R v Bedson & Anor [2011] VSC 101

3 In the meantime, you, Derek Bedson, had returned to your home in Highton and enlisted the aid of AB to drive you across town to Whittington, which he did, driving your white Hilux dual cab utility. En route, as a result of telephone calls you received, you directed him to drive to the car-park at Buckley's Tabaret where the occupants of the Terracan and the occupants Hilux rendezvoused.

4 You, John Bedson, got out of the Terracan and got into the back seat of your brother's white Hilux utility. You, Derek, were seated in the front seat, and AB was the driver. The firearm, a .22 semi-automatic rifle which has never been found, was in the back seat of the white Hilux utility. You, John Bedson, gave evidence that you knew your brother wanted to shoot the clubhouse and you knew that he was armed. In those circumstances, you resolved to do the shooting in order to protect your brother. You, John Bedson, directed AB out of the car-park, into Felmongers Road and then into Boundary Road and onto Leather Street. AB gave evidence that you told him to stop, which he did, just before a driveway opposite Bayldon Court. This was disputed by you at trial, you contending that you told him to slow down and that you would tell him when to stop. Thus, you contended, contrary to your directions, AB stopped and, in doing so, placed you and the other occupants of the car in a vulnerable position. AB gave evidence that as he was driving down Leather Street, he looked in the rear view mirror and saw you with a red and blue bandana around your face and part of a towel on your head, both of which you denied. He also gave evidence that he heard the sound of fireworks crackling and turned back to the left and saw you with the rifle butt to your shoulder and holding it out the right passenger back window.[1] He looked back to his right and saw three men standing outside the clubhouse and then saw one of them partially fall to the ground.[2] You admitted firing the shots, but said that as you were firing the shots, you were telling AB to "go, go, go", which proposition he denied. You contended that your actions were in defence of yourself and the others in the car, that you knew Ross Brand's reputation as a person who carried a gun and a knife, and that he stormed out of the clubhouse and appeared to you to be reaching down, and it was in those circumstances that you fired the shots. By reason of their verdicts, the jury have rejected your account beyond reasonable doubt.

5 The scene outside the Bandidos' clubhouse before, during and after the shooting was captured on CCTV footage. That footage, which was tendered in evidence, shows the Terracan pulling up in Bayldon Court, David Russell and Andrew Collard leaving the car and then returning to it, Matthew Quarrel and Trevor Exell coming outside, Matthew Quarrel moving his utility and Ross Brand coming outside for a short time. They all return inside to the clubhouse and then, after some 12 to 13 minutes, Paul Szerwinski, Gregory Gray and Matthew Quarrel come outside, as did Ross Brand. Trevor Exell had left the premises in the intervening period. Ross Brand is seen to go back inside the clubhouse and remain there for a little over a minute. It appears from the reaction of the men standing outside that it is at this time that the Hilux utility pulls up and then Ross Brand walks out of the clubhouse. He stands there momentarily, reaching down into his trousers, the Crown contended either to tuck in his shirt or do up his fly, and at that point he was shot and fell to the ground. The others are seen to run towards the door, and at some point Paul Szerwinski is also shot. The CCTV footage does not show Mr Brand storming out of the clubrooms as you described it, or moving fast or acting in any overt threatening manner. He was simply standing there, and in an instant he was shot. It appears that in total, six shots were fired, one of which struck Mr Brand to the front left forehead, and another of which struck Paul Szerwinski, entering his right buttock and thigh and passing into his left thigh. He also suffered two minor flesh wounds to his left forearm. Paul Szerwinski, Matthew Quarrel and Gregory Gray dragged Mr Brand, in his wounded state, back to the clubrooms.

6 Mr Brand had suffered a gunshot injury to the left forehead, resulting in severe brain injuries. He was ultimately conveyed to the Alfred Hospital, where he died at 1.25am on 23 October. Mr Brand was 51 years old. He and his wife had been together for 20 years, married for 14 and together they had a son who was 12 at the time his father died. Mr Brand was much loved by his family, and Victim Impact Statements tendered by his mother, brothers, sister and sister-in-law speak of their sad loss and the trauma and grief they have suffered as a result of his death. Ms Amanda Brand, Mr Brand's wife, spoke of the changes in their son, now aged 14, since his father's death. Clearly, Mr Brand's death and the senselessness of it has had traumatic consequences for his loved ones. No sentence this Court can impose can restore to them their loved one, nor can it ameliorate their grief.

7 Mr Szerwinski was conveyed to the Geelong hospital. As stated previously, he had been struck with a bullet entering his right buttock and thigh, and passing into his left thigh. He also suffered two minor wounds to his left forearm. Although he did not suffer damage to any major structures, the injuries put at major risk damage to the major blood vessels, including the femoral artery and nerve. He was also at risk of having damage in his sciatic nerve, which could have resulted in him being unable to move his right leg. He remained in hospital until discharge two days later. He declined surgery, and the bullet remains in place. Although Mr Szerwinski appeared phlegmatic at trial as to the consequences of the injury to him, his Victim Impact Statement tendered in evidence describes this incident as the single most traumatic situation he has ever had to experience. It changed the direction of his life and left him with emotional and physical scars which he says he will carry forever. Although his physical injuries took approximately three months to heal, it is apparent that he has been left with psychological and emotional injuries which remain with him to the present.

8 The Crown case against each of you is that while both of you were entirely uninvolved and personally unaffected by what occurred at the Geelong Races, each of you resorted to the use of a firearm to address what was perceived as a slight, which was inextricably linked to your, John Bedson's links to the Rebel Motorcycle Club. You, Derek Bedson, had access to the firearm, got it and placed it into your vehicle, and you, John Bedson, got into that vehicle knowing the firearm was present, and together you drove to the Bandidos' clubhouse and you, John Bedson, knew that people were present because you had seen them there minutes before. It would appear that the conduct contemplated by each of you up until the point the firearm was discharged was to shoot up the clubhouse, but that your actions, John Bedson, were accompanied by an intention to cause really serious injury and your actions, Derek Bedson, were performed in circumstances where a reasonable person in your position would appreciate that you were exposing another to an appreciable risk of serious injury.[3]

9 I turn first to matters personal to you, John Russell Bedson. You were arrested on 26 November 2008 and have been in custody since that date. You were 24 at the time of these offences and you are now 27 years old. At the time of these offences you were living in Ocean Grove with Ms Cassie Lowe and her son, Bailey, now aged nine. You and Derek Bedson are in fact half-brothers. Your parents separated when you were two, and you have only seen your natural father three times in your life. Your mother formed a relationship with Mr Colin Websdale, who is the father of Derek. That relationship came to an end when Derek was one year old and you were five. Upon that separation, your mother moved to the rural town of Ceres.

10 Your mother, Annette Bedson, gave evidence on the plea. She said that your years at secondary school amounted to a very negative learning experience. You were diagnosed with having audio spatial difficulties which affected your reading skills. Ms Bedson spoke of your empathy with those in need, in particular as reflected in the relationship you formed with a young boy who came into your family home for respite care and your interest in becoming a Youth Outreach worker. Ms Bedson also gave evidence concerning your drug use and excessive alcohol consumption in your late teenage years and into your twenties, and that your relationship with Ms Lowe and your commitment to her son, Bailey, has been, in her words, "the making of you". Ms Bedson described you as remorseful, which she said operated on many levels, and she also gave evidence of your desire to improve yourself while in custody, which, to date, you have found frustrating because of a lack of courses that are available to you.

11 A number of testimonials were tendered on your behalf. They speak of your honestly, loyalty, generosity, compassion, empathy, care and concern for others. Ms Lowe, who said you were to be married two months after the date of your arrest, spoke of your role in her son's life and your commitment to him, and that you now wish to have children and live a trouble-free life. Other testimonials describe these events as out of character, and many remark upon your remorse for the pain and suffering you have caused the family of Ross Brand and, indeed, your own family. Numerous testimonials also speak of the love and support you have received over the years from your immediate and extended family.

12 Your personal and domestic circumstances were also detailed in a report by forensic psychologist, Dr Aaron Cunningham, dated 4 February 2011, which was tendered in evidence as Exhibit "JB1". Dr Cunningham reports that you gave him a history of being in and out of the family home from the age of 12, living with friends or your grandparents. Your life at secondary school was said to be chaotic. You left school at the age of 15, having failed to pass Year 10. You reported a history of drug use, principally cannabis and ice, from the age of 15, and ice and LSD in the 12 months prior to these offences. At the age of 18, you and a number of your friends formed the group, Death Before Dishonour, the qualification for membership being acceptance by the group and a tattoo of the initials DBD. Yours is on your cheek. Ultimately, you became a fully patched member of the Rebels. It was submitted by your counsel, Mr Haydon, that the rationale of DBD was to support each other, even at the cost of physical integrity, and that the group's natural protagonists were the younger people associated with the Bandidos motorcycle club.

13 Dr Cunningham assessed you as being in the average range of intellectual functioning and, in his view, that you present as at moderate risk of future violent behaviour.

14 Dr Cunningham also assessed you as meeting the criteria for paranoid personality disorder, the origin of which, he said is the childhood abuse that you experienced from your stepfather and the emotional disconnection from your mother. Dr Cunningham also assessed you as psychologically and physiologically reliant on amphetamines, you having given him a history of binge use of ice in the years preceding these charges. On that basis, he determined that you qualified for a diagnosis of substance abuse disorder. Dr Cunningham came to the view that your offending behaviour was connected to your paranoid personality disorder and substance abuse. In his opinion, this caused significant impairment in thinking and reasoning in the context of perceiving threat, and caused pathological distortions in thinking that resulted in threat and harm being interpreted in situations where no obvious indicators are present. Dr Cunningham opined that it appeared that your paranoid personality disorder may have contributed to your retaliation against "what he perceived was an extreme threat in an alleged assault of his stepbrother's friend at the Geelong Cup". I have very real difficulties in accepting Dr Cunningham's opinion on this point. Although Dr Cunningham's conclusions were not tested in evidence, I raised with your counsel concerns I had about his diagnosis, especially since your counsel specifically disavowed on the plea the history that you gave to Dr Cunningham that you had been subject to abuse at the hands of your stepfather as a child, which does not appear to have been confirmed by your mother's testimony and is inconsistent with the matters addressed in the various testimonials tendered on your behalf.

15 Dr Cunningham's opinion, no doubt based on the history that you gave him, is somewhat at odds with what occurred on 28 October 2008. Neither you nor Derek Bedson witnessed the assault and the subsequent arrest of Jason Joffre at the Geelong Cup. There was no harm posed to you or to Derek Bedson as a result of what occurred at the Cup. Nonetheless, it appears that you drove first to the clubhouse and then to meet up with your brother, and together you drove, armed, to the Bandidos clubhouse. It was you who fired at the people outside the clubhouse, they posing no threat to you, and indeed they had nothing to do whatsoever with what had occurred at the races. In these circumstances, it appears that your conduct was motivated by misguided loyalty to the honour of the Rebels or Death before Dishonour and, in that distorted perception, you came to the view that you were justified in taking retaliatory action, that is, shooting up the clubhouse and, as the prosecutor described it, in a moment of madness you resolved to discharge the gun into the men who were standing at the doorway.

16 Your counsel did not seek to rely upon the application of the principles of Verdins so as to mitigate relevant sentencing considerations, but he did rely upon Dr Cunningham's diagnosis to the extent where he submitted that if that diagnosis be correct, then the worst place for you to be was as a member of a motorcycle club where there was antagonism with another rival motorcycle club.

17 You have 17 prior convictions from six court appearances between October 2001 and July 2007, a number of which relate to trafficking and possession of cannabis and which also include a prior conviction for an unlawful assault and possession of a controlled weapon without lawful excuse and criminal damage. The circumstances of your prior criminal history have been explained to the Court. The unlawful assault charge was the brandishing of a knife whilst intoxicated. The charges of criminal damage relate to kicking three cars, again when you were intoxicated. It was submitted, however, that your alcohol abuse has ceased as a consequence of your relationship with Ms Lowe and there is no suggestion that you were alcohol or drug-affected when these offences were committed.

18 Since being held on remand, you have remained drug-free, as evidenced by the random drug testing results tendered in evidence. You have qualified as a peer educator and completed a number of courses, including first aid, anger management, conflict resolution, information technology and a communications skills program. You have been held in protection at Deakin B unit at your request, and thus the courses available to you are limited, but it is now your wish to be placed in mainstream so that you can access courses designed to further educate you and assist you in your rehabilitation. You counsel has submitted that your prospects for rehabilitation are very good, that the paranoid personality disorder as described by Dr Cunningham is treatable and it appears that you are resolved to make up for your lost education to become employable in the future and to better yourself generally.

19 I turn now to the personal circumstances concerning you, Derek Bedson. You are now aged 23. You were 21 at the time of the offences. A report by Dr Aaron Cunningham was tendered in evidence as Exhibit "DB1". That report details your domestic circumstances and personal history which, in part, is at odds with the testimony of your mother, Annette Bedson. As a young boy, you lived at Ceres with your mother and half-brother. You reported to Dr Cunningham incidents of violence between them which your mother denied. You also reported that your brother frequently beat you, telling you it was for your own good. These matters were described by your counsel, Mr Chadwick, as the product of your childhood perceptions. It appears that you remained in contact with your father, Mr Websdale, after his relationship with your mother ended and, indeed, you saw considerably more of him from the ages of 10 and 11. You completed your Year 12 at Belmont High School, having obtained your VCAL certificate, and it appears that either half way through that year or at the conclusion of it, your mother moved to Melbourne and you remained living in the family home at Porter Avenue, supporting yourself and responsible for the household accounts and the like.

20 Subsequently, with the assistance of your father, you obtained an apprenticeship as a carpenter with Hickory Developments in Melbourne. Mr Agriou, a director of that company, gave evidence on your behalf. You have twice been the company's apprentice of the year, and he described you in the workplace as outstanding, skilled and committed. You completed your apprenticeship while you were on bail, and I accept that in the early years of your apprenticeship, you were required to travel from Geelong to Melbourne, which required very early starts and made for very long days, such was your commitment to your apprenticeship.

21 Your mother also gave evidence on your behalf. She described you as an average student and that you suffered at school because of your older brother's reputation. Although she disagreed as to when it was that you were left to fend for yourself, Mrs Bedson placing it after your graduation from Year 12, she nonetheless said that you rose to the challenge and that the experience helped you grow up. She also described how you had cared for Joseph Fox, who has Asberger's syndrome, when he was living with you in the house at that time. Mrs Bedson confirmed that you moved to Melbourne so as to continue your apprenticeship and that you continued to live with her partner after their relationship had ended so that you could complete your apprenticeship. Your mother described you as very remorseful and sorry for the pain you have caused everyone, and sorry for your own stupidity.[4]

22 You reported to Dr Cunningham a history of cannabis use since the age of 12, having been introduced to it by your brother, and regular alcohol use since the age of 13. At the age of 18, you began to use amphetamines intermittently. As at October 2008, you had just commenced a relationship with Ms Jenna Willersdors. The relationship continued while you were on bail, during which time Ms Willersdors suffered a miscarriage, and it appears that the relationship did not survive your return to custody in August 2010. Ms Willersdors, in her testimonial, describes you as loving, honest and reliable, and indeed a number of testimonials tendered on your behalf compendiously speak of your efforts at school, your commitment to your work and that you are regarded as respectful, loyal and helpful to others. It is apparent from these testimonials that you have had the support and care of your immediate and extended family throughout your life and that they continue to support you.

23 Dr Cunningham, in his report, described you as suffering a generalised anxiety disorder, he determined that your cognitive functioning was within the average range and that you were a low to moderate risk of re-offending. He assessed you as having significant clinical elevations in paranoia which he attributed to the physical abuse you suffered from your brother throughout your childhood. Dr Cunningham opined that you presented with positive prospects for rehabilitation.

24 You were also arrested on the 28 November 2008 and when you were initially held on remand, you spent the first nine days in the custody centre in 23 hour lock-down. You were placed in protection and have repeatedly asked to be transferred to mainstream, which request has been refused. Initially, you worked as a library billet, but on return to custody, that job was no longer available to you. You were not eligible for a number of basic courses that are on offer because they have been covered by your apprenticeship, but nonetheless you have completed courses as they have become available, and various certificates of completion were tendered on your behalf.

25 Your prior matters relate to an appearance at the Magistrates' Court at Geelong on 21 December 2007 on charges of possession of a firearm whilst unlicensed, being a non-prohibited person possessing a handgun whilst unlicensed, possession of a prohibited weapon without approval, possession of a controlled weapon without lawful excuse and possession of a drug of dependence, namely cannabis L, and you were dealt with without conviction and sentenced to pay an aggregate fine of $500 in respect of the weapons offences and a fine of $200 in respect of the possession of cannabis. Your counsel has explained the circumstances in which you came to be dealt with for those offences. It appears that the weapons were an air rifle and an imitation handgun said to have come from a show bag and a three piece set of Samurai swords.

26 Your counsel submitted, as I understand it, that you became involved in these offences because you took a personal affront to what had happened at the races, rather than acting out of an allegiance to the Rebels Motorcycle Club. You were intoxicated at the time and Mr Chadwick submitted that your conduct was the product of intoxicated thinking and made little sense. Nonetheless, it was your decision to shoot up the clubhouse, apparently as a retaliatory act, and it was you who came equipped with a loaded firearm. You were not a member of the Rebels Motorcycle Club, nor were you a member of Death Before Dishonour, but nonetheless, you must have acted out of some sense of allegiance, if only by reason of your brother's connection to those groups, because there would be no other reason to go and shoot up the Bandidos' clubhouse. It is fair to say that, had it not been for your response to what occurred at the Geelong Races, these events would never have occurred.

27 Your counsel has submitted that you have good prospects for rehabilitation, describing you as a prime candidate. According to Dr Cunningham, you would benefit from psychological intervention to address your paranoia and your generalised anxiety disorder, and you present with protective factors which would reduce your risk of re-offending and improve your psychological health. Indeed, this must be so. You are a young man, a qualified tradesman, and you have shown diligence in completing your apprenticeship with these matters remaining outstanding. I accept also that you are remorseful for your conduct and that you acknowledge the stupidity of your actions, which are factors which must ultimately go towards your rehabilitation.

28 The maximum penalty for the crime of murder is life imprisonment, and the maximum penalty for manslaughter is 20 years' imprisonment. The maximum penalty for intentionally causing serious injury is 20 years' imprisonment, and the maximum penalty for reckless conduct endangering life is 10 years' imprisonment.

29 Counsel for the Crown, Mr Ryan SC, submitted that each of the offences in respect of each of you are serious examples of murder and intentionally causing serious injury in respect of you, John Bedson, and manslaughter and reckless conduct endangering life in respect of you, Derek Bedson. These offences occurred in the public streets of Geelong on a public holiday. The firearm was discharged in a public street, across a public area, into those men that were standing there and you, John Bedson, at the time had the intention to inflict really serious injury to whomever those bullets struck, and in respect of you, Derek Bedson, into the clubrooms of the Bandidos' clubhouse. In these circumstances, the prosecutor submitted that each of you are appropriate vehicles for general deterrence and the surrounding circumstances of the offences are such that I am obliged to impose a sentence which denounces this conduct.

30 I turn to sentence you first, John Bedson. In sentencing you, I take into account your age at the time of the offences and now, that at the age of 27 you will be serving a substantial period of imprisonment. I take into account that you have served your time in custody to date in protection, which I accept is more onerous than the conditions endured by the general prison population. I take into account also your desire for reformation and that your prospects for rehabilitation may be said to be good, that you have the continued support of your girlfriend, mother, stepfather and family, and that you experienced a disruptive and unsettled childhood and adolescence. I take into account also that you are remorseful for your conduct and that you offered to plead guilty to manslaughter, which offer was rejected, but nonetheless is indicative of your preparedness to acknowledge your responsibility for the death of Ross Brand. I take into account all matters which go in your favour.

31 Against these matters stand the nature and gravity of the offences here committed, each very serious examples of very serious offences. I take into account also the need to pass a sentence which will serve to punish you, to act in denunciation of your conduct, specifically deter you from re-offending in a like manner and give due weight to considerations of general deterrence, so that like-minded young members of the community will know that if they act in this way, they can expect condign punishment.

32 John Bedson, by reason of the sentence of imprisonment proposed to be imposed upon you in respect of the offence of murder, you are to be regarded as a serious violent offender. Accordingly, in respect of the offence of intentionally causing serious injury, you are to be sentenced as a serious offender. Pursuant to s 6D of the Sentencing Act, as I consider in respect of the offence of intentionally causing serious injury that a sentence of imprisonment is justified, in determining the length of it, I must have regard to the protection of the community from the offender as the principal purpose for which the sentence is imposed, and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances. Because I propose to order a significant period of imprisonment in respect of that offence, I consider that that sentence will serve to protect the community from you and that it is therefore not necessary to impose a sentence which is disproportionate to the gravity of the offence considered in light of its objective circumstances.

33 John Bedson, in respect of presentment number C0806617.4, in respect of Count 1, the crime of murder, you are convicted and sentenced to 20 years' imprisonment, and in respect of Count 3, intentionally causing serious injury, you are convicted and sentenced to 7 years' imprisonment.

34 Pursuant to s 6E of the Sentencing Act, every term of imprisonment imposed by a Court on a serious offender for a relevant offence must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed on that offender, whether before or at the same time. However, in order to address that the two offences arose out of the one episode, I propose to otherwise direct that there be partial cumulation in respect of the sentences imposed upon you.

35 I propose to order that three years of the sentence imposed in respect of Count 3, that is, intentionally causing serious injury, be served cumulatively with the sentence imposed in respect of Count 1, that is, the offence of murder, that is 23 years, and in order to address your prospects for rehabilitation, I propose to order that you serve a non-parole period of 18 years, and I declare that you have already served by way of pre-sentence detention a period of 847 days. I direct that it be entered in the Court record that you are sentenced as a serious offender pursuant to section 6F of the Sentencing Act.

36 I turn now to sentence you, Derek Bedson in respect of presentment number C0806617.3. In sentencing you, I take into account your age at the time of the offences and now, and I take into account that at the age of 23, you will be serving a substantial period of imprisonment for the first time. I take into account also that you have served time in custody to date in protection, which I accept is more onerous than the conditions endured by the general prison population. I take into account also that your prospects for rehabilitation may be said to be very good, that you have the support of your father and mother and extended family. I take into account also that you are remorseful for your conduct and that you have pleaded guilty to these offences and I give you a discount for pleading guilty in respect of each of these offences.

37 Against these matters stand the nature and gravity of your offending conduct, which are properly to be described as serious offences, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and signal to like-minded members of the community that actions such as yours will result in salutary punishment. Any sentence I impose must also seek to specifically deter you from re-offending, although I accept that with your limited prior criminal history, your good prospects for rehabilitation and your relatively young age, less weight may be given to that consideration.

38 For the crime of manslaughter, Count 1 on the presentment, you are convicted and sentenced to ten years' imprisonment and for the crime of reckless conduct endangering life, Count 2 on the presentment, you are convicted and sentenced to four years' imprisonment. Although these offences arose out of the one incident, they nonetheless involved two separate victims. Accordingly, I propose to order that two years of the sentence imposed in respect of Count 2 be served cumulatively with the sentence imposed in respect of Count 1, that is, 12 years' imprisonment. In order to address your prospects for rehabilitation, I propose to order that you serve a non-parole period of eight years and I declare that you have already served by way of pre-sentence detention a period of 542 days.

39 I declare, pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty to manslaughter and reckless conduct endangering life, I would have otherwise sentence you to 14 years with a non-parole period of 10 years.

I certify that this and the 15 preceding pages are a true copy of the reasons for sentence of Curtain J of the Supreme Court of Victoria delivered on 23 March 2011.