DPP v Bednar [2023] VSC 67

2 Your murderous attack upon your 78 year-old mother which led to her death was preceded by a period of months during which your long-held ill-feelings towards her had grown in intensity for reasons upon which I will soon elaborate. You had engaged in a course of conduct designed to harass and intimidate her. She was frightened that you would harm her, the family violence intervention order ('FVIO') which had been in place for some time to protect her providing her little comfort that you would not act on your apparent hatred.

3 Immediately preceding your crime, and intent, I am satisfied, upon carrying out an attack upon her, you entered your mother's home late at night in defiance of the FVIO. In circumstances which are not clear on the evidence, but upon which I will later expand as far as I am able, you physically attacked your mother in what could only have been a sustained and brutal fashion. You left her dead or dying on the floor of her bedroom, naked and alone, before making good your escape.

4 Thereafter you took steps to delay the discovery of her body, and from an early time, sought to deflect blame for the crime to a friend of yours, Danny Cohen.

5 These few words in description of your crime illustrate clearly enough that your murder of your mother is a very serious example of the crime of murder.

6 The maximum penalty for murder is imprisonment for life.

7 Murder is a standard sentence offence with a standard sentence of 25 years' imprisonment.

8 You are the only child of Judy and Joseph Bednar, having been born in Sydney on 3 March 1968. Your parents separated in 1974 and shortly afterwards, you moved from Sydney to Melbourne with your mother. You have lived here ever since.

9 From an early age, you had a troubled relationship with your mother. So difficult were things between you and your mother that at the age of 15, you were sent to live with a foster family in Caulfield North. The family had a son, Danny Cohen ('Cohen'), who was some ten years younger than you but became your friend and an important figure in your life and in the context of this case.

10 You have had a lengthy psychiatric history, encompassing numerous involuntary admissions into psychiatric wards since the first admission in 1993 at the age of 25. There were further admissions in 1994, 1996, and 1998. Over the years the principal diagnosis reached by experts has been one of bipolar affective disorder. Between 2001 and about 2019, it would seem that your psychiatric health remained stable, or at least, you were not subject to any treatment, medication or hospital admissions during that period.

11 During this time you remained in regular employment, principally as a taxi driver. For much of the period, you were in partnership in a taxi business with Cohen. You had somewhat of a falling out with him in the business and the business connection was terminated. You continued to be in some contact with Cohen on a generally friendly basis.

12 In 2013, when you were about 45, you self-published a book entitled A Rasta's Tale from Down Under, in which, amongst other things, you described some of the conflict in your relationship with your mother.

13 In July 2019, you moved into premises at 33 Embankment Grove, Chelsea, only a short distance from your mother's home. Evidence would suggest your mental health began to decline from that time. In 2020, your mental health deteriorated significantly, leading to four involuntary admissions to the psychiatric ward at Frankston Hospital ('Ward 2 West') in the second half of 2020. Your mother had some involvement in those admissions.

14 In mid-2020, you began to send what were described in the Amended Summary of Prosecution Opening for Trial ('Prosecution Summary') as 'delusional, aggressive and paranoid messages' to friends and family, including your mother, her friend Diane Katz, and Cohen.[1]

15 Being concerned for your wellbeing, and in due course, for her own safety, Mrs Bednar, in conjunction with others including Cohen, made efforts to have you assessed by a Community Assessment and Treatment Team ('CATT').

16 The first of your four involuntary admissions to Ward 2 West occurred between 25 and 30 June 2020. During the admission, you denied that you were unwell and blamed your mother for having you committed.

17 You were admitted for a second time on 28 July 2020. The admitting psychiatry registrar noted that you were suffering from an early relapse of schizoaffective disorder/bipolar disorder. During the mental state review, the registrar noted that you asserted that your mother had been providing misleading information about your mental state and that your diagnosis was based on misinterpretation and incorrect information from your mother. You described your mother as having been vindictive throughout your relationship with her and said that you 'can't love' her.

18 You were discharged from the hospital on 4 August 2020 but readmitted on 5 August 2020, remaining until 9 August 2020.

19 In mid-2020, Mrs Bednar discussed her concerns about you and for her own safety with her friend Diane Katz. In August 2020, Cohen, helped Mrs Bednar to install a Ring doorbell camera[2] on her front door.

20 In September 2020, your mother wrote to her local Member of Parliament, Tim Richardson, complaining about a restriction which had been placed upon her driver licence as a result of your having reported her as unfit to drive. In the letter, she expressed her concerns about the lack of treatment you were receiving, and reported fears for your safety and her safety. She stated that she had not seen you since 3 July 2020. At this time and until her death, Mrs Bednar had a FVIO in place prohibiting contact by you. You were well aware of this fact.

21 On 2 November 2020 at approximately 4.00am, you were captured on the Ring doorbell camera emptying the rubbish from a neighbour's bin onto the front yard of your mother's home.

22 On 4 November 2020 at 8.49pm, you attended at Mrs Bednar's address and turned off the power to her home.

23 On 5 November 2020 at 3.25pm, you attended at the front door of the premises and kicked in a window, smashing it. Mrs Bednar called 000 and you left her property.

24 At 7.00pm on the evening of 5 November 2020, you were admitted for the fourth time as an involuntary patient to Ward 2 West. You remained until 19 November 2020, following which you were discharged into the care of an outpatient community mental health service until February 2021.

25 Following your intrusions onto her property, your mother had a CCTV system installed providing further coverage to the front of the premises, including the driveway, and all the locks to her house changed. These steps were carried out between 7 and 9 November 2020.

26 Evidence indicated that during the course of the four hospital admissions between 25 June and 19 November 2020, you repeatedly expressed to your treating nurses and doctors significant animosity towards your mother.

27 On 13 November 2020, a family meeting was held by Consultant Psychiatrist Dhara Perera, attended by you and your mother amongst others. At the meeting, you expressed your grievances against your mother, which you had apparently written down on a piece of paper, including that she hated your father more than she loved you and that as a child she had never taken you to soccer training. You said at the meeting that your mother was dead to you and that when she was buried, no one would go to her funeral.

28 Although you repeatedly denied any thoughts of hurting yourself or your mother, you consistently presented as angry towards Mrs Bednar for telling lies about you and setting you up.

29 A further intrusion by you onto the property of Mrs Bednar occurred at 7.10am on 9 January 2021. The CCTV system captured you jumping the fence into your mother's front garden and turning off the mains water tap before jumping back over the fence and leaving the area.

30 At a review with your outpatient community mental health service case manager Julie Fletcher on 11 January 2021, you complained that doctors and the mental health service were incompetent for failing to check allegations made against you, admitted you had broken your mother's window but claimed you were justified in doing so, described your mother as deranged, and accused her of having prevented you from having contact with your father. You accused your mother of having set you up to be sexually assaulted by a gay friend of hers when you were 15.

31 On about 13 January 2021, you sent a text message to Mrs Bednar which read:

Your (sic) nothing more than a test tube to me I rejected your milk because your (sic) such a vindictive person even made my dog disappear at 5 and organised my Rape at 15 by gay friend of yours and then lied all those years and stripped me off (sic) all my family assets by playing dumbno (sic) wont rest til yo ur (sic)in jail for all your crimes and if die before that's okay you don't believe in god so I know we're (sic) you will end up and you on her side you leech

32 In a letter to the Peninsula Mental Health Service on 19 January 2021, Mrs Bednar expressed concerns for your safety and for her own safety.

33 Between January and March 2021, Mrs Bednar engaged a handyman to explore the practicality of increasing the height of her front fence without replacing it. As it turned out, those alterations were not made.

34 In March 2021, Mrs Bednar was hospitalised after a fall. She received a knee replacement. After she was discharged from hospital, she stayed with Mr and Mrs Katz for about five weeks. She returned home on 26 April 2021, although she stayed with Mr and Mrs Katz again for the weekend of 30 April to 2 May 2021 before returning home again.

35 While staying with Mr and Mrs Katz, Mrs Bednar on several occasions told them that she feared for her life. She indicated that Chelsea Police had said that they could not do anything about it unless you physically harmed her, but 'by that time, it will be too late because I'll be dead'.

36 At 5.46pm on Tuesday 4 May 2021, you attended at your mother's home and rang the doorbell. She opened the front door but left the wire security door closed. You said to her, 'Hello Judy, I would like to know why you lied last year, to say that I was crazy'. She shut the front door and rang 000. You walked away.

37 The police were unable to identify any contact between you and your mother after this date.

38 Mr Desmond submitted on your behalf that none of your conduct towards your mother leading up to your fatal attack upon her involved any physical assault of her. That is true, but for many months leading up to your eventual crime, you repeatedly and in contravention of the FVIO you knew to be in place, manifested your seeming hatred of her by unlawfully entering upon her premises, sometimes at night time, and carrying out annoying, intimidating, and, to Mrs Bednar, frightening actions. It is perfectly clear that you were intent upon causing fear and apprehension in the mind of your elderly mother. That you successfully achieved your aim is also patently clear.

39 It was the prosecution case put against you at the trial that, set against the background of the fraught relationship between you and your mother over the years, you became motivated to kill her because you resented her efforts from mid-2020 onwards to obtain treatment for you. It was put against you that you seemingly believed that your mother had lied to doctors to have you admitted.

Night of Wednesday 12 May 2021 and Thursday 13 May 2021

40 Mrs Bednar was at home on the evening of 12 May 2021. At 11.27pm, she was captured on the Ring doorbell system going outside her front door and checking her power mains. At 11.28pm, she accessed a spreadsheet on her Dell laptop computer.

41 At 1.06am on 13 May 2021, Mrs Bednar posted a comment on the Melbourne PC User Group webpage.

42 That was the last communication Mrs Bednar had with any person or organisation.

43 Your mother owned and used a Fitbit watch which was linked to a fitness tracking application on her mobile phone. Data captured in the application indicated that at 2.40am on 13 May 2021, she commenced a period of sleep. The data would suggest that at 4.47am, her sleep ended with a sharp burst of activity represented by an elevated heart rate for a short period of time. Shortly thereafter, the application stopped receiving data.

44 The evidence would be consistent with the proposition that your assault upon your mother commenced at about 4.47am on 13 May 2021.

45 Subsequent events including Mrs Bednar's failure to respond to messages sent by Diane Katz later on the morning of 13 May and on 14 May 2021, and failure to answer her door at about 10.00am on the morning of 13 May 2021 would confirm the proposition that she was deceased at least by 10.00am on that day.

46 Neither the CCTV system showing the driveway and garage entrance nor the Ring system captured your arrival at or entry into your mother's home, but enter it you did, at a time and in a manner which was not revealed by the evidence. The subsequent observations of you revealed on the CCTV footage from the driveway as you left your mother's home at 6.27am on 13 May 2021 through the garage roller door wearing hiking shoes, a headlamp and carrying a backpack are instructive as to the preparations you must have made to enter the premises.

47 As to your purpose in so entering, Mr Desmond submitted that I could not be satisfied beyond reasonable doubt that you intended to kill or even to assault your mother at the time of your unlawful entry into her home. He raised the prospect that you might have entered intent upon stealing money or some unspecified document or other item from her, that she might have disturbed you, and that the assault upon her might have arisen from that. The prosecution did not contend that I should be satisfied beyond reasonable doubt that you broke into the premises intending to kill your mother. Mr Rochford KC, who appeared with Ms Locke for the Crown, did contend, however, that I should be satisfied beyond reasonable doubt that at the time of your incursion into Mrs Bednar's home, you intended to physically attack her.

48 In my view, the explanations advanced by Mr Desmond for your having entered the property late at night as you did are not only entirely unsupported by any evidence, but are implausible. A desire to steal money or some other item from your mother would go no way towards explaining the seriously criminal conduct in which you engaged by unlawfully entering your mother's home on the occasion in question.

49 In all of the circumstances, including your preparation for the incursion, the time of the day at which it occurred, the considerable anger and resentment you clearly felt towards your mother, the ferocity of the beating you inflicted upon her, and your shameful actions after you had attacked her, I am satisfied beyond reasonable doubt that at the very least, you had an intention to carry out an attack upon your mother at the time of your entry. Your assault upon your mother was no unplanned overreaction to having been disturbed or confronted by Mrs Bednar as you rifled through her possessions. This was a planned and vicious attack carried out upon an elderly woman in her home, which she had taken steps to secure from you, late at night.

50 There is of course much about the attack which is unknown to the Court. Much, however, can be gleaned from the state in which you left your mother and the examination of the crime scene.

51 When the shocking scene was discovered over two days after your crime, the naked body of your mother was found lying face down in the gap between her bed and the built-in robes in her bedroom. Bloodstaining and injuries were visible on her head and face, hip, back and arms. Bloodstaining was located on the carpet and items around her, including on her bedsheets. An area of bloodstaining was found on the underside of one of the pillows on the bed. The Fitbit watch with a broken strap was located between her bed and the dresser on the other side of the room. The cessation of data transmission from the watch clearly coincided with the time when the strap was broken during your assault upon Mrs Bednar.

52 The post-mortem examination of your mother carried out by Dr Brian Beer clearly showed the ferocity of your attack upon her. She had sustained numerous injuries to her face including bilateral black eyes, bruising and lacerations to the mouth and lip, bruising, lacerations and abrasions to the ears, nose and face, and a broken nose. There was sub-galeal scalp haermorrhage and internal findings including subarachnoid haemorrhage. The pathologist observed substantial and severe bruising to the upper chest, torso, flanks and groin as well as moderate bruising to both arms.

53 Conjunctival petechial haemorrhages and laryngeal haemorrhage were detected raising the possibility of strangulation.

54 Underlying the bruising to the chest and flanks was a finding speaking most clearly to the ferocity of your attack upon your mother. She had sustained a very large number of rib fractures. There were bilateral anterior fractures to the 2nd to the 8th ribs. There was a right posterolateral fracture to the 10th rib. There were left posterolateral fractures to the 8th to the 12th ribs.

55 In commenting on the cause of Mrs Bednar's death, Dr Beer noted:

Overall, the deceased sustained severe blunt force injuries during an assault with the cause of death given as multiple injuries. There are a number of potential mechanisms of death; a) respiratory failure as a result of the extensive rib fractures, prone position, and head injuries inducing a prolonged unconscious state, b) direct strangulation cannot be excluded, c) suffocation cannot be excluded.[3]

56 Having attacked your mother with the intention to kill her or at least cause her really serious injury, and having done whatever else you wanted to do inside the house at that time, you left her premises via the roller door leading onto the driveway where you were picked up by the CCTV cameras.

57 It was asserted on your behalf that I should conclude that you did not use a weapon in the attack, and that this fact would speak to the absence of a planned murderous intent. I have already noted my conclusion as to your intent at the time you unlawfully entered your mother's premises. As for the question of a weapon, as I see it, the evidence was neutral as to whether you used any weapon. You may have done. You may not have done.

58 What is important is that, no matter precisely how it was that you assaulted your mother, in light of the number and magnitude of the injuries you caused, this could only have been a very sustained, violent and terrible attack on a vulnerable woman.

59 It is scarcely credible that any son could carry out such an attack upon his helpless, defenceless, elderly mother.

60 Having done so, in many ways, you immediately demonstrated your complete lack of remorse and regret. Sadly, that lack of remorse and regret continues to this day, as your subsequent conduct has made clear.

61 Bearing in mind that the indications are that your attack upon your mother commenced at 4.47am at the time when the Fitbit data indicated a sharp burst of activity by your mother just before the transmission of data stopped when her Fitbit was thrown from her wrist, your departure from the house through the roller door at 6.27am is interesting. It is impossible for me to know what you had been doing in the house during the intervening period. All that is known is that you walked out of the roller door, dressed in clothing including hiking boots, wearing a headlamp and carrying a backpack on your back. Seemingly calmly, you walked along the driveway to the street, turned right from the driveway, and headed in the direction of your house.

62 For reasons that remain unclear, you saw fit to return to the scene of your crime at 4.36am on 15 May 2021, that is, two days later. As you knew, your mother was lying dead in her bedroom. Your return to the crime scene could only have been to take some step to clean or in some other way interfere with the scene.

63 At 6.02am, having been in the house for almost 1½ hours, you emerged again through the roller door. This time you were wearing some large gloves and a facemask and carrying a large garbage bag.

64 As you came outside, having noticed a parcel which had been delivered to your mother and placed near the front door, you had the presence of mind to stop, put down the garbage bag momentarily, and move the parcel behind a pillar which would block the view of the parcel from the street. This was undoubtedly a step you took to delay the discovery of your mother's body.

65 Whilst at the time of the Prosecution Summary, it was the Crown's contention that you had stripped your mother of her clothing and removed it from the house in the garbage bag on 15 May 2021, the evidence was silent as to your mother's usual practice so far as night attire was concerned. I cannot conclude that you removed and disposed of her clothing, or indeed that she was ever clothed. What can be safely concluded is no more than that when you left her dead on the floor, at least after your second visit, she was naked.

66 Your conduct in returning to the scene of your crime two days later was a further sign of your heartless and extraordinary disregard for your mother, and total lack of remorse and regret for what you had done to her. I will have more to say on this matter later.

67 You are 54 years of age. As I indicated earlier, you were born in Sydney and moved down to Melbourne to live with your mother after the separation of your parents. Thereafter you were raised by your mother and your maternal grandfather, with, as I also said earlier, a period of time spent living with a foster family, the Cohens. You maintained some contact with your father. You describe him as being distant but a calming influence.

68 I have already remarked upon your troubled relationship with your mother. You reported your relationship with your mother as consistently strained in speaking with the psychiatrist who assessed you before the plea, Dr Adam Deacon. It seems that your relatively distant relationship with your father can be included amongst the many things in your life for which you blame your mother.

69 You did your primary schooling at Rose Bay Primary School, Ripponlea Primary School, Yeshiva College from grade 2 to year 8, then Wesley College where you did year 9, which you repeated. You transferred to Caulfield Grammar where you did years 10 to 12, completing your Victorian Certificate of Education.

70 You apparently experienced some difficulties academically. Your writing was messy and you were a poor speller. You struggled to write essays. You did perform well in some subjects such as politics and philosophy.

71 For reasons that are unclear on the material before me, your mother sent you to a psychiatrist at some point and you apparently engaged in group therapy with other adolescents. You reported to Dr Deacon that you made up stories about delinquency. It was shortly after this that your mother decided to place you in a foster care placement run by Jewish Welfare.

72 Upon leaving school you commenced work with Westpac Bank. Then you obtained a taxi licence and worked for many years in that field and as an Uber driver, other than for one year in 1989 when you travelled overseas. In the lead-up to your crime, you were on JobKeeper allowance. You had lost your taxi licence in October 2020.

73 At some stage you completed a community development course at TAFE. You carried out some work in aged care and disability services. You also worked intermittently as a picker and packer between the years 2002 to 2011, and also worked for a health distributor before injuring your shoulder.

74 You were a long-term user of cannabis from the age of 15. You told Dr Deacon that you had maintained a habit of smoking a couple of joints daily. You also experimented with amphetamine two to three times per week for a six month period when you were 25.

75 A criminal record containing one finding of guilt for shoplifting was filed against you. That matter is of no relevance to the current proceeding.

76 Dr Deacon was initially engaged on your behalf before the trial to provide an opinion as to whether you might have a defence of mental impairment available to you. He apparently assessed you on 5 May and 24 June 2022. Any report he may have provided to your legal representatives pre-trial was not provided to the Court on the plea. The content of the report he provided following your conviction,[4] however, makes it clear why it was that the defence of mental impairment was not available to you.

77 In your consultations with Dr Deacon in 2022, you made clear to him your mistrust of psychiatrists and mental health services. You also minimised your past psychiatric inpatient admissions and challenged the concept that you had ever been mentally ill. He found you to be fixed in your opinion that your mother and others had lied to mental health services leading to your admissions in 2020. You denied involvement in your mother's death and identified Cohen as the likely perpetrator. Dr Deacon noted that you appeared to lack insight into past episodes of mental ill-health.

78 In assessing your mental state at the time of his assessment of you on 20 January 2023, Dr Deacon found you to be in a similar state to that which he had previously observed, and consistent with assessments of your mental state contained within the Justice Health file to which he had resort. He described you as having launched into a 'pressured and impassioned monologue specifically relating to [your] sense of injustice with the recent guilty verdict'.[5] He found you initially difficult to interrupt and redirect, and in an irritable mood. A theme of injustice was prominent. You maintained that you were not suffering from a mental illness.

79 In providing information as to the lead-up to the events in question, you claimed to Dr Deacon that Cohen and your mother had been aware that you intended to sue them and Peninsula Health. You described your mental health in the weeks prior to 13 May 2021 as stable. You described in detail what you claimed to be your movements on 13 May 2021 itself. Needless to say, you disputed any involvement, and claimed that you had not seen your mother since 4 May 2021. Of Cohen, you accused him of having ingratiated himself with your mother from 2019 onwards. You accused him of having murdered your mother. You also accused him of having stolen items from your house and then replaced them.

80 I note in passing that in your trial, it was put by your counsel to Cohen that not only was he responsible for the murder of your mother, but that prior to the murder, he had removed items of clothing and the like from your house, worn them while attending at your mother's house with a view to implicating you in whatever occurred there, and then planted them back in your house following the murder to frame you. The blood of Mrs Bednar as indicated by DNA analysis was found on a number of those items.

81 In speaking with Dr Deacon, you confirmed that at the time in question, your judgment was not impaired, and that had you murdered your mother - which you denied you did - you would have understood that it would be wrong.

82 Dr Deacon then reviewed in some detail your functioning in prison since your arrest, by reference to what you told him and his perusal of the Justice Health file notes and the Thomas Embling Hospital notes.

83 In the Opinion section of his report, Dr Deacon noted your significant psychiatric history, with frequent psychiatric inpatient admissions between 1993 and 2000, 'predominantly for manic relapses, sometimes including psychotic features, including grandiose and bizarre delusions, in the context of an established diagnosis of bipolar affective disorder with a differential diagnosis of schizoaffective disorder'.[6]

84 Dr Deacon considered your presentation to be confounded by your chronic cannabis use. You have never accepted that you are mentally ill, and in that context, have not been consistently compliant with mood stabilising and antipsychotic medication. He described you as having been difficult to maintain in the community.

85 He observed of your untreated period between 2006 and 2020 that you maintained stable mental health, or at the very least, avoided detection by mental health services.

The clinical notes from Peninsula Health and the Justice Health file provide compelling evidence that Mr Bednar experienced a marked decline in his mental health with objective signs of mania and psychosis in 2020. His signature presentation was characterised by an irritable mood, agitated and intense manner, pressured speech, circumstantial speech and persecutory beliefs (often deemed to be delusional in quality and intensity).[7]

87 Dr Deacon opined that your likely diagnosis is bipolar disorder type 1,[8] with a differential diagnosis of schizoaffective disorder. He stated that while there is compelling evidence that you have an enduring but episodic relapsing-remitting mood-psychotic disorder, you have maintained the capacity to remain relatively self-contained. Your historical and current lack of insight into your mental health status is commonplace amongst people with your condition.

88 Dr Deacon's opinion was that there is no objective evidence that you were experiencing mania and/or psychosis during the relevant period when your mother was murdered.

89 After your arrest, you did exhibit some signs of hypomania, and you also reported persecutory beliefs centred on your mother. Those beliefs could be considered to be delusional in quality.

Mr Bednar may have been mentally unwell at the time of the alleged offence. However, based on his self-report that he was not mentally ill, and the lack of objective evidence that he was mentally ill, even if he was mentally ill, his judgment was unlikely to have been so impaired that it would have markedly influenced his decision making to the extent that he didn't understand the wrongfulness of the alleged offending behaviour.[9]

91 It is unsurprising in light of the opinions of Dr Deacon set out above that Mr Desmond did not assert that any of the first four limbs in R v Verdins & Ors[10] was enlivened in your case.

92 At the conclusion of the report, Dr Deacon noted:

Mr Bednar's underlying mental illness, albeit currently untreated, has posed, and will continue to pose, a challenge to manage in prison. He is likely to experience prison as more onerous than a prisoner with stable mental health. He has experienced his legal proceedings as very stressful. He is markedly disgruntled with the recent verdict. He is at risk of mental deterioration given the likely persistent stress associated with his perceived sense of injustice and constraints of the prison environment.[11]

93 The above paragraph was relied upon by Mr Desmond in support of a submission that limbs 5 and 6 in Verdins are enlivened in your case, a submission which was not challenged by the Crown.

94 When I suggested to Mr Desmond during the plea hearing that the application of limbs 5 and 6 to sentence in this case would be something that would have a modest effect on the overall sentence compared with the reduction that might flow in some cases where, for example, moral culpability is substantially reduced, Mr Desmond responded, 'But I rely upon 5 and 6 heavily. I don't have much else.'[12]

95 I do take into account in sentencing you the evidence of Dr Deacon, and the fact that it had the result of limbs 5 and 6 in Verdins being enlivened. I will reduce the sentence accordingly, but the reduction is by no means a substantial one.

96 I also note that whilst the first four limbs in Verdins were not enlivened in your case, that does not mean that your mental functioning in the months and years leading up to the murder is entirely irrelevant. The fact is that at the time of your crime, you were a person who for many years had suffered from mental illness, and the evidence of Dr Deacon indicated that your mental health had declined in the year preceding the crime. Whilst there was no evidence to support a view that you were mentally ill when you murdered your mother, less still that such mental illness had any real part to play in your offending, it would seem that for many years of the troubled relationship you had with your mother, and indeed, during the period of the further deterioration in that relationship which occurred in 2020 and early 2021, you did suffer from the bipolar disorder which had previously been diagnosed and intermittently treated, and which was again diagnosed after your incarceration. I take this fact into account in the general sense as one of the surrounding circumstances of your case. You were not a person of entirely normal mental functioning who developed a hatred of your mother and then acted upon it. You were a person who for many years had experienced mental illness.

97 Three victim impact statements from friends of Mrs Bednar were filed in Court. These were from Diane Katz, her husband Ivan Katz, and Zsofia Heeger.

98 Mrs Katz knew you and your mother for over 45 years. The two of you were constants at their house for Jewish festivals and the like. Your mother stayed with Diane and her husband in the aftermath of her knee injury, during which time your mother told Diane of her fear of you. Although she did not feel safe, your mother returned home to continue rehabilitation on her knee. It is a sad fact that Mrs Katz blames herself for the murder of her friend, wishing that she had not let her return home, and that she could have done more. She described Mrs Bednar as a generous and kind person who did not deserve her fate. The events which transpired, for some reason not elaborated upon, significantly damaged the relationship between Mrs Katz and her brother.

99 Ivan Katz described feeling profoundly emotionally disturbed in light of his very close relationship with Mrs Bednar and the nature of the crime you carried out upon her. He feels damaged, and fearful of you. The loss of Mrs Bednar has impacted seriously on his sleep and familial relationships.

100 Zsofia Heeger, who lives overseas, exchanged letters and text messages on a weekly and sometimes daily basis with Mrs Bednar, the great aunt of her husband. She had lost an important part of her life with the death of Mrs Bednar. She described Mrs Bednar as a kind and caring person. She misses her being an essential part of her life. She thinks of her every day. Her heart aches and she misses her very much.

101 The victim impact statements lose none of their impact on account of their brevity.

102 I will take the profound loss and damage suffered by these victims of your crime into account in the appropriate way in arriving at the appropriate sentence to pass upon you.

Nature and gravity of offending and moral culpability and degree of responsibility

103 The combination of features of your crime makes plain the fact, as I indicated at the outset, that this was a very serious example of the always-serious crime of murder.

104 Having earlier waged a campaign of intimidation and harassment against her, fuelled by the strange hatred and resentment you harboured towards her, you broke into your mother's home in the early hours of the morning on 13 May 2021 intent upon carrying out some sort of physical attack upon her. This was a planned intrusion which you knew to be in direct defiance of the FVIO that had been in place to protect Mrs Bednar.

105 Mrs Bednar was 78 years' old, alone, and, for some time prior to your attack, sleeping in what was meant to be the sanctity and safety of her own home. It is a sad fact that in the months leading up to this event, your mother lived in what turned out to be entirely well-founded fear of you. Although little is known of the precise circumstances of the attack you launched upon her, it clearly occurred in her bedroom, and one can well imagine the terror your mother must have felt as she became aware of your presence and you commenced your onslaught.

106 You attacked her with a ferocity, viciousness and persistence which are truly extraordinary. You caused bruising, abrasions and lacerations all over her face, arms and torso. There must have been particular focus not only on her head and face but on her chest as well. Many people would live their whole lives without ever sustaining a broken rib. Your attack was so forceful that you left your mother with 20.

107 It is unclear how long it took for the injuries you had inflicted to bring about your mother's unconsciousness and death, or precisely what the mechanism of death was. What is not unclear is that your mother must have experienced fear and anguish in her last conscious moments.

108 Having inflicted this terrible beating which was a shocking reflection of the disdain with which you viewed your mother, you remained at the scene for a time before leaving her dead or dying on the floor. You made good your escape for the first time. You then returned two days later, confident that her body had not been discovered, and intent upon tampering within the crime scene to hide your involvement. You took a final, cynical step in hiding the package at the front door designed to slow the discovery of your mother's body. As you left the house that final time, you left your mother's naked body bloody and bruised and alone on the floor of her bedroom.

109 These callous actions of yours in the aftermath of your crime, as well as being emblematic of your astonishing lack of remorse for your crime, about which I will say more soon, are significant aggravating features which make your crime more serious than it would have been had you not engaged in that conduct.[13]

110 Your moral culpability for the murder of your mother cannot be viewed as being anything other than exceedingly high. The mental illness from which I am satisfied you have suffered for many years was not causally connected with your crime. You have certainly not been of normal mental health, but the fact is that you were not deprived of a full and complete understanding of the proposition that to attack and kill your mother would be a crime of the highest order of seriousness. You felt anger and resentment. You acted upon these feelings in truly outrageous fashion. You are fully responsible for your actions.

111 I note that the practice of trying to determine whether a particular crime falls in the low, middle or upper range of seriousness has been deprecated in recent times.[14] For what little it may be worth, however, I would have no difficulty in considering that your crime is a very serious example of the crime of murder which would sit comfortably in the upper range of seriousness.

112 As I noted earlier, your conduct after the killing showed your lack of remorse and regret. Sadly, that has continued to the present time. In running your trial, which was of course no more than your right, you persisted in your false claim that Danny Cohen, not you, was responsible for the death of your mother. As what you said to Dr Deacon, and indeed what you said in this Court on the day of the plea hearing, showed, you still protest your innocence, and accuse Cohen of being the killer.

113 It is unsurprising, in my view, that the jury in your trial so speedily rejected the absurd contention that Mr Cohen attacked and killed your mother. Your defence only needed to be stated for its obvious implausibility to be readily apparent when the evidence was considered.

114 Mr Cohen was an entirely innocent and blameless person who had been kind enough to render help and support of various types to your mother in the last months of her life, including driving her to appointments and installing home security. This was the kind of support which a child might be expected to provide to an elderly parent. You, of course, provided no such support. For his troubles, Mr Cohen was put through the ordeal of being falsely accused in this Court of being a killer. This was no doubt a distressing and painful experience for him.

115 In their outline of submissions on the plea, the Crown highlighted the manner in which you ran your defence, subjecting an innocent man to allegations of having carried out the murder, as being an aggravating feature of the offending. Mr Desmond challenged this contention, on the authority of Siganto v The Queen[15] and R v Gray.[16] I accept Mr Desmond's submissions on this score. The way in which you conducted your defence, including your false accusation that Cohen was the killer, cannot be considered to be an aggravating circumstance of your offending. That is not to say, however, that your conduct is entirely irrelevant to sentence, as I will later elaborate upon.

116 Your signal and continuing lack of remorse, shown by all of your conduct after the crime, including the attribution of blame to an entirely innocent person, is, as I said, not an aggravating feature. Rather, your lack of remorse represents no more than the absence of what in many cases may be a significant feature in mitigation.

117 Mr Desmond submitted that your prospects of rehabilitation should be seen as being 'reasonable to good'[17] in light of the fact that your offending was out of character, the fact that it was victim focussed meaning that the general public would be at little risk upon your release, and your likely age by the time of your release. The Crown conceded your prospects of rehabilitation to be reasonable, based on the matter of your age by the time of your release, and the proposition that you will serve your sentence in an environment in which you will be able to obtain treatment should your mental condition flare up.

118 I do not accept that your prospects of rehabilitation are as positive as was asserted on your behalf by Mr Desmond, or even as conceded by the Crown. In reality, it seems to me that there are matters which currently stand in the way of a favourable assessment of your rehabilitative prospects. First, you are entirely lacking in contrition and remorse for your offending. From what you have said to Dr Deacon and from the way in which the plea on your behalf was conducted in this Court, you are likely to remain so. Further, you have maintained your vindictive accusations against Mr Cohen, and again, this seems likely to remain the case. You are giving every indication of being a resentful and embittered man who has added to the list of resented or hated individuals or institutions, the criminal justice system and Mr Cohen himself.

119 In addition to these matters, notwithstanding the serious psychiatric history you have manifested over many years, you remain in denial about you psychiatric condition and disparaging of the mental health system. You have shown that you will actively resist any treatment which may be on offer to you.

120 Your murder of your mother was a very extreme crime, representing, on any view, a substantial overreaction to the dim view you had of your mother over many years, and the significant hardening of that view in response to your four involuntary admissions in 2020. Mr Desmond described your crime as victim-focussed. And so it was. The argument in effect was that because that victim is now dead, you would not in future pose a risk to the safety of anyone else.

121 I do not accept that contention. I make no finding that you will pose such a risk, but it would be difficult to be confident that having taken such a set against your mother, you might not in future, either inside prison or upon your release, influenced by your perceived sense of injustice, and being in denial about your psychiatric illness, take such a set against another person, and again act upon it. You have, after all, taken a powerful set against Mr Cohen for no reason other than your selfish desire to avoid criminal responsibility and deflect blame.

122 It will be a matter for the authorities in due course, upon your completion of the substantial minimum term I will set, to determine whether it is appropriate for you to be released from custody on parole. By that time, your rehabilitative prospects will be much clearer. If in your time in custody you are prepared to accept the psychiatric care and supervision you clearly need and are willing to accept responsibility for what you did and put aside your vindictive accusations against Mr Cohen, your prospects of rehabilitation may be good.

123 For now, I cannot see them as good. In fact, I think the current prospects of rehabilitation are reasonably poor.

124 Your crime having been committed after 1 February 2018, the standard sentence scheme applies. The standard sentence for murder is 25 years.

125 Pursuant to s 5A(1)(b) of the Sentencing Act 1991 ('the Act'), the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

126 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing.

127 The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen ('Brown').[18] The Court stated:

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:

• is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
• does not affect the established 'instinctive synthesis' approach to sentencing;
• does not require or permit 'two-stage sentencing'; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.[19]

128 I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you for this crime by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown. It is clear that taking into account only its objective factors, your murder of your mother is a very serious instance of the crime falling above the middle range of seriousness for murder.

Section 5B(5) statement

129 Section 5B(4) of the Sentencing Act 1991 requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

130 As I understand it, the applicable law does not require me in complying with the requirement of s 5B(5) to 'attribute particular mathematical values' to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[20] It does, however, require me to 'identify fully the facts, matters and circumstances' which bear upon the judgment I have reached as to the appropriate sentence.[21] I have endeavoured to do that in some detail during these reasons for sentence.

131 The sentence I will pass upon you is higher than the standard sentence for murder. In arriving at the sentence, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crime. By the process of instinctive synthesis, I have arrived at the sentence I will shortly announce.

132 The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but s 5B(2)(b) dictates that I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

133 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[22]

134 The Crown provided the Court, as an addendum to the outline of submissions on sentence, with a table of three cases in which sentences have been imposed for murder as a standard sentence offence. The three cases, as I understand it, were selected as each involved a murder in a domestic setting. One of them, R v Willis,[23] concerned the accused's murder of his mother. A consideration of these three cases illustrates the reasons why, of course, no other sentenced passed can ever amount to some sort of precedent for a sentence now to be imposed. Although the cases may have shared some features with this case, differences abound. For a start, and very significantly, all three sentences were passed following pleas of guilty. In every case, the sentencing judge found that the accused had exhibited remorse. In Willis, Lasry J found that there was a realistic connection between the mental illness suffered by the accused and his crime. Moral culpability was significantly reduced, operating to reduce, also, the weight to be given to deterrence and denunciation as sentencing factors. These were just some of the differences.

135 I have had regard to these sentences and sentences passed in other cases of murder since the standard sentence regime commenced in arriving at the appropriate sentence for you.

136 I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentence I must pass.

137 I take into account in sentencing you the onerous conditions of custody which have applied to you for most of the time since your incarceration due to steps taken by the authorities to prevent the spread of the COVID-19 virus within the prison population. The effects of the pandemic on custodial conditions are well known. Fortunately, it seems that better times are ahead, and there is reason to believe that the substantial bulk of your sentence will not be blighted by COVID-19. The time you have spent in custody in prison since your remand, however, has been more burdensome for you for the reasons outlined by Mr Desmond, and I take that matter into account as well as the uncertainty that still prevails.

138 If I sentence you to a head sentence of 20 years or more, I am required by s 11A(4) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 70 percent of the head sentence. The head sentence I impose will be one of 20 years or more.

139 It was not submitted on your behalf that I should fix a non-parole period lower than 70 percent of the head sentence.

140 Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, the non-parole period I will fix will exceed 70 percent of the head sentence. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in this case.

141 As I have already indicated, your crime was exceedingly serious. Set against the background of your historically poor relationship with your mother and your inclination to blame her for all of your woes, you allowed your annoyance and dismay about being involuntarily detained in 2020, and your attribution of blame to your mother over that, to well up inside you, to the point that you unlawfully entered her home late at night intending to physically attack her. Your attack upon your mother was of scarcely believable ferocity, and, being an attack upon your own mother, who should have been able to look to you for protection and support, represented a grave breach of trust. Ever since that time, you have shown a worrying and continuing lack of any remorse, shame or sadness whatsoever.

142 Your crime was committed in a setting of family violence. In Felicite v The Queen,[24] a case which concerned the murder of a domestic partner rather than a parent, the Court of Appeal stated:

The taking of a domestic partner's life undermines the foundations of personal relationships and family trust, upon which our society rests. The sentence must reflect both the sanctity of human life and society's abhorrence of violence towards vulnerable and trusting partners, who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress. [25]

143 I believe those principles have application in this case.

144 To my mind, the important reasons for which sentence must be passed on you are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community. You must be punished in a way which reflects the seriousness of your crime and amounts to an appropriate response to it. The sentence must communicate in clear terms this Court's condemnation and disapproval on behalf of the community of your violent criminal conduct towards your mother. Judy Bednar's life was precious to her, her friends and the community in which she lived. An attack upon a defenceless elderly woman, at night, in her own home, is the sort of crime which would cause great concern and discomfort in the community. You acted in the clear knowledge of the wrongfulness of your conduct, and in circumstances where you had some time to desist from the shameful attack you had launched. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out serious crimes of violence against people - disproportionately women - in domestic settings, extending to violence of such magnitude as to take the life of others, that such conduct will be met with very strong punishment. You yourself must also be deterred personally from any future violent actions to which you may be disposed. As for the protection of the community, that purpose will largely be met by the imposition of the long sentence of imprisonment which is inevitable for offending of this seriousness. Notwithstanding that, the protection of the community is still a relevant consideration. As for rehabilitation, I do not ignore that as a sentencing consideration, but for the reasons I have stated, it must, in your case, very much take a back seat to more prominent sentencing objectives.

145 Thomas Bednar, for the murder of your mother Judy Bednar, you are sentenced to be imprisoned for 29 years.

146 I fix a period of 23 years during which you will not be eligible to be released on parole.

147 I declare a period of 645 days up to and including yesterday, 20 February 2023, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

[1] Prosecution Summary, 20 July 2022 [22].

[2] This was a brand of motion-activated camera positioned near the front door of the premises.

[3] Autopsy Report of Dr Brian Beer, 18 August 2021.

[4] Report of Dr Adam Deacon, 7 February 2023.

[8] Bipolar disorder type 1 is distinguishable from type 2 by the fact that in the former, there will be at least one episode of mania of significant length in the life of the patient whereas in the latter, there will not.

[10] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[13] DPP v England [1999] VSCA 95; [1999] 2 VR 258, 263; DPP v Ristevski [2019] VSCA 287 [7], [73].

[14] DPP v Weybury [2018] VSCA 120; (2018) 84 MVR 153; Lee v The Queen [2018] VSCA 343.

[16] [1977] VicRp 27; [1977] VR 225.

[18] [2019] VSCA 286.

[19] Ibid [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[20] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [29].

[22] R v Brown [2018] VSC 742 [111].

[23] [2019] VSC 398 (Lasry J).

[24] [2011] VSCA 274; (2011) 37 VR 329.

[25] Ibid [20] (Redlich JA, with whose judgment Harper JA and Robson AJA agreed).