Applicants v Respondent

3 Although the respondent submitted in her written submissions that the applications were out of time and that the facts were too unclear and complex to make a compensation order under the Sentencing Act 1991 (the Act), that is no longer her position. It is now agreed that the applications were filed within time and that the findings of fact made by the jury as explained by Coghlan J in his sentencing reasons are a sufficient foundation on which to make compensation orders.[1]

4 What is in dispute is quantum - that is, how much it is appropriate for me to award each applicant. A closely related issue is whether, in making compensation orders, I should have regard to the respondent's financial circumstances. She only has assets worth approximately NZ $79,000. Of this amount, some NZ $75,000 is her share of the proceeds of the sale of a property in New Zealand which she and the deceased jointly owned. There is also another $4000 in superannuation entitlements. The applicants' written submissions sought an award of $75,000 each but, in oral submissions, they did not maintain that I should award the deceased's ex-wife as much as his sons; it was conceded that they should receive more as they are his "flesh and blood."[2]

5 The relevant statutory provisions are found in Subdivision 1 of Division 2 of Part 4 of the Act.

(d) grief, distress or trauma or other significant adverse effect;

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;

(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and

85H Court may take financial circumstances of offender into account

(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.

85I Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996

If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision.

6 In RK v Mirik,[3] Bell J analysed at length the principles that inform the application of the relevant provisions of the Act. T. Forrest J, in Stevens v Baxter, drawing upon Bell J's analysis, summarised those principles. Relevantly, that summary was as follows:

• The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court provided 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.

• 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.[4]

7 In DPP v Energy Brix Australia Corporation Pty Ltd, Neave JA said:

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.[5]

8 The facts surrounding the respondent's offence are fully set out in the sentencing reasons of Coghlan J.[6] I do not intend to repeat them here. Suffice to say that on 2 February 2008 at their home, the respondent beat the deceased about the head with a special stick called a knobkerrie and then stabbed him once in the abdomen. She claimed to have acted in self-defence.

9 The applicants relied on a number of findings of fact necessarily made by the jury in reaching its verdicts.[7] As Coghlan J explained in his sentencing reasons, the jury necessarily found that the respondent killed the deceased, intending to kill him or cause him really serious injury, without reasonable grounds for believing it was necessary to do what she did in self-defence. The jury, however, must have accepted that the respondent honestly believed it was necessary to do what she did in self-defence or, at least, considered that a reasonable possibility.

10 The respondent claimed that she was a victim of domestic violence and in particular that the deceased tried to force her to participate in group sex. In that regard, Coghlan J said in his sentencing reasons:

It is very difficult to determine a scale by which to measure family violence, in deciding where on such a scale any particular case should be placed. It was in this case sufficient, as found by the jury, for a jury to have convicted you of defensive homicide and not murder. It follows that they must have regarded domestic violence as real, because they could not, on the facts of this case, have reached this verdict had they not found so. In the absence of any finding as to domestic violence, it was inevitable that you be convicted of murder.[8]

11 Only a few months before his death, the deceased had travelled to South Africa and spent time with his ex-wife and two sons, whom he had abandoned some 14 years before. During that trip to South Africa, he talked of remarrying his ex-wife and bringing the family to Australia to live.

12 Dale Creamer was about 9 when his parents' marriage broke down and his father left. He still has good memories of his early life with his father. When his father returned 14 years later, it was a very welcome development that filled him with hope. He says:

"I think back to December 2007 when I met my father again after 14 years and he became a part of my life. He always spoke about making a new beginning with my mother and my brother and myself. I was so excited and happy that my father had made the effort to finally re-establish his life with us. To have lost him in such a way was like a double loss for me. The prospect of him being back in our lives gave me a renewed sense of energy and purposes but this was taken away in a very cruel manner. I was looking forward to a bright future reunited with him."

13 Dale Creamer states in his affidavit that he still is grieving over the death of his father and that at times his emotions overwhelm him. His mother's mental health has deteriorated and he is shouldering the financial burden of taking care of her, a role that he says his father had promised to undertake when the family were reunited in December 2007.

14 Lyle Creamer was about 5 when his father left. Of the return of his father in December 2007, he states "It was a wonderful feeling having my father back in our lives." His father's violent death just a few months later haunts him. The hope of better life for the entire family in Australia, and the financial support that his father had promised, was never to be realised. He too refers to his mother's deteriorating mental health.

15 Beura Lynn Creamer says that when the deceased made contact with her in December 2007, he was remorseful for having abandoned his family. He wanted to remarry her and move the family to Australia. During his 14 year absence, he had neglected his financial responsibilities to the family but promised to take care of various debts and provide for his family in the future. She now suffers from depression, which saw her hospitalised in July 2015. She says she will never recover from losing the deceased who was "really the only man in [her] life."

16 The respondent in her written submissions said this at [4]:

The respondent does not contest the contents of the affidavits and does not seek that the applicants be made available for cross examination.

17 Counsel for the applicants submitted that the deceased suffered a "gruesome death," being beaten with a stick before being fatally stabbed. The applicants had suffered a double loss -only a couple of months after being reunited with the deceased in December 2007, they lost him again forever, as a result of the respondent's conduct. In relation to quantum, particular reliance was placed on DPP v Parsons,[9] where the amount of compensation awarded by Cummins J to the deceased's two young children was $125,000 each and, to a sister, $75,000.[10] It was submitted that, in the present case, the respondent's financial circumstances should not be taken into account. Coghlan J found that she had good prospects of rehabilitation and was unlikely to reoffend. Hence, it was submitted that making compensation orders in excess of her current assets was unlikely to lead to further offending on her part to satisfy the orders. Coghlan J also found that the respondent had a good work history and so she has the potential to obtain employment and generate funds to satisfy compensation orders. It was submitted that the primary focus should be on compensating victims. Relying on RK v Mirik, it was emphasised that a respondent's financial circumstances ought not be a "controlling consideration."

18 Counsel for the respondent submitted that the respondent's financial circumstances were an appropriate and important consideration. Burdening the respondent with a large debt would adversely affect her reintegration into the community. Rehabilitation, it was submitted, involves more than just an offender being released and being offence free. The circumstances of the offending are a relevant consideration, as Neave JA stated in DPP v Energy Brix Australia Corporation Pty Ltd and, in this case, the killing occurred in circumstances where the offender was responding to domestic violence. The cases upon which the applicants placed particular reliance - Parsons, Mirik and Schloss[11] - were distinguishable. Parsons, for example, was a murder case. The children compensated were aged 13 and 9 at the time of the offence. The offender had a long history of violence towards their mother, the deceased. It was submitted that the amount of awards in other cases are of limited assistance: each case has to be decided on its own circumstances. In the present case, there has been considerable delay in the applicant's pursuing their application, the respondent having been sentenced in April 2011. As regards the closeness of the applicants' relationships with the deceased, one cannot ignore that for 14 years they had no contact with him. They were not emotionally or financially dependent on him.

19 Based on the applicants' affidavits, the contents of which were not challenged, I accept that each of the applicants has experienced significant pain and suffering. They are each entitled to receive a significant sum by way of compensation but, in fixing that sum, it is appropriate, in my view, to take the respondent's financial circumstances into account.

20 The respondent will be eligible for parole in April 2016. Given her age (she is now 58) and the fact that she now has a criminal record, it may be difficult for her to secure good employment on her release. If she is saddled with a large debt, she may be discouraged from seeking and maintaining such employment. That is not in her or the community's interests. One should not take a narrow view of what is involved in the rehabilitation of an offender. Her full re-integration into the community should be promoted, not hindered. On the authorities referred to above, rehabilitation is a significant consideration vis a vis whether to make a compensation order and the quantum of such an order.

21 In addition to promoting the respondent's rehabilitation, there are at least three other considerations which, in my view, make it appropriate to award compensation commensurate with the respondent's current assets. First, by its verdicts, the jury must have accepted the respondent's claim that she was a victim of domestic violence or, at the very least, considered that a reasonable possibility. Second, whilst the pain and suffering of the applicants is substantial and undisputed, they did not have any contact with the deceased for approximately 14 years prior to late 2007. That, in my opinion, does bear upon the assessment of the closeness of the relationship of each applicant with the deceased. Thirdly, all of the applicants are adults.

22 Subject to the operation of s 85I of the Act, I award the deceased's two sons $55,000 each and his ex-wife $25,000.

23 I am required under s 85I to deduct from these awards the amounts paid to each applicant by VOCAT. Dale and Lyle Creamer each received $25,000 from VOCAT, and Buera Lynn Creamer received $10,000.

24 The end result is that I award $30,000 to each of the deceased's sons and $15,000 to his former wife.

[1] Transcript of Hearing, Creamer v Creamer (Supreme Court of Victoria, Beale J, 15 September 2015), 44:15-19.

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

[4] Stevens v Baxter [2009] VSC 257, [5].

[5] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, [50]. Neave JA's views were endorsed by Osborn J (as His Honour then was) in Liang and Zhu v Chalmers [2010] VSC 241, [54].

[6] R v Creamer [2011] VSC 196.

[7] Section 85G(1)(c) of the Act provides that on an application for a compensation order a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact.

[8] R v Creamer [2011] VSC 196, [37].

[9] [2000] VSC 327.

[10] I note in that case the children's mother was murdered by their father.

[11] Schloss & Ors in re Franscesco Farfalla [2002] VSC 385.