Crown v Accused

2 You killed William and unsuccessfully attempted to kill yourself because you believed you were dying from brain cancer, suffered from anxiety and social phobia and were worried about William's own mental health. You apparently also believed William would be unable to look after himself without you, and believed William did not want to continue living as he did.

3 You pleaded guilty to the charge of murder, contrary to common law, at the Magistrates' Court on 11 August 2021. You again pleaded guilty to the same charge when you were arraigned in this Court on 18 August 2021.

4 Today, on 30 November 2021, I heard a summary of the prosecution's opening, victim impact statements from Andrew and Joanne Heddergott and submissions both from counsel on your behalf and the prosecution relevant to the sentence that should be imposed on you.

5 The maximum penalty for the offence of murder is life imprisonment. Murder is a standard sentencing offence pursuant to the relevant provisions of the Sentencing Act 1991 (Vic).[1] The standard sentence for the offence of murder is 25 years' imprisonment.[2]

6 You were 81 years of age at the time of this offence being committed. You lived in your family home in Greensborough with your son, William Heddergott.

7 William was 50 years old at the time of his death. He had been living on and off at Chatsworth Terrace, a supported residential care service, where he was receiving treatment for severe anxiety and depression. When he was not at Chatsworth Terrace, he lived with you in Greensborough. Due to the COVID-19 pandemic, however, he was unable to remain at Chatsworth Terrace and therefore moved in with you on a full-time basis. You were effectively his carer at the time you committed this offence.

8 It is suggested in the evidentiary material that you were highly controlling of William, limiting his activities outside the home and restricting his independence. In the months leading up to the offending you expressed concerns about the state of your affairs and what would become of William if you should die. You had pre-arranged funeral plans for both of you.

9 From September 2020 to November 2020, you made enquiries with William's superannuation fund regarding withdrawing the funds and submitted a 'nomination' form to the fund to change the beneficiary. You also contacted Le Pine Funerals to update the photograph to be placed on William's coffin in relation to the pre-arranged funeral plan.

10 As I earlier said, sometime between 14 and 16 November 2020, you suffocated William with a plastic bag and struck him at least twice on the head with a covered axe. It is not known exactly when you carried out these acts. As the prosecutor Mr Bourke of Senior Counsel noted during his submissions, the precise details of how you carried out the killing of your son are unknown.

11 On 16 November 2020, a Banyule City Council Meals-on-Wheels worker attended the house to make a regular meal delivery to you. The worker, Ms Mestou, called out for you. There was a key in the front door, which she thought was unusual. After receiving no response, Ms Mestou entered the house and found a note on the kitchen table headed 'Farewell'. The note was handwritten by you and dated 14 November 2020. It gave thanks to your husband, close friends, and family. You wrote that time had run out and you apologised for the loose ends and work you left behind. It also noted William loved people, wanted to connect, and hoped to be 'better next time'.

12 Ms Mestou read the note and became alarmed and searched the house for you and found you on the floor in the lounge room, conscious but unable to speak. You appeared to have vomit on your mouth, cheek, and shoulder, and a small Jim Beam bottle at your legs.

13 Ms Mestou called 000, though you had said you did not want an ambulance.

14 Whilst on the phone, Ms Mestou entered the rumpus room and saw William on the couch with a plastic bag over his head. On the ground under the couch was an axe with the head covered in a blood-stained beanie, which had been duct-taped to the axe. On advice from the 000 operator, Ms Mestou attempted to remove the plastic bag from around William's head but it was on tight and she could only pull it up under his nose. She observed William was stiff and cold, without a pulse.

15 After the arrival of emergency services, you were taken to the Austin Hospital where you were treated for inhalation of vomit. You have since made a full recovery and remained in custody. You did not apply for bail.

16 A post mortem carried out on William's body at the Victorian Institute of Forensic Medicine determined that the cause of death was "plastic bag asphyxia in the setting of ethanol intoxication and blunt force head injuries."

17 A record of interview was conducted by police at the Austin Hospital on 19 November 2020 but you exercised your right to silence and declined to answer any questions. You were formally arrested and charged with murder on that day.

18 During other police investigations a lockbox in a filing cabinet in your bedroom was found, containing a number of envelopes detailing the contents and to whom they were to be distributed following your death.

19 This matter proceeded to a committal mention on 11 August 2021, at which time you pleaded guilty and were committed to this Court. As I said, you again pleaded guilty on arraignment in this Court on 18 August 2021.

20 On the hearing of the plea, victim impact statements were filed on behalf of your son, Andrew Heddergott, and his wife, Joanne Heddergott. Both statements were read to the Court by the prosecutor.

21 Andrew Heddergott's statement details his struggle to come to terms with what has happened. He describes his brother, William, as a 'good guy, a good brother', who was gentle with a big heart. He says William had a smile that would light up a room, which is something Andrew misses. Andrew says William was never really given a chance in life due to his mental health struggles but he was kind and worried about other people more than himself.

22 Andrew says this experience has given him nightmares and he doesn't like to sleep at night. He also feels like he was not given a chance to say goodbye to William and bury him, as his mother's power of attorney was handled by a cousin. He feels he has been robbed of the opportunity to make decisions, including what happened to his family home, William's ashes, and your care.

23 Andrew feels he is now short tempered and prefers to spend more time alone. He is struggling to be the happy person he used to be and his friends have noticed this. So has his wife, who he doesn't feel he can let in.

24 His business has suffered as he has lost motivation and energy and feels he doesn't care much anymore.

25 Andrew is worried he will not be able to say goodbye if something happens to you. He recognises you have done the wrong thing and is angry at you for it, but he also feels blame for not being around to assist, particularly when travel was cancelled due to COVID-19. He described having to tell his father, who has been in a nursing home for 20 years, about what had happened. He is concerned as his father is now deteriorating.

26 He feels he has lost his whole family and it is destroying his life, and the lives of his wife and children.

27 Joanne's statement describes her relationship with her husband's family. She described you and William as having been very welcoming and nice to her.

28 Joanne feels Andrew has changed due to what has happened and will never be the same. She says he used to work hard and enjoy socialising and life, but he is not that person anymore. She says he has lost interest in everything and now just sits in the garage all the time by himself.

29 Joanne is struggling to support and protect Andrew, and feels her own interest in her work and friends has been lost. She is struggling to get a full night's sleep.

30 Joanne assisted with emptying the family home, under instructions from Andrew's cousin who had power of attorney for you. She describes her belief that there was no regard for Andrew's feelings as everything was thrown away except a few things she was able to save.

31 Joanne is angry at you and what you have done, though she is conflicted as you have always been nice to her and her children. She is angry at the changes your actions have caused in her life.

32 I have taken these victim impact statements into account in determining the sentence that should be imposed on you.

33 You were born in March 1939. You came to Australia from Germany at a young age following the Second World War. After the death of your mother and abandonment by your father as a teenager, you were raised by a guardian. It is reported that your guardian was very neurotic.

34 During your working life you were a registered nurse.

35 You married Reinhardt Heddergott and you had two sons, Andrew and William Heddergott. William is the biological child of you and Reinhart. Andrew is your adopted son.

36 Reinhardt suffered a stroke in the late 1990s and lives in an extended care facility due to his constant care needs. He has been in care for the last 15 years.

37 As a teenager, you had a consultation at the Royal Melbourne Hospital psychiatric ward for anxiety and communication difficulties, but you were not formally diagnosed or treated. However in 2016, you were referred to a psychologist for anxiety, social phobia, and concern about William's mental health.

38 In 2017, you were diagnosed with meningioma, a brain tumour, that was not growing or cancerous. You declined surgical intervention. You experienced ongoing dizziness and malaise. It is reported that the tumour was not causing any neurological deficits.

39 You were assessed by consultant psychiatrist Dr Lester A Walton, for the purposes of this plea, on 5 May 2021. His report dated 11 May 2021 has been produced and became an exhibit. In his report he noted that you did not suffer from hallucinatory phenomena, thought disorder, psychosis, or depressive psychosis, but your evaluation of William's health was "an exaggeration of delusional proportions, a belief [you continue] to cling to and it is not open to rational discussion".[3] Dr Walton's assessment was that you were caught up in:[4]

....a circumscribed delusional disorder which focuses upon what was her son's and her own ill-health as she perceived it, of an order justifying mercy killing. She continues to hold this belief. While there is no other clear-cut evidence of psychosis, Ms Heddergott's distorted emotional expression is at least consistent with late onset schizophrenia rather than just a delusional disorder.

40 Dr Walton noted that while your tumour was benign it could have caused disruption to cerebral processes, though neurological examination has not identified any obvious sequelae. He found "it is at least remotely possible that her brain tumour is making a contribution to psychiatric disturbance".[5] No neurological or similar reports have been produced to comment on any impact of the tumour.

41 Dr Walton is of the view there may have been a prospect of a mental impairment defence, however, you chose not to pursue such a course. Dr Walton found that while you were unable to reason with a moderate degree of sense and composure as to the wrongfulness of your act at the material time, he does not consider your choice not to argue mental impairment to be sufficient to indicate you are unfit to stand trial.

42 On your behalf, Mr Nathwani of counsel submitted that your state of mind at the time of the offending was that you were convinced your meningioma would deteriorate and kill you, you were operating in a delusional state, you had elevated blood pressure, cholesterol, gastroesophageal reflux, glaucoma, increased anxiety, linked to the meningioma, and social phobia. The prosecutor Mr Bourke QC accepts that this was so.

43 Based on the assessment of Dr Walton, Mr Nathwani argued that the 5th and 6th limbs of the principles set out in R v Verdins are engaged, being that due to your mental state imprisonment will weigh more heavily on you than a person in normal health, and that there is a serious risk imprisonment will adversely affect your mental health.[6] I accept that to be so.

44 Further, Mr Nathwani notes that while you do not have a diagnosis of pervasive schizophrenia, you were living under delusions regarding your own perceived demise which affected your ability to think rationally. It was argued this could reduce your moral culpability and in turn reduce the relevance of denunciation, specific and general deterrence (under Verdins limbs 1, 3 and 4). I agree that these matters are relevant circumstances and that some reduction of your moral culpability is appropriate on that basis.

45 Your age and lack of criminal history means that you are a woman of previous good character. Until this incident you had lived a good life. Given your age and the prospect that your life will end before you are released on parole, it is put that you otherwise have good rehabilitation prospects and are unlikely to offend again. In my view the sentencing factor of specific deterrence has no role to play in this case. Even if you achieved release from custody there is no prospect that you would, or even could, commit any other offence.

46 However, the weight of your good character must be assessed against the seriousness of the offence.

47 The sentence I will shortly impose on you may well represent the remainder of your life expectancy. Prison will also be more burdensome on you due to your age and state of health, both physical and psychological, compared with a younger offender. You pose no risk to the community.

48 As I have been well aware since the beginning of the COVID-19 pandemic, custody conditions are more onerous as a result.[7] Like many prisoners you have had reduced access to programs, been unable to receive visitors, and may be subject to further quarantine periods or lockdowns. This is more significant for you due to your age, vulnerability, mental state, and as this is your first time in prison.

49 Mr Nathwani accepts that the three sentencing factors relevant to your sentence are general deterrence, denunciation and just punishment.

50 Whatever your motivation in taking the action you did to kill your son, it must have involved a high level of violence with weapon and fatal attack completed with asphyxiation. Your son had a blood alcohol content of 0.18%, which is a very substantial reading.

51 Further you have not demonstrated any remorse or regret for your actions.[8] You still consider what you did to have been appropriate. Let me be clear; it wasn't and never could be. The problems you were facing, though difficult, are capable of solution without resorting to fatal violence. It is important that the community understand this to be so.

52 Dr Walton noted that you remain "thoroughly of the view that her misconduct was justifiable and honourably motivated".[9] It is regrettable that remains your view of your own actions. Your lack of remorse and the belief that I have just referred to mean that to a degree, what might be described as your rehabilitation, is undermined.

53 You pleaded guilty at a very early stage, being at the first occasion following assessments of your mental health and fitness to stand trial. As such, you are entitled to a discount on your sentence for facilitating the course of justice and sparing the State and the witnesses the cost and trauma of a trial.[10] Your counsel submitted that the sentencing discount for this should be substantial. Your early plea also has particular benefit as a result of the COVID-19 pandemic and the backlog of trials in the court system and an additional discount will flow to you for that factor.[11] I agree with those submissions.

54 Murder of course is a most serious offence, as reflected in community values, the maximum penalty for murder, and the standard sentencing scheme implemented by Parliament.

55 Your personal circumstances highlight a number of mitigating factors. It should be noted, though, that William was vulnerable due to his mental health, his reliance on you, and your relationship as parent and child. As I said, you were his carer and that relationship was not only familial but also one of trust as the prosecutor pointed out.

56 Murder is a category 1 offence under s 3 of the Sentencing Act 1991 (Vic). Under s 5(2G) of the Sentencing Act 1991 (Vic), a term of imprisonment must be imposed for a category 1 offence. As I said, the maximum penalty is life imprisonment.

57 This offence also falls within the standard sentencing scheme, under s 5A of the Sentencing Act 1991 (Vic). As I earlier noted, the standard sentence for murder is 25 years' imprisonment.

58 As a standard sentence offence, under s 5B(4) and (5), the Court must give reasons for imposing the sentence and how it relates to the standard sentence. Section 5B also notes that the Court must take the standard sentence into account as a factor, without limiting the other matters the Court should take into consideration or the instinctive synthesis approach to sentencing.[12]

59 Under s 5B(2)(b), the Court can only have consideration for sentences imposed in other standard sentencing offences.

60 Mr Nathwani acknowledged that the appropriate sentence is incarceration but submitted that due to your circumstances, a less than standard sentence should be imposed. The prosecution take no issue with that submission.

61 You are now 82 years of age. Your age on its own takes this case beyond the usual. I have taken the standard sentence into account in deciding what sentence to impose on you.

62 In many respects there is a significant disconnection between the standard sentence and the circumstances of your offending. The sentence I will impose on you is significantly below the standard sentence for obvious reasons. Given your age and the circumstances of the offence you have committed there is no utility in doing otherwise.

63 Section 5(1) of the Sentencing Act 1991 (Vic) is in the following terms:

(1) The only purposes for which sentences may be imposed are -

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b) to deter the offender or other persons from committing offences of the same or a similar character; or

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e) to protect the community from the offender; or

(f) a combination of two or more of those purposes.

64 A just punishment which denounces your conduct will be imposed on you which is also intended to deter others. In my view you do not need to be deterred from further offending. The community does not require to be protected from you.

65 Your actions in relation to the death of your son have diminished what was otherwise a long and law abiding family life. Your actions have also had a dramatic effect not just on you but on those around you, particularly your son Andrew and daughter in law Joanne. To the shock of people who knew you, you have resorted to fatal violence to solve a problem which was amenable to other solutions which were far more acceptable.

66 In all the circumstances, on the charge of murder you are sentenced to be imprisoned for a period of 15 years. I direct that you serve a period of 10 years before you become eligible to be released on parole.

67 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare but for your plea of guilty I would have sentenced you to a period 22 years' imprisonment with a non-parole period of 16 years.

68 Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that your pre-sentence detention is a period of 376 days, not including today, and I direct that be recorded with the Court and reckoned as time already served.

69 I will make the disposal orders sought by the prosecutor and not opposed by your counsel.

[1] Sentencing Act 1991 (Vic), ss 5A, 5B and 11A.

[2] Crimes Act 1958 (Vic) s 3(2).

[3] Report of Dr Lester A Walton dated 5 May 2021, page 5.

[6] [2007] VSCA 102.

[7] R v Madex [2020] VSC 145, [51].

[10] R v Duncan [1998] VR 208, 215 and Phillips v The Queen [2012] VSCA 140; (2012) 37 VR 594, 605.

[11] Worboyes v The Queen [2021] VSCA 169, [35].

[12] See also Brown v The Queen [2019] VSCA 286