R v Bos [2023] VSC 68

1 It was just past midnight when Nicholas Cameron stepped out of his twentieth-floor apartment with his little white terrier, Misty. He headed down to his hire car, which was parked on the third level of the adjacent carpark. He had no idea that a man he did not know was lying in wait for him in the shadows, with violence on his mind.

2 The man first walked, then ran, towards Mr Cameron. He had agreed with Mr Cameron's girlfriend to confront and assault him, but nothing more. The aim was to ensure he left town and let his troubled girlfriend be. But the assailant went way beyond that plan, and attacked him with a hammer and a knife, ferociously and brutally. This went on for eleven minutes. Mr Cameron had no chance. Unsurprisingly, Misty took fright and scampered away.

3 Upon hearing screams for help, neighbours rang police, who arrived within minutes. Almost immediately, they came across the assailant, and cornered him near a lift. A blood-soaked knife was next to him on the floor. On his person, he had a hammer, also covered in blood, as well as handcuffs and a dog lead. He identified himself as Stuart Heron. He said he saw Mr Cameron dealing "ice" to kids.

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

5 Later, friends comforted a distraught Heide Bos over the death of her boyfriend. However, when told that media reports said his killer was a fellow named Stuart Heron, she claimed not to know him. Initially, she told the same lie to police.

6 As she admitted much later, the truth was that she had known Mr Heron for the past two months. They had met on Fetlife, a social networking website for those interested in BDSM, fetishism, and kink. Thereafter, Ms Bos acted as domme, and Mr Heron as her slave, in a fantasy dominant/subservient relationship.

7 An ill-conceived but violent plan had its genesis in Ms Bos's complaints to Mr Heron about the way her boyfriend treated her. While sometimes nice and understanding, Mr Cameron was often nasty and controlling, seemingly incessantly belittling, but never actually violent. Ms Bos had had enough. About a week before the killing, while at her CBD apartment, she raised with Mr Heron the idea that he might physically confront her boyfriend. Could you make him leave town? Yes, my lady, I can be very persuasive.

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

9 By the night of 9 July 2021, the two had agreed that Mr Heron would bash Mr Cameron at his building, badly enough that he would be hurt and in pain, and would leave town. Right up until just before the fatal confrontation, Ms Bos was aware that Mr Heron was lurking in the carpark, waiting for the unwitting Mr Cameron so that he could carry out their hare-brained plan. As we have seen, however, Mr Heron departed radically from that plan and slayed Mr Cameron. Ms Bos had no idea that he even had weapons or that he would attack him so mercilessly, let alone kill him.

10 Six weeks later, on 24 August, after police had connected her with Mr Heron through a suspicious bank transaction, Ms Bos was arrested, and she too was charged with murder. She has remained in custody ever since.

11 On 25 November last year, with the concurrence of the Director of Public Prosecutions, Ms Bos sought a sentence indication on the lesser charge of manslaughter.[1] After hearing how the case would be put on manslaughter and the matters to be relied on in mitigation, I indicated that, if Ms Bos pleaded guilty, I would impose a sentence not exceeding six-and-a-half years' imprisonment with a non-parole period of three-and-a-half years.

12 Ms Bos took up the indication. On 29 November, she pleaded guilty to manslaughter. The matter was adjourned for a plea hearing on 22 December. On that day, I heard a detailed opening, victim impact statements, and a plea in mitigation. I reserved sentence until today.

13 There were numerous competing and complimentary considerations to assess and balance. After explaining how I have undertaken that task, I shall, at the conclusion of these reasons, announce the sentence on which I have settled.

14 The account of events and surrounding circumstances that I am about to give is taken mostly from the summary read to the Court by Ms Ruddle KC, who appeared with Ms Singh for the Director. As I understood it, Mr de Kretser, who appeared for Ms Bos, did not dispute this summary, but he added some other matters. I shall incorporate this and other information, where appropriate.

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

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

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

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

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

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

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

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

23 Stuart Heron was born in Canberra in June 1973. He was 48 at the relevant time.

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

25 Mr Heron's murder trial is to be heard later this year.

26 Heide Bos was born in Melbourne in March 1985. She was 36 at the time of her offence, and is now nearly 38. She was living alone in an apartment in the Melbourne CBD. Later, I shall say more about her personal circumstances.

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

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

29 At 8:05 p.m. on 9 July 2021, Mr Heron went to Mr Cameron's apartment building at 152 Sturt Street in Southbank. He waited on the street near a red car he thought was leased by Mr Cameron. At 10:37 p.m., when he realised he had the wrong red car, he entered the building's adjacent carpark through an open roller door. He walked up the ramp to the third level and waited there near what he now understood was the right car.

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

31 When he arrived, Mr Heron, who had been waiting behind a pillar, emerged from the shadows, walking, then running, towards Mr Cameron with a knife in his hand. He attacked his helpless victim with the knife and a hammer for about eleven minutes. Misty, it seems, must have scampered away. She was found later, unharmed, on the third level of the building.

32 At the same time, neighbours heard shouting emanating from the carpark. It was Mr Cameron. The attack set off his car's alarm. Neighbours called triple-zero.

33 At 12:07 a.m., Senior Constable Todd Fowler and Constable Patrick Carroll arrived on the scene. Dene-Marie Middleton, a neighbour, met police in the foyer of the building and gave them access to the third level. She had heard moaning coming from the carpark. She then noticed a man push past her and press the lift button to go down. It was Mr Heron. She screamed out to the police, "It's him, go!"

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

35 Senior Constable Fowler directed Ms Middleton and other neighbours to find the victim and come back. They found Mr Cameron lying on the floor between a concrete wall and his hire car. He was covered in blood, panting heavily and groaning.

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

37 Mr Heron was taken to Melbourne West Police Station, where he was charged with murder.

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

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

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

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

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

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

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

45 Mr Cameron did not know that Ms Bos and Mr Heron had been in frequent communication for the last two months. As we have seen, they met on the social networking website Fetlife. Ms Bos's handle was "Hedonisticsiren". She described herself as a domme, and said the following in her profile:

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

46 Mr Heron's handle was "slavepinto". In his profile, he said this:

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

47 From 9 May 2021, Ms Bos and Mr Heron would communicate on an almost daily basis, several times a day. They did so via SMS, KIK and Snapchat. From this time, they were in a dominant/subservient relationship or dynamic.

Events leading up to the killing of Mr Cameron

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

62 During the night of 9 July, the two accused decided to act on their agreement that Mr Heron would bash Mr Cameron at his apartment building. The agreement had also evolved to incorporate the potential that he might be kidnapped.

63 Ms Bos gave Mr Heron details of where Mr Cameron's hire car was parked. She attempted to lure him out of his apartment, knowing that Mr Heron was lying in wait on level three of the carpark, but outside the view of CCTV cameras.

64 Ms Bos believed Mr Heron was a bikie, or connected with bikies in some way. He had told her that he was:

99.9% certain I can convince him never to contact you or speak about you ever again my Lady! Lol.

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

66 The prosecution concede that it cannot be established beyond reasonable doubt that Ms Bos was aware, or had anticipated, that Mr Heron would arm himself with a weapon in carrying out their agreement.

67 On 24 August 2021, Ms Bos was arrested by police and formally interviewed.

68 Initially, she maintained the lies she had told her friends and police earlier.

69 Later in the interview, when asked, she detailed some of Mr Cameron's controlling behaviours in their relationship, as well as some of his positive features.

70 She admitted that, the day before the killing, he had accused her of stealing from him (which was untrue), and that they argued about that.

71 She said they were "not really together-together", and that it was no secret between them that they might see others. She had been seeing Mr Frey as well since just after her last birthday (in March), which Mr Cameron knew.

72 Then, when shown a photo of Mr Heron, she admitted knowing him, and that they met on Fetlife. She explained that sometimes she was paid to be a domme to a submissive. Mr Heron had paid her cash to help out with her rent, which was reflected in the bank transaction police had identified. She did not, however, have a sexual relationship with him. But she told Mr Heron about her personal life, including her relationship with Mr Cameron.

73 When shown a screenshot of a message between her and Mr Heron on 8 July, Ms Bos admitted that she wanted him to go and speak to Mr Cameron so that she "could get a break from this". She explained that Mr Cameron would sometimes press her door buzzer for hours, and that he had shared with others intimate video clips of her. But, she said, Mr Heron assured her that no harm would come to him.

74 She recalled Mr Heron saying he could "go and have a word to him", and that he could be "very convincing". She admitted that Mr Heron had engaged in surveillance of Mr Cameron's premises and that he had stolen the lockbox, the location of which she had disclosed to him. She said that Mr Heron was going to convince Mr Cameron to "leave [and] go somewhere else". She thought he would intimidate him.

75 She said that Mr Heron never talked about actually harming Mr Cameron, and she made it clear that she did not want him hurt. She considered that Mr Heron would give Mr Cameron the impression that he was being watched, so that he would not come back to her.

76 Ms Bos admitted that she gave Mr Heron other information about Mr Cameron, including the location of his safe and other valuables he had. She also told him about videos he had involving her, which she was concerned he would share with others, yet again. She thought that, if Mr Heron took his valuables, it would hurt him. She seemed to think that this might make him change his ways. She also told Mr Heron the places where Mr Cameron might have parked his hire car.

77 She admitted that she believed that, in order to make him leave, Mr Heron might have to threaten him. She accepted that her anger was reflected in the message in which she mentioned wishing to kick Mr Cameron, but she denied actually wanting to hurt him physically.

78 Earlier in the interview, Ms Bos said that Mr Heron had been to her place, probably on 1 July. She volunteered that Mr Frey was there too. On that occasion, she said multiple times that she did not want Mr Cameron harmed. Instead, she told Mr Heron:

I just want him to leave so I can, like, get on with my life without having to look over my shoulder all the time.

79 Ms Bos admitted that the idea of holding him captive was mentioned by Mr Heron on occasions. But she thought that was far-fetched, only fantasy, and she did not want it to occur. She had the same view about his other idea of having a friend with him so that they could grab both Mr Cameron and her off the street.

80 Ms Bos admitted that, on the night of the killing, she and Mr Heron exchanged messages about his being at the wrong car when in the street. They were also in communication when Mr Heron was up in the carpark near the right car, hiding and waiting for Mr Cameron. Further, she accepted that, in an attempt to lure him out of his apartment, she sent a message asking Mr Cameron whether he wanted to come to her place at 12:30 a.m. As it happened, unbeknown to her, he left his apartment shortly afterwards, and was then killed by Mr Heron.

81 Ms Bos was asked about the message sent to Mr Heron later that day, at 2:06 p.m., saying she had changed her mind. She did this because she no longer wanted the confrontation to go ahead. Instead, she wanted to be with Mr Cameron.

82 Ms Bos accepted that she may have been naïve to think that the confrontation would not involve any actual violence, but she was adamant with Mr Heron that Mr Cameron was not to be harmed. She added that, as a "sub" (i.e., a submissive), "I expect him to do what he is told".

83 I turn to the victim impact statements. They were made by Mr Cameron's parents Mary O'Brien and Christopher Cameron; his sister Gemma Bentley; and his ex-partner Marnie McAllister. Each statement was read aloud by Ms Singh. A short summary of them follows.

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

85 His father's statement took the form of a touching poem. Christopher Cameron focused on his love for his son, and the joy and pride he gave him, including through his involvement in sports and family events, and in his mateship and loyalty. Mercifully, then, he still has "dream comfort memory to spare".[2] While he did not say so in terms, the way in which he recounted his endearing memories of his son served to prove the magnitude of his loss.

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

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

88 These statements convey, ever so eloquently, the aching grief Mr Cameron's loved ones are suffering, and the immeasurability of their loss. They are profoundly moving sentiments. As far as it is permissible to do so, I have had regard to them in considering sentence.

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

90 I turn now to the nature and gravity of manslaughter generally and of this offence in particular, including Ms Bos's level of culpability.

91 The maximum penalty for manslaughter was increased from imprisonment for 20 years, to 25 years, for offences committed on or after 1 July 2020.[3] The higher maximum applies in this case.

92 While manslaughter is one of the more serious crimes known to the law, the circumstances of the offence and the offender, and the resulting sentences, vary widely.

93 The form of manslaughter relied on against Ms Bos is manslaughter by an unlawful and dangerous act committed by way of complicity. To ground liability, reliance was placed on s 323(1)(d) of the Crimes Act 1958 (Vic). In particular, the case was put in this way. First, Ms Bos agreed with Mr Heron that he would assault Mr Cameron badly enough that he would leave town, and be hurt and in pain. Second, at the time of their agreement, she was aware that it was probable that, in the course of the assault, Mr Heron would commit an act that was both unlawful (that is, a more serious assault) and dangerous (that is, an act which a reasonable person in her position would have realised would expose Mr Cameron to an appreciable risk of serious injury). Finally, in the course of carrying out the assault, Mr Heron murdered Mr Cameron. As Ms Ruddle said, a killing amounting to manslaughter by Mr Heron would also satisfy this last element.

94 Ms Bos's offence had some serious features, including the following. First, every manslaughter has a grave component in that, by definition, the life of another has been lost in circumstances amounting to a crime. The law must maintain a special concern for the sanctity of human life.

95 Secondly, here, the life of one so dearly loved, aged only 39, has been taken as a result of Ms Bos's complicity in unlawful and dangerous conduct. As is inevitable, Mr Cameron's family are inconsolable.

96 Thirdly, while she did not personally commit the acts that caused death, and she was not present at that time, Ms Bos was involved in planning the confrontation and assault with Mr Heron across more than a week. Further, in breach of her boyfriend's trust, she provided Mr Heron with vital information that enabled him to ambush his oblivious victim. But for Ms Bos's encouragement, Mr Heron would have had no reason to assault Mr Cameron in the first place. This is morally blameworthy conduct.

97 Finally, Ms Bos's initial lies to friends, and to police, made things worse. It may be accepted that, in the shock that followed his wholly unexpected killing, she feared that telling the truth about her connection and plan with Mr Heron would lead to an unjust accusation of murder. But it was still reprehensible to lie in these ways, especially to friends - both hers and Mr Cameron's - as they sought to comfort her.

98 The foregoing matters must be weighed against factors limiting the gravity of the offence, which include the following. First, while, by her plea of guilty, Ms Bos accepts that she believed that Mr Cameron probably would be assaulted in a way that was unlawful and dangerous, neither his death nor the use of weapons, nor the ferocity and brutality of the assault that occurred, was contemplated by her. There is a vast gap between what she agreed and foresaw and what in fact occurred. While she was complicit in an assault, had she chosen to avail herself of it, there would have been a strong argument to be made to a jury that Mr Heron departed so radically from their agreement - including by using weapons - as to deny criminal liability against her for Mr Cameron's death.

99 As I explained recently in a case raising a very similar point, so too here, there may have been a nice question whether this gap was so great that, as a matter of law, she could not have been convicted of manslaughter.[4] However, given that she has pleaded guilty, that question does not arise for consideration in this case.

100 Nevertheless, when a gap of this kind is treated as falling short of a defence, as it must be here, but as relevant to an assessment of the seriousness of the offence, as also must be so, its existence lessens the gravity of the particular offence of manslaughter. All else being equal, that neither death nor the means by which it was caused was contemplated by Ms Bos renders her offence, both objectively and vis-à-vis her state of mind, less grave and culpable than otherwise. Contrast, for example, the gravity of a manslaughter involving an agreement that a very serious and dangerous assault with a weapon should occur but where the confederate's assault goes beyond the plan and results in death.

101 Secondly, it was said that Ms Bos's belief that Mr Heron was a bikie or the like - which may not have been correct - meant that a reasonable person in her position would have been more likely to appreciate a risk of serious injury. It seems to me, however, that the opposite is likely to be the case. Mr Heron told her he could be "very persuasive" and "very convincing". Her perception of him and of his assurances, I am satisfied, caused her to believe that there would be even less need to resort to serious violence. Further, as her "slave" in their fantasy relationship, she could reasonably expect him to do precisely as she requested - no more, no less. Yet, when, beyond her contemplation, he departed from their plan so radically, her absence from the scene meant that she was powerless to prevent him from acting as he did.

102 Thirdly, as it happens, later in the day of the killing, after attempting, without success, to contact both Mr Heron and Mr Cameron, Ms Bos messaged Mr Heron at 2:06 p.m. and said, "I changed my mind." Of course, as it turned out, this was far too late. But, as Ms Ruddle conceded, at the time of the message, Ms Bos did not know that Mr Cameron had been assaulted and killed.

103 Fourthly, Mr de Kretser submitted that I should take into account that Ms Bos was scared of Mr Cameron. At the sentence indication, Ms Ruddle submitted that I should not accept this assertion. The latter stance, however, was no longer maintained on the plea. Mr de Kretser made it clear that it is not alleged that Mr Cameron engaged in actual violence towards Ms Bos at any stage. As I understood it, his submission was simply that, while it may not alter the sentence a great deal, and indeed may do so only slightly, Ms Bos's fear went some way to explaining her rather desperate resort to her agreement with Mr Heron. On balance, I accept that submission.

104 Finally, in my view, perhaps more significant than her fear, per se, are other aspects of the context in which Ms Bos acted as she did. In her police interview, Ms Bos described Mr Cameron as being prone to mood swings, as having a "Jekyll and Hyde" personality, and that, when he was bad, he was "really terrible". Close friends said that the couple would fight terribly. They used ice frequently. Their relationship would fluctuate between toxic interactions and periods of care and support. Mr Cameron engaged in coercive behaviour, which included taking videos of sexual encounters with Ms Bos and sending them to another. He teased and belittled her, almost incessantly, it seems. Ms Bos complained that he was controlling and that it was difficult to get away from him. Mr Frey recalled an occasion in May or June 2021 when Mr Cameron repeatedly buzzed her apartment door at 2:00 a.m. Mr Cameron also had a prior criminal history for family violence offending. For reasons that will become apparent shortly, as a result of traumatic events in her life, Ms Bos was then, and is still, a person with a very fragile psychological presentation, including complex PTSD.

105 I accept that Ms Bos was disturbed by aspects of Mr Cameron's treatment of her, and believed that it would not stop unless something drastic was done. She was at the end of her tether. Now, while she was in a very difficult situation, the law does not, on this basis, excuse criminal liability for behaviour of the kind in which she engaged. Her plea of guilty implicitly accepts as much. Ill-treatment of that type and order does not give a licence to assault, and less still to kill. But, in sentencing, what the law can and should do is make some concession to human frailty in the face of circumstances of the kind under which Ms Bos laboured, including her mental state, at the time of committing her crime. In my judgment, her moral culpability cannot be regarded as high as it would be absent those circumstances and her precarious psychological state.

106 Notwithstanding the matters offsetting the gravity of the offending, Ms Ruddle submitted[5] that this was a "high end" or "serious" example of manslaughter. This, it was argued, followed principally because of the planning in which Ms Bos engaged, the fact that Mr Cameron was to be assaulted in or near his own home, and the gross breach of the trust reposed in her.

107 Mr de Kretser accepted that the matters relied on by Ms Ruddle were aggravating features of the offence but submitted that the level of dangerousness inherent in the conduct to which Ms Bos was a party was "not high" and indeed "[fell] at the lower end of the [spectrum]". In his submission, that she did not agree, or even contemplate, that Mr Heron would carry or use a weapon when confronting Mr Cameron necessarily lessened the level of danger that was, or could reasonably have been, foreseen.

108 I accept counsel's submissions concerning the aggravating features of this offence and those factors pointing in the other direction. Despite Mr Cameron's cruel and troubling ways, and the fear and discomposure he engendered in Ms Bos, to have him assaulted was still morally wrong, and criminal in itself. The assault was planned, not spontaneous. Ms Bos had numerous opportunities to change her mind before the agreement was carried out, but, tragically, she did not do so until it was too late. On the other hand, it is obvious that she was desperate and not thinking clearly. The plan was wrong-headed, to say the least. Moreover, the armed and vicious attack that did in fact occur was completely beyond her contemplation. And she had good reason to think that nothing like that would occur.

109 Overall, for the reasons I have given, I think that Ms Bos's offence of manslaughter, while still a serious crime, is less serious than many other instances of the offence encountered in practice.

110 I turn now to Ms Bos's personal circumstances and her psychological history. Much of this information was conveyed by Mr de Kretser in his written and oral submissions, and in the reports and other documents he put into evidence. Included among the materials was an insightful report by psychologist Jeffrey Cummins, who assessed Ms Bos via a video conference in November last year.

111 Ms Bos's mother is in her sixties and lives in country Victoria. Her father is retired from his cleaning business and lives in the former marital home in suburban Melbourne. They separated when Ms Bos was eleven. Her mother moved to Scotland for several years, and remarried, but her father remained single. She has an older sister who practices as a solicitor.

112 Ms Bos was educated at Fintona Girls' School from Grade 6 to Year 10, and then Doncaster Secondary College from Year 10 and half of Year 11.

113 When she was eleven, Ms Bos holidayed with her mother and stepfather in Scotland, and then again when she was fourteen. On the second holiday, she was sexually abused by her stepfather, which I shall return to shortly. A "bad alcoholic", he was also physically violent to her. She returned to Australia to live with her father until she left school at sixteen. Then she went back to Scotland to live with her mother and stepfather, and to study hairdressing. Despite this move, Ms Bos told Mr Cummins that all she wanted to do was escape from living with her mother and stepfather.

114 And so she did. For, while still in Scotland, at sixteen, she met Keith Stevens, a panel beater, and they married in 2002. They had a son, who was nineteen at the time of Mr Cummins' report.

115 Ms Bos and Mr Stevens were together for sixteen years, but had separated only four months before he died as a result of a road accident in 2017. Ms Bos and their son sat at his bedside in hospital, but, because of his injuries, including horrific burns, the inevitable decision was taken to remove life support.

116 Notwithstanding their separation, Ms Bos believed that reconciliation with her husband was likely. Her mental health declined significantly after his death. In 2020, in a report for the Victims of Crime Assistance Tribunal, trauma counsellor and EMDR clinician Travers Holbrook made a provisional diagnosis of PTSD. Of particular significance, he said, was the impact of Mr Stevens's death on her interpersonal relationships. There was an "emotional distancing and disconnect between Ms Bos and her family, especially her son". She suffered flashbacks, night-terrors, insomnia, hypervigilance, and overwhelming anxiety and panic. As Mr Holbrook explained, exacerbating her symptoms were feelings of guilt and shame arising from "what if" thoughts about whether Mr Stevens might still be alive had they not separated. In the wake of the deterioration in her mental health, Ms Bos's son moved to live with her father.

117 Soon after her separation from Mr Stevens, Ms Bos dated another man in an on-again/off-again relationship that lasted for twelve months. He was physically violent towards her. As she told Mr Cummins:

[He] was on ice, and he'd throw furniture around and ... became physically abusive towards me. He was about three years older and worked as a carpenter. I took out an intervention order against him and he breached [it] but I never called the police over that.

118 Ms Bos and Mr Cameron met online. Theirs was also an on-again/off-again relationship, for about nine months before his death. She said this to Mr Cummins:

He didn't work. He was a drug dealer - that's how I met him, through drugs. I knew he'd been in trouble with the law, and he told me he'd been to gaol. ...

119 In respect of Mr Heron, she explained that they met online via Fetlife. As she told police, she did not have an intimate relationship with him.

120 Of her mother, while they have never been close, Ms Bos considers that, although unpredictable, she has been supportive of her since her arrest. They have talked on the phone once every one or two months, and, as of November last, she had received one in-person visit from her in prison.

121 Their relationship is complicated, however, by the sexual abuse Ms Bos suffered at the hands of her stepfather. On three occasions, he entered her room at night, drunk and naked, and digitally penetrated her. Ms Bos, who was only fourteen, ran away but was found several days later. She disclosed the sexual abuse to her mother, and police became involved, but she thought neither took her allegations seriously. While in custody, she has been receiving counselling from WestCASA, but has felt psychologically vulnerable in discussing these issues.

122 In 2015, Ms Bos's stepfather was extradited to Victoria to face charges of aggravated rape and other sexual offences against three women on separate occasions in the 1980s. In 2016, he pleaded guilty in the County Court, and was sentenced to fifteen years' imprisonment with a non-parole period of eleven years. Ms Bos suspects that her mother visits him in prison.

123 Ms Bos has a close relationship with her father. It appears that she looks to him for support.

124 In contrast, while they too were close, Ms Bos's sister has refused to speak to her since being charged. Similarly, her son has declined her calls from prison, which, naturally, saddens and distresses her.

125 Ms Bos worked as a salaried hairdresser in Scotland, and again in Melbourne upon her return in 2005 with Mr Stevens and their son. At about 26, she established her own hairdressing business, which she later closed as a result of the first pandemic lockdown. Then she rented a chair in Brunswick, but that business also struggled, again because of a lockdown. At the time of her arrest, she was on JobKeeper payments but was planning to convert her apartment's balcony into a salon.

126 Ms Bos smoked cannabis from the age of fourteen. She continued to do so with Mr Stevens throughout their marriage, but ceased when they separated. In the last few years of their relationship, as things became turbulent, she began experimenting with methamphetamine. She became a daily user of that drug with her next partner, and this continued with Mr Cameron until his death, with her typically using three or more grams a day. In her twenties, she experimented with ecstasy and LSD, and often used these drugs when with Mr Cameron.

127 Ms Bos has long battled with weight and a negative self-image. She has been on slimming medication, and her weight has fluctuated significantly over time.

128 Her general practitioner prescribed the anti-depressant Lexapro for the last few years of her marriage to Mr Stevens. The need for this, Ms Bos thinks, was sparked by the extradition of her stepfather from Scotland. She believes her mother has never divorced him, even though her sister had the necessary papers drawn up. As I said earlier, she suspects her mother visits him in prison. Her sister suspects this too.

129 Twice, Ms Bos has planned to commit suicide. The first time was years ago when suffering what she believed to be post-natal depression. The second was when her bail application was refused last July. She considered hanging herself. It was then that she was transferred from Lexapro onto Zoloft and Pristiq. At the time of Mr Cummins's assessment, she said that she was coping better, and had spoken with WestCASA about some of her thoughts.

130 While Ms Bos received some mental health counselling in custody, this was not as helpful as it might have been, as the sessions were often cancelled because of the pandemic restrictions. She was also apprehensive about what she could tell the counsellor because she had never been in this situation before.

131 When assessed by Mr Cummins, Ms Bos was still facing a murder charge. She felt overwhelmed with symptoms of anxiety, depression and stress. She rated her level of depression as "eight out of ten", where ten is suicidal. She said that her current situation was a "wakeup call" vis-à-vis her use of ice and the associations she had made through the use of the drug.

132 Mr Cummins reported that Ms Bos expressed shock and disbelief that Mr Cameron was killed. He said it was obvious that she was emotionally upset when speaking of this, despite her attempts to control her emotions. On a daily basis, she ruminated about both her legal situation and Mr Cameron's death.

133 Mr Cummins did not detect any form of personality disorder. Nor did she have any history of psychosis. He did, however, form the opinion that Ms Bos is suffering from symptoms of complex PTSD. This, in his view, was triggered by multiple traumatic events, including the sexual and physical abuse by her stepfather, and the death of her husband. She reported nightmares and flashbacks related to Mr Cameron's death. He also opined that she is suffering from a major depressive disorder, which has been recurrent in type and of moderate severity.

134 In Mr Cummins's view, Ms Bos's mental health would inevitably deteriorate if sentenced to a lengthy term of imprisonment. Consistent with that view were recent medical notes from Ms Bos's prison medical file confirming that, because of her presentation, the dosage of Olanzapine (an anti-psychotic) and Sertraline (for depression and PTSD) prescribed to her had been increased substantially. The notes also detail that she was experiencing acute stress at that time.

135 More positively, the same medical notes show that Ms Bos is planning to resume psychological and trauma counselling with WestCASA once she is sentenced.

136 I turn now to the mitigating factors urged by Mr de Kretser, commencing with Ms Bos's admissions. True it is that she lied initially to her friends and police. And the prosecution case is that, when interviewed by police, she understated the extent of violence she agreed Mr Heron would employ. Nevertheless, Ms Bos ultimately made admissions that, in several respects, made the basis for the case that is now put against her on manslaughter by complicity.

137 Next, for the following reasons, I am persuaded that Ms Bos's plea of guilty is a very significant matter in mitigation.

138 First, despite the admissions she made, had a jury been unable to exclude the truth of Ms Bos's version of the limits of her agreement with Mr Heron, which strikes me as a reasonable prospect, it is difficult to see how she could have been convicted of homicide. Added to that prospect is that Mr Frey, who was to be an important witness concerning the formation and content of the agreement at the heart of her criminal liability, did not, in my assessment, fare well in evidence at a pre-trial examination. Further, as explained earlier, even on the factual basis agreed on the plea, Ms Bos may still have had an arguable defence arising from Mr Heron's spectacular departure from their plan. Experience shows that, with respectable arguments like these, many in her position might have taken their chances before a jury. A plea of guilty entered in the face of arguable defences is of especial weight in mitigation.[6] It shows an added preparedness to accept responsibility and willingness to facilitate the course of justice.

139 Secondly, there is currently a backlog of cases and an associated strain on the criminal justice system resulting from the pandemic. Thus, by avoiding the need for a trial in her case, Ms Bos's plea of guilty is of additional utilitarian value beyond the usual.[7]

140 Thirdly, the plea relieves the need for witnesses to give evidence. Importantly, the family and friends of Mr Cameron have been spared the emotional toll of a criminal trial. The fact that many of the same witnesses may be required to give evidence at the trial of Ms Bos's co-accused cannot diminish the legal reality that no witnesses are required in any trial against her. Similarly, the fact that some witnesses were cross-examined at a pre-trial examination should not reduce the weight to be accorded to her guilty plea.[8] This is because, at that stage, Ms Bos was still facing a murder charge, which has since been abandoned.

141 Fourthly, while not chronologically and procedurally early, her plea was still entered relatively early in the scheme of things, and certainly was not a late plea.

142 Finally, I accept that, along with other matters, her plea of guilty indicates remorse, to which I now turn.

143 Thus, another important factor in mitigation is that, for at least three reasons, I am satisfied that Ms Bos is remorseful for her offending. First, as I just noted, her plea of guilty and the circumstances in which it was entered are indicative of remorse. Secondly, the observations by Mr Cummins of Ms Bos's presentation, which I accept, are consistent with her being remorseful. Finally, having observed her in this Court, I am satisfied that, albeit Ms Bos did not contemplate that Mr Cameron would be so brutally assaulted or killed, she presents as contrite over her conduct in contributing to that result and the profound impact his death has had on his loved ones.

144 It is also significant that Ms Bos has no prior convictions whatsoever. There is no suggestion of any violence in her past. While she has involved herself in illicit drug use, the more extreme forms of this behaviour occurred against a background of trauma resulting from sexual abuse as a child, the death of her husband of sixteen years, and in the context of damaging relationships with men. Otherwise, she appears to be a person of good character. She has been gainfully employed for most of her adult life. Notwithstanding their strained relations at the moment, she has worked hard to raise her son into adulthood, who in turn is studying and working hard.

145 Next, there are several matters that, in combination, satisfy me that Ms Bos has excellent prospects of rehabilitation. Those matters include her admissions, plea of guilty and remorse; her prior good character; her efforts to address the matters that have contributed to her psychological difficulties and illicit drug use, and her plans to undergo further counselling; her proven capacity to work productively and raise a child successfully into adulthood; her plans to rekindle her relationship with her son; and the support she enjoys from at least some in her family. I think it is very unlikely that Ms Bos would commit an offence of this type, or any other offence of violence, ever again.

146 The next factor to consider is that time spent in this State's prisons has been more onerous than usual in the last few years as a result of the pandemic's effects on incarceration protocols. An illustration of this effect in the present case concerns the interruption to the counselling sessions Ms Bos was undertaking. While these restrictions have varied in their intensity, in one way or another, they have applied to the whole of Ms Bos's time in custody. Hopefully, they will be lifted completely sooner rather than later. But it seems that they will continue, at least in some form, for a while yet. This additional hardship operates in mitigation of sentence.

147 Finally, Mr de Kretser submitted that the opinion of Mr Cummins and the more recent information about the increase in the dosage of Ms Bos's medications show that her mental health has deteriorated in prison, and that there is a substantial risk that it will continue to do so. I accept that evidence and that submission. It is well established that, where there is a serious risk of imprisonment having a significant adverse effect on an offender's mental health, this will be a factor tending to mitigate punishment.[9]

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

149 General deterrence, denunciation and just punishment are important sentencing purposes in this case. All should understand that to be complicit in an assault aware that it is probable that, in the course of that assault, an unlawful and dangerous act will be committed, and where an act of that kind causes death, even if death and the means by which it is caused are completely unforeseen, usually will result in punishment by way of a substantial prison sentence for the crime of manslaughter, even following a plea of guilty.

150 As for specific deterrence and protection of the community, those purposes, while relevant, are of less weight on account Ms Bos's prior good character, plea of guilty, remorse, and prospects of rehabilitation, and the hardship of her incarceration. The criminal justice process, I am satisfied, has had a salutary effect on Ms Bos.

151 Rehabilitation is an important purpose in fixing sentence in this case. Ms Bos's excellent prospects make rehabilitation a sentencing purpose that must be afforded substantial weight. It is also necessary to recognize the interplay between rehabilitation and protection of the community. She will be returning to the community eventually. It is therefore in the community's interests that her prospects of rehabilitation be maximised, so that, when she is released from prison, her chances of successful reintegration into society are as strong as they can be.

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

153 Sentencing statistics show that, in respect of prison sentences for manslaughter for the period from 2015-16 to 2019-20, they ranged in length from about one-and-a-half to thirteen years. The average term over the whole period was eight years and five months, and the median and the mode were nine years. The median non-parole period was six years, and the mode was five years.[10]

154 These statistics are, however, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations. Nevertheless, they do give some guidance.

155 Sometimes, case comparisons may assist in gauging current sentencing practices. However, neither counsel nor I found any decided cases that were relevantly similar to the present case or that provided much assistance in this regard.[11] Thus, I was driven to consider manslaughter sentences more generally.

156 I have also had regard to the fact that all of the sentences featuring in the statistics just discussed, and most of the individual cases I considered, concerned instances of manslaughter where the maximum penalty was 20 years' imprisonment, not the higher maximum that applies to the present case.

159 The law is that, once a sentence indication is taken up at the first available opportunity, as here, a court must not impose a more severe sentence than the maximum total effective sentence indicated.[12] However, a less severe sentence may be imposed.

160 After hearing the case in full on the plea, and balancing all matters, I have decided that it is necessary and appropriate to impose a slightly lesser sentence than the sentence I indicated in November, and in particular as follows. Ms Bos is convicted of the manslaughter of Mr Cameron and sentenced to six years and three months' imprisonment with a non-parole period of three years and three months.

161 Pursuant to s 18 of the Sentencing Act, I declare that, including today, Ms Bos has served 548 days of pre-sentence detention under this sentence. This equates to a period of about eighteen months, leaving her another 21 months before she becomes eligible for parole.

162 I am satisfied that this non-parole period, like the head sentence, satisfies all of the applicable purposes of sentencing, including the punitive purposes. Ms Bos's rehabilitation is likely to be furthered if she has the opportunity to be supervised and supported on parole for a substantial period. If that were to occur, the community would be likely to benefit as well in the longer run. Hence the non-parole period fixed here.

163 It must be remembered that s 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This provision reflects the fundamental principle of parsimony, which, in my view, compels both the head sentence and the non-parole period I have imposed.

Section 6AAA of the Sentencing Act

164 Finally, I am required, by s 6AAA of the Sentencing Act, to declare the sentence I would have imposed but for Ms Bos's plea of guilty. It is notorious that this is a difficult and somewhat artificial exercise. Nevertheless, my best estimate is that, had Ms Bos neither offered to plead guilty nor entered such a plea, but had instead been found guilty of manslaughter following a trial, I would have imposed a sentence in the order of nine years' imprisonment with a non-parole period of six-and-a-half years.

[1] Pursuant to ss 207-209 of the Criminal Procedure Act 2009 (Vic).

[2] These are not my words. I have taken them from the lyrics of Helpless, a nostalgic and ethereal song released in 1970 by the famous Canadian singer-songwriter Neil Young.

[3] See s 5 of the Crimes Act 1958 (Vic), as amended by s 3 of the Crimes Amendment (Manslaughter and Related Offences) Act 2020 (Vic).

[4] Most of the reasons for decision in that matter are presently suppressed. Upon the lifting of that suppression order, those reasons will be available on Austlii (at [2023] VSC 36).

[5] Some of these submissions, and those on behalf of Ms Bos, were made at the sentence indication hearing but were adopted by Ms Ruddle and Mr de Kretser, by reference, at the plea hearing.

[6] See, e.g., R v De Macedo (unreported, Supreme Court of Victoria, Court of Criminal Appeal, 4 February 1992) at 5-7 (per Phillips CJ, with whom Beach and Gobo JJ agreed).

[7] See, e.g., Worboyes v The Queen [2021] VSCA 169; (2021) 96 MVR 344 at 356[35]-357[39] (per Priest, Kaye and T Forrest JJA). While the pandemic is having less immediate impact than it once did, and things are improving, the fact remains that the criminal justice system as a whole is still under great strain, and miles behind, and is likely to remain so for some time yet.

[8] There was no contested committal hearing in this case. Instead, given the delays in the Magistrates' Court occasioned by the pandemic, the matter came to this Court via what has become known as a fast-track procedure. Some witnesses were then cross-examined at a pre-trial hearing in this Court conducted pursuant to s 198B of the Criminal Procedure Act 2009 (Vic).

[9] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276[37] (per Maxwell P, Buchanan and Vincent JJA).

[10] Sentencing Advisory Council, Sentencing Snapshot: Manslaughter, No 249, April 2021, pp 3-5.

[11] One case that came close was a plea I had heard recently but in respect of which, at the time of hearing Ms Bos's case, I had not then passed sentence. Unlike the present case, however, that matter involved an additional mitigating factor of great significance - namely, that the accused had given a valuable undertaking to assist the authorities in the prosecution of co-accused. I have since passed sentence in that matter. It is the case mentioned earlier (when discussing the value of the plea of guilty) and in respect of which most of the reasons for decision are currently suppressed.

[12] See s 209(1) of the Criminal Procedure Act 2009 (Vic).