder generally and of this offence in particular, including Mr Heron’s level of culpability.

The maximum penalty for murder is imprisonment for life. Murder is also a “standard sentence offence”, and the “standard sentence” is 25 years’ imprisonment.[12]
[12]Crimes Act 1958 (Vic), s 3(2)(b).

While murder is the most serious crime in the criminal calendar, as is the case with most offences, the circumstances of the offence and the offender, and the resulting sentences, can vary widely, at least in terms of the length of prison sentences.

Ms Ruddle submitted that, for a combination of reasons, I should regard Mr Heron’s offence as a serious example of murder.

First, while, as I have found, he did not form murderous intent until he was engaged in a struggle with Mr Cameron, Mr Heron planned an attack for some days.

Second, having spent days conducting surveillance and stalking him, on the fatal night, he was in and around the apartment building for four hours, and laid in wait for him at the carpark for a substantial period.

Third, the attack occurred in Mr Cameron’s secure residential carpark at midnight.

Fourth, he used a knife and a hammer as weapons when Mr Cameron was ambushed, unarmed and largely defenceless.

Finally, the attack was brutal and merciless, involved numerous blows, and lasted for a prolonged period. As I have noted, neighbours could hear Mr Cameron screaming for help and saying “no, no” and “stop, stop”.

I would add to the foregoing my finding that, when striking the blows to Mr Cameron’s head with the ball‑peen hammer, Mr Heron must have meant to kill him, not merely to cause him really serious injury.

As for factors that might be thought to lessen the gravity of the offence, I accept that Mr Heron believed that Mr Cameron had behaved disgracefully towards Ms Bos, including by sharing explicit recordings without her consent. I also accept that Mr Heron believed she was at risk of further abuse, and perhaps even violence, including sexual violence. While these things do not excuse taking the law into his own hands by stalking and assaulting Mr Cameron with the aim of putting the frighteners on him, they lessen his moral culpability for such behaviour. These thoughts might also be capable of explaining why he lost control. However, they cannot meaningfully mitigate his decision to take Mr Cameron’s life, let alone his doing so in such a sickening fashion.

Thus, overall, I accept Ms Ruddle’s submission that this is a serious instance of murder. I did not understand Mr Backwell to make any submission to the contrary.

Personal and psychological history

Sources of information

I turn now to Mr Heron’s personal circumstances and his psychological history. This information was conveyed in the helpful reports of Mr Jackson and Ms Bovenkerk, in the character references, and by Mr Backwell in his written and oral submissions.

Family

Mr Heron grew up on a small hobby farm outside Canberra. He is one of four brothers. He told Ms Bovenkerk that he had a “good” childhood and enjoyed “growing up in the bush”.

His parents separated when he was 14 or 15. His mother was having a relationship with another man. Eventually, when his father “had enough of it”, he put his wife’s clothes outside and nailed the front door shut. His father threatened, “If any of you let her in, I’ll shoot ya.” Mr Heron blamed his mother for the relationship breakdown and did not talk to her for several years.

In Mr Heron’s eyes, his father, although a “bit of a loner”, was “easy‑going”. That said, he recalled several instances where his father was aggressive. For example, on one occasion, he punched his brother, and, on another, he pushed his brother into a plate of mashed potatoes and told him to “eat the fucking dinner”. The children would be “whacked” or would “cop the belt” as a form of discipline.

Following his parents’ separation, Mr Heron remained living with his father, but then moved out when was aged 16. He lived in a group home in Canberra with “hippies” who were older than him.

Mr Heron’s relationship with his brothers was “pretty good” growing up. While they were not close in childhood, he has grown closer to his oldest brother in recent years. He has a fractured relationship with his other brothers, and has no contact with them.

Mr Heron’s father is now deceased.

While he has not seen his mother in years, they write to each other every week.

Education and employment

Mr Heron hated school. He considered he was never good at learning within a classroom environment, preferring “hands on” activities. He was easily bored, and struggled to maintain attention. Typically, he would fall asleep in the classroom. His focus improved when a topic interested him, such as music or metal work. Over time, his teachers learned to “leave [him] alone”, as it was “easier”. He was involved in some physical altercations at school, but “nothing major”.

Ultimately, he ceased attending classes and was expelled because of poor attendance. There was a period when he “wagged” school for two weeks. As a result, along with his mother, he was brought in for a meeting with a school counsellor. Following this, he left school during Year 9.

Mr Heron completed a diesel mechanic apprenticeship through the Greyhound bus company, and worked with them for ten years, which later included driving buses.

He transferred his employment to Melbourne after meeting a female partner, and later began working with National Buses, which was taken over by Ventura, with whom he worked for another nine to ten years.

Following his first epilepsy seizure in 2011, Mr Heron lost his licence and was no longer able to maintain his employment.

He then began working as a caravan mechanic where he again worked for nine years. He lost his employment after his mental health deteriorated and he began drinking heavily, which included drinking during his lunch break.

Thereafter, he commenced his own mobile diesel mechanic business three months prior to the COVID‑19 pandemic. However, he was not eligible for any government grants or funding. He had “borrowed thousands” to set up his business and became bankrupt. Later, he was able to access funds from his superannuation, but, at this point, the “work had dried up”. He was working in his business prior to being arrested.

While in prison, Mr Heron has undertaken education courses whenever they have been available. In particular, he has studied small business management and computing. For him, this has been a “relief”, as it has meant he has spent limited time in the yard with other inmates. It has also given him an opportunity to further his computer skills and gain new knowledge. He thinks he is quite slow in completing his work and is often the last one left in the classroom.

Relationships

As for relationships, Mr Heron had a partner for nine years. They were married for six of those years, and separated in 2011. The primary reason for the separation was because his wife wanted children, whereas he did not, and she disliked living in a regional community.

Following this, he commenced a relationship with another woman. They were together for nine years, separating in 2020. Both were drinking heavily and his partner was working long hours, which likely contributed to the relationship breakdown. His partner initiated their separation, whereas he wanted to remain together. He was not aware anything was wrong until she “told [him] we were done”. He said that, because of his excessive drinking at the time, it was likely that he was “hard to live with”.

When asked by Ms Bovenkerk, Mr Heron denied any past history of violence, whether domestic or otherwise. He said he had “never been violent towards anyone in [his] life up until this”.

Mr Heron has no children. As to raising a child, he “didn’t think [he] could get it right”, as he was “always worried it would turn out like [him]”.

He was single and lonely at the time of the offending, albeit hopeful of a relationship with Ms Bos in the future.

Mental health

Mr Heron has had longstanding difficulties with his mental health.

He was exposed to the Black Saturday bushfires in 2009. He was visiting a friend and decided to stay and defend the property. He recalled putting out spot fires. However, within ten minutes, the wind direction changed and everything became “so dark, [he] could not see”, and he had difficulty breathing. He thought he was “just about dead that night”.

He has only recently come to the realisation that he “never dealt with it at the time”. In 2017, his partner was listening to an audiobook regarding Black Saturday. This was a significant trigger, as he started crying and “could hear the fire, could smell the smoke”. After this, he believes his “whole life fell apart”. His work performance deteriorated and he began drinking heavily in a maladaptive effort to cope with the nightmares and flashbacks.

Mr Heron has had recurrent episodes of depression throughout adulthood. Following the breakdown of his marriage in 2011, Mr Heron felt a “bit depressed then”, as he had also lost his job after experiencing his first epileptic seizure. In addition, he considered that he was depressed between 2018 and 2020 following a re‑emergence of his trauma symptoms. During this period, “everything seemed to be going wrong … one thing after another”. He experienced another relationship breakdown, he was undergoing financial stress throughout the pandemic, and three of his dogs died. These difficulties were further compounded by his increased drinking.

Mr Heron has attempted suicide twice. The first attempt occurred in 2020 after he was placed on epilepsy medication. He believes there was a strong connection between the medication and his suicide attempt. He began seeing a psychologist one month prior to the attempt. He “took a whole bottle” of either Diazepam or Mirtazapine. His only recollection of the event was waking up in hospital the following day. He was placed in a psychiatric ward at Maroondah Hospital for a week. He absconded, though was later brought back by police.

His next attempted suicide occurred five weeks after he was remanded in custody for the current offence. He “slashed both arms”. His “whole world had turned upside down”. He said, “I’ve never been in trouble before, [yet] here I am, I’ve killed someone.”

He continues to experience nightmares “most nights”, reliving the murder “over and over again”. He said, “I can’t believe it, I’m devastated.”

He was placed on medication to assist with managing his nightmares. He currently has a mental health review with a psychiatric nurse every six weeks, and sees a psychiatrist every three months to review his medication. Currently, he takes Mirtazapine (an antidepressant), which he has been prescribed for the last three years. He has noticed only limited improvement to his mood.

He is reluctant to engage in psychotherapy at the prison. He perceives that, anytime an individual admits to struggling, he is placed in a “psych cell”, and he has “learned quickly not to say anything”.

Mr Heron had one prior episode of treatment within the community. He engaged in about 20 telehealth appointments with a clinical psychologist throughout the pandemic lockdowns. At that time, he struggled with low energy and motivation, and would “sit on the couch all day”, which is something he had “never done in [his] life”, as he was typically on the go. He was prescribed antidepressants. The psychologist diagnosed him with PTSD. A psychiatrist in the prison has also diagnosed him with anxiety and PTSD.

When he first came into custody, Mr Heron was “stood over”. He initially struggled adjusting to the prison environment, particularly given the quarantine procedures and extended lockdowns at the time. He has been exposed to a number of traumatic experiences, including hearing another prisoner being raped and screaming for help, and witnessing multiple stabbings and “countless people getting bashed”. He tries to keep to himself, and has developed two close friendships with other prisoners in his unit.

Medical history

As for his medical history, Mr Heron was in a motorcycle accident in 2000. He sustained a loss of consciousness and developed “scarring on the brain”. He suggested there was a possibility he had sustained brain damage, which may have contributed to his poor memory recall and his epilepsy. He was unable to identify significant changes to his mood, speech or temperament since the accident, however, he also reported difficulty finding words to express himself. As he said, everything is on the “tip of [his] tongue”.

At the time of his first epilepsy seizure in 2011, he was under considerable stress, as his marriage had just ended and he was not sleeping. His next seizure occurred eight years later, which resulted in his being taken to the Austin Hospital. He was then placed on anti‑epileptic medication, a side effect of which was severe depression, which he believes contributed to his suicide attempt. He has since changed medication and is currently prescribed Epilim.

He reported to Ms Bovenkerk having three seizures in total, but told Mr Jackson he had had six to seven.

Drugs and alcohol

As for alcohol and drugs, Mr Heron first began drinking at 15 years old. Once he began attending parties, his drinking increased. He had never been a “heavy drinker until 2017”. During this period, he would consume a carton (i.e., 24 cans) of bourbon and cola per day. He drank on a daily basis for three or four years. With the assistance of his psychologist, he had reduced his consumption to a six‑pack per day. Prior to being arrested, he was consuming only one to two drinks per day.

Mr Heron experimented with cannabis about a dozen times over several years. His peer group at the time were substance users.

He told Ms Bovenkerk that he first used amphetamine when he was around 21.

He denied experimentation with other illicit substances and denied any periods of problematic use.

Prison medical file

On the other hand, his prison medical file, which Ms Bovenkerk reviewed, suggests he had an amphetamine use disorder at some point in his past, and that he had used ecstasy. This appears to be linked to his mental health decline around 2019 or 2020.

Mr Heron is currently prescribed buprenorphine in custody. He told Ms Bovenkerk he was encouraged to obtain the medication by other inmates as a means of making the time pass quicker, and a medical professional had recommended it for pain management.

Mr Heron’s prison medical file confirms he has been diagnosed with depression and is currently medicated with Mirtazapine.

The notes show that, upon reception into custody, he was expressing chronic thoughts of self‑harm and suicide. As well as an instance of self‑harm on 20 July 2021, after which he was wait‑listed for treatment on 4 August 2021, his serious suicide attempt of 14 August 2021 is recorded in the notes. This involved laceration to both arms and the leaving of a suicide note. He was transferred to St Augustine’s Hospital where he required resuscitation and blood transfusions.

The notes also show a consistent reference to Mr Heron reporting that his mental health began to deteriorate in the year or two prior to him coming into custody in the context of his relationship breakdown, business failing during COVID‑19, and the loss of his dogs. There is also a brief mention of Mr Heron disclosing that he helped his best friend fight fires on his farm during Black Saturday, and that he appeared “somewhat traumatised by this and the aftermath”. In August 2021, the consultant psychiatrist noted the impression that Mr Heron had an “[a]djustment disorder on the background of longstanding dysthymia”. In October 2021, symptoms of PTSD were discussed within his psychology appointment, including a history of anxiety, ruminating and panic attacks.

While he commenced psychological intervention in custody through the Mobile Forensic Mental Health Service via Zoom appointments on 4 October 2021, he was discharged from the service a month later after four sessions because of his transfer to a different prison.

His epilepsy seizure in prison on 2 January 2022 is also recorded in the prison medical notes.

On 16 March 2022, he was commenced on Prazosin by a psychiatric registrar in view of his PTSD symptoms and nightmares. In subsequent appointments, he continued to report experiencing nightmares associated with his offence.

Neuropsychological assessment

In his report, Mr Jackson concluded that Mr Heron’s epileptic seizures are likely to be secondary to his previous head injury.

Upon testing, he estimated Mr Heron to have a high average to superior premorbid abilities. He demonstrated intact cognitive functions with respect to most of his verbal and perceptual intellectual abilities, visual new learning and memory, perpetual executive functioning, and some aspects of attention and working memory. He also has a number of cognitive abilities in the average range, although this was considered to be mildly below his premorbid estimated level of functioning. His processing speed, however, was consistently in the borderline range.

Mr Jackson considered that one potential cause for slowed processing speed and poor memory recall was his mild closed head injury sustained the motorbike accident. Another explanation was that his mood may have influenced these things, as they are sometimes seen in individuals with depression and anxiety. He concluded that it was likely that Mr Heron’s mood was playing a significant role, given his two prior suicide attempts and current circumstances.

Mr Jackson also concluded that there was no evidence of a disorder of impulse control.

Mental state examination and testing

Ms Bovenkerk applied several psychological tests to Mr Heron, which confirmed that he had a persistent depressive disorder, PTSD, and an alcohol use disorder (the latter being in sustained remission in a controlled environment).

Risk assessment

By Ms Bovenkerk’s application of the HCR‑20 (V3), which is a risk assessment tool, Mr Heron was found to pose a moderate risk of future physical violence. In other words, she explained, Mr Heron is in a category that poses a risk that is comparable to that of the average violent offender. Consequently, in her view, he will require a moderate level of supervision and resources to address his risk of violence.

She further explained that, while Mr Heron has a limited history of violence, the HCR‑20 highlighted that he exhibits problems in a number of domains, including substance use, interpersonal relationships, mental health, and unresolved trauma. Moreover, he displayed reduced insight into his need for treatment to address his violence risk factors; and, while he recognises the severity of his mental health problems, he expressed a lack of motivation to engage in treatment at the prison. She said that some of these risk factors are amenable to treatment, and his risk profile would be mitigated if he were to engage in appropriate psychological intervention.

Psychological opinion

Next, I turn to some of the other opinions Ms Bovenkerk offered in her report.

First, she noted that Mr Heron does not present with a history of engaging in violent behaviour. He does not present with an entrenched criminal belief system or antisocial or violent attitudes. Nor does he have associates with negative peer influences.

Second, Ms Bovenkerk considered Mr Heron’s symptom profile may be consistent with attention deficit hyperactivity disorder (“ADHD”). However, she considered it unlikely that any potential underlying ADHD would have directly contributed to his offending (given the high degree of planning and organisation that was exhibited).

Third, she opined that it is likely that Mr Heron’s PTSD developed as a result of his exposure to a natural disaster during the Black Saturday bushfires in 2009. She added that a steady deterioration in his mental health from 2017 onwards was evident, particularly after his PTSD symptoms were triggered. Notably, he reported a significant decline in 2020 in the context of a number of psychosocial stressors, including his relationship breakdown, experience of another epilepsy seizure, and a suicide attempt.

Fourth, in her view, Mr Heron he meets the diagnostic criteria for persistent depressive disorder (or dysthymia) in the periods both preceding and after the offending. He has had recurrent depressive symptoms for a number of years, for which he was placed on antidepressant medication and engaged in treatment with a psychologist.

Fifth, in her view, Mr Heron’s substance use developed in a maladaptive effort to manage his mental health concerns.

Sixth, Ms Bovenkerk opined that, precipitating the offending, Mr Heron’s mental state was further exacerbated by the pandemic, the loss of his dog, instability within his employment contributing to financial stress, loneliness, isolation, and ongoing depressive symptoms. It is within this context that Mr Heron met Ms Bos. Their contact likely served to distract him from his own problems. He considered her a potential romantic partner and relished the attention she showed him during a time when he was increasingly lonely and isolated, driven by the desire to commence a romantic relationship. He consistently emphasised throughout his interview with Ms Bovenkerk that his primary motivation in behaving as he did was to protect Ms Bos, as he was worried for her safety.

Seventh, neither Ms Bovenkerk’s assessment nor Mr Jackson’s identified any personality or neuropsychological vulnerabilities that would make Mr Heron more susceptible to the influence of others. However, Ms Bovenkerk went on to say that it is possible that the deterioration in his mental state compounded inherent feelings associated with his depression, low self‑esteem and failure, and that Ms Bos’s attention offered him solace from these self‑deprecating thoughts and emotions.

Eighth, she opined that, while Mr Heron’s lowered mood does not have a causal mechanism to the offending, negative affective states such as depression and anxiety can alter cognition and behaviour, impairing the ability to rationalise and consider alternative responses, and can impact decision‑making.

Ninth, she considers that Mr Heron’s mental health has continued to be impacted in custody, as he reported feeling flat, ongoing sleep disturbance, poor concentration, and increased stress and worry. Of concern, in her view, was his serious suicide attempt while incarcerated, which required resuscitation and blood transfusions.

Tenth, in her view, while his current psychiatric profile is being managed solely through pharmacological intervention, this appears to be having limited benefit. He reported ongoing symptoms of PTSD in response to the offending, and he expressed distress at experiencing nightmares in which he relives the offence. In her view, his dysthymic condition is likely exacerbating his trauma symptomatology.

Eleventh, Ms Bovenkerk opined that a custodial sentence is likely to weigh more heavily on Mr Heron than a person without his mental health vulnerabilities, particularly given his ongoing symptoms of depression, anxiety and trauma, and his potential underlying attentional deficits. Moreover, he is considered at risk of exploitation by other offenders in custody, and his naivety to the prison environment and criminal associates, in general, places him at a much higher risk of threat and intimidation than others. She added that the nature of the prison environment can be confronting for an individual with no prior antisocial or criminal experience, and there is therefore a significant risk of Mr Heron’s mental health symptoms being further exacerbated in this environment, particularly as he has never learned adaptive ways of coping with his emotions or stressors. Further, she considers that he is unlikely to receive intervention at the intensity and frequency required to address his mental health, particularly given the specialised nature of interventions required for PTSD.

Finally, Ms Bovenkerk opined that it is likely that Mr Heron will be faced with a number of stressful events upon release from custody, given the length of time he is likely to be incarcerated and the risk of institutionalisation. This may include adjustment to living outside of the structure and routine of a prison environment, reconnecting with prosocial supports, and re‑establishing relationships. With this in mind, Ms Bovenkerk recommended that any custodial sentence should incorporate a period of support and supervision after his release to support his transition between prison and the community.

Mitigating factors

Plea of guilty

I turn now to consider more squarely the mitigating factors urged by Mr Backwell, commencing with Mr Heron’s plea of guilty. For the following reasons, this is a very significant matter in mitigation.

First, while not chronologically and procedurally early, his guilty plea was still entered some two‑and‑a‑half months before trial, which was listed to commence on 29 May this year. Thus, it was not a late plea either.

Secondly, the plea relieves the need for witnesses to give evidence, which can be a very stressful process. Importantly, the family and friends of Mr Cameron have been spared the emotional toll of a criminal trial.

Finally, while this Court is largely back to normal with listings, there is still a backlog of cases and an associated strain on the criminal justice system as a whole resulting from the pandemic. Thus, by avoiding the need for a trial in his case, Mr Heron’s plea of guilty is of additional utilitarian value beyond the usual.

Remorse

Next, for a combination of reasons, I accept that Mr Heron has genuine remorse for his crime and the irreparable harm he has caused.

First, he did not shirk responsibility for the attack when the police came upon him. He admitted that he was the assailant and told police where to find Mr Cameron.

Second, soon after his arrest, Mr Heron made a serious attempt at suicide in prison. He did this because he was distraught about having killed Mr Cameron.

Third, while the case for murder against him appears to have been very strong, it is still a significant step, and one indicative of remorse, to plead guilty to murder.

Fourth, Mr Heron made an earlier offer to plead guilty to constructive murder pursuant to s 3A of the Crimes Act 1958 (Vic). It is understandable that the Director rejected this offer, since that version of the offence is unlikely to have reflected the gravity of his behaviour adequately. However, it was still an earlier acceptance of responsibility for murder.

Finally, Mr Heron has expressed remorse for his crime to both Mr Jackson and Ms Bovenkerk. For example, Mr Jackson described him as presenting as “very remorseful for his actions” and opined that he “regretted [his crime] very deeply”. Ms Bovenkerk said that he “took full responsibility for his conduct” and “displayed genuine remorse and guilt for his actions”. She added that he views himself as a caring individual who is always willing to help others and that the offending therefore represents a significant discrepancy between his behaviour and self‑image, which “contribut[ed] to a sense of guilt and shame”.

Ms Ruddle submitted that I should not be satisfied Mr Heron is remorseful because he sought to minimise his role when recounting the circumstances of the killing to Ms Bovenkerk and Mr Jackson. However, while I have rejected part of his account and accepted part, I am unable to determine whether he has deliberately sought to minimise his role. It strikes me that he may not know or remember entirely what was running though his mind in the moments before and during the attack. Or it may be that he just does not want to admit it. In any event, even if he was not entirely frank about some of the circumstances, I do not consider that that is inconsistent with remorse. His other actions — including his attempted suicide, his plea of guilty, and the manner in which he presented to the experts — are sufficient to persuade me that he is genuinely remorseful.

Previous good character

The third matter in mitigation is that it is significant that, at the age of 50, Mr Heron has no prior convictions whatsoever. In fact, he appears, in the main, to have been a person of positively good character throughout his life.

While, by his own admission, he has involved himself in illicit drug use in the past — even to the point of having an amphetamine use disorder at one stage — this occurred against a background of depression resulting from his exposure to trauma, including the Black Saturday bushfires, the collapse of his business, and the breakdown of personal relationships. The prison drug screens in evidence have all been negative.[13]
[13]The screens were for three occasions in April‑May 2023.

Otherwise, he appears to be a person of positively good character. Written references from his long‑term friends John Kirmond and Anthony Knight attest his being placid, kind‑hearted, loyal, dependable, and caring. I accept their evidence. This evidence is also consistent with the absence of any suggestion of violence in Mr Heron’s past, which I regard as significant.

Further, as is shown by the reference from the animal welfare charity Victorian Dog Rescue, he has spent a number of years fostering large dogs from pounds. The charity found him courteous and responsible, and received positive feedback from potential adopters who met him.

Finally, he has been gainfully employed throughout his adult life.

Overall, I am satisfied that he is to be sentenced as a person of previously good character.

Prospects of rehabilitation

Next, there are several matters that, in combination, satisfy me that Mr Heron has very strong prospects of rehabilitation. Those matters include: his plea of guilty; his remorse; his previous good character and lack any criminal history; his proven capacity to work productively; his intelligence and his related capacity to learn (albeit perhaps slowly); his preparedness to better himself by doing courses in prison; and the support he enjoys from others.

While there is a disturbing element in the brutality of his offence, and also in the lack of any satisfactory explanation as to why he snapped and so horribly murdered Mr Cameron, it seems unlikely that Mr Heron would commit an offence of this type, or any other serious offence of violence, ever again.

I say this notwithstanding Ms Bovenkerk’s opinion that he poses a moderate risk of future violence according to the HCR‑20. Tools of that nature factor in a heavy weighting for the commission of an offence. It will be remembered that, in the next breath, Ms Bovenkerk opined that Mr Heron “will require a moderate level of supervision and resources to address his risk of violence”. I am confident that the possibility of a substantial period on parole will provide for any supervision and support he may need in the longer term. By that stage, he will be a much older man, and will have had many years to reflect on his behaviour.

Hardship in prison

The final matter in mitigation concerns the particular hardship Mr Heron has faced in prison for the last two years or so, which stems from two sources.

First, as we have seen, Ms Bovenkerk opined that a prison sentence is likely to weigh more heavily on Mr Heron than a person without his mental health vulnerabilities, particularly given his ongoing symptoms of depression, anxiety, and trauma, and his potential underlying attentional deficits. His attempt at suicide is a spectacular example of his reaction to the horror of what he has done and the manifestation of his depressive symptoms. Moreover, as Ms Bovenkerk noted, he is at risk of exploitation by other offenders in custody. His naivety to the prison environment and criminal associates, places him at a much higher risk of threat and intimidation than others. I should have thought that the ongoing risk of epileptic seizures in custody would be another factor increasing his feelings of vulnerability.

Ms Ruddle accepted that it was open to act on Ms Bovenkerk’s opinion, and to take it into account in sentencing.[14] However, she went on to submit that the weight to this mitigating factor must be limited given the gravity of the offending.
[14]Ms Ruddle referred, correctly, to the “fifth limb” in R v Verdins (2007) 16 VR 269 at 276[32](5) (per Maxwell P, Buchanan and Vincent JJA).

I accept Ms Bovenkerk’s opinion. However, I do not think that the weight to be given to this factor is to be reduced or limited on account of the gravity of the offending. A mitigating factor is not cancelled out or outweighed by an incommensurable circumstance of aggravation or by the gravity of an offence. Instead, matters bearing on the exercise of the sentencing discretion, but pulling in different directions, all must be considered on their own merits.[15]
[15]See, e.g., R v Rainford [2003] VSCA 49 at [15]‑[16] (per Buchanan JA) & [19] (per Callaway JA); and R v Hall (1994) 76 A Crim R 454 at 469‑470 (per Crockett and Southwell JJ).

The additional hardship of imprisonment arising from Mr Heron’s mental health vulnerabilities is likely to continue for as long as he suffers these afflictions, which, I think, is likely to be for a large proportion of his sentence, and may be for its whole duration.

The second sense in which there has been particular hardship in custody is that it is now notorious that time spent in this State’s prisons has been more onerous than usual in the last few years as a result of the pandemic’s effects on incarceration protocols. These protocols have limited prisoners’ access to face‑to‑face visits, reduced their exposure to educative and rehabilitative programmes, and resulted in longer and more frequent lockdowns. While these restrictions have varied in their intensity, in one way or another, they have applied to the whole of Mr Heron’s time in custody. Hopefully, they will be lifted completely sooner rather than later. But it seems that they will continue, at least in some form, for a while yet. This additional hardship operates in mitigation of sentence.

Sentencing purposes

I turn now to the purposes of sentencing.[16]
[16]Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are (to use the shorthand) general deterrence, specific deterrence, denunciation, protection of the community, just punishment, and rehabilitation.

General deterrence, denunciation and just punishment are important sentencing purposes in this case. All should understand, and no doubt do, that the taking of another’s life, intentionally and without lawful justification or excuse, is a terrible thing to do and merits denunciation and condign punishment. The law must maintain a special concern for the sanctity of human life. It must be understood that even those who plead guilty to murder and have other compelling mitigating circumstances to call in aid will be imprisoned for substantial periods.

Specific deterrence and protection of the community are also important sentencing purposes in this case. That there is a disturbing element to Mr Heron’s brutal, yet partly unexplained, attack, makes it appropriate to give weight to both of these purposes. That said, I think they are of less weight than otherwise on account Mr Heron’s prior good character, plea of guilty, remorse, and prospects of rehabilitation, and the hardship that incarceration will continue to present for him.

Finally, Mr Heron’s strong prospects of reform make rehabilitation a sentencing purpose that must be afforded substantial weight. It is also necessary to recognize the interplay between rehabilitation and protection of the community. Mr Heron will be returning to the community eventually, albeit as a much older man. It is therefore in the community’s interests that his prospects of rehabilitation be maximised, so that, when he is released from prison, his chances of successful reintegration into society are as strong as they can be.

Current sentencing practices

As far as I can determine them, I have had regard to current sentencing practices for murder. These practices are but one factor in sentencing, and certainly not a controlling one at that, but they are nevertheless important in the sentencing synthesis.

Since this is a standard sentence offence, only sentences imposed under the standard sentence regime may be considered for this purpose.[17] While that regime has been in operation for some time, the cases are still relatively few in number. Nevertheless, recent statistics show that the average length of imprisonment (excluding life) imposed for murder under that regime ranged from 19 years and four months in 2021‑22 to 25 years and six months in 2018‑19.[18] I recognise, however, that such statistics are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations, such as whether there is a plea of guilty, remorse, a relevant criminal history, and so on.
[17]Sentencing Act 1991 (Vic), s 5B(2)(b).
[18]Sentencing Advisory Council, Sentencing Snapshot 273, Murder (June 2023), at

Of the individual murder cases I considered under the standard sentence regime, none struck me as meaningfully similar to the present case. But that is not uncommon. Indeed, in the area of sentencing, it is almost always difficult usefully to compare cases. And, in any event, sentences are not precedents to be applied or distinguished.

In the end, as is the situation even where there are helpful statistics or useful case comparisons, I have been driven to rely principally on the circumstances of this case and sentencing principles to arrive at the appropriate sentence for this offence of murder.

Sentence

Head sentence and non‑parole period

I turn now to impose sentence.

Mr Heron, would you stand, please?

Balancing all relevant considerations as best I can, I have determined that, for the murder of Nicholas Cameron, Stuart Heron will be convicted and sentenced to 22 years’ imprisonment with a non‑parole period of 15 years.

At about 68 percent of the length of the head sentence, this non‑parole period is less than the requirement that there be a non‑parole period of at least 70 percent of the head term where that term is 20 years or more.[19] I have departed from that ratio, albeit ever so slightly, because I consider it to be in the interests of justice to do so in light of Mr Heron’s plea of guilty, remorse, lack of prior convictions, and strong prospects of rehabilitation. In my view, there is a better chance of Mr Heron’s ultimate reform, and with it protection of the community in the longer term, if he has the incentive to work in prison towards release upon parole earlier. For, if released in that way, he will have the supervision and support that parole can provide for a substantial period.
[19]See Sentencing Act 1991 (Vic), s 11A(4)(b).

I am also satisfied that, like the head sentence, this non‑parole period allows for the applicable sentencing purposes and conforms with the principle of parsimony.

Pursuant to s 18 of the Sentencing Act, I declare that, including today, Mr Heron has served 791 days of pre‑sentence detention under this sentence.

Section 6AAA of the Sentencing Act

I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Mr Heron’s plea of guilty. It is notorious that this is a strained exercise at the best of times. This is because the plea of guilty tends to enhance other mitigatory considerations, such as remorse and prospects of rehabilitation, and can affect the weight to be given to sentencing purposes such as specific deterrence, rehabilitation, and protection of the community.

Nevertheless, allowing for those considerations as well, my best estimate is that, had Mr Heron been found guilty of murder following a trial at which he pleaded not guilty, I would have imposed a sentence in the order of 27 years’ imprisonment with a non‑parole period of about 21 years.

Section 5B(5) of the Sentencing Act

Section 5B(4)(a) of the Sentencing Act provides that a court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for imposing that sentence. The reasons I have given thus far satisfy that criterion.

However, s 5B(5) goes on to provide this:

As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

The period specified as the standard sentence is “the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”.[20] The objective factors affecting the relative seriousness of an offence are to be determined “without reference to matters personal to a particular offender or class of offenders” and “wholly by reference to the nature of the offending”.[21]
[20]Sentencing Act 1991 (Vic), s 5A(1)(b).
[21]Sentencing Act 1991 (Vic), s 5A(3).

A plea of guilty would not be regarded as an objective factor affecting the relative seriousness of the offence. Nor would the other matters personal to Mr Heron be so considered, such as his remorse, prospects of rehabilitation, and lack of prior convictions. While his level of remorse would not have been as high and his prospects of rehabilitation would not have been regarded as strong had he pleaded not guilty, they still would have been personal matters relevant to sentence, as would the immutable fact that he has no prior convictions.

Thus, in an attempt to give the explanation asked for in s 5B(5), I say simply that the sentence I have imposed is less than the standard sentence (of 25 years’ imprisonment) because of those matters personal to Mr Heron, including his plea of guilty.

Equally, it follows that, were I required to consider only the nature of the offending and to pay no regard to personal matters, the sentence necessarily would have been in excess of not only the standard sentence but also the “but for” declaration made under s 6AAA (of 27 years’ imprisonment).[22]
[22]It seems that I am not so required, and may even be prohibited from undertaking this exercise, at least as part of the instinctive synthesis (see Brown v The Queen (2019) 59 VR 462 at 446[6]‑[7] (per Maxwell P, Priest, Kaye, T Forrest and Emerton JJA)). However, I have done so here only after arriving at sentence, and only to drive home what may already have been obvious — namely, this offence, measured only by “objective factors affecting … relative seriousness” or “the nature of the offence”, was a good deal above the middle range of seriousness.

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