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[2015] VSC 747
General information, not legal advice.
Supreme Court of Victoria
2015-12-18
T FORREST J
Original judgment source is linked above.
CRIMINAL LAW - Application for compensation under s 85B of the Sentencing Act 1991 (Vic) - Offence of murder - Applicant is mother of the deceased - Pain and suffering direct result of offending - Psychiatric injury direct result of offending - Future medical expenses - Quantum - Rehabilitation - Financial circumstances of offender.
1 In 2013 the respondent in these proceedings, John Xypolitos, was convicted of the 2003 murder of Gary Greg Adams ('the deceased'). On 6 December 2013, Curtain J sentenced the respondent to 27 years' imprisonment, with a non-parole period of 24 years.[1] The respondent applied to the Court of Appeal for leave to appeal both his conviction and sentence.[2] In the case of his sentence, leave was refused; and in the case of his conviction, his appeal was dismissed.[3]
2 The applicant, Jo-Ann Adams, is the mother of the deceased. She seeks compensation pursuant to s 85B of the Sentencing Act 1991 (Vic) ('the Act') for injury suffered as a direct result of the offence.
3 The facts of the offending and surrounding circumstances are set out in both Curtain J's sentencing remarks and in the joint judgment of the Court of Appeal. I summarise them as follows.
4 The respondent and the applicant were in a relationship. The respondent was in effect the deceased's step-father. At the time of the offence (December 2003) the deceased was 17 years old. The applicant, respondent and deceased all lived together at this time, however it had been agreed that the respondent would be leaving the house to live elsewhere in the following month.
5 Although the relationship between the deceased and respondent had initially been good, it had soured by the time of the offence. The deceased told friends that the two of them argued, and it appears that violence was involved on at least two occasions.
6 On 5 December 2003, the respondent killed the deceased by hitting him to the head with a hammer. The respondent then placed the body of the deceased in a plastic swimming pool in a shed in the backyard of the house.
7 The applicant returned from work that evening to find the respondent preparing the evening meal. When she asked where her son was, the respondent lied by telling her he had gone out. The following day, the respondent dismembered the body of the deceased using a hacksaw. He kept the body parts in bags in the shed for a week before disposing of them at various tips throughout Melbourne. He buried some body parts in the backyard of his mother's house.
8 The applicant waited and searched for the deceased for the next 8 and a half years. Throughout this time, the respondent deceived and manipulated her. He continued to live with her for some months, until it was decided that he should leave the house in the hope that it would encourage the deceased to return home. The respondent remained in contact with the applicant on 'friendly' terms until at least 2011. On occasions such as Christmas and birthdays, he apparently made efforts to comfort her about her missing son.
9 In April 2012, the respondent admitted to police that he killed the deceased. At trial he argued a defence of self-defence, which was not accepted by the jury. He was convicted of murder.
12 The expression 'direct result of' means 'an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence'.[7]
13 The applicant's application for compensation was filed on 18 December 2013. A supporting affidavit, sworn by the applicant on 20 April 2015, was filed on 22 April 2015. The applicant's claim is in respect of psychological injury, grief, stress, trauma and other ill effect occasioned by the murder of her son. Written submissions were provided on her behalf.
14 The respondent posted a letter to the Court, which was taken to be his written submissions. The information contained in that letter was largely justificatory or otherwise irrelevant. At a directions hearing on 13 October 2015, the respondent requested to cross-examine the applicant at the hearing of the application.
15 The applicant gave evidence that prior to her son's disappearance she had never seen a medical practitioner or counsellor in relation to psychological symptoms or problems.[8] At the time of the offence, she was running a printing business in Cranbourne. She had previously worked eight and a half years at National Mutual.[9]
16 After her son disappeared she experienced stress, insomnia, nightmares and concentration problems, all of which worsened as time passed.[10] Between 2004 and 2008/2009 she saw a general practitioner, several counsellors from organisations such as the Salvation Army and St Vincent de Paul, as well as a psychologist to whom she was referred by Centrelink.[11] She was prescribed antidepressants in 2008/2009 but discontinued shortly after due to side effects.[12]
17 When her son's death was finally confirmed by the respondent's 2012 confession and subsequent trial, the applicant questioned herself obsessively about her previous relationship with, and trust in, the respondent. She was particularly disturbed by the revelation that her son's body had been in the shed while she slept in the house next to his murderer.[13] She saw a counsellor around this time. She also consulted her general practitioner, who prescribed sleeping pills.[14]
18 The applicant is currently on a waiting list to see a psychologist or psychiatrist.[15] She sleeps poorly and intermittently, suffers from nightmares, and feels like she is 'drowning in time'. She thinks constantly about her son's death and disappearance. She has distanced herself from her family and resists forming close attachments.[16]
19 The applicant has received the disability support pension since 2010 on the basis that post-traumatic stress has rendered her unable to work.[17]
20 The respondent asked limited permissible questions in cross-examination. In summary, the applicant denied any current income or employment beyond the disability support pension and was not questioned about psychological symptoms.
21 Professor Dennerstein, who prepared a psychiatric report for the applicant,[18] was also called and cross-examined. Based on her interview and assessment, she diagnosed the applicant as suffering from persistent complex bereavement disorder with traumatic features.
22 She opined that 'extreme traumatic circumstances...made it very difficult [for the applicant] to go through a normal bereavement process [and] in fact she didn't go through a normal bereavement process.'[19] Specifically, the applicant 'finds it very difficult to have... positive memories that replace the negative ones around that time... She's been unable to move through the process from protest to acceptance because it's very hard to accept the circumstances of... this death.'[20]
23 Professor Dennerstein outlined the following factors that, in her view, exacerbated the trauma experienced by the applicant:
(a) For a long time the applicant did not know whether to grieve or not because she did not know what had happened to her son;[21]
(b) The applicant became aware that a man with whom she had had a relationship had murdered her son, and had to deal with the thought that she had put her son in danger;[22] and
(c) The applicant had allowed the respondent to comfort her about her son's disappearance.[23]
24 In her report of 17 February 2015, Professor Dennerstein said this regarding the applicant's work capacity:
Jo-ann's employment history has been greatly and adversely impacted by the disappearance of her son. She had hoped to get back to work and did so in 2008 in a lesser capacity (no longer running a business). She has not been able to get back to work since then with the developments involved in the criminal case against her ex-partner and the subsequent appeals. Her work capacity has been affected by her depression, hypersomnia, low motivation, social withdrawal and poor concentration and this will continue for the foreseeable future.[24]
25 The applicant reported to Professor Dennerstein that her depression worsened during the respondent's trial. He had apparently 'smiled at her from the dock'; 'kept calling out and accusing her of being a liar'; and 'blamed Gary saying that Gary attacked him and accusing Andrew and Gary of being paedophiles'.[25]
26 Professor Dennerstein describes the applicant's prognosis as 'poor'[26] and her symptoms 'very stale'.[27] The applicant has severely impacted social functioning, and has led a very restricted and very isolated life as a result of her disorder.[28] She agreed that the applicant had historically received only limited psychological or psychiatric treatment,[29] and said that the applicant may be responsive to further treatment.[30]
27 Professor Dennerstein suggested the applicant see a clinical psychologist[31] at an estimated the cost of $250 per hour. She suggested weekly sessions for the first 16 weeks, followed by monthly session for the remainder of the first year, then sessions at reduced frequency (maybe 9 or 10 sessions in total) in a second year.[32] She anticipated the applicant would be treated by use of an antidepressant, at an estimated cost of $60 per month for at least 12 months. She further suggested that it may be necessary for the respondent to see a psychiatrist for at least 12 months, on a three-to-four week basis at the cost of $450 for a first appointment and $350 per appointment thereafter. Overall, she estimated ball-park figures of $5,000 for the required psychiatric treatment and $5,000 for a clinical psychologist.
28 The respondent asked some questions apparently aimed at asserting potential prior psychiatric injury to, or prior traumatic events experienced by, the applicant. However, he did not lead any evidence as to these assertions and did not seriously challenge Professor Dennerstein's diagnosis, or her evidence more broadly. Professor Dennerstein confirmed that, in her opinion, there was no other factor that bore of the applicant's psychiatric presentation other than those related to the offence.[33]
29 A letter dated 28 October 2015 from Andrew Ooi of the Office of Public Prosecutions to the applicant's lawyers was provided to the Court. Mr Ooi writes that, as at 23 October 2015, the Department of Justice and Regulation Asset Confiscation Operations Infringement Management and Enforcement Services held $312,650.01 in trust pursuant to a restraining order made by Vickery J on 11 May 2012 in relation to property in which the respondent has an interest.
30 The respondent made no clear submissions regarding his financial circumstances.
Payment under the Victims of Crime Assistance Act
31 The Victims of Crime Assistance Tribunal ('VOCAT') made an award of $56,325.00 in favour of the applicant on 30 July 2012 in relation to the relevant offence.[34] Section 85I of the Sentencing Act requires the Court to reduce any amount of compensation by the amount of any award made under the Victims of Crime Assistance Act 1996 (Vic) for the expense or other matter for which compensation is being sought under this Subdivision. Of the VOCAT award, $49,180 was awarded for 'distress'; $800 for 'expenses actually incurred' and $6325 was paid direct to other agents for funeral and cemetery expenses.
32 I accept the applicant was a truthful and reliable witness and have no reason to doubt her account of her experience and ongoing symptoms. I accept Professor Dennerstein's diagnosis of persistent complex bereavement disorder with traumatic features, and am satisfied that the offence and related circumstances were a cause of this disorder. I am further satisfied that the adverse effects to the applicant extend beyond those encompassed by the diagnosis. Her social withdrawal, reluctance to form attachments, and inability to engage in employment serve to compound the pain, suffering and loss of enjoyment in life that she has experienced, and will continue to experience, as a direct result[35] of the offence. I regard the psychological injury and related adverse effects as severe, impacting virtually every aspect of the applicant's life.
33 This vicious murder of a 17-year-old boy was committed in the victim's home. The respondent was, in effect, the victim's stepfather. The Court of Appeal described this as an 'extremely serious' murder[36] and I agree with this characterisation. The respondent concealed the offence for more than eight years. He comforted the applicant as she grieved, and tried to come to terms with her son's disappearance. Now, a different form of grief besets the applicant: her son is dead; only six bones of his body were recovered; his murderer was her partner, in whom she vested her trust both before and after the offence; she has suffered through his criminal trial and appeal throughout both of which he demonstrated a persistent lack of remorse.
34 The circumstances of the criminal act and subsequent actions of the offender are relevant to the compensation that I will award.[37] I raised with counsel for the applicant that there is often a fine line between taking aggravating circumstances into account, and punishing an offender a second time. In this case, it is my view that the aggravating factors outlined in [33] above are relevant to my award, particularly where they have been plainly causal of, or contributory to, the applicant's pain, suffering and psychiatric illness.
35 For example, in my view, there is no doubt that the respondent's manipulation of the deceased in the years following the offence has caused, at least in part, her ongoing feelings of guilt, and her reluctance to form attachments to others. As outlined in [23], Professor Dennerstein was of the view that the respondent's successful concealment of the offence, and the applicant's relationship and trust in him, constituted traumatic circumstances that contributed to her psychological disorder.
36 I accept Professor Dennerstein's prognosis that the applicant will be unlikely to work again. I take this into account insofar as it impacts the pain and suffering experienced by a once independent businesswoman. No compensation is awarded for past economic loss or loss of earning capacity.
37 I turn now to the respondent's circumstances. Mr Xypolitos is 59 years of age. He will not be eligible for parole for another 22 years and will be an octogenarian by his earliest possible release date. An offender's rehabilitation is a countervailing consideration. Though there is no evidence before the Court as to the respondent's total asset position, I accept that his rehabilitation would be assisted by the retention of some of his restrained funds. Mr Hill cited J Forrest J's decision in Stevens v Baxter and submitted that this was an instance where no discount should be applied to take into account the respondent's asset position. I accept this submission. I propose to leave the applicant with a relatively substantial balance in his restrained funds. As I have said, I have no information about any other assets that he may have.
38 Balancing these competing factors the best I can, I propose to order that the respondent pay the applicant compensation in the sum of $150,820 for general damages, and in the sum of $11,080 for future medical expenses (estimated as $5,000 each for psychological and psychiatric treatment, and $1,080 for 18 months antidepressants). I have calculated the general damages sum by assessing it at $200,000 and deducting from it the sum paid to the applicant by VOCAT for 'distress' referred to in paragraph [31] of these reasons.
39 Section 85K of the Act provides that each side shall bear its own costs unless the Court otherwise directs. As J Forrest J described in Stevens v Baxter, 'the clear tenor of the section is that the costs should lie where they fall, absent unusual or special circumstances.'[38] The applicant made no submissions, either at hearing or in writing, on the issue of costs, and my view is that this is not a case in which it would be appropriate to displace that general rule.
40 Mr Hill applied for costs when I handed down judgment in this matter. I reconsidered costs as a result of this application and considered the decision of the Chief Justice in V1 v Xydias,[39] which provides a useful reference to the relevant parliamentary speeches.
41 I am not prepared to depart from the usual order countenanced by s 85K of the Act. It is true that Mr Xypolitos contested the application and that some of his lines of enquiry were vexatious. Having said that, he was unrepresented and on the occasions that he descended into vexatious irrelevance, he desisted upon my admonishment. In my view, it would be unfortunate if respondents, whom by and large are unrepresented in this type of proceeding, were coerced into consent by the threat of costs orders made against whatever assets they may retain.
[1] The Queen v Xypolitos [2013] VSC 485 ('sentencing remarks').
[2] Xypolitos v The Queen [2014] VSCA 339, [1] ('appeal decision').
[4] Sentencing Act 1991 (Vic), s 85A.
[7] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 417 [56] (Buchanan JA).
[17] Transcript 16. The Applicant notes that her grant of a disability support pension was based on medical reports from Dr Trevor Corren that diagnosed Post Traumatic Stress Disorder, and the impact of that disorder on the applicant's capacity for work.
[18] Exhibit 1.7 dated 17 February 2015.
[19] Transcript of proceedings, Adams v Xypolitos (Supreme Court of Victoria, S CR 2013 00159, T Forrest J, 9 November 2015) 9 ('Transcript').
[24] Report of Professor Dennerstein dated 17 February 2015, p 11.
[25] Report of Professor Dennerstein dated 17 February 2015, p 11.
[31] Report of Professor Dennerstein dated 17 February 2015, p 11; Transcript 33.
[34] Exhibit 1.10 is a copy of that Award, dated 2 August 2012.
[35] See Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405.
[36] Appeal decision [2014] VSCA 339 at [88].
[37] Stevens v Baxter [2009] VSC 257, [35]. See also the factors outlined by Vincent JA in DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116, [34].
[38] Stevens v Baxter [2009] VSC 257, [37].
Adams
Xypolitos [2015] VSC 747
(2007) 15 VR 405