Applicant/Respondent v First Respondent/Applicant

CONFISCATION LAW - MJP applied, under 26 of Confiscation Act, to vary restraining order to release funds to repay previous loan for business expenses - Restraining order previously varied to align with FCC orders directing transfer of house to former wife TB and sale of house - Whether MJP's application should be granted when to do so might diminish restrained funds available for applicants for compensation orders under s 85B of the Sentencing Act - Whether variation sought would be "just" - Whether varied order should attach to MJP's portion of restrained funds or to both his and former wife TB's combined portion equally - Application granted - Restraining order varied to direct repayment of loan from MJP's portion of restrained funds.

CRIMINAL LAW AND COMPENSATION - Applications for compensation orders under s 85B of the Sentencing Act - MJP murdered PD, who was applicant RL's husband and applicant DP's son - Both applicants suffered "injury", i.e. "grief, distress [and] other significant adverse effect", as a direct result of the murder - Whether DP's application filed beyond twelve-month time limit - When MJP was "convicted" of offence - Application to extend time not opposed, and granted - Whether MJP's renunciation of interests in deceased estates of his parents should impact on whether any account might be taken of MJP's future needs in assessing compensation due to RL and DP - Compensation assessed at $125,000 for RL and $75,000 for DP for pain and suffering and counselling expenses incurred, or to be incurred, as a direct result of offence - But for limits on ability to test claim in this forum and MJP's modest financial circumstances and risk of impairment of his prospects of rehabilitation caused by diminution of assets, compensation would have been assessed at $180,000 for RL and $100,000 for DP - Compensation orders reduced to $92,000 for RL and $62,600 for DP on account of awards made by Victims of Crime Assistance Tribunal - Sentencing Act 1991 (Vic), ss 85A-85M; Victims of Crime Assistance Act 1996 (Vic).

Self-represented (12/4/18; 12/6/18; 29/6/18; 19/7/18; 8/10/18; 31/10/18; 9/11/18; 27/11/18; 10/5/19)

Mr R Cameron (8/10/18; 9/11/18; 27/11/18; 10/5/19; 28/6/19; 31/7/19)

Mr A Lyall (31/10/18; 27/11/18; 10/5/19; 12-13/9/19)

1 On 11 November 2019, I made orders in three related, but nevertheless separate, applications. At that time, I gave a relatively detailed summary of my reasons for the making of those orders and also for the orders I had made previously in another related application.[1] All four matters, in one way or another, arose out of the charging of Maxwell John Pain with murder, and his conviction of that offence at a trial by jury over which I presided in 2017.[2] I shall repeat the substance of that summary of reasons now in this overview and then move to the detailed reasons in the balance of the judgment.

Application to vary restraining order to align with Federal Circuit Court orders

2 On 27 November 2018, I heard an application by the Director of Public Prosecutions ("the DPP"), pursuant to s 26 of the Confiscation Act 1997 (Vic) ("the Confiscation Act"), to vary a restraining order concerning Mr Pain's interest in his home at Neilborough, near Bendigo.

3 The restraining order had been made by this Court on 10 November 2014 in reliance on the fact that Mr Pain had been charged with the murder of David Paris on 10 June 2014. The order was made for the purpose of satisfying any order for restitution or compensation that might be made under the Sentencing Act 1991 (Vic) ("the Sentencing Act"), should there be a conviction.

4 The DPP's variation application was made against the following background. After a trial by jury, on 7 April 2017, Mr Pain was found guilty of the murder of Mr Paris. On 9 August 2017, he was sentenced to 23 years' imprisonment with a non-parole period of 18 years.[3] Between that period and the hearing of the DPP's application on 27 November 2018, Rebecca Anne Lambert (the wife of Mr Paris) and Deborah Michelle Paris (the mother of Mr Paris) filed applications, pursuant to s 85B of the Sentencing Act, for orders that Mr Pain pay them compensation.

5 Also during that period, Mr Pain's former wife Tracy Anne Bush obtained various orders from the Federal Circuit Court arising out of matrimonial proceedings brought pursuant to the Family Law Act 1975 (Cth) ("the FLA"). In short, the Federal Circuit Court ordered that Mr Pain's home be transferred into Ms Bush's name and sold, and that, after certain expenses were paid, the remaining funds were to be divided equally between the two of them. Mr Pain's portion of the funds would remain subject to the restraining order pending the outcome of the compensation applications.

6 The DPP's application, in substance, was to vary the restraining order so as to make it harmonious with the orders of the Federal Circuit Court.

7 While, at first blush, the application may have appeared relatively simple, on closer analysis, the matter raised important issues concerning potentially competing interests in, or rights to the funds represented by the future sale of, Mr Pain's property. The particular interests or rights included, on the one hand, those of Ms Bush under the FLA and, on the other, the potential rights of those seeking compensation from Mr Pain pursuant to the Sentencing Act.

8 In the end, I was persuaded by Dr Vout, who appeared for the DPP, that a fundamental inconsistency, of the type contemplated by s 109 of the Commonwealth Constitution, arose between aspects of the orders made by the Federal Circuit Court concerning Mr Pain's property pursuant to laws of the Commonwealth and the restraining order made by this Court pursuant to State legislation concerning the same property. Accordingly, I ruled that that inconsistency compelled the variations to the restraining order sought by the DPP.

9 At the time of making the variations, I gave only a short summary of reasons for my decision. In the judgment that follows, I shall give far more detailed reasons, particularly out of deference to Dr Vout's very carefully researched and scholarly submissions.

Application to vary restraining order to allow repayment of loan

10 Secondly, initially on 28 June 2019, and then on 31 July and 12 and 13 September 2019, I heard an application by Mr Pain, also pursuant to s 26 of the Confiscation Act, to vary the restraining order. This application was made after Mr Pain's property was transferred to Ms Bush and sold pursuant to the Federal Circuit Court orders ("the FCC orders") and the associated variation to the restraining order to allow all of those things to occur. The gist of the application was to vary the restraining order so as to allow Mr Pain to apply $4,000 of the residual restrained proceeds of sale to the repayment of a loan for business purposes incurred before the murder.[4]

11 The DPP submitted inter alia that the proposed variation should not occur, as it would not be "just", because it may diminish the restrained funds available for those making applications for compensation orders. As it happened, the compensation orders did not exhaust the available restrained funds. In any event, I did consider that such an order would be just.

12 Mr Pain submitted that he and Ms Bush should share the payment of the debt equally (i.e. $2,000 each). While I was initially attracted to that submission, in the end, I came to a different view. Instead, I was persuaded by Dr Vout (for the DPP) and Mr Cameron (for Ms Bush) that the whole $4,000 should come from Mr Pain's portion of the restrained funds, which was consistent with his alternative submission.

13 In the result, I granted Mr Pain's application to vary the restraining order so that $4,000 of the $10,000 of the restrained funds that I had directed be held by Ms Bush's solicitors temporarily for this purpose (i.e. until this issue could be decided) may be applied to repay the debt resulting from the business loan.

14 Next, since, pursuant to the final FCC orders, that $10,000 held was owned in equal parts by Ms Bush and Mr Pain (but, in the case of the latter portion, still subject to the restraining order), then $5,000 would be available to Ms Bush's solicitors to disburse to her, and the remaining $5,000 would need to be transferred to the Assets Confiscation Office ("the ACO"), so that that office may pay the $4,000 to the debt collection agency and retain the other $1,000 in the remaining pool of restrained funds. (Alternatively, in order to save double-handling, I could have directed that Ms Bush's solicitors pay the $4,000 debt and transfer the remaining $1,000 to the ACO.) Either way, given that the restrained funds held by the ACO on behalf of Mr Pain were expected to be in the order of $177,241.30 as at 9 October 2019, that additional $1,000 would bring the remaining pool up to about $178,241 (plus any further interest) by the time of the making of the orders.

Applications for compensation pursuant to Sentencing Act

15 Finally, the third and fourth matters concerned the applications, pursuant to s 85B of the Sentencing Act, by Ms Lambert and Ms Paris, for compensation orders arising out of Mr Pain's conviction of the murder of Mr Paris. These applications were ultimately heard together with Mr Pain's application to vary the restraining order on 12 and 13 September 2019. I determined that I should grant these applications and make orders for compensation to be paid by Mr Pain.

16 Ms Lambert: In the case of Ms Lambert, I concluded that the nett award of compensation to be paid by Mr Pain was $92,000.

17 While I assessed her compensation at $125,000, that amount had to be reduced by $33,000 on account of an award of that amount already made to Ms Lambert by the Victims of Crime Assistance Tribunal ("VOCAT").[5]

18 As I shall explain later in the judgment, but for limits on Mr Pain's ability to test the claim in this forum (as opposed to civil proceedings), his comparatively modest financial circumstances and the risk of impairment of his prospects of rehabilitation caused by exhaustion or diminution of his assets, the total compensation for Ms Lambert (before the reduction necessary on account of the VOCAT award) would have been assessed at $180,000, not $125,000.

19 Ms Paris: In the case of Ms Paris, I concluded that the nett total award of compensation to be paid by Mr Pain was $62,600.

20 While I assessed her total compensation at $75,000, that amount had to be reduced by $12,400 on account of awards totalling that amount already made to Ms Paris by VOCAT.

21 Again, as I shall explain later in the judgment, but for limits on Mr Pain's ability to test the claim in this forum, his comparatively modest financial circumstances and the risk of impairment of his prospects of rehabilitation caused by exhaustion or diminution of assets, the total compensation for Ms Paris (before the reduction necessary on account of the VOCAT award) would have been assessed at $100,000, not $75,000.

22 Those two nett awards of compensation - i.e. $92,000 to Ms Lambert and $62,600 to Ms Paris - were to be paid by Mr Pain but out of the restrained funds held by the ACO.

23 I ordered that the remainder of the restrained funds held by the ACO, which should amount to about $23,641 (plus any further interest from 9 October 2019), were to be released to Mr Pain.

24 The story behind these orders is long and tortuous, but it must be told, at least in part and in summary form, in order to make sense of things.

Criminal proceedings for the murder of David Paris

26 For a long time, Maxwell Pain was a very suspicious and jealous man. Throughout more than ten years of marriage to Tracy Bush, Mr Pain often suspected his wife of infidelity with almost any man who glanced at her. The accusations and disharmony that followed often led to short separations in the marriage. In 2014, Mr Pain even came to believe, wrongly, that his wife was having an affair with her son-in-law David Paris. So incensed by that thought was Mr Pain that he threatened to others to "kneecap" Mr Paris, to "get" him and to "smash his hands up".

27 On 9 June 2014, sick and tired of Mr Pain's accusations and behaviour, Ms Bush resolved to leave her husband permanently. That day, she left their home in Neilborough, just outside Bendigo, and went to live with her daughter Rebecca Lambert, Ms Lambert's partner Mr Paris and their child in nearby Raywood.

28 Filled with anger because of his belief about an affair that never was, and fixed with the (reasonable) belief that his wife might have left him for good, on the evening of 10 June 2014, Mr Pain drove his Ford utility to Mr Paris's home in Raywood armed with a shotgun and a rifle. Prior to his arrival, he sent a text message to Mr Paris saying, "I'm on my way, Davey boy." It is unknown whether Mr Paris ever noticed the message.

29 After reaching the property and driving down the long driveway past the house, Mr Pain did a U-turn and headed back towards the house. He slowed almost to a stop near a side gate, more or less opposite to where Mr Paris was standing at that point. From the driver's window of his utility, at a range that is unclear, but in the order of two-and-a-half to ten metres, Mr Pain fired the shotgun once. The shot struck Mr Paris in the abdomen. He yelled, "I've been shot," and eventually collapsed to the ground. Mr Pain drove off down the driveway towards the main road.

30 Mr Paris's friend Donald Romey, who had witnessed the shooting in part, noticed Mr Pain stop his utility further down the driveway. Mr Pain got out of the car, carrying the shotgun across his body. In an act of great courage, Mr Romey, who was unarmed, confronted Mr Pain, face-to-face, and told him to leave.[6] Mr Pain got back into the ute and drove away.

31 Mr Romey, Ms Lambert and Ms Bush all rushed to Mr Paris's aid. He was bleeding heavily from the wound in his abdomen. Frantically, and with the assistance of triple-zero operators, they all tried desperately to help him. Later, paramedics arrived and tried to resuscitate Mr Paris. But there was nothing they could do. The shot and the wad had left a large hole in Mr Paris's abdomen and caused serious internal damage, including to his abdominal aorta. Mr Paris died then and there.

32 After he drove away, Mr Pain rang police and others and told them he had shot Mr Paris. He told his sister that he hoped Mr Paris was "okay". He arranged to surrender himself to police at his home. He was arrested without incident and has remained in custody ever since.

Charge, committal, plea, change of plea, trial, verdict, plea and sentence

33 On 10 June 2014, Mr Pain was charged with murder.

34 Later, he was committed for trial in this Court.

35 Initially, at the commencement of his trial before Coghlan J in 2015, Mr Pain pleaded guilty to murder.

36 In 2016, John Dixon J granted Mr Pain's application for leave to withdraw that plea.[7]

37 Ultimately, in March/April 2017, Mr Pain stood his trial before a jury of twelve. On 7 April 2017, the jury returned a verdict of guilty of murder.

38 On 16 May and 8 June 2017, I received victim impact statements and heard submissions from the parties on Mr Pain's plea in mitigation.

39 As indicated earlier, on 9 August 2017, I sentenced Mr Pain to 23 years' imprisonment with a non-parole period of 18 years.[8]

40 On 10 November 2014, the DPP applied, ex parte, pursuant to s 16 of the Confiscation Act, for a restraining order over Mr Pain's home in Neilborough. Mr Pain was the sole registered proprietor of the property.

41 Justice McDonald ordered, pursuant to s 18 of the Confiscation Act, that "[n]o person shall dispose of or otherwise deal with the property [at Neilborough] or any interest in that property". His Honour also declared, pursuant to s 15(3)(a) of the same Act, that the property be restrained "to satisfy any order for restitution or compensation that may be made under the Sentencing Act".

42 On 25 February 2015, upon an application made pursuant to s 143 of the Confiscation Act, Sloss J ordered that Victoria Legal Aid provide legal assistance to Mr Pain in respect of his charge of murder to be heard in this Court. A condition of the provision of such legal assistance was that the costs of doing so be secured by way of a charge over Mr Pain's interest in the property at Neilborough.[9]

Ms Lambert and Ms Paris file applications for compensation

43 On 27 November 2017, Rebecca Lambert caused her solicitors to file an application in this Court, pursuant to s 85B of the Sentencing Act, for an order that Mr Pain pay her compensation arising out of his conviction for murder.

44 On 22 June 2018, Deborah Paris had her solicitors file an application of the same type in this Court.

45 Ms Lambert's application first came on for directions on 12 April 2018, whereas Ms Paris's application did not first come on until 29 June 2018.

46 While Mr Pain had been represented by a solicitor and counsel at trial, on each of the foregoing occasions just described, and on many others thereafter, he was unrepresented.

47 Attempts were made - before and after these dates - to secure legal representation for Mr Pain through private solicitors, Victoria Legal Aid and the Bar's Pro Bono Scheme. At least initially, these attempts were mostly unsuccessful. This was very unfortunate, because Mr Pain, as a prisoner with no legal training, was left to his own devices for far too long in attempting to respond to comparatively difficult applications by the DPP and those seeking compensation. Further, at one point, there was even the nigh-on-unthinkable prospect that Mr Pain personally might have to cross-examine victims of his crime on the compensation applications.

48 Much later, however, Mr Pain was fortunate enough to secure the services of Ms Gray through the Bar's Pro Bono Scheme. Ms Gray appeared for Mr Pain at the substantive hearings of the compensation applications and on Mr Pain's application to vary the restraining order. It is obvious that she put a great deal of work into these matters.

49 I wish to commend Ms Gray for providing legal services to Mr Pain, and thereby assisting this Court, on a pro bono basis. It is in the finest traditions of the Victorian Bar that such assistance has been provided. As I told Mr Pain at the time of making the final orders, he should be very grateful to Ms Gray.

50 I should add that I was also very much assisted by those appearing for all other parties in each of the various applications, each of which presented issues of more complexity than is usual.

The DPP's application to vary the restraining order

51 On 4 September 2018, the DPP filed an application in this Court, pursuant to s 26 of the Confiscation Act, to vary the restraining order so as to give effect to the orders made by Judge Bender in Ms Bush's application in the Federal Circuit Court on 2 August 2018. The DPP joined Ms Bush as a respondent to the application.

52 The application came on twice before Moore J, but ultimately was transferred to me. This course was thought preferable because, having heard Mr Pain's murder trial, I was seized of the applications for compensation, which, on at least one view of things, had the potential to be affected by the orders proposed by the DPP in her application. I heard the DPP's application on 27 November 2018.

53 Ms Bush and Mr Pain were married in 2003, but, as I have indicated earlier, were separated just before the murder in June 2014.

54 On 9 June 2016, Ms Bush commenced family law proceedings against Mr Pain for a property settlement in the Federal Circuit Court.

55 At the time the restraining order was made (on 10 November 2014), a mortgage and two caveats were recorded on the title of the Neilborough property. One caveat had been lodged by Ms Bush. The other was lodged by a firm of solicitors claiming they were owed fees by Mr Pain in respect of family law proceedings.

56 As at 11 November 2018, the DPP had been advised by Ms Bush's solicitors that "the small balance of the loan secured by the mortgage has been 'written off' and that the mortgage simply needs to be discharged and the costs thereof paid".[10]

57 On or around 29 June 2018, Ms Bush filed an application in the Federal Circuit Court seeking an order that would enable her to effect that sale of the Neilborough property. In order to facilitate this, Ms Bush also sought orders of an auxiliary nature, including that the Neilborough property be transferred into her name for the purposes of effecting its sale, the discharging of the mortgage and caveats recorded on title, and the payment of related costs, and that the deposit and nett proceeds of sale be held in her solicitor's trust account pending final orders.

58 On 2 August 2018, Judge Bender heard Ms Bush's application. Ms Bush, Mr Pain and the DPP were all represented at the hearing.

59 Section 79B(1) of the FLA required Ms Bush to disclose that the Neilborough property was "covered by" a restraining order. Section 79C(1) of the same Act required that there be a stay of the property settlement proceedings if notification had occurred under s 79B. However, s 79C(1A) allows the court to invite or require the DPP to make submissions relating to staying the proceedings.

60 The DPP did not seek a stay of the proceedings at that hearing for the following reasons:

(a) The restrained property was not tainted property and was not derived from proceeds of crime (and therefore not subject to forfeiture to the State).

(b) The DPP had formed the view that Ms Bush was a bona fide applicant in the family law proceedings. Her application was not an abuse of process. Nor was it designed deliberately to frustrate the operation or purposes of the restraining order. In particular:

(i) Ms Bush and Mr Pain were separated at the time of the offence;

(ii) Ms Bush was granted a decree nisi (divorce order) following the passage of 12 months of separation (as required pursuant to s 48(2) of the FLA), which application was made shortly after the expiration of the separation period, and therefore at an early juncture;

(iii) following the irretrievable breakdown of their marriage, Ms Bush was entitled to make an application for a property settlement pursuant to section 79 of the FLA in relation to matrimonial property, and the Neilborough property was matrimonial property for the purposes of the FLA (see s 4);

(iv) since a divorce order had been made by the Federal Circuit Court, Ms Bush had 12 months within which to make the application for a property settlement under the FLA (see s 44(3)(c)); and

(v) accordingly, Ms Bush's FLA application was filed prior to Mr Pain's conviction and prior to the commencement of any section 85B proceeding.

61 In the result, Judge Bender did not stay the FLA proceedings, and instead went on and determined Ms Bush's interlocutory application. Orders were made largely in the terms sought by Ms Bush, subject to minor changes made on the day of that hearing. Amongst other things, the orders directed that Mr Pain transfer the whole of his interest in the Neilborough property to Ms Bush and that Ms Bush sell the property, subject to various terms and conditions. Those conditions included that the sale be subject to the agreement of the ACO and that the proceeds be applied to various matters, such as the payment of previous house insurance policies and previous solicitors' outstanding fees, with the remainder to be held on trust by Ms Bush's solicitors until further order.

Impossibility of simultaneous obedience and s 109 of the Constitution

62 Dr Vout made the following very detailed and scholarly submissions in support of the DPP's application to vary the restraining order so as to be compatible with the FCC orders.

63 Pursuant to section 26(1) of the Confiscation Act, "[t]he court may, when it makes a restraining order or at any later time, make such orders in relation to the property to which the restraining order relates as it considers just".

64 Section 26(5) sets out examples of the kind of order that the court may make under s 26(1), one of which is "(a) an order varying the property to which the restraining order relates".

65 Dr Vout submitted that the orders sought by the DPP were "just" within the meaning of the Act in view of the following:

(a) First, the FCC order and the restraining order were inconsistent, in the sense that it was not possible for either Ms Bush or Mr Pain to comply with both, such that the restraining order would be invalid to the extent of the inconsistency.

(b) Second, it followed that, if the restraining order were not varied pursuant to this application, the sale of the Neilborough property by Ms Bush pursuant to the FCC order would have the appearance of defying the extant restraining order of this Court, which would not be in the interests of the administration of justice in this State.

(c) Alternatively, if the proposition in paragraph a) were incorrect (which the DPP disputed), then compliance with the FCC order would put Ms Bush in breach of the restraining order and vice versa, with the attendant jeopardy of contempt proceedings in the relevant court.

66 Where federal and State jurisdictions collide, an exercise of federal jurisdiction prevails. Section 109 of the Commonwealth Constitution provides that, "[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former, to the extent of the inconsistency, be invalid".

67 Inconsistency can arise not only between State and Commonwealth legislation, but also between the orders of courts exercising jurisdiction and power under such State and Commonwealth legislation.

68 By s 8(1) of the Federal Circuit Court of Australia Act 1999 (Cth) ("the FCC Act"), the federal court previously known as the Federal Magistrates' Court was continued in existence as the Federal Circuit Court of Australia. The Federal Circuit Court is a court of record and a court of law and equity.[11] It was created and continued by the Commonwealth Parliament under Chapter III of the Constitution.[12] It is a "federal court" the jurisdiction of which may be defined by the Parliament, within the meaning of s 77(i) of the Constitution, with respect to any of the matters mentioned in ss 75 and 76. Section 76(ii) speaks of matters "arising under any law made by the Parliament". Accordingly, the Federal Circuit Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament.[13]

69 One such law is the FLA. The Federal Circuit Court has jurisdiction with respect to matters arising under the FLA in respect of which "matrimonial causes" are instituted under the FLA,[14] or under certain regulations,[15] as well as or including in a matter that is the subject of a proceeding transferred to it from the Family Court under ss 33B and 33C of the FLA.[16] The term "matrimonial causes" includes "proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings arising out of the marital relationship".[17]

70 The process of the Federal Circuit Court "runs, and the judgments of the Federal Circuit Court ... have effect and may be executed, throughout Australia".[18]

71 A matter constitutes an exercise in federal jurisdiction when that matter arises:[19]

under a law of the [Commonwealth] Parliament although the interpretation of validity of the law is not involved: R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett. The conclusion reached by Latham CJ in that case, and stated in a passage that has often been cited with approval, is "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law".

72 As pointed out earlier, where federal and State jurisdictions collide, an exercise of federal jurisdiction prevails. As Walsh J explained in Felton v Mulligan:[20]

In my opinion the problem must be resolved by treating the Commonwealth law as paramount and as excluding, in relation to the matters to which that law applies, the operation of laws under which the State jurisdiction of the court would be exercised.

73 The making of the order by the Federal Circuit Court in the present case was an exercise of federal jurisdiction. The rights and duties contained in that order owe their existence to federal law (the FLA) and the order depends on federal law (the FCC Act) for its enforcement.

74 However, the exercise by the Federal Circuit Court of jurisdiction with respect to any of the matters of the description in the Constitution, in s 75 (specified original jurisdiction of the High Court) and in s 76 (laws conferring original jurisdiction on the High Court made by the Commonwealth Parliament, which may also be conferred on other federal courts by s 77), also constitute the exercise of federal jurisdiction within the meaning of s 79 of the Judiciary Act 1903 (Cth).[21] Thus, the laws of each State or Territory shall be binding on the Federal Circuit Court "except as otherwise provided by the Constitution or the laws of the Commonwealth".[22]

75 As Bell, Gageler, Keane, Nettle and Gordon JJ said in Rizeq v Western Australia:[23]

The qualification concerning the limitation on the capacity of non-federal law to affect federal courts, expressed in Fencott v Muller, was formulated in that case in the specific context of examining the sources of law applicable to the determination of a matter within the federal jurisdiction which had been conferred on a federal court under s 77(a) of the Constitution. The incapacity so identified in that context is a particular manifestation of a more general incapacity of any law enacted other than by the Parliament of the Commonwealth to affect the exercise of federal jurisdiction by any court. That more general incapacity manifests also in the incapacity of a State Parliament to affect the exercise of federal jurisdiction by a State court.

76 Thus, the issue of inconsistency becomes determinative.

77 Plainly enough, the Supreme Court of Victoria is a State court and the Confiscation Act is State (Victorian) legislation.

78 Where potentially conflicting laws or exercises of jurisdictions are otherwise valid (as in the present case), inconsistency or otherwise of the federal and State laws or orders will determine the paramount law or order and the scope of its paramountcy. Tests of inconsistency have been developed mostly in cases applying s 109 of the Constitution. The two tests for "direct inconsistency" employed in those cases are the "impossibility of simultaneous obedience" test[24] and the "conferral of rights" test.[25]

79 The "impossibility of simultaneous obedience" test is largely self-explanatory and should be regarded as determinative in the present application. Unlike the situation in Northern Territory of Australia v GPAO,[26] there was no scope in the present case for the simultaneous operation of the FCC order on the one hand, and the restraining order on the other, with respect to the Neilborough property. The restraining order prohibited all dealings with the Neilborough property, whilst the FCC order expressly required Ms Bush to sell the same property. Ms Bush could not obey the restraining order without being in contempt of the Federal Circuit Court, and she could not obey that court's order without being in contempt of this Court and committing an indictable offence under s 29 of the Confiscation Act for breach of a restraining order.

80 For these reasons, Dr Vout submitted, the FCC order must be treated as paramount. I accepted those submissions.

Ms Bush was an innocent and bona fide applicant for federal orders

81 I also accepted Dr Vout's further submission that it would be "just", within the meaning of s 26 of the Confiscation Act, for the Court to grant the application, since the Neilborough property was regarded by the Federal Circuit Court as matrimonial property within the meaning of the FLA. Ms Bush was an innocent and bona fide third party who was entitled to make her application to the Federal Circuit Court for relief under the FLA, and to have that application determined in accordance with the applicable law.

Dissipation of pool of assets against which to enforce compensation orders

82 Dr Vout's final submission on this application - which I understood also to go to whether the proposed variation was "just" - was that compliance with the FCC order would not result in the substantial dissipation of the potential assets available to Ms Lambert and Ms Paris against which to enforce any compensation order pursuant to s 85B of the Sentencing Act.

83 This, I should say, was my principal concern, at least initially, for the contrary seemed possibly to be so. Indeed, I was troubled that there was a substantial risk that the FCC order would diminish, in a material way, the pool of assets available to satisfy any orders for compensation that I may make in favour of Ms Lambert and/or Ms Paris and that that possible eventuality, in turn, raised a question of whose interests, if any, should prevail - those of Mr Pain's former wife or those of the victims of his crime.

84 Dr Vout also submitted that the applicants for compensation did not have any proprietary interest in the Neilborough property in any event. As a result, they were required to seek leave, pursuant to s 26(2)(e) of the Confiscation Act, for any contrary order that might be made in relation to that property. And no such applications were made.

85 Further, submitted Dr Vout, the restraining order merely preserved Mr Pain's interest in the Neilborough property so as to avoid the same being dissipated to defeat the exercise of enforcement mechanisms by the victims in the event that Mr Pain did not satisfy payment of any compensation order under the Sentencing Act in relation to the offending for which he was convicted.

86 Mr Cameron (for Ms Bush) supported the DPP's application and adopted Dr Vout's submissions.

87 As it happened - perhaps surprisingly, perhaps not - neither Ms Lambert nor Ms Paris opposed the DPP's application. At that time, they were (or should have been) aware that the value of the Neilborough property was in the order of $400,000; that there were outstanding fees and disbursements to come off the proceeds of sale; and that, in the final hearing in the Federal Circuit Court, Ms Bush would be seeking 50 percent of the nett proceeds of sale. Thus, after the property was sold and Ms Bush's entitlement was taken, there was a strong likelihood that the balance of the restrained funds was always going to be somewhat less than $200,000. While, at the time of the DPP's application, Ms Lambert and Ms Paris had filed their principal affidavit material on the compensation applications but had not yet filed their written submissions, that each later submitted that an award of $220,000 should be made in her favour (so a total of $440,000 between them) might be thought to suggest that they were aware that to grant that application would have the effect of diminishing, in a material way, the pool of assets available to satisfy any orders for compensation that I may make in their favour.

88 There were parts of the application to which Mr Pain was opposed, and other parts which he did not oppose. For example, he was not opposed to the property being sold, but he did not think that it should be transferred to Ms Bush for the purposes of doing so. Plainly, he was troubled that he should be compelled to transfer into Ms Bush's name a property of which he was the sole registered proprietor and for which he had paid in full (the funds for which had come to him from the sale of a previous property, which itself was bought with funds he received in compensation for the disability he suffered after a motorcycle accident many years earlier), and without any contribution to the purchase price by Ms Bush (though I say nothing about contributions more broadly that may have been made by each party during the marriage). Indeed, against that background, but uninstructed in the ways of the FLA and related proceedings, it struck me as at least ambitious when Mr Cameron advised that Ms Bush would be seeking, and that he expected that she would receive, a 50/50 split in the property settlement. But, of course, these were matters for the Federal Circuit Court, not for this Court. (I should add, as will be seen shortly, Mr Cameron proved to be prescient in his prediction that a 50/50 split would be ordered.)

89 Thus, given the stance taken by Ms Lambert, Ms Paris and Mr Pain in the particular circumstances of this case, the Court was effectively left without a contradictor in considering whether this aspect of Dr Vout's submissions should be accepted in toto. Nevertheless, at least in the circumstances of this case, where Ms Bush's potential entitlement to a division of matrimonial property arose before any entitlement to compensation by the victims of Mr Pain's crime arose, I was of the view that the s 109 point must trump any arguments that Ms Lambert or Ms Paris might have had about priority.

90 Whether the result might be otherwise in different circumstances need not be decided.[27]

91 Accordingly, I concluded that I was compelled to grant the DPP's application to vary the restraining order so as to make it harmonious with the orders made by Judge Bender in the Federal Circuit Court concerning the disposal of the Neilborough property.

Compensation applications adjourned until final FCC orders

92 Once I had indicated that the DPP's application would be granted, a question arose as to whether I should vacate the hearing date of the applications for compensation orders (which were listed in February 2019) and adjourn them until after the hearing and determination of the final orders in Ms Bush's family law proceedings in the Federal Circuit Court (which were listed for hearing in March 2019) ("the final FCC orders").

93 All parties to those proceedings (and, for that matter, the DPP) agreed that that should occur. Doing so would mean that this Court, when hearing the compensation applications, would have a degree of certainty as to the financial resources of Mr Pain to satisfy any compensation orders, which was likely to be a relevant consideration. Accordingly, the compensation applications were adjourned for hearing in April 2019.

The DPP's supplementary application to vary the restraining order

94 As it turned out, Ms Bush's application in the family law proceedings was not determined by the Federal Circuit Court until 4 April 2019. This caused the hearing date for the compensation proceedings to be vacated and fixed for hearing at a later date. It also caused the DPP, on 10 May 2019, to bring a supplementary application, under s 26 of the Confiscation Act, to vary the restraining order to reflect the final FCC orders (made by Judge Coates).

95 Most importantly, the final FCC orders provided that, after all other costs, disbursements and other matters were paid, the nett proceeds of sale of the Neilborough property (which had been sold in the meantime and was due to be settled by 16 June 2019) were to be paid in equal amounts to Ms Bush and Mr Pain (with Mr Pain's 50 percent share to be paid to the ACO to be held on trust).

96 At that point, however, I declined to grant the DPP's new application until the circumstances surrounding an outstanding debt of over $8,000 arising out of a bank loan, allegedly owed by Mr Pain, were investigated and clarified. There was some confusion about the matter. Earlier, Mr Pain had been given to understand (reasonably, it seemed to me) that any debts incurred during the marriage that were owed to the bank who had a mortgage over the Neilborough property had been written off, and that the bank had agreed to discharge the mortgage. (Indeed, it will be remembered that, as at 11 November 2018, the DPP had been advised by Ms Bush's solicitors that "the small balance of the loan secured by the mortgage has been 'written off' and that the mortgage simply needs to be discharged and the costs thereof paid".[28]) In those circumstances, if the debt still existed, it appeared to have been a matter that, at least arguably, should have been taken into account in the family law proceedings, but may not have been. Thus, the matter was adjourned for the parties to investigate and consider that issue further, and in the hope that common sense might prevail and an agreement might be reached in the interim.

97 On the same day, I suggested that, now that the nett pool of Mr Pain's assets was known (aside from the comparatively minor issue of the outstanding debt), instead of going to a contested hearing, the parties to the compensation applications might consider mediation in the interim. Ms Lambert and Mr Pain were prepared to do so, and Ms Paris indicated at a later stage that she too was prepared to engage in mediation.

98 Thus, at that point, there was at least a hope that a mediation might occur and that what had become an odyssey of sorts might settle.

99 Alas, while a mediation did occur, the matters did not settle. Instead, the compensation applications were listed to be heard at a later date.

Return of the DPP's supplementary application to vary the restraining order

100 On 28 June 2019, the DPP's supplementary application to vary the restraining order returned for mention.

101 In the interim, the DPP discovered the following things regarding the debt:

(a) On 10 May 2019, Mr Pain gave the solicitor for the DPP a copy of a letter of 7 December 2018 to him from LCollect, acting on behalf of Bank Australia, who claimed to be owed $8,367.78 in respect of an outstanding account.

(b) On 13 May 2019, the solicitor for the DPP received an email from Ms Bush's solicitors attaching a letter, dated 24 April 2018, from Bank Australia to the Melbourne Registry of the Federal Circuit Court advising inter alia the following:[29]

[3] There are no loan accounts under mortgage AC72947F with North West Country Credit Union for the period 1 June 2014 until now. Hence this request is not applicable.

[4] Maxwell Pain currently owes Bank Australia money on a personal loan account ... (unsecured). The amount of $6,678.44 was written off as a bad debt to LCollect our mercantile agent on 27 August 2015.

(c) On 14 May 2019, the solicitor for the DPP spoke to a representative of LCollect. The solicitor was advised that the unsecured personal loan owed to Bank Australia had been referred to LCollect in April 2016 for collection of the amount owing; that, although the amount had been written off the financial system, LCollect still retained instructions to collect on the file; and that LCollect would request Bank Australia to provide an updated letter as to the current status of the loan.

(d) On 15 May 2019, LCollect forwarded to the solicitor for the DPP a letter of the same date from Bank Australia, which stated inter alia the following:[30]

[1] In July 2015, Bank Australia wrote to Mr Pain advising him that if his debt with the Bank remained outstanding, and if he chose to take no further action, his membership shares would be offset against this debt and account and membership closed.

[2] On 27 August 2015, the debt was written off and his account and membership closed.

[3] Writing off the debt does not mean there is no debt outstanding, it means it is no longer active on the banking system, but remains an active debt to collect.

[4] Because of this, it was assigned to LCollect in April 2016. LCollect have applied contractual compounding interest at 9.39% from the date it was assigned. At last advice, the outstanding balance was $8,745.05.

102 Arguably, this new information raised as many questions as it answered. For example, despite the assertion in paragraph [3] of the bank's letter of 15 May 2019, it would be reasonable for a person in Mr Pain's position to believe that, upon the occurrence of the events mentioned in paragraphs [1] and [2] and the advice given therein, he did not owe any further debt. Based on other documents and his memory of the events surrounding the extension of the loan (which I shall come to in more detail later), Mr Pain also believed, reasonably, it seems, that the loan was secured by the mortgage. Further, after the bank discharged that mortgage, his belief that he owed no more to the bank was even firmer. Hence his confusion when he was told he did owe this debt, which, all the while, had been incurring, and was continuing to incur, compounding interest at over nine percent per annum.

103 On the other hand, as I understood him, Mr Cameron sought to explain that, while confusion may have arisen, the mortgage and the unsecured personal loan were in fact separate. As Mr Cameron also pointed out, the final FCC orders made by Judge Coates included a term that "[e]ach party be responsible for their own debts". In his submission, had the loan been secured against the Neilborough property, the Federal Circuit Court would have directed that it be paid, as with other amounts that were secured against the property, before the 50/50 division of the remaining proceeds of sale. But, because it was not so secured, it was, in accordance with the order made, a matter for which Mr Pain alone was responsible.

104 Ms Gray submitted that one solution might be for Mr Pain to raise the matter with the Federal Circuit Court. Another, she submitted, was that this Court somehow should direct that the debt be paid out of the remaining pool of funds before the 50/50 distribution of the remainder occurred.

105 Mr Cameron's position on behalf of Ms Bush was that, if Mr Pain wished to return to the Federal Circuit Court, that was a matter for him, but he believed there was no relevant confusion before that court. As for the alternative approach suggested by Ms Gray, Mr Cameron objected to it on the basis that, in his submission, it was inconsistent with the orders already made by the Federal Circuit Court, which orders, given my earlier ruling, must prevail.

Mr Pain's application to vary the restraining order is initiated

106 Further inquiries with Mr Pain revealed the following. After he and Ms Bush were first married, a loan of about $10,000 was taken out in 2003 and secured against the Neilborough property. Ms Bush was with Mr Pain when the loan application was made. The loan was taken out to pay off some credit card debt, to pay for part of the money owing on a motorcycle and to pay for his and Ms Bush's wedding reception. The loan was paid back in part and extended on occasions during the marriage. On one occasion, this was done to pay for a water pump at the Neilborough property. On another, this was done to buy a car. Not long before their separation and the murder, the loan was rolled over to an amount of about $6,000, much of which was used to finance a proposed or incipient rifle-shooting business. Ms Bush witnessed the agreement for the loan. Mr Pain believed that this loan was an extension of the previous loan and that it too was secured against the property.

107 I suggested to Ms Gray that, in those circumstances, whether or not there was an argument that the loan was in fact secured against the Neilborough property, Mr Pain at least may have a basis for an application, under s 26(1) of the Confiscation Act, to vary the restraining order to allow him to pay the debt as a "reasonable business expense". Section 26(5)(c) provides that an example of the kind of order that may be made under s 26(1) is "an order providing for ... the reasonable business expenses of any person referred to in section 14(4)". Relevantly, s 14(4) provides that "[a] restraining order may, at the time it is made or at a later time, provide for meeting ... (b) reasonable business expenses ... of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person". Ms Gray took instructions and then filed such an application on behalf of Mr Pain.

108 Since neither Mr Cameron nor the DPP was in a position to deal with that application on the spot, it was adjourned to 31 July 2019, with leave given to the parties to file any additional material on that application, should they wish to do so.

DPP's further application to vary granted, in part

109 As for the DPP's further application to vary the restraining order, it was granted, in part. In short, in order to be harmonious with the final FCC orders and to preserve enough of the nett proceeds of sale of the Neilborough property until Mr Pain's application to vary the restraining order was determined (and so as not to defeat that application), I ordered that, once received in trust by Ms Bush's solicitors, 50 percent of the nett proceeds of sale of the property, less $5,000, were to be paid to Ms Bush; and 50 percent of those nett proceeds, less $5,000, were to be paid to the ACO and remain restrained for the purpose set out in the restraining order. The two amounts of $5,000 (i.e. $10,000 in total) were also to be held in the trust account of Ms Bush's solicitors and remain restrained for the purpose set out in the restraining order.

Return of Mr Pain's application to vary restraining order

110 On 31 July 2019, Mr Pain's application to vary the restraining order returned to the Court.

111 Mr Pain, Ms Bush and the DPP all filed further submissions and/or material for that purpose.

Ms Lambert's request that the matter be adjourned

112 At the outset of the hearing, Dr Vout handed up a letter (dated 30 July 2019) the DPP had received from Ms Lambert's solicitors submitting inter alia that this application be determined at the same time as the hearing of the compensation applications, from 12 September. This, it was said, would allow Mr Pain to give evidence about the outstanding debt and other matters that had arisen as potential issues on the compensation applications in the interim, including his purported disclaimer of entitlements under the Will of his late mother. The solicitor for Ms Lambert also added that it was "not economic" for him to appear today.

113 While Ms Gray was prepared to proceed forthwith, she conceded that there might be a denial of procedural fairness to Ms Lambert if the matter proceeded in her absence, given her interest in ensuring that the pool of funds available for compensation was not diminished.

114 Mr Cameron remained neutral on Ms Lambert's application, and said it was a matter for the Court.

115 Ms Paris did not appear, and was not represented, at the application.

116 Dr Vout's initial submission was that, in all the circumstances, the application should proceed forthwith, especially given that Ms Lambert had made an election not to appear. Later, however, he took up my suggestion that, in order to make use of the time available, some of the application could be heard forthwith and the balance could be deferred until the compensation hearings on 12 September, with transcript of the present day's hearing being provided to Ms Lambert's solicitors. And that is what occurred.

117 As to the substance of the matter, Dr Vout conceded that, if I accepted that the dominant purpose of the loan was to establish a business, the resulting debt (including interest) so evidenced would fall within the definition of "reasonable business expenses" in ss 14(4) and 26(5)(c) of the Confiscation Act.

118 On the other hand, Dr Vout submitted that appropriate orders for compensation for the two victims would be likely to exceed Mr Pain's proportion of the remaining funds. If so, the submission continued, priority should be given to the victims, given the purpose of the restraining order under s 15 of the Confiscation Act. Otherwise, it would not be "just", within the meaning of s 26(1) of the Act, to grant Mr Pain's application.

119 Alternatively, Dr Vout conceded that, if I formed the view that it would be just to make such an order, then it would be open to make the order sought, but only out of Mr Pain's proportion of the remaining funds. As to the latter limitation, it would be contrary to the final FCC orders to direct that any of the $5,000 payable to Ms Bush be applied to reduce the debt because, by virtue of those orders, that $5,000 was the property of Ms Bush, not Mr Pain, and therefore was not susceptible to an order of this Court made under s 26(1) read with ss 14(4) and 26(5)(c).

120 On the other hand, Dr Vout conceded that, had Mr Pain's application been brought before any orders had been made by the Federal Circuit Court directing the transfer of the property into Ms Bush's name or declaring any division of that property or its nett proceeds, it would have been open to have varied the restraining order so as to pay the debt from the total pool before any division (assuming, of course, other elements of the s 26 application were made out, including that it was just to make such an order).

121 Upon further inquiry, Dr Vout accepted that, in so far as he submitted that priority should be given to the victims applying for compensation, that was premised on the view that the whole of Mr Pain's portion of the remaining funds would be required to satisfy the victims' claims for compensation. He also submitted nevertheless that, since (at that point) the amount that would have to be deducted from the relevant pool would be in the order of only five percent of its total value (the debt at that point being nearly $9,000 and Mr Pain's portion of the remaining funds being estimated to be about $180,000), a broad assessment of whether the victims' claims for compensation would exceed the balance of funds available might be made reasonably readily. He also accepted that these factors also provided sufficient reason why I should determine both Mr Pain's application to vary the restraining order and the compensation applications at the one time.

122 In the afternoon, Dr Vout explained that, over the lunch break, his instructors had been advised by Ms Lambert's solicitor that his client did not object to the $5,000 then being held in Ms Bush's solicitor's trust account being paid to Ms Bush forthwith.

123 In his letter of 30 July 2019, the solicitor for Ms Lambert indicated his client's objection to payment from the proceeds due to Ms Bush (pursuant to the final FCC orders) to any debt owed to a third party by Mr Pain.

124 In the same letter, the solicitor for Ms Lambert submitted that any debt owed by Mr Pain to a third party is not secured and should not be taken into account in determining the proceeds available to the victims seeking compensation, particularly where Mr Pain had disclaimed an interest in a very significant estate to which he was entitled as a result of the Will of his late mother. Subsequently, and somewhat inconsistently, I thought, in an affidavit filed on 4 September 2019, the DPP's solicitor advised that Ms Lambert's solicitor advised on 31 July 2019 that he understood the possibility that the whole of the debt might be ordered to be paid from funds held on trust by the ACO, thereby diminishing the restrained funds available for compensation purposes, and that such an outcome, if the Court so ordered, would be acceptable.

125 As I understood him, Mr Cameron (for Ms Bush) adopted the DPP's submissions and otherwise had nothing to add.

126 Ms Gray (for Mr Pain) pointed to the evidence now on affidavit before the Court concerning the loan. It was to this effect. On or about 6 May 2014, which was not long before Mr Pain and Ms Bush's separation, and the murder, the loan was rolled over to an amount of about $6,248, about $4,200 of which was used to finance a proposed or incipient rifle-shooting business (and also to pay for a car and an excess on an insurance claim to replace a water tank at the property). Ms Bush witnessed the agreement for the loan. Mr Pain believed that this loan was an extension of the previous loan and that it too was secured against the property. As I have said before, this seemed to be a reasonable belief, particularly in circumstances where what appeared to be a term in the loan under the heading "Mortgage" provided as follows:[31]

We require a mortgage over the goods or property described below from you/your guarantor. We require mortgaged property insurance over the mortgaged goods or property described below. If we already hold a mortgage over the property, you expressly agree that the mortgage extends your indebtedness under this Loan Contract.

127 Ms Gray also submitted that there was not necessarily an inconsistency of the type alleged between the FCC orders and the restraining order. In her submission, each of the Confiscation Act and the FLA "understands that the other exists". So much is apparent, for example, in ss 79B and 79C of the FLA, which provisions recognise the possibility of a stay of property settlement proceedings when a State restraining order is in place. And, in this case, the restraining order predated the Federal Circuit Court's orders.

128 But, more importantly, in Ms Gray's submission, the final FCC orders neither provided for fixed or precise sums of money to be paid nor specified that the provisions of the Confiscation Act could not be taken into account in considering whether to make alternate orders. Further, while those orders do provide that each party is responsible for his or her own personal debts, they do not exclude consideration of the particular debt in issue here, which, in Ms Gray's submission, appears to have changed its character over time from a debt secured against a mortgage that was discharged to a free-standing unsecured debt.

129 As I have indicated, the balance of Mr Pain's application to vary the restraining order was adjourned to be heard concurrently with the applications for compensation.

Mr Pain's viva voce evidence touching on application to vary restraining order

130 Subsequently, on 13 September 2019, at the foreshadowed concurrent hearing of the variation application and the compensation applications, Mr Pain gave sworn viva voce evidence and was cross-examined on matters pertinent to all applications.

131 In cross-examination by Mr Lyall (on behalf of Ms Lambert), Mr Pain said that he believed that both he and Ms Bush were responsible for the debt to the bank arising out of the loan because, while it was in his name, they both signed the documents. Of his preparedness to repay the debt (or at least his portion thereof), he said that, unlike Ms Bush, he does not leave his debts unpaid.

132 In cross-examination by Dr Vout, Mr Pain rejected the suggestion that, just because he had sworn in an affidavit, "I decided that I would start a business," and did not say, "We decided to start a business," that that excused Ms Bush from liability for the loan as well. He agreed that, in an affidavit he filed in the family law proceedings, he did not mention the business purpose when discussing the bank loan, but denied that his assertion concerning the business purpose of the loan was a recent invention or that the loan was for 'personal purposes'.

133 In re-examination, Mr Pain said that he paid all of the bills for the household finances when he and Ms Bush were married. Ms Bush kept her own money separate, but, if he had any excess money, he would "put it in". Ms Bush, he said, was going to do the books for the shooting business.

134 In oral argument, as I understood him, Mr Lyall (on behalf of Ms Lambert) submitted that it would not be "just" to make an order allowing Mr Pain to pay his debt to LCollect when the likelihood is that the debt could never be enforced against him, given that the time he will spend in prison will well exceed the limitation period. Further, it would not be "just" to make such an order when to do so would diminish the pool of funds available to meet orders for compensation to victims of a grave crime.

135 Dr Vout (for the DPP) reiterated his submission that, if an order to pay the debt were to be made under s 26, it must be directed wholly at the funds set aside to be held by the ACO for this purpose, and must not come from any part of the $5,000 due to Ms Bush. Turning to Mr Pain's evidence, Dr Vout submitted that, while he had shown a degree of bitterness that the family law proceedings in effect had halved his nett assets, with the other half going to Ms Bush, he exhibited a degree of enthusiasm for marital sharing when it came to explaining how the loan came about and whose responsibility its repayment might be. He also referred to Mr Pain's failure to mention the alleged business purpose of the loan in an earlier affidavit. In his submission, Mr Pain's credibility was lacking as a result. On whether the order would be "just", the DPP's primary submission remained, which was that, to the extent that payment of the loan from the restrained funds reduced the total pool below the combined amount that may be awarded to the victims, such an order would not be "just". Dr Vout also submitted that there would be a cruel irony in allowing funds that might otherwise go to the loved ones of the victim of a shooting murder to be used to pay off a debt for a business that involved purchasing a gun. Finally, he submitted that the indicia of the loan documents and the direction of the funds (namely, into a personal account) suggested that it was a personal loan, not a business loan.

136 In her oral argument, Ms Gray (for Mr Pain) reiterated that her primary position was that this Court had the power to order, and should order, that half of the debt be paid out of funds held on behalf of Ms Bush and the other half should come from funds held on behalf of Mr Pain. Alternatively, she submitted that the debt should be paid from the funds held on behalf of Mr Pain before any orders for compensation because, in truth, it was a debt secured against the Neilborough property. Ms Gray further submitted that Mr Pain's evidence concerning the loan should be accepted. The mere fact that the loan documents describe it as a personal loan do not alter the fact, if it be accepted as such, that the loan was for the dominant purpose of a business. In her submission, plainly it would be "just" to allow Mr Pain to use funds that came from his own home to repay a loan for businesses purposes, particularly when the debt on the loan was growing at a rapid rate of interest. Further, far from being inconsistent and recently inventing things, submitted Ms Gray, Mr Pain had consistently maintained, from the time the issue was raised, that the loan was for a business purpose.

137 Mr Cameron (for Ms Bush) did not appear at the final hearing.

138 Ms Clark (for Ms Lambert) did not make any further oral submission on this issue.

139 As I indicated earlier, while I was initially attracted to the submission that Mr Pain and Ms Bush should share the payment of the debt equally (i.e. $2,000 each), in the end, I came to a different view. Instead, I was persuaded by Dr Vout and Mr Cameron that the whole $4,000 should come from Mr Pain's portion of the restrained funds. This was because I accepted the submission that to cause any part of the debt to be paid out of Ms Bush's nett proceeds under the final FCC orders would be beyond power because, by virtue of those orders, those proceeds were the property of Ms Bush, not Mr Pain, and therefore were not susceptible to an order of this Court made under s 26(1) of the Confiscation Act.

140 There was, however, power to make an order under s 26(1) directed at the $5,000 of Mr Pain's funds held in abeyance, in so far as it was accepted, first, that the dominant purpose of the loan was to establish a business; second, that "these expenses" (i.e. repayment of the loan or the debt) could not be met from unrestrained property; and, finally, that the order was "just" in all the circumstances.

141 In short, I accepted Mr Pain's evidence concerning the circumstances surrounding and the purpose of the loan. In particular, I accepted that the dominant purpose of the loan was to establish a shooting business. While Mr Pain did not mention that purpose in an earlier affidavit, his mind may well not have been directed to that particular issue at that time. In any event, I regarded him as consistent and truthful before me on this issue, both when speaking from the Bar table, and when giving sworn viva voce evidence, including under cross-examination. While it is true that the loan documents might be taken as suggesting that the loan was personal in nature, that could not override the fact that I accepted Mr Pain's account of the true purpose of the loan. Further still, for all the submissions made to the contrary, not one witness was called by any other party to give viva voce evidence contradicting Mr Pain. Notably, there was no such evidence from Ms Bush, despite her being represented by a solicitor, who appeared on several occasions, and despite her having witnessed the loan.

142 Next, as I understood it, there was no dispute that Mr Pain could not meet the debt from unrestrained property. If, however, I was wrong in that regard, and the arguments about Mr Pain's renounced entitlements under his parents' Wills were intended to extend to this issue as well, then, for the reasons I give later in this judgment, I reject those arguments.

143 Finally, for several reasons, I was satisfied that it was "just" to make the order. First, I considered it "just" because the order ensured that Mr Pain was able to pay off the debt which he had incurred legitimately well before he incurred any other form of liability to either Ms Lambert or Ms Paris. Further, paying the debt relieved him of the burden of having a debt hanging over his head, compounding to an even larger debt at a high rate of interest by today's standards. It was also "just" to relieve him of the uncertainty of whether the debt might be pursued by its owner at some later point, along with the spectre of bankruptcy if the debt were pursued.

144 Secondly, as it happened, not only did the ultimate debt (of $4,000) represent a very small portion of the pool of remaining restrained funds available to satisfy the compensation orders that I arrived at, but those funds, after allowing for the debt, were more than enough to meet those orders. Thus, it was "just" in the sense that allowing for payment of the debt had no impact on either the assessed amount of those compensation orders or the funds available to satisfy those orders. (In fact, I determined the amounts of the compensation orders before deciding whether I should make the variation order.)

145 Thirdly, while, in view of the foregoing findings, it was unnecessary to decide the point, I think I should say that, while, in the particular circumstances of this case, there may be a cruel irony in the minds of some that the repayment of the debt related to a shooting business, the fact is that many a person in this country lawfully earns a living by shooting. In my opinion, at least in the circumstances of this case, such irony as there may be could not be a relevant consideration in determining whether it was "just" to make the order sought.

146 It is for those reasons that I granted Mr Pain's application to vary the restraining order so that $4,000 of the $5,000 of Mr Pain's funds held in abeyance may be applied to repay the debt in question.

Compensation applications: Main statutory provisions

147 I turn now to the applications for compensation.

148 I shall summarise the major parts of the evidence supporting each application, as well as Mr Pain's evidence relevant thereto and the additional evidence received after the hearing, before turning to some matters of principle, the parties' submissions and ultimately to my analysis and conclusions.

149 Before turning to the applicable evidence, I shall set out the main statutory provisions that govern the applications for compensation.

150 Each application is brought under s 85B of the Sentencing Act, the relevant subsections of which provide as follows:

it may, on the application of a person who suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).

(2) A compensation order may be made up of amounts -

(a) for pain and suffering experienced by the victim as a direct result of the offence;

(b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;

(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;

(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.

151 In s 85A(1) of the Act, "injury" is defined to mean, among other things, "grief, distress or trauma or other significant adverse effect".

152 "Pain and suffering" is not defined in the Act.

153 As I have indicated, and on evidence to which I shall refer shortly, I am satisfied that Ms Paris and Ms Lambert have each suffered an "injury", as a direct result of the offence, as well as "pain and suffering", and have incurred, and are likely to incur, expenses for counselling and/or treatment.

154 Thus, provided that each application is brought within the time required by the Act or, if not, that time is to be extended in the interests of justice, and subject to the relevant facts sufficiently appearing from the materials,[32] an assessment of quantum and the consideration of any discounting factors,[33] a compensation order must be made in this case.

155 In so far as is relevant, I shall address each of those matters in turn.

156 First, I should mention a preliminary issue that arose only in Ms Paris's application.

157 Section 85C(1)(a) of the Sentencing Act provides that an application for a compensation order "must be made within 12 months after the offender is found guilty, or convicted, of the offence". Section 85D(1), however, provides that the Court "may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is in the interests of justice to do so". And s 85D(2) provides that time may be extended under s 85D(1) "before or after the time expires and whether or not an application for an extension was made before the time expires".

158 As I have said, Mr Pain was found guilty of the murder of Mr Paris on 7 April 2017 and sentenced on 9 August 2017. And Ms Paris's application for compensation was filed on 22 June 2018.

159 Thus, since her application was filed - and therefore "made" - more than 12 months after Mr Pain was found guilty of murder, in order for that application to succeed, Ms Paris must show either that the application was made within 12 months after Mr Pain was convicted of the offence or that, if not, it is, in any event, in the interests of justice to extend the time within which to make an application.

160 It is arguable that a person is convicted when, by express words or necessary implication, a judge accepts the jury's verdict of guilty.[34] If that is the correct view of the law, then it is also arguable that my remanding of Mr Pain in custody immediately following the verdict would be regarded as a conclusive indication of my acceptance of that verdict. If so, then Ms Paris's application would have to be viewed as having been filed outside the 12-month time limit and the question whether an extension of time should be granted would arise in consequence.

161 In the circumstances of this case, however, it became unnecessary to address these questions. This is because Mr Pain, through Ms Gray, conceded that, whatever may be the correct view of the law, in the circumstances of this case, it would be in the interests of justice to grant an extension of time in any event. In my opinion, that was a proper concession. This is particularly so because, first, the delay, if a delay it be, was only slight; second, the application was filed within 12 months of sentence; third, there was no prejudice to Mr Pain as a result of the delay; and, fourth, on any view, Ms Paris had a strong case for compensation.[35]

162 Accordingly, to the extent that an extension of time might be thought to be required, I granted that extension.

Evidence of Ms Paris's injury and pain and suffering

163 I turn now to the evidence concerning Ms Paris's injury, her pain and suffering, and her need for counselling or treatment.

164 It was apparent from her victim impact statement, her evidence at the plea hearing, and her affidavit filed in support of the present application, that Ms Paris was devastated by her son's murder. In fact, I doubt I shall ever forget Ms Paris's viva voce evidence back at the plea hearing: her grief was palpable and distressing to witness.

165 Ms Paris was born in August 1959 in the United Kingdom and came to Australia as a ten-year-old. She has two siblings. Her mother returned to the United Kingdom and she was then cared for by her father. Sadly, however, her father died in a car accident when Ms Paris was only 15.

166 Ms Paris earned a Bachelor of Education and a Bachelor of Psychology. She worked as a primary school teacher, and has held various other jobs, including teaching at TAFEs and in prisons.

167 David Paris was her only child. To Ms Paris, she and her son had "an extremely close and special bond". She was aged only 17 when David was born, in 1977. Ms Paris and David's father ended their relationship before their son's birth. David did not meet his father until he was aged around 18. And that contact was only relatively brief, as his father died before David turned 21. Thus, not only did Ms Paris raise her son as a single parent, but she was his only surviving parent throughout most of his adult life.

168 David lived with Ms Paris until he was 17 and then he lived near her until he was about 31. In 2008, David moved from Western Australia to Victoria with his partner Rebecca Lambert and their son. Ms Paris and her new husband Jason Wang were married in 2001. Their ability to travel to Victoria to visit David and his family was limited to about a month or so each year because Mr Wang required intensive treatment for cancer. Mr Wang eventually succumbed to his illness, and died in June 2013. Ms Paris says, and I accept, that David was a great support to her generally and throughout that difficult period. To state the obvious, she has now lost that support forever.

169 Not long before he was murdered, David had told his mother that he and his young family were planning to move back to Western Australia by the end of the year and have her live with them. Ms Paris was very much looking forward to these proposed arrangements coming to fruition.

170 The expert and lay evidence, which was unchallenged by Mr Pain, was to the effect that Ms Paris has suffered great emotional pain and grief as a result of her son's death. In a passage towards the end of Ms Paris's affidavit, she summed up her feelings in this way:[36]

I am lost without David. I feel like I have lost my future completely. I have lost any enjoyment I had with life. I can't function and I miss David every day. I am not afraid of dying. I look forward to the day that David and I can be together again. David was my world and that world is now empty; [Mr Pain] has taken everything. People can generally move on after the death of a partner, most find a new one, but a child can never be replaced and he was the only child I could ever have. I have suffered emotionally and financially since David's death and I don't know if things will ever get better. It feels like my life is just on hold.

171 In October 2017, Associate Professor Nick Paoletti, a psychiatrist, diagnosed Ms Paris with post-traumatic stress disorder ("PTSD"), unspecified depressive disorder and persistent complex bereavement disorder. In his view, the murder of Ms Paris's son was "a clear precipitant of the [PTSD] [and] the most salient 'significant contributing factor' to her depression, anxiety and bereavement disorder". He also opined that "her developmental and life events, including the earlier life as a single mother, would be predisposing factors and possible contributing factors, and the death of her husband would be a contributing factor".

172 In his opinion, the "[p]rognostic outlook [was] guarded". Ms Paris "has to struggle with inconsolable feelings, which even further therapy is not going to be able to resolve". He was also of the view that the psychosocial impact has been "devastating". He noted that Ms Paris has "withdrawn socially from her friends, and her capacity for recreational pursuits appears limited to her van and coming to see [Ms Lambert and her grandson]". She "has lost all interest in any future relationship with a partner".

173 In Associate Professor Paoletti's opinion, overall, there has been "a pervasive and major impact on lifestyle and quality of life".

174 While Ms Paris had had several counselling sessions, Associate Professor Paoletti was of the view that she was in need of further psychological treatment; that she was receiving some benefit from antidepressant medication Mirtazapine; and that the costs of further treatment "would easily run into 'four figures', and may reach 'five figures'".

175 As for past counselling, while we shall see that VOCAT awarded Ms Paris $2,400 for such sessions back in 2014, I accept that it is likely that she spent a good deal more than that on counselling or other treatment over the years since her son's death.

176 Mr Pain did not seek to cross-examine either Ms Paris or any of the authors of the reports filed in her application. Instead, he did not dispute that evidence.

Evidence of Ms Lambert's injury and pain and suffering

177 I turn now to the evidence concerning Ms Lambert's injury, her pain and suffering, and her need for counselling or treatment.

178 Ms Lambert was born in July 1981. Accordingly she was aged 32 at the time of her partner's murder and was 38 at the time of the hearing. She and David Paris had one child, a boy now aged about 14 at the time of the hearing. He has been diagnosed with autism.

179 Ms Lambert relied on her victim impact statement and on psychological reports and her affidavit filed in support of the present application, as establishing her injury. While he took no objection to the admissibility of the material filed, Mr Pain nevertheless required Ms Lambert to present herself for cross-examination, but she declined. Mr Lyall, who appeared for Ms Lambert, made it clear that he understood and accepted that his client's choice in that regard may have implications for whether or not some aspects of her account might be accepted.

180 That said, there can be no doubt that Ms Lambert was devastated by her partner's murder. She was a witness to the events that led to his death, and was directly involved with others in a desperate, but ultimately futile, attempt to staunch his bleeding in the immediate aftermath of the shooting. It can be readily accepted that it would be difficult, if not impossible, ever fully to get over such a profoundly distressing experience.

181 Further, it is also apparent from the evidence that the fact that she lost her life partner, and the father of her child, is a matter that has caused Ms Lambert an aching grief. Thus, in her victim impact statement, Ms Lambert said this (among other things):

Dave's passing has left me feeling vulnerable and scared to face [my] and [our son's] life journey on our own. Our Christmases, birthdays, celebrations are all ruined. It will be more sadness than ... happiness as Dave will be missing these events to watch the smile on his son's face as he opens his present.

Hurting each day as I'm forced to realise, over and over and over again, my beloved Dave is gone and not coming back. The tears, the pain, the hurt, anxiety, anger, and counselling, sleepless nights and nightmares, and to have to prepare and organise the funeral service for [the] love of my life, my best friend, my soulmate, and having to say goodbye to the man I was meant to grow old with.

182 In 2014, psychologist Meddwyn Coleman assessed Ms Lambert as suffering from extremely severe depression, anxiety, stress and moderate to severe psychological trauma.

183 In May 2018, Ms Coleman noted that Ms Lambert reported chronic sleep disturbance, intense anxiety with episodic panic attacks, avoidance of reminders, and emotional and social detachment from those around her. Formal testing at that time, however, indicated only mild degrees of anxiety, depression and stress. Further, while she continued to report symptoms of trauma, the frequency and severity of those symptoms did not, in Ms Coleman's view, warrant a diagnosis of PTSD. Ms Lambert also reported to Ms Coleman that she felt "ready to move on a bit" and "ready to look for work". Ms Coleman concluded that it is likely that Ms Lambert will never fully recover from her psychological symptoms but that current indications (as at May 2018) were that her mental health was improving, which accorded with her self-assessment that "it's not as bad as it used to be".

184 Further still, the extent to which pain and suffering or symptoms will continue, or the impact of these reactions over time, must be regarded as offset somewhat by the Facebook evidence before me that Ms Lambert appears to have had a happy and loving relationship with a new partner. The date that that relationship was formed is unclear. There is nothing in Ms Coleman's report of May 2018 to suggest that Ms Lambert told her that she was in a new relationship at that time. While it may not be conclusive as to the contrary, it appears that Ms Lambert gave Ms Coleman the impression that, at that time, she was "a single parent raising a reportedly disabled son without paternal support". Yet the Facebook material in evidence rather suggests that Ms Lambert had been in a relationship with her new partner since as early as May 2015.

185 In addition, at the hearing, Mr Lyall confirmed that Ms Lambert and her new partner were expecting twins.

186 The evidence as to Ms Lambert's need for counselling or treatment in either the past or the future was perhaps not as clear as it was in respect of Ms Paris. Nevertheless, it is plain enough that she would have required counselling or treatment earlier but that, for the reasons I have just noted, her future needs, while spread over a longer period, might not require the same level of intensity as Ms Paris requires.

A complicating factor regarding Ms Lambert's claim

187 Next, I turn to a complicating factor in Ms Lambert's claim.

188 In his sworn viva voce evidence, Mr Pain asserted that Ms Lambert had sold at least one of his several cars (a Holden HZ Premier 253 V8 automatic station wagon) without his permission. He pointed to Facebook posts apparently made by Ms Lambert showing photographs of the car; of Ms Lambert commenting to her mother about what fun they could have with it and asking whether her mother had "any good ideas"; and of either Ms Lambert or her new partner suggesting the car belongs to her or to him or to both of them. These Facebook posts were received in evidence. Part of that material suggested that this particular model (or similar) tends to be advertised for sale for as much as $38,000 to $40,000. I hasten to add that there was no clear evidence of the value of this particular HZ Premier. But the advertising makes it plain enough that cars of that vintage, and with the features it had, can command substantial sums of money in today's market.

189 Mr Pain also said that he believed Ms Lambert had taken other property of his, including a chainsaw and a log-splitter. Receipts for these items were received in evidence, which suggested that they might be worth up to a few thousand dollars in total.

190 In cross-examination by Mr Lyall (for Ms Lambert), Mr Pain rejected the suggestion that, as at the date of and pursuant to the final FCC orders, in so far as any property was in the possession of a party to his former marriage with Ms Bush, that party became solely entitled to that property, to the exclusion of the other. (This question was prefaced by reference to Mr Pain's assertions about his missing motor vehicles, chainsaw and log-splitter.)

191 Order 4 of the final FCC orders provided that, "unless otherwise specified in these Orders: (a) Each party be responsible for their own personal debts; and (b) Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of this order".

192 In the course of oral argument, Mr Lyall submitted that the effect of those orders was that, since Ms Bush was living at the Neilborough property at the time, she was solely entitled to everything on that property, including Mr Pain's cars and other items. Aside from the difficulty that Mr Pain may still be regarded as in possession of his own items of personal property even when in prison, Mr Lyall also had to concede that the Facebook material concerning the HZ Holden clearly preceded the making of the final FCC orders, which occurred on 4 April 2019. When it was then suggested that, whatever effect the final FCC orders may have had, the goings-on before their making with respect to the HZ Premier (and other items) might have some potential impact on this particular case, Mr Lyall then asserted that "it has been Ms Bush who has been instrumental in disposing of property, and that should have been taken into account in respect of the family law orders".

193 When asked why he asserted this was Ms Bush's doing, and why instead I should not infer from the Facebook material that it was Ms Lambert's doing, Mr Lyall said the answer is that "there was one car that Ms Lambert ended up with, and at the request of her mother, she's passed it on to someone else". Further questioning revealed that this was indeed Mr Pain's HZ Premier, which was held at Ms Lambert's property for a while and then was sold by Ms Bush for a paltry $3,000. It is also apparent from the Facebook material that, when Ms Lambert was discussing this car and its possible sale, Ms Bush chimed in at one point and said, "Not for sale. I think I should have some say."

194 I shall return to the possible relevance of these issues later in these reasons.

195 I turn now to the factors relevant to an assessment of the quantum of compensation to be ordered.

196 In DPP v Energy Brix Australia Corporation Pty Ltd[37] ("Energy Brix"), Neave JA stated the principles in this way:[38]

[50] In my view the factors which should be taken into account in assessing damages for grief or trauma under s 85B include the following:

• the effect on the applicant on hearing of the events causing loss;

• the closeness of the relationship between the person seeking compensation and the person who has been killed;

• the extent of grief and psychological suffering experienced as a result of the loss.

197 In the same case, Vincent JA said this:[39]

[30] It must be borne in mind that an award for compensation is not made as a form of punishment, but in an endeavour to address through the payment of money, the injury and loss sustained by the applicant. It follows that broadly the principles applicable to an appeal against an assessment of damages would be those to which the Court should direct attention. Nevertheless, the fact that that injury and loss has resulted from the commission of a crime cannot be ignored. It is one thing, for example, for a person to lose through natural causes someone to whom the individual is deeply attached, another where death has resulted from civil wrongdoing, and another again where it has been brought about by criminal conduct. The grief and distress occasioned in the third situation, which often is experienced against a background of a sense of understandable outrage, may be in some situations even more acute and its impact upon the life of the individual more long lasting. ...

[31] The broad definition of "victim", inclusion of the terms "grief, distress or trauma or other significant adverse effect" within the definition of "injury" and the extension of the notion of mental illness or disorder, beyond that recognised by the common law, which is suggested in s 85A(b), indicates that Parliament intended that the focus of attention should be placed upon the actual impact upon an applicant of the commission of the offence rather than whether that impact could be the subject of an award of common law damages. It follows that, while some assistance could be derived from a comparison of awards made in other circumstances, care must be exercised to ensure that the possible differences are not overlooked. ...

198 And, later in his reasons, Vincent JA added the following:[40]

[36] There is no and there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, and no method of conversion of a human emotion or psychological reaction to an amount of money exists. Clearly, widely differing views as to the appropriate award to be made in a given case can be held ...

Ms Paris: Assessment of quantum (absent discounting factors)

199 Also relevant to an ultimate assessment of quantum are what are sometimes termed "discounting factors", which I shall come to later in these reasons. For the moment, however, it is convenient to address each of the factors discussed in Neave JA's judgment in Energy Brix in turn as applicable to each applicant for compensation (but absent the discounting factors), commencing with Ms Paris's case first.

200 In sentencing Mr Pain, I set out in some detail the circumstances in which Mr Paris's death occurred.[41] I also gave a summary of those circumstances earlier in these reasons.[42]

201 It is unnecessary to repeat those things here, other than to observe that the circumstances in which Mr Paris's death occurred were horrible. As Vincent JA remarked in Energy Brix, "It is one thing ... for a person to lose through natural causes someone to whom the individual is deeply attached, [and] another where death has resulted from civil wrongdoing, and another again where it has been brought about by criminal conduct."[43]

202 My reading of the evidence makes it plain that Ms Paris's grief over her son's death was exacerbated because he was killed - murdered, no less - in such grave circumstances.

Effect on Ms Paris on hearing of her son's murder

203 It is also clear, from the material filed in her application, that Ms Paris was devastated upon hearing of her son's tragic demise. It is perhaps the worst news a mother can be delivered. As is often said, a mother does not expect her child to pre-decease her, especially not in such awful circumstances.

204 As to the relationship between Ms Paris and her son, while they lived on opposite sides of the country, the evidence shows that their relationship was a close one. Indeed, as we have seen, Ms Paris was looking forward to living close to her son - her only child - again in the near future.

205 Ms Paris was aged 54 (nearly 55) at the time of her son's death and 60 at the time of the hearing of the application.

Extent of Ms Paris's grief and psychological suffering

206 The extent of Ms Paris's grief and psychological suffering, and her need for counselling or treatment, is set out in the evidence I have extracted earlier. I accept that evidence.

207 In short, I consider the extent of Ms Paris's grief and psychological suffering to be profound. As Associate Professor Paoletti put it, overall, there has been "a pervasive and major impact on [Ms Paris's] lifestyle and quality of life".

208 I turn now to awards of compensation made in other cases.

209 In her written submissions, Ms Clark referred to other decisions of this Court and the Court of Appeal concerning awards made to parents whose children had been murdered or the victims of manslaughter.[44] In summary, those cases, along with others I considered, revealed awards to bereaved parents ranging from $25,000 to $200,000 (before a reduction on account of a VOCAT award), with most being in the order of $50,000 to $75,000.[45] Each case differed on its own facts. For example, there were significant variations in the closeness of the relevant relationships, the levels of grief or psychological injury suffered, whether the major features of the grief or injury had resolved or were ongoing, the ages of the bereaved parents and the deceased children, and the financial circumstances of the offenders.

210 In Energy Brix, Vincent JA sounded the following cautionary note about considering awards in other cases:[46]

[40] Bearing in mind the caution with which the making of comparisons between the awards of compensation in other cases under the Act or awards of damages under the common law or other legislation, I have had regard in a general fashion to those to which our attention has been directed. Due, inter alia, to the difficulty of identifying the precise considerations to which the various judges had regard in the individual matters and the weight attributed to the differing relevant factors as well as the significant variations in the circumstances and awards themselves, I found this process even less useful than the comparison of sentences imposed in different or not clearly identified fact situations.

211 While Vincent JA was there considering whether to allow an appeal against the alleged inadequacy of compensation orders, I think that the same considerations are applicable when considering such other cases at first instance.

212 Like his Honour, I found this process of comparison to be of somewhat limited use. As in the area of sentencing, no two compensation cases are ever truly alike. Nevertheless, I had regard in a general fashion to those awards, their differing factual circumstances and the reasons given for them in coming to my conclusion in the present case.

213 Ms Clark submitted that the award of compensation to Ms Paris should be "among the higher end of the range [of awards] that courts [fix] for these sorts of matters". In particular, she submitted that an award in the order of $220,000 would be appropriate.

214 Knowing that Mr Lyall was making the same submission on behalf of Ms Lambert, as I understood her, Ms Clark (after consulting Mr Lyall) submitted (or conceded) that her client should receive 45 percent of the remaining pool of restrained funds, whereas Ms Lambert should receive 55 percent.

215 In her submissions, Ms Gray did not descend into figures. Instead, she confined herself to submissions on matters of principle, many of which have been discussed thus far, and the balance of which are to come.

Conclusion on initial assessment of quantum in respect of Ms Paris

216 As I sought to point out at the hearing, and consistently with Vincent JA's remarks in Energy Brix extracted earlier,[47] in the same way that it is impossible to put a dollar value on the life of another human being, it is also extremely difficult to reduce a mother's grief and other hurt over the loss of her only child to a dollar value. Nevertheless, the courts attempt to do this very thing frequently by applying the principles I have just mentioned to the facts found, which includes comparing the circumstances of, and awards made in, other cases.

217 When regard was had to all of the evidence concerning her grief, psychological injury, her pain and suffering and the counselling or treatment she has had and was likely to need into the future, and to those principles I outlined, as well as the awards in broadly similar cases, and without allowing for the discounting factors (to which I shall come later), I assessed the level of compensation to which Ms Paris was entitled at $100,000.

218 Plainly, such a figure is well short of $220,000 that Ms Clark submitted was appropriate. In my view, an award of that amount would have been manifestly beyond the range of awards open in this case.

Ms Lambert: Assessment of quantum (absent discounting factors)

219 Next, it is convenient to turn to the same factors as they might apply to Ms Lambert's application.

220 I refer to, and incorporate here, what I said earlier when dealing with Ms Paris's application concerning the circumstances in which Mr Paris was killed.

221 In addition, Ms Lambert went through the horror of witnessing firsthand key aspects of the events that led to her then partner's death, including being involved in trying in vain to assist him in the immediate aftermath of the shooting. It must have been a dreadful and terrifying experience.

222 It is clear, from the evidence, that Ms Lambert's grief over her partner's death was exacerbated because he was murdered in such grave circumstances, which she witnessed, at least in part.

Effect on Ms Lambert on 'hearing of' her partner's murder

223 Given that Ms Lambert was a witness to her partner's death, it is not really apt to seek to inquire into the effect on her of hearing about his death. Instead, it might be said that the notion of her learning about the murder was subsumed within the circumstances of the killing and her witnessing of it.

224 Suffice it to say that it must be a much worse thing for a person actually to witness her partner's murder, and to be involved in desperate attempts to save his life, than to be told about it. I should think that Ms Lambert will have distressing thoughts and images in her mind about those events that she will never be able to erase.

Relationship between Ms Lambert and her partner

225 As to the relationship between Ms Lambert and Mr Paris, they appeared to be in a close and loving relationship, with a young child whom they both cared for deeply. To have lost her life partner, and the father of her child, must be an almost unbearable burden.

226 Ms Lambert was aged only 32 (nearly 33) at the time of Mr Paris's death and 38 at the time of the hearing of the application. Thus, significantly, she is over 20 years younger than Ms Paris and therefore, all else being equal, is likely to have many more years of grief ahead of her.

Extent of Ms Lambert's grief and psychological suffering

227 The extent of Ms Lambert's grief and psychological suffering and her need for counselling or treatment is set out in the evidence I have extracted earlier. I accept that evidence.

228 In short, I consider the extent of Ms Lambert's grief and psychological suffering to be profound. Further, while it is difficult - and perhaps even odious - to attempt to compare incommensurables such as grief at the loss of a loved one, I was moved to conclude that, except in two major respects, Ms Lambert's grief and psychological suffering, and her pain and suffering, were even more profound than Ms Paris's. And this is because, as a relatively young woman, Ms Lambert lost her life partner and the father of her child in circumstances where she witnessed at least part of the events giving rise to the murder, and was involved in the excruciating task of attempting to save him as he bled to death in front of her.

229 Further, while there is no direct evidence about it, I am prepared (at this point in the analysis) to take it as read that Ms Lambert has had, and will continue to have, the added difficulty of trying deal directly with the impact Mr Paris's death on their autistic son, which leads to a further form of grief and suffering. Ms Paris, of course, has lost her only child (a horrible thing in itself), but she is older, does not need a partner to assist her care for a (disabled) child, does not have the added difficulty of dealing with an autistic child whose father has been murdered, and, mercifully, was not present when the murder occurred.

230 The first exception I mentioned a moment ago is the evidence that Ms Lambert - happily - is in a new and loving relationship with another man, and that they are expecting twins. Thus, when compared with Ms Paris's circumstances, Ms Lambert has something very positive in her life for the present and the future. The second exception, which may be a function of the first, is that the evidence suggests that, by the time of the hearing, Ms Lambert was "ready to move on a bit", "ready to look for work", and her mental health was improving, all of which accorded with her self-assessment that "it's not as bad as it used to be".

231 I turn now to awards of compensation made in other cases.

232 In his written submissions, Mr Lyall, like Ms Clark, referred to other decisions of this Court and the Court of Appeal concerning awards made to applicants in a range of cases. The cases to which he referred involved the murder or manslaughter of loved ones, as well as the victims of a major industrial accident.[48] In large part, these cases duplicated those to which Ms Clark referred.

233 None of those cases to which Mr Lyall referred, however, concerned the wife or partner of the deceased. With that even greater limitation on case comparisons in mind, there was still some utility in considering those cases.

234 As indicated earlier, Mr Lyall submitted that the award of compensation to Ms Lambert should be in the order of $220,000.

235 Again, Ms Gray did not make submissions on figures; instead, she focussed on matters of principle relevant to an assessment of quantum.

Conclusion on initial assessment of quantum in respect of Ms Lambert

236 When regard was had to all of the evidence concerning her grief, psychological injury, her pain and suffering, and the counselling or treatment she has had and was likely to need into the future, and to those principles I outlined earlier, as well as the awards generally given in compensation cases involving the murder or manslaughter of loved ones, and without allowing for the discounting factors (to which I shall come shortly), I assessed the level of compensation to which Ms Lambert was entitled at about $180,000.

237 While this, as a starting point, was not far short of the amount that Mr Lyall submitted was appropriate, I considered that an award of $220,000 would be too much in all the circumstances.

238 Finally, I turn to the potential discounting factors that may cause the award to be less than might otherwise be the case.

239 First, as I indicated at the outset of these reasons, this Court must reduce the amount of compensation by the amount of any award made to the applicant by VOCAT under the Victims of Crime Assistance Act 1996 (Vic) for the expenses or other matters for which compensation is being sought.

240 Ms Paris was awarded amounts of $2,400[49] and $10,000[50] by VOCAT. Ms Paris also received an interim award for just under $1,100 for "expenses actually incurred" - namely, a flight ticket from Perth to Melbourne. I accepted Ms Clark's submission that, in the particular circumstances of this case, this award should not be deducted from any compensation order I made. Accordingly, pursuant to s 85I of the Sentencing Act, Ms Paris's award of compensation under s 85B(1) had to be reduced by $12,400 (not $13,500).

241 Similarly, Ms Lambert was awarded $33,000[51] by VOCAT. Accordingly, also pursuant to s 85I, her award of compensation under s 85B(1) had to be reduced by $33,000.

242 Secondly, I turn to the so-called risk of "overshooting" as a discounting factor.

243 In RK v Mirik & Mirik ("Mirik"),[52] Bell J made the following remarks:[53]

[153] In crimes compensation proceedings, offenders do not have the assistance of "mechanisms such as pleadings, discovery and interrogatories, which are available in civil proceedings."[54] For want of the kind of detailed forensic and judicial examination that is available in civil proceedings, there exists a potential for compensation orders to be made against offenders when they shouldn't or in amounts that exceed the victim's correct entitlement. That potential exists in practically every case, and I should guard against it happening here. The offenders have not had the opportunity to test the claims of the victim as fully as they could in ordinary civil proceedings. It is important that injustice is not done to offenders by making assessments of compensation that overshoot the mark. Doing justice by victims can't be at the expense of doing injustice to offenders. The victim's right to bring civil proceedings for "any expense or other matter" not satisfied by an order of compensation is not affected by an order under s 85B(1),[55] so any undershoot can be recovered. The offender is in the obverse position.

[154] The court has a discretion under s 85B(1) to order the offender to pay compensation "of such amount as the court thinks fit". This encompasses a discretion to determine that the amount of compensation will be less than full compensation. By this means the courts can give the victim an appropriate measure of justice without running the risk of doing injustice to the offender. This is a different discretion to the one specified in s 85H(1) to take the financial circumstances of the offender into account. In deciding to order less than full compensation, the court can take into account the limited extent to which the offender has been able to test the claims of the victim in the proceedings under ss 85A-M. It can reduce the amount that it may have ordered had those claims been fully tested to avoid over-compensating the victim. Of course, the court can order what it considers to be full compensation if it thinks it has a satisfactory evidentiary basis for doing so.

[155] The offenders in the present case have not had the opportunity, by civil trial procedures, fully to test the victim's claim. But the evidence and admissible materials satisfy me that the victim has substantially established his claim. To avoid overshooting, however, I will reduce the compensation down to 75 percent of my general assessment of what full compensation might conceivably have been.

[178] When a victim applies to a criminal court for compensation, the court and the offenders are not usually able to examine the victim's claim as fully as could a civil court in fully contested proceedings. For want of a full forensic and judicial examination of the claim, there is a potential for the court to overshoot in determining the amount of compensation. To avoid doing so, the court can order compensation in a reduced amount of which it is comfortably satisfied, remembering the victim's rights to obtain full compensation in civil proceedings are not affected. In this case, for that reason, I have decided to reduce the amount of compensation that I might conceivably have ordered by 25 percent.

244 Counsel for the applicants acknowledged the existence of this principle. As Bell J explained, it stems from the discretion within s 85B(1) of the Sentencing Act, to order the offender to pay compensation "of such amount as the court thinks fit". (As his Honour also noted, the principle is distinct from the consideration mentioned in s 85H(1), to which I shall come shortly.)

245 It is equally plain, however, that this Court must be astute to avoid the application of a rigid rule or practice whereby, pursuant to the this so-called "overshooting" discretion, an award is discounted by 25 percent (or any other particular percentage) on account of this principle. For, as Beach and Ferguson JJA said in Kelley (a pseudonym) v R1 (a pseudonym) & Ors:[56]

[21] We would add that Mirik is not authority for the proposition that in all cases a discount of 25 percent or any other figure should be applied before settling on a final figure for compensation. Nor could such a proposition be correct and indeed it would be wrong to apply a rigid discount in every case. The discretion must be exercised judicially and that requires that all relevant matters and no irrelevant matters be taken into account in the circumstances of the case. In some situations, there may be some doubt about the reliability of the evidence before the court as to the amount of compensation which is sought. Taking that into account, a judge may choose to exercise the discretion by reducing the amount of compensation to be paid. But that will not always be justified. What Bell J did in Mirik was to consider the circumstances in the case before him. He then exercised the discretion to discount the compensation figure. So much is clear from the passage that we have set out above. Bell J also made it clear that he was only concerned with the facts before him when he made his concluding remarks [at [178]]:

[22] In this case, the judge referred to the application of a 25 percent discount being common in the County Court. If such a practice exists, it should cease. Each case must be considered by reference to its own facts and circumstances, and not by reference to some rigid rule or formula that forms no part of the statutory text.

The "overshooting" principle as applied to Ms Paris's case

246 Applying these principles to the facts in this matter, including the requirement that "each case must be considered by reference to its own facts and circumstances, and not by reference to some rigid rule or formula", I determined that, in Ms Paris's case, the award should be reduced by $20,000 (which equates to 20 percent of $100,000) in order to allow for the risk of overshooting. Let me explain why.

247 In addition to the other factors mentioned earlier, in order to qualify for compensation, Ms Paris must have suffered the injury "as a direct result of the offence". That phrase was considered by the Court of Appeal in Kaplan v Lee-Archer,[57] wherein Buchanan JA said this:[58]

... In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective "direct" is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury.

248 It will be remembered that Associate Professor Paoletti was of the opinion that Ms Paris's "developmental and life events, including the earlier life as a single mother, would be predisposing factors and possible contributing factors, and the death of her husband would be a contributing factor", to her parlous state. While a tortfeasor must take his victim as he finds her, nevertheless, in light of evidence of that type, and given the principle as explained by Buchanan JA in Kaplan, I was left with a deal of uncertainty as to the extent and duration of Ms Paris's suffering caused by the murder of her son. In order fully to examine issues of that type, I think it would be necessary to hear viva voce evidence (perhaps from Ms Paris and the experts who have examined her, perhaps another or other experts too) concerning the potential impact of her pre-existing grief stemming from those events, including the tragic loss of her partner.

249 Thus, while I accepted the evidence put before me, nevertheless, in my view, absent "a full forensic and judicial examination of the claim", the foregoing considerations presented a real and appreciable potential for overshooting in determining the amount of compensation.

250 That said, particularly in circumstances where there was no challenge by Mr Pain to the evidence before me concerning Ms Paris, I considered that a reduction of $20,000 (or 20 percent) was sufficient to account for that risk.

The "overshooting" principle as applied to Ms Lambert's case

251 Similar, but also additional, considerations caused me to determine that, in Ms Lambert's case, the award should be reduced by $46,000 (or just over 25 percent of $180,000) in order to allow for the risk of overshooting. There were several reasons.

252 First, it seems clear enough that Ms Lambert did not disclose to those treating her, at the material time, that she was in a new and apparently happy relationship with another man. Secondly, I assumed, in her favour, that Ms Lambert has had, and will continue to have, the added difficulty of trying to deal directly with the impact of Mr Paris's death on their autistic son, which leads to a further form of grief and suffering. But the true extent of the added grief cannot be gauged to a satisfactory level without more evidence, including hearing from Ms Lambert herself. Thirdly, as Mr Lyall's concessions on behalf of his client and the Facebook material showed, Ms Lambert was involved in taking Mr Pain's HZ Premier and allowing her mother to sell it (at a fire sale price). Fourthly, there is a least a strong suspicion held by Mr Pain (which, I should add, seems reasonable) that Ms Lambert may have been involved with Ms Bush in taking other property of his, including four other cars, a chainsaw and a log-splitter. Finally, Ms Lambert did not present herself for cross-examination despite Mr Pain's request that she do so.[59] Nor was Ms Bush called by Ms Lambert to refute the Facebook material or Mr Pain's suggestions.

253 While nothing altered the fact that Ms Lambert was devastated by the murder of her partner (and father of her autistic son), and that that was made all the worse by the fact that she was in part a witness to the murder and was directly involved in the desperate, but futile, attempts to save his life, nevertheless, the other considerations I have just mentioned left me with a good deal of unease when attempting to assess the extent and duration of her suffering as a direct result of the murder. It was in those circumstances that, in the absence of "a full forensic and judicial examination of the claim" of the type that would be involved in civil proceedings, I considered it necessary to reduce the award by $46,000 (or just over 25 percent of $180,000) in order to allow for the risk of "overshooting".

254 I should add that Mr Lyall submitted that, in so far as Ms Bush may have engaged in improper conduct, that should not be visited upon Ms Lambert by reducing the award that might otherwise have been made. Mr Lyall also submitted that, if Ms Lambert has engaged in improper conduct, then Mr Pain had separate civil remedies available to him.

255 Three things may be said in response. First, through Mr Lyall, Ms Lambert admitted to taking Mr Pain's HZ Premier, which in turn, it seems clear enough, facilitated Ms Bush's sale of the car. Thus, she has admitted to improper conduct, which the Facebook material plainly corroborates.

256 Secondly, as I mentioned during the hearing, I do not hold against Ms Lambert in any way her palpable anger at Mr Pain for the loss he has caused her. So much is perfectly natural and understandable. Any person in her position would be entitled to extreme anger, hatred, frustration and ill will towards the murderer of her partner. But that is not the issue.

257 Finally, nor is it a question of whether Mr Pain might have a civil cause of action open to him against either or both of Ms Lambert and Ms Bush. As Buchanan JA said in Kaplan,[60] the scheme of compensation provided for in s 85B(1) "was designed to be a cheap and expeditious remedy tacked on to a criminal trial". Further, as Bell J explained in Mirik,[61] such applications do not involve "a full forensic and judicial examination of the claim". When there is evidence that the applicant for compensation under s 85B(1) may have exacted from the offender a form of compensation (for herself or another) via a form of self-help, irrespective of whether that behaviour is motivated by understandable feelings of anger or something else, I think it is well within the words of the provision - namely, "order the offender to pay compensation of such amount as the court thinks fit" - to factor in that consideration in determining whether the award should be discounted (and, if so, to what extent) as a matter of fairness to the offender or pursuant to the "overshooting" principle, or both.

Personal and financial circumstances of Mr Pain; and burden of compensation

258 A third and final potential discounting factor concerns the personal and financial circumstances of Mr Pain, and the nature of the burden that payment of a compensation order would impose upon him.

259 Section 85H of the Sentencing Act provides as follows:

(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

260 In Mirik, Bell J observed that the discretionary power to order compensation is conferred in circumstances that allow a court to take into account the financial circumstances of the offender and the nature of the burden that payment of compensation will impose.[62] This, his Honour said, permits a court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to a term of imprisonment.[63] Indeed, as Cummins J remarked in DPP v Esso Australia Pty Ltd, "by s 85H, the rehabilitation of the offender, always an important matter in sentencing, should not be deflected or defeated by a compensation order".[64] In Mirik, however, Bell J was also careful to point out that an adult offender's means are a relevant, but not a controlling, consideration.[65]

261 I turn now to the evidence of Mr Pain's personal and financial circumstances and the nature of the burden that a compensation order might impose on him, including how that might affect his rehabilitation.

262 Mr Pain was born in Bendigo on 16 August 1961. He was aged 52 at the time of the murder, and is now 58. He was involved in a motorcycle accident when in his twenties. As a result, he suffers significant health problems relating to his right leg, which is shorter than his left leg. He wears a calliper with a built-up shoe and has also had two hip replacements and a steel rod inserted into his right leg. For many years, he was in receipt of a disability support pension as a result of his afflictions. Nevertheless, in the years before his incarceration, he was able to engage in some work on his acreage at Neilborough.

263 Mr Pain and Ms Bush met in 2002 and married in December 2003. They resided at a house on the small farm in Jackson Lane, Neilborough. Mr Pain also has a son of his own from another relationship.

264 When sentencing Mr Pain, I said this about his time in prison to that point, and about my expectations for him in prison in the future:[66]

[109] The final matter in mitigation is that Mr Pain's time in gaol has been, and is likely to continue to be, more onerous than it is for other persons without the disabilities of the type that resulted from the motorcycle accident. I think it is reasonable to expect that his limited mobility, the pain he suffers and the ongoing treatment that he will need will continue to make his time in custody particularly burdensome.

[110] However, while the documents placed before the Court may suggest some tardiness in treatment at times, I do not accept that it is probable that prison will make Mr Pain's disability worse. I do accept, however, that, as Mr Pain ages, it is likely that the burden of his imprisonment will increase, not because prison will make his afflictions worse, but because such afflictions as he has are likely to become more of a burden over time, just as they would were he not in prison.

265 As it happens, it seems that Mr Pain's health has deteriorated in some respects. In his sworn viva voce evidence on these applications, which I accepted, Mr Pain explained that his ankle, which he injured severely in the motorcycle accident, has "swollen up" and, in his view, is "getting deformed". His back gives him pain (he has had spinal fusion which, he has been told, is meant to last for 15 years). And he is "full of arthritis". He does not receive any strong pain medication. He has refused methadone because of his concern that it would damage him further, including his bones.

266 Mr Pain occupies his time in prison by working in maintenance, using his skills in mechanics, welding and painting to repair things, to drive tractors when required and to mow the prison grass.

267 When asked where he plans to live upon release, he said he did not know. Understandably, I thought, Mr Pain seemed to become a little maudlin at this point in his evidence, and confessed that he has considered suicide. That said, he recovered himself quickly and remarked that he resists because he does not wish to give Ms Bush or Ms Lambert "the pleasure".

268 Putting aside remissions for lockdowns or the like, Mr Pain will not be eligible for parole until he is about 70. Similarly, his head sentence will expire when he is aged about 75. Thus, if he is not granted parole early or at all, he may well be 75 or so upon his release. While he has siblings, and has had a former partner who has been close to him in recent years, there is no guarantee that any of those people will be around to assist him upon his release, or that any of them would be inclined to do so in any event. On the other hand, as will be seen, the fact that he has forgone his entitlements to significant sums of money from his deceased parents' estates and instead allowed them to be taken by one of his siblings, might suggest that one or more of his siblings would offer him some support upon his release.

269 Given his present disability, its likely worsening over time, his likely age upon the expiry of the non-parole period or the head sentence, and the nature of the offence of which he stands convicted, it is difficult to believe that Mr Pain would have any prospect of obtaining meaningful or well-paid employment upon his release. And, yet, given his disability, he will be likely to need more financial and other assistance than most in attempting to establish himself upon release.

Mr Pain's financial circumstances - his (former) home

270 Yet, other than the HZ Premier, his chainsaw, the log-splitter and, on his evidence, four other cars of his that appear to have gone from his former home, Mr Pain's only substantial remaining asset was his house on the small acreage at Neilborough. As we have seen, he lost half of the nett proceeds of that home to Ms Bush as a result of the orders made by the Federal Circuit Court in the matrimonial proceedings, and the other half remained restrained for the purposes of satisfying any orders for compensation that might be made.

Mr Pain renounces entitlement to interest in estate of each deceased parent

271 On the other hand, as I foreshadowed a moment ago, there was evidence before the Court that Mr Pain and his siblings were entitled to inherit significant sums of money from his parents, both of whom had died since Mr Pain went into custody.

272 Mr Pain's mother died in April 2015 and his father died in February 2019. In the case of his mother's estate, the nett amount available for distribution to Mr Pain was about $69,000. In the case of his father's estate, the relevant nett amount appeared to be about $110,000.

273 However, there was also evidence before me that, via deeds of arrangement signed in November 2015 and August 2019 respectively, Mr Pain had renounced his entitlements to shares of his mother's estate and his father's estate. Each deed records that Mr Pain's share, in effect, was to go instead to one of his siblings who had assisted and supported him in the past.

274 Mr Pain gave sworn viva voce evidence on this topic. He confirmed that he had renounced any entitlements he might have under his parents' Wills. In substance, he said he refused to take any money from his parents because he believed he did not deserve any. This was because he had disgraced them through the behaviour that had landed him in prison - i.e. his conviction for murder. He also said he had thought he would have some money left over from the sale of his house to support himself after his release from custody.

275 In cross-examination, Mr Pain denied that he renounced his interests in his parents' estates so as to deny Ms Lambert and Ms Paris access to those funds as compensation. He denied that one of his sisters would "look after him financially" after his release from prison. He conceded that, at the time he signed the deed of arrangement renouncing his interest in his father's estate, he was aware that the nett amount left over from the sale of his home was about $180,000 and that Ms Lambert and Ms Paris were each claiming over $200,000 in compensation, but denied that his decision to renounce that interest had anything to do with the compensation applications.

Submissions on Mr Pain's renunciation of interests in deceased estates of parents

276 I turn to the parties' submissions on Mr Pain's evidence of his renunciation of his potential interests in the deceased estates of his parents.[67]

277 Ms Clark (for Ms Paris), submitted[68] that Mr Pain's evidence should be rejected, for several reasons. First, Mr Pain claimed not to know of the approximate value of his father's estate. Secondly, in so far as Mr Pain thought he would have adequate funds to support himself following his release from custody in circumstances where he knew that the claims for compensation were greater than the value of his home, his evidence should be rejected. Finally, Mr Pain's concern as to how he will manage financially upon release is at odds with his actions in renouncing his entitlement to in excess of $100,000 under his late father's estate.

278 Mr Lyall (for Ms Lambert) submitted[69] that to make allowance for the future needs of Mr Pain from funds restrained in the current circumstances would set a "dangerous precedent", wherein an offender who is facing the possibility of large compensation orders arising out of very serious criminal acts could reduce the pool of assets available to his victims by simply renouncing his interest in a deceased estate or by gifting assets to a third party at far less than market value. This, in his submission, would have the effect of either defeating or limiting compensation applications by victims contrary to the purpose and intent of s 85B.[70]

279 Ms Gray submitted[71] that Mr Pain's evidence should be accepted. If so, that is the end of the point. In her submission, it was significant that, despite knowledge of Mr Pain's disclaimer of any interest in his parents' estates, neither applicant took any steps to prevent him from doing so. Further, Ms Gray submitted that whether or not the Court makes orders for compensation that exceed the restrained pool of funds does not prove that Mr Pain's belief that he would have something left over was either improper or incorrectly held.

Conclusions on Mr Pain's renunciation of interests in deceased estates of parents

280 Having considered all of the evidence and the submissions of the parties, I accepted Mr Pain's account on this issue. While the motive ascribed to him in cross-examination and submissions was an obvious and reasonable one to raise, I accepted his evidence denying that that was the reason why he renounced his potential interests in his parents' estates. Moreover, I accepted his evidence that, instead, his reasons were in fact his feeling that he did not deserve anything from his parents given that he had disgraced them by what he had done and, to a lesser extent, that he thought that he would have sufficient funds left over from the sale of this property.

281 Mr Pain is a murderer. A jury of twelve of his peers said so following a trial conducted according to law. But that does not make him a liar. Nor does it mean he has no honour. And I do not think he is a liar or without honour - at least not on the issue at hand.

282 I had the benefit not only of seeing and hearing Mr Pain in the witness box but also the experience of him making submissions to me when unrepresented over several days across a long period of time. It is plain, from things he has said along the way, that Mr Pain is bitter towards Ms Bush and, to a lesser extent, Ms Lambert. But it is equally plain that he has no such feelings of enmity towards Ms Paris. In fact, I think it is obvious that he feels particularly sorry for Ms Paris, and would not wish her any ill will, but only sympathy. Further, despite his ill feeling towards Ms Bush and Ms Lambert, and any person's natural inclination to protect what he regards as his and to make provision for his own needs for the future, I am not satisfied that any of these factors motivated his decision to renounce his potential interests in his parents' estates.

283 While there are of course limits to the relevance of demeanour, there is still, in my view, nothing quite like watching and listening to a witness in the flesh, whether it be evidence-in-chief, cross-examination or re-examination. All finders of fact apply a test or tests of sorts to such a process. And Mr Pain passed my test. He answered the difficult questions in a forthright and convincing manner. He persuaded me to the point that I was satisfied, at least on the balance of probabilities, that he was being truthful in that regard.

284 There was no attempt by any of the applicants for compensation to call any evidence to the contrary. For example, neither of those parties suggested that anyone from Mr Pain's family might be called as a witness so as to reveal what was suggested to be the true state of affairs. Instead, all they were left with was an attack on Mr Pain in cross-examination, their submissions on what was to be made of his evidence and, of course, the common sense suspicion (or more) that would come with the surrounding circumstances in which the renunciation was made and a recognition of human behaviour. But, as I say, that attack failed. Mr Pain came through the test - perhaps not with flying colours, but well enough - and positively persuaded me of the truth of his account.

285 In those circumstances, I think that the interests that Mr Pain might have had from his parents' estates can have no bearing on the calculation of his financial circumstances. It is as if he does not have that money (which is the fact), and never will.

286 I reject the submission that this aspect of the decision might create a dangerous precedent. If there is ever a case quite like this again (which, I should have thought, would be unlikely - but those sound like famous last words), it will turn on its own facts. If such cases do arise, my guess is that it will be rare that a person in Mr Pain's position can persuade a court that his renunciation of interests of this type is genuine. But, for the reasons I have given, persuade me he did.

287 I sensed, without their expressly saying so, that behind the applicants' submissions was not only incredulity at what might be termed Mr Pain's purported act of honour but also, perversely, a moral query as to whether a person in his position ought to be allowed to do such a thing, even if it be genuine. In other words, so the argument goes, Mr Pain was morally wrong in renouncing his claim to what could have been his when he should have been claiming those funds so that he could use them to pay his victims - or at least have them so as to render inapplicable any discount on the quantum of compensation orders that might otherwise flow from his being destitute or nearly so. This makes him sound like a version of the prodigal son; that the applicants are in the position of the miffed brother; and that the Court, if Mr Pain's position is accepted, is the forgiving father, ready to kill the fatted calf for him because, oh joy of joys, his profligate son has come home.

288 I understand the point, but I do not accept it. Mr Pain's renunciation of his entitlement is, in a sense, no different in its effect from an unfortunate punting spree gone badly awry or a very bad investment. The fact is, he does not have that money. While he had an entitlement to claim it, that he renounced those claims, for the reasons I have accepted he did so (or, perhaps more accurately, also without the illicit motive ascribed to him), means that it is as if he never had any entitlement. And, in my view, what is more, none of this disentitles him from relying on s 85H(1), to which I now turn more squarely.

289 As I said, I turn now to the potential effect of the making of compensation orders on Mr Pain's financial circumstances and the burden that that might impose upon him, as well as the potential impact on his rehabilitation.

290 As I understood it, after allowing for repayment of the $4,000 debt in respect of the loan for business purposes, the amount of restrained funds remaining and available, as at the date of the hearing, was in the order of $178,241.

291 To this point in the analysis - i.e. after making an initial assessment of quantum and then making deductions for the risk of overshooting and the VOCAT awards - the combined value of the proposed orders for compensation totalled $168,600.[72]

292 It follows that, if no discount were allowed under s 85H(1), the remaining funds available to Mr Pain would have been about $9,641.

293 While $9,641 may be more cash money than many other prisoners have in their bank accounts either during their sentences or upon leaving prison, I think it is a paltry sum for a person who, upon his release, will be aged 70 to 75, will have no other means, will not be employable and will have a serious physical disability that is worse than it was when he went into prison.

294 In those circumstances, pursuant to s 85H(1), I considered it appropriate to reduce each applicant's award by five percent of the initial total amount assessed. Accordingly, in the case of Ms Lambert, that amount was $9,000 (out of $180,000); and, in Ms Paris's case, that amount was $5,000 (out of $100,000).

295 That would ensure that Mr Pain retained another $14,000 of the restrained funds, bringing the total remaining for him to about $23,641. In my view, while that was still a relatively small amount of money for a man with his afflictions and his future, it at least would leave him a reasonable sum that might allow him to make a start upon his eventual release from prison. Absent his being left with a sum of money of that order, the impact upon his prospects of rehabilitation during his incarceration, but especially upon his release, would be likely to be negative, and significantly so. Put another way, if the combined value of the orders for compensation were left at $168,600, that would place too great a burden upon Mr Pain's financial circumstances, thereby significantly damaging his prospects of rehabilitation in the longer term.

296 In coming to this view, I had regard to Bell J's remarks in Mirik to the effect that an adult offender's means are a relevant, but not a controlling, consideration. But, balancing all matters, I considered the adjustment or discount of five percent necessary to do justice to all and, in particular, to ensure that Mr Pain's prospects of reintegration into the community and, thereby, his rehabilitation and the ultimate protection of the community were not undermined.

Comparison between the awards at different stages vis-à-vis '55/45' submission

297 I should add that, in coming to these particular awards, I also had regard to, but ultimately rejected, the concession or submission of Ms Clark (made apparently with the concurrence of Mr Lyall) to the effect that her client should receive 45 percent of the remaining pool of restrained funds, whereas Ms Lambert should receive 55 percent.

298 I considered each claim individually. I did, on occasions, make comparisons between applicants' cases in order to highlight differing considerations. But I did not conduct a parity analysis or apply parity reasoning. Instead, in the end, while it is perhaps impossible not to have an eye to parity considerations, the figures awarded fell where they did according to the relevant factors applicable to each applicant.

299 After conducting that analysis, given the submissions of Ms Clark (made with the concurrence of Mr Lyall), I stood back and reconsidered whether there should be any adjustment to alter the relativity of those figures. In particular, I noted the following comparisons:

300 First, the wholly undiscounted award to Ms Lambert ($180,000) represented about 64 percent of the combined total of the awards to both applicants, whereas Ms Paris's wholly undiscounted award ($100,000) represented about 36 percent of that total.[73]

301 Second, putting aside the reductions on account of VOCAT awards, but allowing for the other two discounting factors (i.e. on account of the risk of overshooting and the s 85H(1) point), the award to Ms Lambert ($125,000) represented 62.5 percent of the combined total of the awards to both applicants, whereas Ms Paris's award ($75,000) represented 37.5 percent of that total.[74]

302 Finally, after the VOCAT reductions were made, which, for obvious reasons, must be of less (if any) relevance, the award to Ms Lambert ($92,000) represented about 59.5 percent of the combined total of the awards to both applicants, whereas Ms Paris's award ($62,600) about 40.5 percent of that total.[75]

303 Having considered those comparisons, and having reconsidered the evidence and the applicable principles, I concluded that, despite the submissions made on behalf of the applicants, there should be no adjustment in any direction - whether to bring the figures closer together or to render a greater disparity.

304 In summary, it is for those reasons that each application for a compensation order, pursuant to s 85B of the Sentencing Act, was granted[76] and the following assessments, discounts, deductions and orders were made:

305 In the case of the application by Ms Lambert against Mr Pain, the Court:

(a) assessed Ms Lambert's entitlement to compensation at $180,000;

(b) discounted that figure (i) by $46,000 (or over 25 percent) pursuant to s 85B(1) (by taking account of the risk of "overshooting") and (ii) by $9,000 (or five percent) pursuant to s 85H(1) (by taking account of the financial circumstances of Mr Pain and the nature of the burden that payment of a compensation order in that amount would impose), thereby resulting in an entitlement of $125,000;

(c) deducted from that amount of $125,000 the $33,000 already awarded to Ms Lambert by VOCAT; and

(d) ordered, pursuant to s 85B(1), that Mr Pain pay Ms Lambert $92,000 in compensation.

306 In the case of the application by Ms Paris against Mr Pain, the Court:

(a) assessed Ms Paris's entitlement to compensation at $100,000;

(b) discounted that figure (i) by $20,000 (or about 20 percent) pursuant to s 85B(1) (by taking account of the risk of "overshooting") and (ii) by $5,000 (or five percent) pursuant to s 85H(1) (by taking account of the financial circumstances of Mr Pain and the nature of the burden that payment of a compensation order in that amount would impose), thereby resulting in an entitlement of $75,000;

(c) deducted from that amount of $75,000 the $12,400 already awarded to Ms Paris by VOCAT; and

(d) ordered, pursuant to s 85B(1), that Mr Pain pay Ms Paris $62,600 in compensation.

307 It was understood by the parties that those two nett awards of compensation - i.e. $92,000 to Ms Lambert and $62,600 to Ms Paris - were to be paid by Mr Pain, but out of the restrained funds held by the ACO.

308 It was also understood that the balance of the restrained funds - which amounted to about $23,641 as at 9 October 2019 (but which may have been added to by any further interest from that date until the date of the orders) - were to be released to Mr Pain.

309 In each application, I also ordered, pursuant to s 85K of the Sentencing Act, that each party shall bear his or her own costs.

[1] As will be seen, there were actually more than four applications dealt with in the course of these matters, but the four identified here were perhaps the most significant.

[2] See R v Pain [2017] VSC 454.

[3] See R v Pain [2017] VSC 454.

[4] Earlier, the outstanding amount for the loan was said to be well over $8,000, and growing at a high rate of interest, but Ms Gray, who appeared for Mr Pain, was able, quite expertly in my view, to negotiate that amount down to $4,000. See below.

[5] See s 85I of the Sentencing Act 1991 (Vic).

[6] I understand that Mr Romey received some sort of civil award for bravery. And rightly so.

[7] See R v Pain [2016] VSC 532.

[8] See R v Pain [2017] VSC 454.

[9] So far as I am aware, Victoria Legal Aid has not sought to act on that charge and recover any assistance provided. (Contrast, for example, Sullivan v Gibson [2018] VSC 785.)

[10] DPP's Submissions (22 November 2018) at [7].

[11] Federal Circuit Court of Australia Act 1999 (Cth), s 8(3).

[12] Section 71 of the Constitution provides that "[t]he judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates".

[13] Federal Circuit Court of Australia Act 1999 (Cth), s 10(1).

[14] Family Law Act 1975 (Cth), s 39(5AA).

[15] Family Law Act 1975 (Cth), s 39(5A).

[16] Family Law Act 1975 (Cth), s 33B(8A)(a) and 33C(3A) respectively.

[17] Family Law Act 1975 (Cth), s 4(1).

[18] Federal Circuit Court of Australia Act 1999 (Cth), s 10(3).

[19] LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ (citations within the passage omitted).

[20] Fenton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 412.

[21] Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 575[35] per Gleeson CJ and Gummow J.

[22] Judiciary Act 1903 (Cth), s 79(1).

[23] Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at 24[57].

[24] See, for example, R v Licensing Court of Brisbane; Ex parte Daniell [1920] HCA 24; (1920) 28 CLR 23.

[25] See, for example, Clyde Engineering v Cowburn (1926) 37 CLR 466.

[26] Northern Territory of Australia v GPAO (1999) 196 CLR 553.

[27] Such as, for example, where a crime is allegedly committed, the accused's property is restrained, the accused and his or her partner continue their relationship in the interim, a conviction results, an application for an order for compensation is made by a victim of that crime, the relationship between the accused and his or her partner then breaks down, and a property settlement is sought in the Family Court or Federal Circuit Court before the order for compensation is made.

[28] See above at [56]; see also DPP's Submissions (22 November 2018) at [7].

[29] For convenience, I shall retain the numbering of the paragraphs in the letter.

[30] Again, for convenience, I shall insert paragraph numbers.

[32] See s 85F of the Sentencing Act 1991 (Vic).

[33] Such as those resulting from the application of ss 85H and 85I of the Sentencing Act 1991 (Vic).

[34] See, for example, my discussion of the issue in Sullivan v Gibson [2018] VSC 785 at [32]- [41] and the cases to which I referred.

[35] Again, see, for example, Sullivan v Gibson [2018] VSC 785 at [42]- [48].

[36] Affidavit of Deborah Paris (21 June 2018) at [70].

[37] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345.

[38] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 356-357[50] (see also Vincent JA at 352[30]-353[31] & 353[355[42]). Neave JA agreed with Buchanan and Vincent JJA, both of whom would have allowed the DPP's appeal and increased the awards of compensation. See also Chalmers v Liang & Zhu [2011] VSCA 439 (Maxwell P, Redlich JA and Kyrou AJA) at [4].

[39] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 352[30]-353[31]. Again, see also Chalmers v Liang & Zhu [2011] VSCA 439 at [5].

[40] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 355[36]. Again, see also Chalmers v Liang & Zhu [2011] VSCA 439 at [6].

[41] See R v Pain [2017] VSC 454 at [1]- [9] & [13]-[87].

[43] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 352[30].

[44] Of less utility in this particular case, but still of general guidance, were counsel's references to decisions concerning applications by the sister of a murder victim, in circumstances where the sister was left to raise her deceased sister's three children (Brooks v Meade [2017] VSC 172 (award of $600,000)); and applications by the children of a woman murdered by her partner (their father) (Stevens v Baxter [2009] VSC 257 (awards of $210,000 to each child)).

[45] Gregory v Gregory [2000] VSC 190; (2000) 112 A Crim R 19 (murder of step-daughter; award of $25,000); Schloss & Ors v Farfalla [2002] VSC 385 (manslaughter of daughter; award of $60,000 to each parent); DPP v Farquarson; Ex parte Gambino [2009] VSC 186 (three children murdered by father; award of $75,000 to mother in respect of each child); Tanner & Ors v Smart [2010] VSC 463 (manslaughter of woman; awards of $110,000 to each parent after VOCAT reductions from $120,000; brother $72,500 after VOCAT reduction from $80,000); Chalmers v Liang & Zhu [2011] VSCA 439 (murder of daughter and step-daughter; awards of $120,000 and $60,000); Moresco & Ors v Budimir [2015] VSC 51 (murder of son; awards of $50,000 and $30,000 after VOCAT reductions); Adams v Xypolitos [2015] VSC 747 (murder of son; award to mother of about $150,000 after VOCAT reduction from $200,000); Cronin & Ors v Lee [2019] VSC 509 (manslaughter of son; awards to parents of about $56,000 and $59,000 after VOCAT reductions from $70,000 and $95,000).

[46] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 355[40].

[47] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 355[36].

[48] Mr Lyall's list, together with the additional cases I considered, included the following: Gregory v Gregory [2000] VSC 190; (2000) 112 A Crim R 19 (murder of step-daughter; award of $25,000); DPP v Parsons [2000] VSC 327 (brutal murder of mother outside Family Court; awards of $125,000 to each child, $75,000 to sister; offender had assets exceeding $1 million); Schloss & Ors v Farfalla [2002] VSC 385 (manslaughter of daughter; award of $60,000 to each parent); DPP v Esso Australia P/L [2003] VSC 222 (industrial explosion/fire killing and injuring many; 21 awards ranging from $20,000 to $150,000); DPP v Farquarson; Ex parte Gambino [2009] VSC 186 (three children murdered by father; award of $75,000 to mother in respect of each child); Stevens v Baxter [2009] VSC 257 (woman murdered by her partner; awards of $210,000 to each child); Tanner & Ors v Smart [2010] VSC 463 (manslaughter of woman; awards of $110,000 to each parent after VOCAT reductions from $120,000; brother $72,500 after VOCAT reduction from $80,000); Chalmers v Liang & Zhu [2011] VSCA 439 (murder of daughter and step-daughter; awards of $120,000 and $60,000); Moresco & Ors v Budimir [2015] VSC 51 (murder of son; awards of $50,000 and $30,000 after VOCAT reductions); Adams v Xypolitos [2015] VSC 747 (murder of son; award to mother of about $150,000 after VOCAT reduction from $200,000); Brooks v Meade [2017] VSC 172 (woman murdered by ex-husband; sister left to raise deceased's three children awarded $600,000); St Clair & Holmes v Jamieson [2019] VSC 57 (three murders; awards of $100,000 and about $123,000 after VOCAT reductions from $130,000 and $150,000 to siblings whose mother, step-father and brother were murdered); Cronin & Ors v Lee [2019] VSC 509 (manslaughter of son; awards to parents of about $56,000 and $59,000 after VOCAT reductions from $70,000 and $95,000).

[49] This VOCAT award, made on 12 September 2014, was for counselling sessions that have since been undertaken and paid for.

[50] This VOCAT award, made on 23 April 2018, was for "distress".

[51] This VOCAT award, made on 23 June 2014, was for "distress".

[52] RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623.

[53] RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623 at 656[153]-[155] & 660[178] (my emphasis).

[54] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405 at 412[31] per Buchanan JA.

[55] See s 85L of the Sentencing Act 1991 (Vic).

[56] Kelley (a pseudonym) v R1 (a pseudonym) & Ors [2016] VSCA 90 at [21]- [22].

[57] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405.

[58] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405 at 410-411[25] per Buchanan JA (with whom Vincent JA agreed; see also Nettle JA at 415[48]-418[60]).

[59] I should add that, on material before me, Ms Lambert was perhaps eight to nine weeks' pregnant with twins at the time of the hearing. But the fact remains Mr Pain's counsel was denied the opportunity to cross-examine her.

[60] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405 at 410-411[25].

[61] RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623 at 656[153].

[62] RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623 at 652[137]; see also 652[135]-654[143] & 660[177].

[63] RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623 at 652[137].

[64] DPP v Esso Australia Pty Ltd [2003] VSC 367 at [7].

[65] RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623 at 652[135] & 660[177].

[66] R v Pain [2017] VSC 454 at [109]- [110].

[67] By leave, additional evidence concerning the estate of Mr Pain's father and further written submissions on that topic were received after the oral hearing.

[68] Written submissions on behalf of Ms Paris (dated 20 September 2019).

[69] Written submissions on behalf of Ms Lambert (dated 20 September 2019).

[70] Counsel for Ms Paris made a similar point in her written submissions (dated 20 September 2019).

[71] Written submissions on behalf of Mr Pain (dated 30 September 2019).

[72] My initial assessment of Ms Paris's award (i.e. $100,000) less the discount of $20,000 for the risk of overshooting and the VOCAT awards totalling $12,400 equals $67,600. My initial assessment of Ms Lambert's award (i.e. $180,000) less the discount of $46,000 for the risk of overshooting and the VOCAT award of $33,000 equals $101,000. Then $67,600 plus $101,000 equals $168,600.

[73] The simple maths follows: $180,000 + $100,000 = $280,000; $180,000/$280,000 = 0.643 (or about 64%); $100,000/$280,000 = 0.357 (or about 36%).

[74] Again, the simple maths follows: $125,000 + $75,000 = $200,000; $125,000/$200,000 = 0.625 (or 62.5%); $75,000/$200,000 = 0.375 (or 37.5%).

[75] Again, the simple maths follows: $92,000 + $62,600 = $154,600; $92,000/$154,600 = 0.595 (or about 59.5%); $62,600/$154,600 = 0.405 (or about 40.5%).

[76] As was an extension of time in the case of Ms Paris.