Applicant v Respondent

Sentencing Act 1991 (Vic), ss 85A-85M; Confiscation Act 1997 (Vic), ss 14-18, 26-27, 30 & 143.

1 Terry Sullivan applies, pursuant to s 85B(1) of the Sentencing Act 1991 (Vic) ("the Act"), for an order that James Gibson pay him compensation for "injury" and pain and suffering he has sustained as a direct result of the murder of his son Glenn Sullivan.

2 On 3 April 2015, while in a psychotic state, Mr Gibson struck Glenn Sullivan to the head with a baseball bat, at least twice and hard, causing him catastrophic injuries. Glenn Sullivan was found a short while later in a sickening state and then rushed to hospital, where he underwent emergency surgery. He died seven days later, after the inevitable decision was taken to remove his life support.

3 Following a trial in this Court in Morwell, on 15 July 2016, a jury found Mr Gibson guilty of murder, despite his psychosis. On 24 October 2016, Mr Gibson was sentenced to 15 years' imprisonment with a non-parole period of 11 years.[1]

4 Terry Sullivan filed his application for compensation on 13 October 2017. A question arises as to whether that is about three months outside, or eleven days within, the twelve-month time limit for doing so.[2] It is, however, unnecessary to answer that question in this case. This is because an extension of time within which to make the application should be granted in any event, since I am satisfied that it is in the interests of justice to do so (the reasons for which conclusion include the fact that Mr Gibson does not oppose the extension sought).

5 I am also satisfied that Terry Sullivan has suffered an "injury" within the meaning of the Act - namely, "grief, distress [and] other significant adverse effect"[3] - and that he has experienced pain and suffering, all as a direct result of the offence.[4] Thus, the application for compensation should succeed.

6 Mr Hill, who appeared for Terry Sullivan, submitted that the award of compensation should be in the order of $60,000 to $70,000.[5]

7 Mr Davis, who appeared for Mr Gibson, submitted that the award should be somewhere in the range of $16,000 to $21,000, less the amount awarded to Terry Sullivan by the Victims of Crime Assistance Tribunal ("VOCAT") in respect of the death of his son.[6]

8 Taking into account all matters, including the range of awards made to parents of murdered children in other cases, and yet recognizing that no amount of money can compensate a parent for the loss of his or her child, I have assessed the amount of compensation due to Mr Sullivan at $50,000. But for two discounting factors (which I shall identify soon), that award would have been in the order of $65,000. The amount assessed must be reduced by $5,882.50, which is the sum already awarded to Mr Sullivan by VOCAT.[7] Accordingly, I propose to order that Mr Gibson pay Mr Sullivan $44,117.50 in compensation. Since neither party sought any order to the contrary, I also propose that each party must bear his own costs.[8]

9 My reasons for those conclusions and proposed orders follow.

10 I turn first to the background to the application in some more detail. In particular, I shall outline the circumstances of the murder of Glenn Sullivan, as well as Mr Gibson's trial and his sentencing.

11 During Easter 2015, Mr Gibson, who was then aged only eighteen, went to stay at the home of Adam Charleston and his family in Tyers, a hamlet near Morwell. For the previous two years or so, Mr Gibson had had no fixed address, although he sometimes stayed with his mother. Mr Gibson knew Mr Charleston and his wife Helen Mackrell and their teenage sons Jack and Lucas Charleston. He had stayed at the Charleston home on occasions in the past, including for about a month at the end of 2014. On the Holy Thursday in 2015, he came across Ms Mackrell and her sons at a local shopping centre. He was invited to stay at their house, and accepted.

12 Also staying at the Charleston home at that time were Glenn Sullivan and his young son Jye.[9] Glenn Sullivan met the Charleston family earlier in the week leading up to Good Friday. He too had no fixed address at that time. It seems that the Charleston family, and Ms Mackrell in particular, were given to offering a bed to those who were down on their luck. And so it was that Glenn Sullivan, along with Jye, took up an offer to stay with the Charleston family for a short while.

13 On the Good Friday evening, between about 10:00 p.m. and 11:00 p.m., Glenn Sullivan and Adam Charleston were on the front porch of the Charleston house having a cigarette.[10] Mr Gibson was inside the house. As the two smokers walked back inside to the kitchen/dining area, Mr Gibson, without warning, swung a baseball bat with both hands and struck Glenn Sullivan on the right side of the head. (The bat was Mr Gibson's. He had left it there on a previous stay.) Mr Sullivan fell face-first to the floor. Mr Charleston said, "What do you think you're doing?" Mr Gibson's response, which was accompanied by an "odd" facial expression, was, "He killed my dad; I've seen it in the smoke." Then, with "a look of disbelief", Mr Gibson stood over Mr Sullivan, who was still face-down, and struck him at least once more to the head area with the bat. Mr Charleston screamed at Mr Gibson, and then left the house looking for help. Lucas Charleston, who was in a bedroom nearby, was also screaming.

14 Mr Gibson went outside. Initially, he waited in the back seat of a car parked in front of the house, as if he were a dignitary waiting to be driven away. When Ms Mackrell arrived soon afterwards, and perhaps not realizing the full extent of what had happened, she told Mr Gibson to go. He did as he was told and headed off down the road on foot.

15 Mr Gibson and Glenn Sullivan were not known to each other before they came to stay at the home of the Charleston family. As will be seen, while Mr Gibson's father had been killed in the Black Saturday bushfires at Traralgon South in February 2009, there was absolutely no connection between that event and Glenn Sullivan. Instead, Mr Gibson's remarks on this topic during the assault were just another pointer to his profoundly disturbed mental state at the time.

16 Ultimately, police and an ambulance were called, and arrived soon afterwards. Glenn Sullivan, who was found inside the house in a sickening state, was airlifted to the Alfred Hospital where he underwent emergency surgery and was placed on life support. Sadly, he had suffered skull and facial fractures and a catastrophic brain injury. Worse still, the internal damage was irreparable. He died seven days later after the inevitable decision was made to remove life support. He was 41.

17 Soon after the attack, Mr Gibson was arrested on the side of a road not far from the Charleston home. When interviewed by police, he presented in a very strange fashion. He was ultimately charged with murder. Ever since, he has remained in custody - whether in prison or in Thomas Embling Hospital, which is a secure mental health facility.

18 Following a trial in this Court at Morwell, on 15 July 2016, a jury of twelve found Mr Gibson guilty of murder. His main defence was the statutory defence of mental impairment - or what at common law was the defence of insanity.[11] As I have said, it is plain that Mr Gibson was in the grips of a psychotic episode at the time of the attack - so much so that he did not know that his conduct was wrong.[12] The expert psychiatrists who gave evidence at trial agreed on that. But the principal matter in issue concerned whether his psychosis was caused by schizophrenia or was drug-induced. That is where the psychiatrists differed. The jury's guilty verdict implies, or is at least consistent with, a preference for the view that the psychosis was drug-induced, for that was the only path to a finding of guilt.

19 I heard a plea in mitigation on 23 September 2016. As indicated earlier, on 24 October 2016, I sentenced Mr Gibson to 15 years' imprisonment with a non-parole period of 11 years.[13]

20 That sentence was substantially shorter than usually would be the case for what was, objectively, a serious example of murder. While the offence was spontaneous, it was committed without provocation or warning and in brutal and disturbing circumstances. The lesser sentence resulted mainly from the reduction in moral culpability associated with Mr Gibson's (obvious) psychosis. Anyone who has any doubt about that psychosis need only consider not just what Mr Gibson told Mr Charleston in the course of the assault but also his presentation during his police interview, as well as the opinions of the psychiatrists who gave evidence at the trial. The lesser sentence was also, in part, a function of the hardship Mr Gibson had endured, and would continue to endure, in prison because of his supervening condition of schizophrenia, as well as his relative youth and his prospects of rehabilitation.[14]

Section 85B of the Sentencing Act 1991 (Vic)

21 Mr Sullivan's application is brought under s 85B of the 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.

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

24 As I have indicated, and on evidence to which I shall refer shortly, I am satisfied that Mr Sullivan has suffered an "injury", and "pain and suffering", as a direct result of the offence. Thus, provided that the 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,[15] an assessment of quantum and the consideration of any discounting factors,[16] a compensation order must be made in this case.

Time limit for making application, and extension thereof

26 I turn first to the time limit for bringing an application, and the possibility of an extension of time.

Sections 85C and 85D

27 Section 85C(1)(a) 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.

28 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".

Application made more than 12 months after finding of guilt

29 As I have said, Mr Gibson was found guilty of murder by a jury on 15 July 2016; his plea in mitigation was conducted on 23 September 2016; and he was sentenced on 24 October 2016. Mr Sullivan's application for a compensation order was filed with the Court on 13 October 2017.

30 Thus, since the application was filed - and therefore "made" - more than 12 months after Mr Gibson was found guilty of murder, in order for the application to succeed, Mr Sullivan must show either that the application was made within 12 months after Mr Gibson 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.

31 It was submitted by Mr Hill that, for the purposes of s 85C(1)(a) of the Act, Mr Gibson was convicted only upon the imposition of sentence.[17] Mr Davis did not argue to the contrary.

32 Thus, the first question is: when was Mr Gibson "convicted" of the offence?

33 Neither the term "convicted" nor its various forms are defined in the compensation order provisions or anywhere else in the Act, despite their use in numerous provisions.

34 These terms can have different meanings in different contexts, which in turn can affect precisely when a person is to be regarded as having been convicted. As Maxwell P, Weinberg JA and Kyrou AJA observed in DPP v Nguyen & Anor ("Nguyen"),[18] when considering the meaning of "convicted" in s 35 of the Confiscation Act 1997 (Vic):

[7] ... That term has troubled courts in the past. In R v Celep,[19] Winneke P observed that the word 'conviction' was used in a variety of senses and, generally, had to take its meaning from the statutory context in which it appeared.[20] As will be seen, its primary meaning denotes the judicial determination of a case, a finding of guilt, or the acceptance of a plea of guilty followed by sentence. However, it has also been used in a secondary sense to refer to a verdict of guilty, before the adjudication which was completed only when sentence was imposed.[21]

[8] The ambiguity associated with the term 'conviction' was recognised as far back as 1844 when Tindal CJ said:[22]

The word "conviction" is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court.

[9] In R v Drew, Lord Lane CJ expressed similar views. He observed that the term 'conviction' was capable of more than one meaning, sometimes being used to refer to the verdict of the jury and, at other times, used in a more strictly legal sense, as the sentence of the court.[23] Lord Reid had earlier said that the term was often used to mean final disposal of a case, but noted that it was not uncommon for it to be used as meaning a finding of guilt.[24]

[10] In this country, it is generally understood that a plea of guilty does not, of itself, amount to a conviction.[25] It is no more than an acknowledgement that all the ingredients of the offence charged have been made out. A conviction, on the other hand, is a judicial determination of guilt. There can be no conviction on a count to which an accused pleads guilty until, by some act on the part of the court, it indicates that there has been such a determination.[26]

35 Of course, in Nguyen, the Court was considering the meaning of the term "convicted" not only in the context of different legislation from the present but, as is apparent from the last paragraph in the foregoing extract, their Honours were also doing so in circumstances where pleas of guilty had been entered to certain offences instead of following guilty verdicts by a jury.

36 In Della Patrona v DPP (Cth) [No 2] ("Della Patrona"),[27] however, which was referred to in some detail in Nguyen, the New South Wales Court of Appeal considered the meaning of the term "convicted" in the context of s 30(1)(a) of the Proceeds of Crime Act 1987 (Cth) following a jury verdict of guilty. There, Kirby P, with whom Priestley and Meagher JJA agreed in separate judgments, said this:[28]

... But in the case of a person who is tried by jury, the reasons of Barwick CJ in Griffiths[29] clearly support the proposition that the prisoner is convicted the moment when, by express words or necessary implication, the trial judge accepts the jury's verdict of guilty.[30]

37 In the particular circumstances of that case, Kirby P considered that the trial judge had accepted the jury's verdict of guilty when, on the day of that verdict, he remanded the appellant in custody for sentence[31] (or for what, in Victoria, might be termed "plea and sentence"[32]).

38 If that test is applied to the present case, then Mr Gibson was convicted on the same day as the verdict (15 July 2016), or at least no later than the conclusion of the plea in mitigation (23 September 2016), because this Court would be taken to have accepted the jury's verdict by my remanding him in custody for plea and sentence following the verdict, or by remanding him in custody for sentence following the plea. And, if it is at all relevant, I can say that, while I was a little surprised at the jury's verdict (because, as it happens, I thought the evidence supported a finding of not guilty by reason of mental impairment), I did accept it nevertheless. (Indeed, it would be a rare case in which a judge would not accept a jury's verdict.) Thus, on that view of the meaning of "convicted", Mr Sullivan's application was filed about three months out of time (or about twenty days out of time, if he was convicted immediately after the plea in mitigation).

39 On the other hand, and at the other end of the spectrum, "conviction" can refer to the recording of a conviction by a court as part of a sentence. Thus, s 7(1)(a) of the Sentencing Act provides that, "[i]f a court finds a person guilty of an offence, it may ... record a conviction and order that the offender serve a term of imprisonment". Various forms of sentencing order (other than imprisonment) must be combined with the recording of a conviction, whereas some sentencing orders may be imposed with or without the recording of a conviction.[33] In the present case, when sentencing Mr Gibson on 24 October 2016, I employed the concept in that way when I expressly "convicted and sentenced [him] to 15 years' imprisonment".[34] Thus, if that is the only sense in which the term is employed in s 85C(1)(a), then Mr Sullivan's application was filed within the 12-month limitation period.

40 Further support for that construction might be thought to come from the way in which the terms "finding of guilt" and "conviction" (and their variants) appear to be employed throughout most (if not all) of the Sentencing Act. In particular, it might be said that the use of the term "conviction", when employed in those provisions concerning sentencing, appears to be confined to denoting a court's recording of a conviction, whether as a matter of discretion or as a mandatory matter for those sentencing orders that cannot be imposed without the recording of a conviction, and does not extend to the broader use of the term as discussed in authorities such as Nguyen and Della Patrona. If that is so, then there is arguably no warrant for reading the term in that broader fashion when it comes to the compensation order provisions in the same Act, and in s 85C(1)(a) in particular.

41 No doubt, there are other arguments and counter-arguments that might be made on this question. However, for reasons that follow, it is both unnecessary and inappropriate that I decide the issue in this case. First, Mr Gibson conceded that, even if Mr Sullivan were wrong in his construction of the provisions and even if his application had been filed out of time, it would be in the interests of justice to grant an extension of time within which to file an application. I agree, especially since there is no doubt that a compensation order would be made in Mr Sullivan's favour if the application were within time. Secondly, given those concessions, the question of when a conviction occurs for the purposes of s 85C(1)(a) was not argued fully before me. Thus, it is preferable that the issue await determination in a case in which it is fully argued and in which it may be determinative.

42 Thus, I turn very briefly to Mr Sullivan's (alternative) application for an extension of time.

43 I have already mentioned two of the reasons why I consider that it is in the interests of justice to grant an extension of time, if indeed it be necessary. The first is Mr Gibson's lack of opposition to that course. The second is my view that, had it been brought within time, the application for a compensation order would have to succeed.

44 A third reason is that the delay, if it be a delay, was only in the order of three months (or less). While that may be too long is some cases, it is not too long here.

45 A fourth reason, which is also reflected in Mr Gibson's concession, is that there has been no prejudice occasioned to him in the additional three-month delay.

46 A fifth and final reason might arise in this way. Given the words I uttered at sentence - "I have determined that Mr Gibson is to be convicted and sentenced to 15 years' imprisonment"[35] - it might be reasonable for the applicant to have proceeded on the assumption that the Court considered that "conviction" occurred at sentence, and not before (such as upon the remanding of Mr Gibson in custody following the verdict). Consistently with that view, so the argument would run, the application was thought to have been brought within twelve months of sentence. On the other hand, there is no evidence that Mr Sullivan did proceed on that understanding. At most, there is his counsel's submission that "a formal conviction only arises where the Court sentences the offender".[36]

47 That said, I need not determine whether this fifth potential reason is valid, as the other four in combination are sufficient to cause me to conclude that, if an extension of time is needed, it is in the interests of justice to do so in this case.

48 Accordingly, if it be necessary to do so, I grant Mr Sullivan's application to extend time.

Applicant has suffered injury as a direct result of the offence

49 I turn now to the other matters of which I must be satisfied before making a compensation order, but which are agreed between the parties.[37]

Relevant facts sufficiently appear from materials

50 First, there is no dispute between the parties that the relevant facts appear sufficiently from the materials before the Court.[38]

51 While there are limitations in proceeding on those materials alone,[39] those limitations (to which I shall refer later) are not such as to deny the Court the ability adequately to hear and determine the application for compensation.

52 Secondly, to receive compensation under the Act, Mr Sullivan must have suffered "injury" within the meaning of that term in the Act.[40]

53 In s 85A(1)(d), "injury" is defined as meaning, among other things, "grief, distress or trauma or other significant adverse effect". That is the form of injury on which Mr Sullivan relies.

54 As I have said, I am satisfied that Mr Sullivan has suffered such injury. In summary, I reach that conclusion based on the following evidence, as well as the concession made on behalf of Mr Gibson.

55 First, in his victim impact statement filed at the plea hearing, Mr Sullivan said this, amongst other things:[41]

I miss my son Glenn tremendously. We had a great relationship and we always kept in touch by phone when he was living in Perth. I visited him when finances permitted, which unfortunately wasn't too often.

I miss my son Glenn tremendously. There's a large hole in [the] world without him.

56 The grief that is inherent in missing his son is, in my view, the type of grief that falls within the definition in s 85A(1)(b).

57 In much of the rest of his victim impact statement, Mr Sullivan was critical of the process of Mr Gibson's trial. I do not think that those feelings are compensable as the type of "grief, distress or trauma or other significant adverse effect" provided for in s 85A(1)(d) or that, even if they were, that they could be said to be the direct result of the offence (which is a matter to which I shall return shortly).

58 Secondly, however, in his affidavit filed in this proceeding, Mr Sullivan described the impact of his son's death in the following way:[42]

The death of my son has caused me a lot of intense grief and anger. I know that I will continue to grieve over his death forever. I think about him often, but I have been doing my best to try and move forward and stay strong for the sake of my grandchildren. It has been difficult for me to watch my grandchildren have to experience such grief over the loss of their father. I am doing my best to help them through this process.

59 Thirdly, from 26 February 2016, Mr Sullivan consulted psychologist Graham Brewer on two occasions for the purpose of preparation of a report for an application to VOCAT. In that report, Mr Brewer observed the following about Mr Sullivan:[43]

Terry is experiencing grief and anger, but he is also suffering extreme distress and anguish as a result of having to make the decision to turn off his son's life support. Even though he made this decision he is having trouble accepting the reality of it. His distress is compounded by the senselessness of the act which led to his son's death.

Terry was at the hospital and saw his son before the injuries he had sustained were cleaned up and bandaged. This meant that he was exposed to the full brutality of the event.

As the family were very scattered a week elapsed while Terry had to wait for them to arrive at the hospital to say their goodbyes. This further compounded Terry's anguish and sense of isolation, as he spent that time at his son's bedside knowing that he would soon be turning off the machines that were keeping Glenn alive. He was overwhelmed by the knowledge that he would soon not see his son alive again.

During this time Terry had to support his grand-daughter, who was the next of kin. He found this difficult as he ... felt he had to stay strong for her, even though he was distressed himself.

60 Fourthly, Mr Brewer provided an additional report, prepared for the present application, that also was put before this Court.[44] The major parts of this report provide as follows:

I administered the Kessler scale and this did not indicate depression or anxiety.

The incident would have had a big psychological impact on any person including Mr Sullivan; however, he was not going to drop his guard so to speak. As a result, there was never acceptance by Mr Sullivan that he would benefit from counselling.

When I met Mr Sullivan, I was not aware if he was working; however, it would have had a big impact on every aspect of his psychological well-being.

I have always supported counselling for Mr Sullivan but I would suggest that the therapist would need to be mature as Mr Sullivan is a person who would not easily accept support.

Mr Sullivan, if he continues without treatment, will probably experience psychological stress; however, he will need to ... report [openly] his feelings for a better diagnosis. When I was with Mr Sullivan, I went through the symptoms of PTSD; however, he declined to open up and reiterated that he just wanted the report done.

Mr Sullivan has experienced a lot of life's experiences that give him the perception that he should be able to cope in any situation. I have also found this with emergency service and military personnel who have returned to this country. It is a protective factor because the fear of opening up could become a psychological disaster that they might not be able to contain.

61 Finally, on 8 September 2018, Mr Sullivan attended upon psychiatrist Professor Lorraine Dennerstein for an assessment and report for the purposes of this application.[45] Professor Dennerstein had access to Mr Brewer's reports and my reasons for sentence, to which she had regard. In her view, Mr Sullivan presented as euthymic in mood. He did not report any ongoing depression or anxiety, but he continued to miss his son. His anger had diminished and was no longer distressing him. There was no evidence of any formal thought disorder, perceptual abnormality or suicidal ideation.

62 Professor Dennerstein diagnosed Mr Sullivan as suffering from an abnormal grief reaction complicated by the development of an adjustment disorder (not otherwise specified) as a result of Mr Gibson's offending. The features of this were his difficulties accepting his son's death, feeling sad and missing his son, and feeling angry about the circumstances. He also had intrusive thoughts about what had occurred.

63 However, Mr Sullivan's symptoms did not meet the criteria for persistent complex bereavement disorder. There had been some gradual improvement in his symptoms since the sentencing and he no longer met the criteria for psychiatric disorder. Professor Dennerstein concluded that his abnormal grief reaction and adjustment disorder had mostly resolved and were no longer of any clinical significance. Further, she concluded that Mr Sullivan's mental health is unlikely to deteriorate any further and that there is no need for him to have any future counselling or medical treatment with respect to his psychiatric condition.

64 Although the Act does not require an injury to be subsisting at the time a victim's application for compensation is made, such a fact is a relevant consideration in assessing the quantum of compensation ultimately ordered (and a consideration to which I shall return later).

65 In the absence of any evidence to the contrary, but rather a positive concession by Mr Gibson that Mr Sullivan suffered injury, I accept the foregoing evidence. To the extent that there are any differences in the reports, I accept Professor Dennerstein's assessment and diagnosis of Mr Sullivan. I am therefore satisfied that Mr Sullivan's abnormal grief reaction and adjustment disorder constitutes injury within the meaning of s 85A(1)(d) of the Act.

66 Thirdly, in order to qualify for compensation, Mr Sullivan must have suffered the injury "as a direct result of the offence".

67 That phrase was considered by the Court of Appeal in Kaplan v Lee-Archer.[46] Buchanan JA said this:[47]

... 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.

68 In her report, Professor Dennerstein opined that "[t]he murder of Mr Sullivan's son was the significant causal factor to the development of [his psychiatric condition]".

69 In those circumstances, and given the concession on behalf of Mr Gibson, I accept that Mr Sullivan suffered the injury as a direct result of the offence.

70 However, as I indicated earlier, to the extent that Mr Sullivan's feelings about the process of Mr Gibson's trial might have been compensable as the type of "grief, distress or trauma or other significant adverse effect" provided for in s 85A(1)(d), which I doubt, I do not accept that those feelings were suffered "as a direct result of the offence". Instead, adopting Buchanan JA's language, I would exclude those feelings, since they are, at best, "but tenuously related to [the murder] in that their contribution is a minor factor in the production of the injury".

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

72 In DPP v Energy Brix Australia Corporation Pty Ltd[48] ("Energy Brix"), Neave JA said this:[49]

[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.

73 In the same case, Vincent JA said this:[50]

[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. ...

74 And, later in his reasons, Vincent JA said this:[51]

[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 ...

75 I shall address each of the foregoing factors in turn.

76 In sentencing Mr Gibson, I set out in some detail the circumstances in which Mr Sullivan's death occurred.[52] I also gave a summary of those circumstances earlier in these reasons.

77 I shall not repeat those things here, other than to observe that the circumstances in which Glenn Sullivan's death occurred were brutal and disturbing, albeit that Mr Gibson's actions were precipitated by his psychosis. As Vincent JA remarked, "[i]t 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". A reading of the foregoing evidence makes it plain that Mr Sullivan's grief over his son's death was exacerbated because he was murdered in horrible circumstances.

The effect on Mr Sullivan upon hearing of the events

78 It is also clear that Mr Sullivan was devastated as a result of seeing his son in a ghastly and irretrievable state in hospital. Mr Sullivan was, to use Mr Brewer's turn of phrase, "exposed to the full brutality of the [killing]". Further, he had to endure the grave difficulty in deciding to have his son's life-support withdrawn, and has otherwise suffered in the ways described in the evidence, including in the opinion of Professor Dennerstein.

The relationship between the applicant and the deceased

79 As to the relationship between Terry and Glenn Sullivan, a father has lost his son. On the evidence, Mr Sullivan and his son had "a great relationship and [they] always kept in touch by phone". While geography prevented them from having a closer relationship, they certainly were not estranged.

80 Mr Sullivan was aged 71 years at the date of the hearing.

The extent of grief and psychological suffering experienced

81 The extent of Mr Sullivan's grief and psychological suffering is set out in the evidence I have extracted earlier. As I have said, I accept that Mr Sullivan has suffered from an abnormal grief reaction complicated by the development of an adjustment disorder as a direct result of the offence. The features of his reaction and disorder were his difficulty in accepting his son's death, feeling sad, missing his son, feeling angry about the circumstances and having intrusive thoughts about what had occurred.

82 On the other hand, as also indicated earlier, Professor Dennerstein concluded that Mr Sullivan's abnormal grief reaction and adjustment disorder had mostly resolved and were no longer of any clinical significance. Further, she concluded that Mr Sullivan's mental health is unlikely to deteriorate any further and that there is no need for him to have any future counselling or medical treatment with respect to his psychiatric condition.

83 Consistently with the evidence, Mr Hill accepted that his client had a somewhat stoic nature. He was also quick to point out, however, that "abject stoicism", as he described it, "doesn't mean that the person is not suffering and might not be suffering as significantly ... as another who shows outward signs of grief".[53] I agree. But, as Vincent JA put it (so well) in Energy Brix when comparing the differing awards to be made to two adult siblings whose father had been killed in a workplace accident:[54]

[44] ... [the brother's] situation appears to be different [from his sister's] not in the sense that he was less deeply affected by his father's death but because he appears to have been able to cope with his grief a little better.

84 It seems to me that Mr Sullivan, perhaps because of his stoicism (although the reason does not matter), has been able to cope with his grief a little better than some other parents might in similar circumstances.

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

86 Counsel referred me to other decisions of this Court, the Court of Appeal and the County Court concerning awards made to parents whose children had died as a result of or in connection with a criminal act. In summary, those cases, along with others I considered, revealed awards to bereaved parents ranging from $25,000 to $120,000, with most being in the order of $50,000 to $60,000.[55] Some cases involved murder, another manslaughter, and yet another leaving the scene of a fatal car accident. Each case differed on its own facts. For example, there were significant variations in the closeness of the relevant relationships, the levels of injury suffered, whether the major features of the injury had resolved or were ongoing, the ages of the applicants and the financial circumstances of the offenders.

87 As I have said, Mr Hill submitted that the award of compensation should be in the order of $60,000 to $70,000.[56] Mr Davis, on the other hand, submitted that the award should be somewhere in the range of $16,000 to $21,000, less the amount awarded to Mr Sullivan by VOCAT.[57] As I understood counsel, these submissions were based in part upon case comparisons and in part upon the particular circumstances of the present case.

88 In Energy Brix,[58] Vincent JA sounded the following cautionary note about considering awards in other cases:

[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.

89 While his Honour 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.

90 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 the awards in coming to my conclusion in the present case.

91 As will be seen, putting aside discounting factors, on my assessment of all other matters, I think that the award in this case should be of a similar order to most of the awards in cases involving bereaved parents to which I was referred.

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

93 First, as I indicated at the outset of these reasons, if there is to be a compensation order, 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 expense or other matter for which compensation is being sought.

94 Mr Sullivan was awarded $5,882.50 by VOCAT under that Act. Thus, any award of compensation made under s 85B by this Court must be reduced by that amount.

96 In RK v Mirik & Mirik ("Mirik"),[59] Bell J made the following remarks:[60]

[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."[61] 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),[62] 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 per cent 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 per cent.

97 Mr Hill acknowledged the existence of this principle. However, correctly, he cautioned against the application of a rigid rule or practice of applying a discount of 25 percent (or any other percentage) to any award on account of this principle. For, as Beach and Ferguson JJA said in Kelley (a pseudonym) v R1 (a pseudonym) & Ors:[63]

[21] We would add that Mirik is not authority for the proposition that in all cases a discount of 25 per cent 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 per cent 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.

98 Applying these principles to the facts in this matter, I have determined that the award should be reduced by about $5,000 (or a bit under ten percent) in order to allow for the risk of overshooting. While I accept the evidence put before me, nevertheless, in my view, absent "a full forensic and judicial examination of the claim" - including the hearing of viva voce evidence from Mr Sullivan concerning the relationship between him and his son and the impact upon him of his son's death, as well as viva voce evidence from expert witnesses - there is still a real and appreciable potential for overshooting in determining the amount of compensation. That said, particularly in circumstances where there is no challenge by the respondent to the evidence before me, I think that a reduction of $5,000 (or approximately ten percent) is sufficient to account for that risk.

Financial circumstances of Mr Gibson; burden that compensation will impose on him

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

(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.

101 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.[64] This, he 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.[65] 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".[66] 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.[67]

102 I turn now to the evidence of Mr Gibson's financial circumstances and the nature of the burden that a compensation order might impose on him. It is a rather long story, with a few twists and turns. So, bear with me.

The death of Mr Gibson's father and payment of compensation to Mr Gibson

103 As indicated earlier, Mr Gibson's father was killed in the Black Saturday bushfires in February 2009. In particular, he was killed at the Traralgon South fire. Mr Gibson was only twelve at the time.

104 Unsurprisingly, this tragedy had a major effect on Mr Gibson.[68] He did not receive any grief counselling, other than at school. As a way of self-medicating, he began using cannabis, at ever-increasing rates. Later, he began to use 'ice'. Later still, he moved out of home. Initially, he lived with his sister, and then he prevailed upon friends. His relationship with his mother's new partner was strained, such that he did not feel as though he could return home. And, so, for approximately two years before April 2015, Mr Gibson had no fixed accommodation.

105 When he turned eighteen in July 2014, Mr Gibson was eligible for an award of $233,000 from the State Government as compensation for his father's death. As a result of various complications, the award was not paid to him until some months after he turned eighteen.

106 In the period leading up to the killing of Glenn Sullivan, in addition to spending some of the funds on essential living expenses, it appears that Mr Gibson squandered a good deal of his money by buying cannabis and ice and various other bits and pieces.

107 As at 1 February 2018, the balance remaining of those funds was only $91,439.40, which amount was contained in Mr Gibson's bank account with the National Australia Bank Limited ("NAB").[69] As we shall see, those funds have since been restrained to satisfy any compensation order that might be made.

108 None of this is to say that Mr Gibson should be treated as the prodigal son's brother might have wished. Nor is it time to kill the fatted calf. However, all else being equal, Mr Gibson's profligacy at that time might have a limiting effect on the impact that his self-inflicted financial hardship might otherwise have in discounting the order for compensation. On the other hand, when one considers what I regard as the exceptional combination of circumstances in this case, mere profligacy might be thought to have no or very little weight. For, as will be seen, there is a lot more to the story yet.

109 As I indicated earlier, on 29 September 2015, the Director of Public Prosecutions, ex parte, obtained from this Court an order restraining the bank account in which Mr Gibson's remaining cash was sitting.[70] The order provided that "[n]o person shall dispose of or otherwise deal with the following property or any interest in [the relevant NAB account] in the name of [Mr Gibson]". The Court also declared that the account was restrained to satisfy any compensation order that may be made under the Sentencing Act.[71]

Orders that VLA fund criminal trial and compensation application

110 On 4 April 2016, by consent, this Court ordered, pursuant to s 143(1) of the Confiscation Act 1997 (Vic), that Victoria Legal aid ("VLA") provide legal assistance to Mr Gibson with his murder charge.[72] The order also records that, "[u]pon [Mr] Gibson through his lawyer undertaking, until further order, not to deal with the property the subject of the [restraining order of] 29 September 2015 ("the property") in the event that the property becomes unrestrained, without first reimbursing [VLA's] costs of legal assistance provided to him in [the murder trial]". Thereafter, VLA funded Mr Gibson's solicitor and counsel to appear at his murder trial.

111 On 2 March 2018, by consent, this Court ordered, again pursuant to s 143(1) of the Confiscation Act, that VLA provide legal assistance to Mr Gibson in relation to Mr Sullivan's compensation application.[73] The associated minutes of this consent order were in the same terms, with necessary adaptation, as those found in the order that VLA fund the murder trial, concerning the undertaking with respect of reimbursement of VLA. Thereafter, VLA funded Mr Gibson's solicitor to appear at the compensation application.

112 Mr Gibson's solicitor advised that VLA's costs for both matters are estimated to be a little over $60,000 in total. Neither Mr Sullivan nor VLA disputes that estimate. While it would be preferable to know the precise figure, I am prepared to act on that estimate for the purposes of this application.

Priority given to compensation out of restrained property

113 Section 30 of the Confiscation Act provides as follows:

If a restraining order is made for a purpose referred to in section 15(1)(e) and one or more other purposes and an order for restitution or compensation is made under the Sentencing Act 1991 in relation to the offence in reliance on which the restraining order is made or damages are awarded in relation to that offence, the State must ensure that the order for restitution, compensation or damages is satisfied, to the value of the restrained property, before any other purpose for which the restraining order is made.

114 While s 30 may not say so in terms, both parties and VLA accept that, at least for the purposes of this case, the State must ensure that any order for compensation in favour of Mr Sullivan is paid out of the restrained funds before any other person or entity who may have any right to those funds.

115 Thus, the making of a compensation order, depending upon its quantum, will have a greater or lesser effect - and potentially a very heavy impact - on Mr Gibson's financial circumstances and could create a substantial burden upon him.

116 For example, given that the existing balance of funds in Mr Gibson's account is about $91,439, a compensation order in the amount at which I have arrived - namely, $44,117.50 - would leave him with only about $47,000. While that may be substantially more cash money than many other prisoners have on leaving gaol, I do not think that is a large sum for a person who has no other means, is unlikely to be employable and who will have a life-long serious psychiatric condition.

117 That Mr Gibson might be left with $47,000, however, assumes that VLA would forgive his debt of about $60,000. If VLA did not take that course, or if there were no other way of avoiding that debt, then Mr Gibson would be rendered utterly destitute and still owing VLA in the order of $13,000 (since he would have only about $47,000 left to cover the debt of about $60,000). In my view, that would be an unsatisfactory state of affairs.

Assessment of discount under s 85H

118 Given the foregoing, and on the assumption that VLA ultimately will do what I regard as the just and appropriate thing, to make a substantial compensation order in an amount similar to that which I intend to make will still have a major impact on Mr Gibson's financial circumstances and impose a substantial burden upon him, as it will leave him with only a modest amount of money with which to fund his living expenses, including the ongoing psychiatric treatment that he will require, upon his eventual release from prison.

119 In those circumstances, pursuant to s 85H(1), I consider it appropriate to reduce the award by $10,000 (or nearly 20 percent) on account of the impact that the compensation order will have on Mr Gibson's financial circumstances and the nature of the burden that its payment will impose upon him.

120 Thus, it is for those reasons that I have assessed the compensation order at $50,000, less the $5,882.50 paid by VOCAT, leaving a total of $44,117.50 to be ordered in favour of Mr Sullivan. For the avoidance of doubt, I arrived at the $50,000 figure by reducing my initial assessment of $65,000 by $5,000 on account of the risk of "overshooting" and by a further $10,000 on account of the considerations in s 85H(1).

121 Finally, I wish to return to the debt of about $60,000 Mr Gibson owes to VLA.

122 In the exceptional circumstances of this case - which include the circumstances in which Mr Gibson came into his funds, his youth and his profoundly disturbed psychiatric state at the time of the offence, and the likelihood of the necessity for ongoing psychiatric treatment for the rest of his life - I urge VLA not to pursue Mr Gibson for any of those costs. Instead, in my respectful opinion, VLA should leave Mr Gibson with the balance of the funds remaining after the compensation order is paid in order to allow him to establish himself and continue psychiatric treatment upon his eventual release from prison. In my view, such an approach would be desirable and appropriate in the interests of both Mr Gibson and the community.

123 Further, I think it would be positively unseemly for VLA to stand upon whatever rights it may have to the balance of the funds, when to do so would have the effect of denying Mr Gibson access to part of the compensation paid to him by the State for a tragedy that is very likely to have played a role in turning him into the person he was when he killed Mr Sullivan's son. Indeed, as will be recalled, part of Mr Gibson's psychosis at the time of the killing was that, in his deluded state, he believed, wrongly, that Glenn Sullivan had some role in his father's death.

124 While VLA is not a party to the compensation application, nevertheless, since it has an interest (of sorts) in the balance of the funds, and given my opinion that this was a case fit for mediation, I invited VLA to consider engaging in an informal mediation with the parties. Both Mr Sullivan and Mr Gibson's lawyers were willing to do so, but VLA declined the offer. VLA's position was that they would consider the matter only with the knowledge of the amount of any compensation order made in favour of Mr Sullivan and having regard to my reasons for judgment. As I understood VLA, it was only then that they might consider negotiating with Mr Gibson on whether to pursue him for the costs advanced and, if so, how much might be pursued. In my opinion, that was an unfortunate and decidedly unhelpful position for VLA to take. I can only hope that VLA takes this Court's invitations a little more seriously in future.

125 Before making the final orders in this case, I will allow VLA time to consider these reasons and report back to the Court on the stance they intend to take.

126 In the meantime, I also invite Mr Gibson's lawyers to consider whether, failing the reaching of a satisfactory agreement with VLA, in the exceptional circumstances that obtain in this case, Mr Gibson might apply to this Court to be released from the undertaking given on the two applications under s 143 of the Confiscation Act or, additionally or alternatively, that this Court might have the power, pursuant to s 26 of the Confiscation Act, to vary the restraining order to allow for Mr Gibson's reasonable living expenses, including psychiatric treatment, upon his eventual release from prison.

_________________________________

[1] See R v Gibson [2016] VSC 634.

[2] See s 85D of the Sentencing Act 1991 (Vic).

[3] See the definition of "injury", paragraph (d), in s 85A(1) of the Sentencing Act 1991 (Vic).

[4] See ss 85B(1) and (2)(a) of the Sentencing Act 1991 (Vic).

[5] Applicant's Outline of Submissions at [33].

[6] Respondent's Outline of Submissions at [12].

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

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

[9] Glenn Sullivan had seven children, one of whom died from meningococcal disease. A curious feature of this application is that I was told very little of his children. The same is true of the plea hearing concerning Mr Gibson. Nor has this Court received any application for compensation from those children. I note also that such applications would be well out of time now.

[10] As it turned out, mercifully, Glenn Sullivan's son Jye was not present at the house at this time.

[11] See s 20(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). By s 25(1) of the Act, the common law defence of insanity has been abrogated.

[12] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), which provides that "[t]he defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that ... (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong)".

[13] See R v Gibson [2016] VSC 634 at [186].

[14] See R v Gibson [2016] VSC 634 at, for example, [185].

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

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

[17] Applicant's Outline of Submissions at [8].

[18] DPP v Nguyen & Anor; DPP v Duncan & Anor [2009] VSCA 147; (2009) 23 VR 66 at 68[7]-69[10].

[19] R v Celep [1998] 4 VR 811.

[20] R v Celep [1998] 4 VR 811 at 814.

[21] S (an infant) v Manchester City Recorder [1971] AC 481 at 506 per Lord Upjohn.

[22] Burgess v Boetefeur & Brown [1844] EngR 567.

[23] R v Drew [1985] 1 WLR 914 at 917.

[24] S (an infant) v Manchester City Recorder [1971] AC 481 at 489. See also Dixon v McCarthy [1975] 1 NSWLR 617 at 624.

[25] R v Tonks & Goss [1963] VicRp 19; [1963] VR 121 at 127-128.

[26] My emphasis (in bold and italics).

[27] Della Patrona v DPP (Cth) [No 2] (1995) 38 NSWLR 257.

[28] Della Patrona v DPP (Cth) [No 2] (1995) 38 NSWLR 257 at 265C.

[29] Griffiths v The Queen (1977) 137 CLR 293.

[30] My emphasis (in bold and italics).

[31] Della Patrona v DPP (Cth) [No 2] (1995) 38 NSWLR 257 at 266E.

[32] See Della Patrona v DPP (Cth) [No 2] (1995) 38 NSWLR 257 at 261E-F & 262E.

[33] See s 7(1)(b)-(j) of the Sentencing Act 1991 (Vic).

[34] R v Gibson [2016] VSC 634 at [186]. (This also would have been recorded in the Return of Prisoners, although I have not sighted that document in the present hearing.)

[35] R v Gibson [2016] VSC 634 at [186]. (This also would have been recorded in the Return of Prisoners, although I have not sighted that document in the present hearing.)

[36] Applicant's Outline of Submissions at [8].

[37] See Applicant's Outline of Submissions (16 February 2018) at [6], and Respondent's Outline of Submissions (27 February 2018) at [4].

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

[39] See, for example, RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623 at 656[153]-[155] & 660[178].

[40] See s 85B(1) of the Sentencing Act 1991 (Vic).

[41] Affidavit of Mr Sullivan (affirmed 4 October 2017), Exhibit TS2 at p 4.

[42] Affidavit of Mr Sullivan (affirmed 4 October 2017) at [4].

[43] Mr Brewer's report for VOCAT is dated 4 March 2016 and is Exhibit TS3 to Mr Sullivan's affidavit.

[44] Mr Brewer's report for this application is dated 24 July 2017 and is Exhibit TS4 to Mr Sullivan's affidavit.

[45] Professor Dennerstein's report is dated 12 September 2017 and is Exhibit TS5 to Mr Sullivan's affidavit.

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

[47] 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].

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

[49] 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].

[50] 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].

[51] 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].

[52] See R v Gibson [2016] VSC 634 at [1]- [3] & [10]-[113].

[54] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345 at 355[44].

[55] 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); Josefski v Donnelly & Ors [2007] VSCA 6 (leaving scene of accident at which son died; awards of $50,000 and $55,000 both reduced to $20,000 on account of VOCAT awards); 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); Chalmers v Liang & Zhu [2011] VSCA 439 (murder of daughter and step-daughter; awards of $120,000 and $60,000); and Moresco & Ors v Budimir [2015] VSC 51 (murder of son; awards of $50,000 and $30,000 after VOCAT reductions).

[56] Applicant's Outline of Submissions at [33].

[57] Respondent's Outline of Submissions at [12].

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

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

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

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

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

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

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

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

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

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

[68] For more detail about Mr Gibson's life prior to, at the time of and following the death of his father, see my reasons for sentence (R v Gibson [2016] VSC 634 at, for example, [119]-[145]).

[69] A letter from the relevant branch of the NAB, dated 1 February 2018, confirmed that this was so.

[70] See ss 14-18 of the Confiscation Act 1997 (Vic). The order was made by John Dixon J.

[71] See s 15(1)(e) of the Confiscation Act 1997 (Vic).

[72] The order was made by J Forrest J.