Applicants v Respondent

2 In a trial in this Court held in 2008, over which I presided and in which the respondent had been presented for murder, the jury found him not guilty of murder but guilty of the manslaughter of Katie Tanner. That killing occurred on or about 14 October 2006.

3 On 13 May 2008, I sentenced the respondent to serve a period of imprisonment of 11 years with a period of 8 years to serve before being eligible for release on parole. I note that in his evidence on this application, the respondent said he did not expect to be released on parole since he has never admitted any involvement in the death of Katie Tanner and maintains that position.

4 The respondent appealed to the Court of Appeal against both his conviction and sentence. On 4 March 2010 the Court refused both applications[1]. That means that from the date of the death of Katie Tanner until the making of this application, almost four years has passed with a consequent effect on these applicants, particularly Katie Tanner's parents.

5 As at 14 October 2006 when Katie Tanner was killed by the respondent, he was residing at 22 Courtenay Avenue, Cranbourne North. It was at those premises that the Crown alleged the respondent killed Ms Tanner. The property is apparently owned by he and his wife as joint tenants although there are no documents before me which establish that. At the time she was killed by the respondent, Katie Tanner had also been residing at that property, in effect, as a boarder. At the time of her death she was 21 years of age.

6 The killing of Ms Tanner occurred, according to the verdict of the jury, over the evening of 13 October 2006 or the early morning of 14 October 2006 at those premises. The motive for the respondent killing Ms Tanner was not by any means clearly established. It is particularly relevant for the purpose of this application that Ms Tanner's body has never been located. At the time of her death, Katie Tanner had two children. The eldest is Jayden, now aged 6 years, and who was born of the relationship Ms Tanner had with the son of the respondent, David Smart. David Smart has custody of that child by an order of the Family Court of Australia and Mr and Mrs Tanner have access to him every fortnight for a weekend. Ms Tanner also had another child, Tannika, now aged 5 years , who is the child of a different relationship and now resides permanently with Mr and Mrs Tanner.

7 On 13 July 2009, each of the applicants was awarded a sum of compensation by the Victims of Crime Assistance Tribunal ('VOCAT') pursuant to the Victims of Crime Assistance Act 1996. The amounts of compensation were as follows:

Each award indicates that those sums are solely for distress. In the case of the awards to David Tanner and Sharon Lee Tanner, an additional sum was paid to a third party for other expenses, however those sums are not relevant here.

8 If I decide to make a compensation order in any or all of these three applications, I am required to reduce the amount of that order in each case by the amount of those VOCAT awards pursuant to s 85I of the Act.

9 As Warren CJ observed in V1 v Xydias[2], pain and suffering is not a head recoverable under the Victims of Crime Assistance Act 1996. However, given that the applications before me were put solely on the basis of pain and suffering and the applicants' awards from VOCAT were for distress, there is a "doubling up", therefore I am required to reduce the quantum of compensation to each of the applicants commensurate with their VOCAT awards.

10 There is no dispute that each of the applicants is a "victim" within the meaning of s 3 of the Act and for the purpose of making these applications. Their applications relied upon two aspects. Each applicant had made a Victim Impact Statement for the purpose of the proceedings leading to the sentence being imposed on the respondent. The Victim Impact Statements are exhibits on this application. In addition, each applicant gave evidence and was cross-examined before me. The respondent also gave evidence concerning his personal and financial circumstances.

11 In the Victim Impact Statement of Sharon Lee Tanner sworn on 21 April 2008, she said that she believes she suffers from post-traumatic stress disorder due to the loss of her daughter. She described having "break downs" all the time and spends a lot of time in tears. She said she had physical symptoms, including what she described as "sores" and her diet and sleeping is significantly disturbed. She describes the emotional consequences of not being able to have "closure" by which she means not being able to have the finality that she would have if her daughter's body was able to be located.

12 In giving her evidence, it was clear that Mrs Tanner was significantly traumatised by her circumstances. She was tearful and very anxious and had trouble giving her evidence. She appears to be suffering from physical symptoms which flow from the trauma associated with the loss of her daughter and the mystery surrounding the whereabouts of her body. She still appears to hold out the now obviously irrational hope that by some miracle her daughter will re-appear. She also said she continues to have counselling and she is taking anti-depressant medication. There was, however, no medical report from the General Practitioner who prescribed the medication nor from the counsellor whom she regularly sees. Such material would have been of assistance to me in determining this application and I will return to this issue.

13 As I noted earlier, the child of Katie Tanner, Tannika, lives with Mrs Tanner and her husband. Mrs Tanner described the need to look after that child as something which "keeps [her] going" but is, at the same time, a constant reminder of the loss of her daughter.

14 I do not have any doubt that Mrs Tanner and her daughter had a close relationship and that Mrs Tanner has suffered considerably as a result of her daughter's death as the result of a criminal act.

15 In his Victim Impact Statement, David Tanner, the father of Katie Tanner, described the loss of his daughter as completely changing his life. He described the disturbance in his life at the fact that Katie Tanner's body has never been found and she cannot be put to rest as he described it. In his evidence on this application, Mr Tanner described that he had a substantial interest in horses which he shared with his daughter including cross-country mountain racing which Katie Tanner was apparently quite proficient at. The loss of his daughter and the shared interest clearly has had a significant emotional effect on him. In order to deal with the loss of his daughter, Mr Tanner had some counselling but he did not find it useful and ceased to have it. Mr Tanner is clearly adversely affected not only by the loss of his daughter but the failure to locate her body. In his evidence he described consulting with psychic mediums to assist in the search. It would appear from his evidence that the Homicide Squad of the Victoria Police are still involved to some degree in the cause of locating Katie Tanner's body. Mr Tanner described the way in which activities in his life which included the construction of a new house have been slowed by the effect of the loss of his daughter.

16 In the course of cross-examination of both parents of Katie Tanner, it seemed to be suggested that the fact that she was residing with the respondent at, and leading up to her death, and had previously lived for a time in Frankston rather than with her parents reflected that the relationship between she and her parents was not as close as they suggested. However, their evidence showed those arrangements were explained by the fact that the Tanners were, and still are, building a house and there were limits on accommodation and facilities. In addition, Ms Tanner had two young children and residential arrangements would have been difficult. The suggestion did not seem to be pressed by counsel for the respondent in his submissions.

17 In the Victim Impact Statement of the brother of Katie Tanner, Christopher Tanner, he describes his anger and frustration at being without his sister, and also describes difficulty in dealing with the stress and loss of her. He described the consequence for his niece in those circumstances. In his evidence on this application, he described the effect that death of his sister had on him and the fact that he lost a period of 6 months or so of work due to the emotional distress of that happening. That time off work was put only to the issue of pain and suffering; no claim for economic loss was advanced. Mr Tanner did not receive any counselling but for a period time he was prescribed anti-depressant medication which he is no longer taking. He said that since April 2008 when he completed his Victim Impact Statement, he had improved. He now has a young family and that has helped him considerably. However he also suffers from what he referred to as the lack of 'closure' from the fact that his sister's body has never been found.

The Respondent's personal and financial circumstances

18 The respondent gave evidence concerning his personal and financial circumstances. His personal circumstances as I described them in sentencing him on 13 May 2008 were not in contention. Those matters were as follows:

You were born on 5 October 1952 and you are therefore now 55 years of age. You are apparently one of six children. Both your parents are now deceased. Your education involved attendance at the St John Vianney's School in Mulgrave for your primary education, and Noble Park Technical School to third form. You left school just before turning 15 and had various jobs until you went to sea at the age of 25. In the career of merchant seaman you rose to the position of chief steward on a number of ships including both interstate and international travel. One of your brothers is also a merchant seaman. You maintained a long term relationship with your wife over some 32 years, although you were not married until 1981 and separated in 2005. You and your wife have not divorced.

You have three children aged between 25 and 39 years of age, all of whom gave evidence during the course of your trial. You are now retired, primarily because you suffered a serious knee injury and have been unable to work as a result.

The injury to your leg occurred in the year 2000. That injury resulted in a knee replacement and has caused degeneration of the other knee as a result of the way in which you walk and move about. It is suggested that in the future you will need to have another knee replacement. The treatment you need for that condition has apparently been sparse since you have been in custody and you take such pain killers as are provided to you. The presence of a medical condition that would make your time in custody more burdensome than other prisoners' is of course a matter which I am required to take into account in sentencing you. In addition, I am told that your worker's compensation benefits have evaporated since you have been in custody.

On your behalf, Mr Toohey of counsel produced a number of documents from two orthopaedic surgeons, Mr Robert Howells and Mr Clive Jones, and from Dr N. Berlinski, a specialist. Their reports corroborate the permanent nature of your injury. .

19 The respondent said that if he were not in gaol he would not be able to work due to his injuries. The knee injury produced compensation of approximately $40,000.00 and that was paid to him while he has been in custody. He said that money went to "pay bills" and "look after" his wife[3]. The respondent said that the house in Courtenay Avenue is owned jointly by he and his wife and he thinks its value is about $280,000.00. The capital improved value according to the rate notice from some 12 months ago was $212,000.00. Mr Smart claimed the mortgage held by Members Equity is of the order of $112,000.00. An unverified document from Members Equity seems to suggest the figure is in fact $115,390.67 as at 15 September 2010. No evidence was given regarding whether the respondent and his wife are registered as joint proprietors or tenants in common on the title of the Cranbourne property.

20 The respondent gave evidence that his wife, two of his children and some grandchildren are living at the house. He understands that his wife and daughter are paying the mortgage since he has been in custody. Mr Smart says his only other asset is a gaol bank account containing $900.00.

21 During the course of his evidence in chief, the respondent was asked about the superannuation he had accrued during his time as a merchant seaman. The respondent's evidence was that he had resigned from the service two or three times and each time took his superannuation to live on. He said that there is nothing left.

22 In his submissions, Mr Brown on behalf of the respondent submitted, as I followed it, that I should reduce the quantum ordered in respect of each applicant on two grounds: (1) that Mr Smart's interest in the Cranbourne property did not necessarily equate to half of the equity in that property; and (2) that Mr Smart is 'a man of straw' and does not have the capacity to pay the applicants. I will return to this issue.

Operation of the provisions of the Sentencing Act

23 Section 85B of the Act provides that a court may make a compensation order against an offender in favour of a person who has suffered injury as a direct result of an offence. This section provides as follows:

(a) finds a person guilty of an offence; or

(b) convicts a person of an offence -

it may, on the application of a person who has 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.

(3) In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.

(4) In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.

24 Injury is defined in s 85A as the following:

(a) Actual physical bodily harm or

(b) Mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flying from nervous shock; or

(c) Pregnancy; or

(d) Grief, distress or trauma or other significant adverse effects; or

(e) Any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence -

Does not include injury arising from loss of or damage to property.

25 The legal principles which apply in applications such as this are summarised in a number of cases to which I was referred. As Osborn J noted in Liang & Zhu v Chalmers[4], the general principles were identified by Bell J in RK v. Mirik & Mirik[5] as follows (citations removed):

• The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court provided that the claims fall within categories set out under s 85B(2).
• An order for compensation is determined by the application, where relevant, of common law principles however the order itself is one for compensation not damages;
• Where a claim for pain and suffering is maintained, it must be a direct result of the offence;
• The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim;
• Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order;
• Unlike a common law claim for damages the financial circumstances of the offender are relevant;
• A court is not obliged to reduce the amount of compensation payable on the basis of the offender's financial circumstances; it is a relevant but not controlling consideration.

26 The words 'as a direct result of the offence' in s 85B of the Act do not mean that the consequence must be solely due to offence. The word 'direct' emphasises that the crime is to play a significant role in bringing about the compensable injury. The question of causation must be judged as a matter of fact according to common sense and experience.[6]

27 The effect of the respondent's actions on these three applicants in killing Katie Tanner will be with them for the rest of their lives and the tragedy is exacerbated by the fact that her body has never been found. These are straightforward decent people whose lives have been forever affected and deflected by what has occurred.

28 As I have already noted, I have had the benefit of seeing each of the applicants give evidence. Their evidence was barely challenged save for a modest attempt to suggest the relationship between Mr and Mrs Tanner and their daughter was something less than they had portrayed it. However, there was no specialist evidence of any kind put forward on their behalf. After the conclusion of the hearing I enquired of the parties to ensure that the absence of that evidence was not an oversight but a deliberate choice. I have been informed by the solicitor for the applicants that the decision not call counsellors and a medical witness or witnesses was a deliberate choice made to avoid the cost of so doing. I am therefore left in the position where I cannot do more than assess the impact of the death of Katie Tanner on each applicant as they presented to me, assuming I accept their evidence, which I do. As to the long term effect or the causal connection between any depressive condition or any other psychological condition and the death of Ms Tanner, I have little on which to base any conclusion.

29 In addition to those matters there was inadequate information about aspects of the financial circumstances of the respondent. No documents were produced by either party and I am not at all sure that the respondent's picture of his financial position is as he has described it. As Warren CJ noted in V1 v Xydias, pursuant to s 85H(2), the Court is not prevented from making an order only because it has been unable to find out the financial circumstances of the offender.[7]

30 It was not submitted on behalf of the respondent that no order should be made but I am asked to take into account the effect of a significant order for compensation being made against the respondent, particularly the effect when he is released from custody. There is no question that the amount of this order will be a significant burden on the respondent when he is released. Beyond that, however, I am not willing to make any particular allowance for that factor. This is not a case where the offender is young and rehabilitation of him will be substantially affected by the making of an order of this nature. The reality of this case is that the respondent continues to deny any involvement in the death of Katie Tanner. His unwillingness to assist the applicants in at least the location of her body militates strongly against reducing the amount of compensation by reference to his personal financial situation.

31 Notwithstanding those difficulties, I have come to the following conclusions:

• Each of the applicants had a normal and close relationship with Katie Tanner and the loss of that relationship has had a significant effect on each of them. I reject any suggestion that Katie Tanner's residential arrangements at the time of her death reflect adversely on her relationship with her family and I accept the evidence of both Mr and Mrs Tanner on this question.

• The emotional consequence of Katie Tanner's killing is most obvious in Mrs Tanner who, to my observation and based on her evidence, is struggling very significantly with the consequences of her loss of her daughter which is displayed in some physical consequences.

• In addition to the consequences of the loss of their daughter or sister, I am satisfied that each of the applicants has been significantly affected by the lack of finality that the failure to find Katie Tanner's body has caused. There is no predicting whether that situation will ever change. It may not but as long as it lasts it will have a continuing effect on each of them. In addition they must deal with the fact that the respondent, despite having been found guilty by a jury of killing Ms Tanner, refuses to accept any responsibility for having done so and has refused to provide any information which might lead to the discovery of her body.

• Each of the applicants has suffered an emotional and traumatic reaction to the killing of Katie Tanner. The exact nature of that condition in each case is more difficult to identify and the prognosis for them even more so in the absence of medical evidence.

• I am not of the view that I should distinguish between Mr and Mrs Tanner but I am of the view that Mr Christopher Tanner is in a separate category. Whilst there is no doubting the pain and suffering that I am sure he has suffered and will suffer, he has a life in front of him with a young family and I am sure he will be assisted by those circumstances to slightly more easily deal with the loss of his sister.

32 Given the state of the evidence and the observations I have made of each of the three applicants, I propose to award compensation for pain and suffering pursuant s 85B(1) of the Act as follows:

After subtracting the amount of compensation paid by VOCAT, the amounts will be:

33 I therefore order pursuant to s 85B(1) of the Act that:

(1) Keith Herbert Smart pay to Sharon Lee Tanner the sum of $110,000.00;

(2) Keith Herbert Smart pay to David Tanner the sum of $110,000.00;

(3) Keith Herbert Smart pay to Christopher Tanner the sum of $72,500.

[1] See The Queen v Keith Smart [2010] VSCA 33

[2] [2009] VSC 616 [23]

[4] [2010] VSC 241

[5] [2009] VSC 14

[6] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, [56] (Nettle JA).

[7] [2009] VSC 616 [15]