Applicants v Respondent

3 However, no evidence was filed in support of any claim under s 85B(2)(b), (c) or (d). No submissions were addressed to these issues. Accordingly, I will determine the applications with reference to pain and suffering demonstrated by the applicants.[2]

4 On 20 April 2016 the respondent, Andrew Lee, presented himself to Victoria Police. He was arrested and charged with the murder of Patrick Cronin. Mr Cronin had been killed by a punch to the head thrown by Mr Lee during the course of an affray at the Windy Mile Hotel in Diamond Creek on 16 April 2016.

5 On 20 June 2016 Emerton J granted Mr Lee bail, being satisfied that exceptional circumstances justified that order. Her Honour's conclusion was based on her view of weakness in the prosecution case, namely proof of murderous intent at the time the fatal punch was thrown.

6 In May 2017, committal proceedings commenced. On the first day of that hearing, the prosecutor announced that the charge of murder would not proceed. At the conclusion of the committal, Mr Lee was committed for trial in this court on the charge of manslaughter.

7 Prior to the commencement of the trial before Lasry J on 6 September 2017, the Director of Public Prosecutions filed a notice pursuant to s 9A of the Act. That notice foreshadowed an intention to seek a statutory minimum sentence of ten years, if certain matters about Mr Lee's conduct and its effect were proved beyond reasonable doubt.

8 On 8 September 2017, Mr Lee was re-arraigned at his request and pleaded guilty in the presence of the jury. Shortly thereafter, the prosecutor filed a revocation of the s 9A notice. A plea was heard on 3 October 2017.

9 On 10 November 2017, Lasry J sentenced Mr Lee to imprisonment for eight years and fixed a non-parole period of five years.[3]

10 In the course of his sentencing remarks, Lasry J stated that Mr Lee could not be criticised for not having pleaded guilty to murder.[4] And, that Mr Lee's plea of guilty to manslaughter came late, but after it was clear that the prosecution would not contend that the mandatory sentence provisions applied.[5]

11 Each of the applicants has been awarded a sum of compensation by the Victims of Crime Assistance Tribunal ('VOCAT') pursuant to the Victims of Crime Assistance Act 1996, as follows:

(a) Matthew Cronin was awarded a total of $50,000, comprising $19,326.37 for funeral expenses, $13,485.80 for an overseas holiday, $3,750 for counselling and $13,437.83 for distress.

(b) Robyn Cronin was awarded a total of $33,690, comprising $3,100 for counselling and $30,590 for distress.

(c) Emma Cronin was awarded a total of $8,750, comprising $3,750 for counselling and $5,000 for distress.

(d) Lucas Cronin was awarded a total of $7,250, comprising $2,250 for counselling and $5,000 for distress.

12 On the afternoon of 16 April 2016, Patrick Cronin played football for the Lower Plenty Football Club. At about 7pm, he and several friends arrived at the home of another friend, Ashton Johanssen, where they ate and drank some alcohol. At about 9.30pm the group walked to the Windy Mile Hotel, where they met with other friends. Mr Lee, with a group of his friends, arrived separately about 50 minutes later.

13 At about 11pm, a fight commenced outside the hotel. Patrick Cronin left his position near the bar to walk outside. CCTV footage recorded him taking hold of his friend, Anthony Hopkins, either trying to help him or persuade him to leave. Mr Lee also went outside and observed the fight for about a minute before he approached Patrick Cronin and Anthony Hopkins. Mr Hopkins was involved in a struggle with others, including a Mr Burns, a friend of Mr Lee. Patrick Cronin took no active part in the fight.

14 Mr Lee threw three punches. The first was aimed at Mr Hopkins and struck home. The second was also aimed in the direction of Mr Hopkins but struck Patrick Cronin to the right side of his head. It was a hard punch. The force sent Patrick Cronin stumbling sideways. The third did not connect with anyone.

15 Mr Lee then engaged further in the fight. Patrick Cronin removed Mr Hopkins from the area, then assisted two others in leaving the area of the fight. Police then arrived and the fighting ceased.

16 Patrick Cronin told several of his friends that he had been struck to the right of the head during the fight. They returned to the home of Mr Johanssen at about 11.30pm. Patrick Cronin immediately complained of feeling unwell. By 12.30 am, his condition had deteriorated significantly and he was vomiting. He then had a seizure and was convulsing. His mother was called at about 1.00am and an ambulance at about 1.15am. By the time it arrived, Patrick Cronin was unconscious.

17 Medical staff at the hospital determined that Patrick Cronin had suffered a significant haemorrhage on the right side of the brain and that the injury was not survivable. He died at 8.25pm on 17 April 2016.

18 In relation to Mr Lee's offending, Lasry J said:

In relation to the offence itself, I have examined the CCTV footage which was played in Court a number of times and I have also examined it in my chambers. As Mr Kissane finally conceded on behalf of the prosecution, I could not be satisfied beyond reasonable doubt that the blow struck by you to Patrick Cronin was intended by you for him. It was put on your behalf that your interest in the conflict was in defending your friend Burns. Nonetheless, your actions are to be condemned because, apart from anything else, you intervened when there was no need to do so. Mr Morrissey on your behalf conceded as much. Further, and unlike Patrick Cronin, your intervention was violent and caused a tragedy.

It is not to your credit that you intended to hit Hopkins and succeeded. You should have remained standing and watching, or preferably followed the example of Patrick Cronin and done what you could have to prevent the fight from continuing. However, that said, it does appear that the blow from you which struck Patrick Cronin was in fact not intended for him as far as you were concerned and I will sentence you on that basis. That notwithstanding, it is significant that the one person who suffered the terrible consequences of this incident was the person whose behaviour featured no aggression whatsoever. It must have been obvious to you because you had watched for a period of time that Patrick Cronin's actions were to defuse the situation rather than contribute any form of aggression.

On any view you acted violently and that violent act had a dreadful consequence. The nature and gravity of your offending was significant. However, it is not suggested that on that night you had entered the hotel with any intention of engaging in physical violence. Your actions were spontaneous and occurred over a few seconds during which you made a terrible mistake. As I understand it, there is no explanation for your spontaneous conduct which is concerned with alcohol or drugs.[6]

19 Mr Lee sought leave to appeal against his sentence. That application was refused by Kyrou JA on 21 March 2018.[7] His Honour noted that Lasry J had made an assessment of the gravity of Mr Lee's offending in accordance with statutory requirements, as he was obliged to do.[8] His Honour found that Lasry J was correct to treat the nature and the gravity of the offending as 'mid-range'[9] and identified the following six factors as relevant to the appropriateness of that descriptor:

(a) The offending was neither provoked nor spontaneous.

(b) Mr Lee's determined manner to reach Mr Burns was indicative of his intention to inflict harm on Mr Hopkins.

(c) Upon reaching Mr Hopkins, the blows were struck in quick succession and without hesitation or warning.

(d) Mr Lee was in no personal danger which necessitated his intervention.

(e) Mr Lee would have been aware that Patrick Cronin was not a participant in the hostilities.

(f) Mr Lee punched Patrick Cronin from behind, while he was defenceless.[10]

20 Each of the applicants swore an affidavit. Additionally the applicants relied upon three reports of Carolyn Amey, a psychologist, with respect to Matthew Cronin, Emma Cronin and Lucas Cronin;[11] a report of Dr Lisa Forrester, a psychologist, with respect to Robyn Cronin;[12] and four reports of Dr Lester Walton, a psychiatrist, with respect to each applicant.

21 Matthew Cronin and Dr Walton each gave evidence and was cross-examined at the hearing of the applications.

22 In his affidavit dated 8 October 2018, Matthew Cronin states that the afternoon of 16 April 2016 was one of his proudest days as a father; he saw his two sons, Patrick and Lucas, play their first senior football game together. He contrasts that feeling with the events of 17 April 2016. At 3:00am making phone calls to Emma and Lucas to tell them that they needed to attend the Royal Melbourne Hospital. Hearing the words 'I'm sorry. Patrick has had a major brain bleed on his brain, we can't operate'. Lying in bed with Patrick all night, knowing his life support system would be turned off in the morning. Being brave and calm for the sake of his family.

23 Patrick died on the day of his paternal grandfather's 80th birthday. The planned party, where all 19 grandchildren would have gathered, did not happen. Instead, family members were at the hospital, saying their goodbyes to Patrick.

24 Matthew Cronin found arranging his son's funeral particularly difficult. A phone call from the coroner's office in which he was informed that Patrick's hair would be shaved and his brain retained for some weeks was particularly harrowing. Patrick was buried without his brain. It was later cremated and sent to the funeral home for Matthew Cronin to collect and deal with.

25 Mr Cronin states that he lives in fear for his two children, as well as his nieces and nephews, whenever they go out. He fears the ring of the telephone which might bring news that Emma or Lucas have been hurt.

26 Patrick Cronin was an avid footballer. His father misses watching him play and mourns that his two sons will never again play together. He has resigned as the secretary of the Lower Plenty Football Club. While he still attends AFL Richmond games with Lucas, there is an empty seat between them.

27 Matthew Cronin states that the financial impact on his family has been immense. Aside from funeral, counselling and medication costs, Patrick's death has significantly interrupted his income. He had been a partner of a successful financial planning practice. Following Patrick's death, Mr Cronin did not work at all for 2 months, burdening his partner. The practice's 13 staff members have suffered secondary grief and loss of productivity.

28 He deposes that the cost of restructuring the partnership will run into millions of dollars in both lost income and capital value. That in turn affects his ability to retire and his financial legacy for Emma and Lucas. Mr Cronin has resigned from the board of AMP Financial Planners Association.

29 Matthew Cronin speaks of his frustration with the legal process. He perceives that he and his family has been put through hell while Mr Lee, who denied his guilt for 17 months, was admitted to bail and afforded protection.

30 Mr Cronin does not have words to fully express the impact of his son's death. He speaks of emptiness and a now incomplete family. He reflexively sets a table for five. Birthdays and Christmases are hard. He does not have the concentration and capacity he once had. He no longer enjoys cycling, music or camping with his father and son camping group. He mourns the loss of Patrick's future.

31 Matthew Cronin was cross-examined as to the founding and operation of the Pat Cronin Foundation. He said that he made a significant contribution to it. He was a full-time financial planner and worked on the foundation in his spare time. He said the Foundation is a registered charity, so he has governance responsibilities. It has two employees. He said that the contribution he makes to the community through the Foundation made him feel bittersweet. He knew they were saving lives, but it was all about his son, Patrick.

32 In her report dated 28 June 2016, Ms Amey writes that she had met Matthew Cronin for three counselling sessions since his son's death. Those counselling sessions explored strategies for coping with grief and loss and the legal system. By June 2016, Mr Cronin had established a foundation - The Pat Cronin Foundation - 'to focus on social change and public education as a method for him and his family to cope and to make a difference in society thus hopefully assisting prevention of the crime of the lethal coward punch'.[13]

33 As to Matthew Cronin's then prognosis, Ms Amey opined:

Matt has an excellent prognosis with the benefit of no confounding history of psychological problems and the existence of great family and community support. Having said this, the death of his son is a huge loss and threatens to introduce massive change to his world and the world of his family. Matt shows great resilience to the event of loss and is determined to find a role in preventing the violence of the coward punch and using his experience to educate the public and influence societal change.[14]

34 For the purposes of this application, Matthew Cronin was psychiatrically assessed by Dr Walton on 18 October 2018. Dr Walton notes that Mr Cronin reported the following:

(a) He found the criminal legal proceedings as 'hellish'. The protracted denial of guilt until a negotiated plea on the third day of trial was particularly difficult to endure. He regards the sentence as overly lenient. He perceives that Mr Lee has not shown any remorse.

(b) He underwent psychological counselling with Ms Amey for about 18 months. This ceased in December 2017.

(c) He has thrown himself into the Pat Cronin Foundation, which occupies one day per week. He works part-time, four days a week, as a financial planner to existing clients. He asserts a substantial financial loss from the restructuring of his previous partnership.

(d) His overall levels of anxiety have subsided, but brief bouts of lowered mood continue on a daily basis. His insomnia has improved. His capacity to concentrate has diminished.

35 In Dr Walton's opinion, Matthew Cronin is suffering a chronic adjustment disorder with mixed anxiety and depression. He does not suffer post-traumatic stress disorder. He is reasonably emotionally resilient and adaptive. This has made his psychiatric disorder somewhat less intense than it might have been. His psychiatric symptoms have diminished in intensity and now plateaued. The residual symptoms will likely persist for the foreseeable future. Mental health intervention is not required currently. Nor it is it likely to be required in the future. Mr Cronin's prognosis is 'reasonably favourable'. He exhibits 'a significant partial incapacity for work on psychiatric grounds'.

36 In oral evidence, Dr Walton clarified that Matthew Cronin's chronic adjustment disorder was a psychiatric injury.

37 In cross-examination, Dr Walton said that adjustment disorders were at the milder end of the spectrum and Mr Cronin would fall in the mid-range of that group. Dr Walton said that he conducted no formal testing of Mr Cronin (nor of any of the other applicants). The diagnosis of an adjustment disorder is a clinical one; it rests on the history provided in combination with observations of the person.

38 Dr Walton said that in describing Matthew Cronin's disorder as mid-range within the mild end of the spectrum, that related to both the frequency and intensity of his symptoms. Dr Walton said that when anxiety and depression are factors experienced as part of an adjustment disorder, they are not themselves diagnosed as the primary mental disorder. That does not mean that they are sub-clinical.

39 Dr Walton said that Matthew Cronin's return to full time work and his involvement with the Pat Cronin Foundation was positive in terms of his lifestyle and determination, but was not a positive indicator that his psychiatric situation would improve further. It was an adaptive, coping strategy. Dr Walton agreed that Mr Cronin had feelings of satisfaction from both his financial planning work and his work with the Foundation.

40 Dr Walton described all four applicants as resilient and psychologically strong individuals.

41 In her affidavit dated 8 October 2018, Robyn Cronin speaks of her pride in Patrick, her youngest child, and her memories of comforting him as he grew. And of her particular pride and excitement on 16 April 2016 that Patrick and Lucas were playing their first senior football game together.

42 Mrs Cronin states that when she was telephoned and asked to go and collect Patrick from Ashton Johanssen's house, she thought he had had a few drinks. As the events of the night unfolded, the lights and colours left her world. She speaks of lying in the hospital bed with him, washing him before surgery and saying goodbye to him when he had died.

43 Robyn Cronin states that she spends many days at home and now finds it difficult to socialise. She finds it difficult to be away from her husband, Emma and Lucas as she worries something bad will happen to them. She despairs at the impact of Patrick's death on her broader family. She cannot concentrate, even on a book or a film. She is not able to look for employment. She dreams of seeing Patrick and hearing his voice. She lies on his bed and cries. She thinks that tall, skinny, long haired young men are him.

44 Mrs Cronin expresses frustration with the legal process.

45 She feels suffocated by extreme pain and grief. She also feels anger and hatred and an inability to forgive or move beyond her sadness and anger. Counselling, reflection and relaxation exercises do not assist.

46 Mrs Cronin takes blood pressure medication and antidepressants.

47 Mrs Cronin mourns the loss of a life that will never be lived. At the time of his death, Patrick Cronin was at university on a scholarship. He will never be married or have children. She finds visiting his grave heart wrenching.

48 In her psychological report dated 7 November 2016, Dr Forrester states that Mrs Cronin's presentation related to complicated grief. Her symptoms included ruminations about the evening her son died, sleep disturbance, social withdrawal, lowered mood and anger and frustration with the legal system.[15]

49 As to Mrs Cronin's then prognosis, Dr Forrester wrote:

I believe that Ms Cronin's treatment prognosis is good. However I note that whilst there are ongoing court processes taking place, this impacts upon her ability to finalise her grieving and move forward. Essentially the longer these legal issues take to be resolved, the longer it is likely to take for Ms Cronin's difficulties to resolve. Furthermore, as each hearing/court appearance approaches, Ms Cronin is likely to experience a deterioration in her emotional wellbeing and grief-related symptoms, as these events frequently act as triggers for past trauma.[16]

50 For the purposes of this application, Robyn Cronin was psychiatrically assessed by Dr Walton on 23 October 2018. Dr Walton notes that Mrs Cronin reported the following:

(a) The protracted legal proceedings were 'particularly harrowing'. She is disenchanted with the legal system. She regards it as more protective of offenders than victims.

(b) Mrs Cronin underwent psychological counselling for about six or seven months after Patrick's death. She found it helpful. She does not presently seek additional mental health intervention. The antidepressant medication prescribed by her general practitioner was also helpful. She also takes antihypertensive and anticholesterol medication.

(c) She and her husband have established The Pat Cronin Foundation, the office of which is in Patrick's former bedroom. Mr Cronin is more actively involved, but she is supportive. Mrs Cronin believes the Foundation does honour to her deceased son.

(d) She remains afflicted by psychological symptoms. She feels 'down'. She is sleeping better, but occasionally has distressing nightmares. She has gained some 20 kg in weight from a pattern of comfort eating. She had increased her alcohol consumption, but that is now reduced to 2 glasses of wine per weekend. She feels a bit 'cloudy'. She is shocked by the depth of her anger directed at Mr Lee.

51 In Dr Walton's opinion, Robyn Cronin is suffering from a pathological grief reaction, both in intensity and duration. She attracts a diagnosis of 'what is becoming a chronic post-traumatic stress disorder'. This is a psychiatric injury of a permanent nature. Further psychiatric treatment is not currently recommended. There is a risk of future deterioration which might necessitate the reintroduction of treatment. Mrs Cronin's prognosis is 'guarded'. Her condition has now stabilised and the current symptoms are likely to persist for the foreseeable future. She has a subtotal but very substantial partial incapacity for work.

52 In cross-examination, Dr Walton was asked to clarify what he meant by 'becoming chronic'. He said that the symptoms had been present for years and were likely to continue. Chronic means something that is enduring long-term. He was asked to explain what moderate severity meant. He said a diagnosis of post-traumatic stress disorder implies a more severe condition than an adjustment disorder. It was his impression that Robyn Cronin was suffering the most of any of the four applicants. Her condition is neither mild nor severe. Her symptoms had stabilised at the time of his consultation.

53 When asked about the use of the word guarded in his prognosis, Dr Walton said that was because of Robyn Cronin's continuing level of symptoms and that because of the trauma she has already experienced, she would be vulnerable to any further adverse life events, even of a milder nature.

54 In her affidavit dated 11 October 2018, Emma Cronin describes how her life changed forever when she was woken by a phone call from her father to say that Patrick was in hospital and she should attend as soon as possible. She states that saying goodbye, after hours of watching and waiting, was the hardest thing she has ever done.

55 Ms Cronin describes a void in her life; missing Patrick's cheeky grin and personality, his mere presence. She mourns the loss of his potential; he was clever and had just started university. He was at an age where he seemed to be maturing rapidly. She grieves that she will not share the milestones of her life with her brother.

56 Patrick's death has had a significant impact on Ms Cronin's social life. She lives in fear of someone being hurt. The sound of the telephone and someone running late make her fear the worst. She is scared if she sees a fight unfolding.

57 Ms Cronin finds the notoriety of Patrick's death intrusive and tiresome. She finds that even those close to her now treat her differently.

58 Ms Cronin suffers multiple sclerosis. She fears that stress will, in the future, exacerbate her symptoms.

59 Emma Cronin has found the legal process to be long and drawn out. She states that this has prohibited her from applying for new jobs and furthering her career. She had to take multiple days off work and, as a contractor, did not get paid. She states that she has lost clients and a significant sum of income. Ms Cronin says that she will always resent and hate Mr Lee.

60 In her psychological report dated 11 July 2016, Ms Amey states that she had met with Ms Cronin on three occasions. The majority of the counselling dealt with debriefing and assisting her to prepare to return to work. Ms Cronin presented with anxiety and depressive symptoms. She also expressed much anger as to the circumstances of her brother's death. Ms Cronin did not wish to continue counselling.

Emma's prognosis is very good given her very supportive and close family. In my opinion, it will be important that she return to counselling at the appropriate time that suits her to assist in the processing of her grief. Emma however, is a very intelligent and emotionally sensitive and empathic girl, who has the required qualities to address her complex emotions and resolve them thus coming to terms with her significant loss.[17]

62 For the purposes of this application, Emma Cronin was psychiatrically assessed by Dr Walton on 23 October 2018. Dr Walton notes that Ms Cronin reported the following:

(a) She is hypervigilent and hyperalert regarding potential danger, but did not describe more generalised anxiety. She has intermittent sleep disturbance, but has not been troubled by nightmares. She suffers bouts of sadness, but can see positives. She does not seek further mental health intervention.

(c) She is 'pretty angry' at what she perceives to be the lenient sentence imposed upon Mr Lee.

63 In Dr Walton's opinion, Emma Cronin's grief reaction is pathological. She is suffering an adjustment disorder with mixed anxiety and depression of relatively mild severity. This is a permanent psychiatric injury. Her prognosis is 'reasonably favourable'. Her psychiatric symptoms are now relatively few and not especially severe. They have plateaued and will likely persist for the indefinite future. She does not require further mental health intervention. She suffers no incapacity for work on psychiatric grounds. She has some social incapacity. There is no evidence of deterioration in her multiple sclerosis attributable to her brother's death.

64 In cross-examination, Dr Walton confirmed that Emma Cronin's adjustment disorder was at the mild end of the spectrum and experienced at a mild level. He said that both Emma and her brother seemed to be suffering somewhat less than their father.

65 In his affidavit dated 11 September 2018, Lucas Cronin speaks of the phone call he received in which he was told that his brother had been hit in the head and was in hospital. He describes driving to the hospital as an 'isolating moment', contemplating for the first time that Patrick might not survive. He was present at the hospital when the ambulance arrived and witnessed his brother being removed from it. He describes the despair and hopelessness of the next hours, and particularly remembers seeing his mother scream at the nurse who said that Patrick had an inoperable brain bleed.

66 Lucas Cronin mourns the lost future of his brother and the loss of the opportunity to share the future milestones of his own life with Patrick.

67 Mr Cronin says that he has become a difficult person to deal with. He is now prone to extreme mood swings, has difficulty concentrating and is quick to distance himself from his emotions. He has ended an intimate relationship. He avoids seeking other relationships. He is anxious in large crowds. He avoids pubs and bars. Lucas Cronin states that his anger and hatred will be with him for the rest of his life.

68 Football was a thing he loved and shared with his brother. Lucas Cronin now finds it difficult to play football or be at the Lower Plenty Football Club.

69 Patrick died during Lucas Cronin's final year of university. This impacted his studies and he missed applying for a number of internships and graduate programs. In the weeks immediately following Patrick's death, he declined a job with a tier one construction company.

70 In her psychological report dated 1 December 2016, Ms Amey states that she had met with Mr Cronin on one occasion. The counselling particularly sought to assist Lucas Cronin with heightened emotions experienced after he had viewed a film about his brother. He reported the year as having been traumatic. It had been one of personal achievement for him at university, in football and in securing a job as a construction manager. At the same time he expressed confusion and guilt at his joy in achieving and his own survival. He expressed a sense of deep loss.[18]

Lucas has an excellent prognosis for treatment. He is a thoughtful and intelligent young man who is extremely well supported by his family, and has a secure home base, relationships with friends and loving girlfriend.[19]

72 For the purposes of this application, Lucas Cronin was psychiatrically assessed by Dr Walton on 18 October 2018. Dr Walton notes that Mr Cronin reported the following:

(a) He remains aggrieved that Mr Lee pleaded guilty to manslaughter and not murder. He perceives the sentenced passed as being 'nowhere near enough'.

(b) He was initially shocked, but is now numb and confused. His depressed mood comes and goes. He has weekly bouts of intense hopelessness. He dreads their onset. He is irritable. He finds it difficult to sustain concentration. His symptoms have improved and he is hopeful of further improvement.

73 In Dr Walton's opinion, Lucas Cronin has an extended grief reaction pathological in its duration. He has an adjustment disorder with mixed anxiety and depression, of relative modest severity. This is a psychiatric injury. Mental health intervention is not recommended. His prognosis is 'mixed', in that he does not have a severely disabling psychiatric syndrome but his residual symptoms are likely to persist indefinitely. He has a minor incapacity for work, but it does not actually prevent him from working. Social incapacity is of quite minor proportions.

74 In cross-examination, Dr Walton confirmed that Lucas Cronin's adjustment disorder was at the mild end of the spectrum and experienced at a relatively modest level. It was more mild than that of his father.

75 The respondent relies upon two affidavits, one of Andrew Lee and the other of his wife, Candice Lee. Mr Lee gave evidence and was cross-examined at the hearing of the applications.

76 In his affidavit dated 18 October 2018, Mr Lee deposes that he was advised by his lawyer that the applicants intended to seek compensation orders under s 85B of the Act on 9 November 2017. On 10 November 2017 his instructions to indicate his desire for settlement discussions were communicated by email to the legal representative of the applicants. There was no reply to that correspondence.

77 Mr Lee states that he is 35 years old and undergoing a sentence of imprisonment, the earliest release date being August 2022. He is married and has a three year old son. Prior to his remand he was employed as a rigger/crane operator and his wife was studying. They owned and lived in a house in Diamond Creek. That house was subject to a mortgage. It is also subject to a restraining order. It has an estimated value of $700,000.

78 Mr Lee's wife and child currently live with her parents. The Diamond Creek house is leased to help offset living expenses. Rental income is almost $3,000 per month. Living expenses are almost $5,000 per month. Mrs Lee's parents assist in making up the shortfall. Mr and Mrs Lee also owe her parents $100,000 borrowed to fund legal expenses. Mrs Lee is in the final year of a Bachelor of Education degree at RMIT. Whilst a student, she receives a $150 Family Tax Benefit.[20]

79 In cross-examination, Mr Lee said that he and Mrs Lee had previously owned an investment property in St Kilda. That was acquired in 2012. It was sold after he had been sentenced and they lost money on the sale. He said he didn't know if the interest on the mortgage for the Diamond Creek house was claimed as an expense against the rental income received. He said he was not in a position to argue against the proposition that that property was currently valued at $813,000 and subject to a mortgage of approximately $80,000.

80 In her affidavit dated 20 May 2019, Candice Lee states her son is now four years old. She and he live with her parents. She receives $3,087.50 per month in rental income from the letting of the Diamond Creek house. That house is subject to a mortgage of $79,112.90. She also has a personal loan with a balance owing of $13,290.32.

81 Mrs Lee has graduated from RMIT with a Bachelor of Education degree. She is a part-time relief teacher earning about $22,000 per year. Her son is placed in childcare on days she works. Mrs Lee also receives $121.38 per fortnight in Centrelink payments.

82 Mrs Lee's mother has been diagnosed with stage 4 peritoneal mesothelioma. It is an aggressive and terminal cancer. Mrs Lee's mother undergoes treatment every three weeks at a cost of $3,000 per round. That cost is not covered by the pharmaceutical benefits scheme. Mrs Lee's step-father is the sole breadwinner. Mrs Lee cares for her mother and attends medical appointments with her.

83 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 does not mean that the consequence must be solely due to the offence. Rather, the crime must play a significant role in causing the compensable injury.[21]

84 As previously stated, s 85B(2) allows a compensation order to 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 likely to be incurred, by the victim as a direct result of the offence;

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

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

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

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

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

86 The relevant principles to applications of these kind were delineated by Bell J in RK v Mirik[22] 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).[23]

• An order for compensation is determined by the application, where relevant, of common law principles.[24] However the order itself is one for compensation not damages.[25]

• Where a claim for pain and suffering is maintained, it must be a direct result of the offence.[26]

• The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.[27]

• Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.[28]

• Unlike a common law claim for damages the financial circumstances of the offender are relevant.[29]

• 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. [30]

87 Where the court assess the quantum of compensation for grief and trauma, it is appropriate to consider:

• the circumstances in which the death occurred;
• 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 age of the person seeking compensation; and
• the extent of grief and psychological suffering experienced as a result of the loss.[31]

88 It is to be noted that an award of compensation under the Act is not made as a form of punishment of an offender. Rather 'it is an endeavour to address through the payment of money, the injury and loss sustained' by an applicant.[32]

89 If a court decides to make a compensation order, s 85I mandates that 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 Subdivision 1 of Division 2 of Part 4 of the Act.

90 In their joint written submissions, the applicants point to the circumstances in which Patrick Cronin's death occurred, drawn from the sentencing remarks of Lasry J summarised above. They submit that the offending was 'an extremely serious instance of manslaughter'.[33] The individual effect on each of them upon hearing of Patrick's injury, that it was non-survivable and then waiting for his life support system to be turned off are emphasised. So too is the closeness between all members of the Cronin family. Mr and Mrs Cronin are in their mid-50s. Emma and Lucas Cronin are in their mid-20s.

91 It is submitted, relying on upon the evidence summarised above that extent of grief and psychological suffering experienced by the applicants as a result of Patrick's death is all encompassing and 'has impacted upon every facet of their lives'.[34]

92 The applicants submitted that the court should not place significant weight on the financial position of Mr Lee.

93 The applicants' written submission was accompanied by a table of what was said to be comparable and distinguishable cases with respect to the appropriate quantum of compensation.

94 At the hearing of the applications, counsel was content to rely upon the written submissions. In reply to the oral submissions of counsel for Mr Lee, he submitted that the establishment of the Pat Cronin Foundation did not diminish the grief of the Cronin family.

95 In his written submissions, the respondent conceded that this court should make an award of compensation to each of the applicants for pain and suffering pursuant to s 85B of the Act. Those submissions highlight the 2016 prognosis of each applicant detailed by either Ms Amey or Dr Forrester and summarised above. He submits that the applicants have all completed counselling and have not required psychiatric intervention.

96 The respondent refers to his financial position. As to quantum, he provided a table of what he said were comparable and distinguishable cases with respect to the appropriate compensation. The respondent submits that these applications fall towards the bottom of the range of those cases because of the nature of the crime - 'mid-level manslaughter with no aggravating circumstances', the applicants are secondary victims not dependent upon the deceased, none suffer a diagnosed psychiatric or psychological condition requiring ongoing treatment and the respondent has a dependent child.

97 In oral submissions, counsel for the respondent conceded that each applicant had suffered injury and that their pain and suffering was the direct result of the death of Patrick Cronin, for which Mr Lee is responsible. An award of compensation in each application was appropriate.

98 Counsel submitted that the expressions of anger in each applicant's affidavit, whilst understandable, led to each applicant requesting this court to grant the application in part 'to hold the perpetrator to account'.[35] Counsel submitted that it would be an error of law to award compensation in the form of a financial penalty.

99 Counsel submitted that the evidence of Dr Walton with respect to each applicant's current state and prognosis was significant. She addressed the financial circumstances of Mr Lee (and his wife and child) and submitted they were relevant to the decision. Counsel further addressed the circumstances of the offence and the nature of the injuries as providing points of dissimilarity with other cases.

100 Each of the applicants has suffered an emotional and traumatic reaction to the killing of Patrick Cronin. I am satisfied that each has sustained a psychiatric injury as a direct result of the offending of Mr Lee. Matthew Cronin has a chronic adjustment disorder with mixed anxiety and depression. Robyn Cronin has what is becoming a chronic post-traumatic stress disorder. Emma Cronin and Lucas Cronin each have an adjustment disorder with mixed anxiety and depression. I accept the evidence of Dr Walton, rehearsed above, as to where these disorders sit on the spectrum of psychiatric illness, the severity of each applicant's symptoms and each applicant's prognosis.

101 The loss of Patrick Cronin to his parents and siblings cannot be adequately explained in words. They are simply insufficient to carry the weight of the sadness, hurt and anger felt by his family that his life was cut short through a criminal act. It is appropriate that I make awards of compensation to each of them for the pain and suffering they have endured.

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 conversation of a human emotion or psychological reaction to an amount of money exists.[36]

103 The awards I will make are to compensate, as far as money can, for the actual injuries caused. Those awards bear no relationship to the value of Patrick Cronin's life. Nor are they intended to further punish Mr Lee.

104 I take into account the circumstances in which Patrick Cronin's death occurred, as outlined above. Patrick Cronin was a non-combatant. There was no need for Mr Lee to intervene. The punch that struck Patrick Cronin was the second of three, thrown in rapid succession. It was hard. Mr Lee did not intend to strike Patrick Cronin. Mr Lee had no murderous intent. Lasry J was satisfied that Mr Lee was genuinely remorseful for his actions and their consequences.

105 I have not considered any descriptor of the objective gravity of this offending to be helpful or relevant in the present exercise. Indeed, the use of labels to describe the relative seriousness of a particular example of a particular offence is often not useful generally. In this example of the offence of manslaughter, Lasry J did not ascribe one. Kyrou JA held that Lasry J treated the offence as 'mid-range' and was correct to do so. Given that counsel for the respondent did not seek to persuade me that I should adopt a different view of the objective gravity of the offence from either the sentencing judge or the judge on appeal, I can only interpret the submission of the applicants that Mr Lee's offending was 'an extremely serious instance of manslaughter' to mean that what might be termed 'mid-range' is nonetheless extremely serious.

106 I take into account the evident closeness of the Cronin family, the ages of the applicants, the distress each of them experienced, spending the last hours of Patrick's life with him in hospital and the decision to be made about his funeral. I have already outlined the ongoing grief and suffering of each applicant.

107 I take into account, to some extent, the financial position of Mr Lee.

108 I will deduct the component of compensation for distress awarded by VOCAT to each applicant from the awards announced below. That is, $13,437.83 in respect of Matthew Cronin, $30,590 in respect of Robyn Cronin and $5,000 each in respect of Emma Cronin and Lucas Cronin.

109 I have considered the authorities referred to me by counsel for the applicants and the respondent.

111 Accordingly, pursuant to s 85B(1) of the Act I order that Andrew William Lee:

(a) pay compensation in the sum of $56,562.17 to Matthew Cronin;

(b) pay compensation in the sum of $59,410 to Robyn Cronin;

(c) pay compensation in the sum of $25,000 to Emma Cronin; and

(d) pay compensation in the sum of $25,000 to Lucas Cronin.

[1] Application SCI 2018 02538 filed 31 August 2018, [5].

[2] The written submissions of the applicants address issues relevant to s 85B(2)(a) and none other. The written submissions on behalf of the respondent, filed 25 October 2018, at [4] expressly proceeded on the basis that the applications were only for compensation for pain and suffering. Between that date and the date of the hearing on 30 May 2019, no further material relevant to s 85B(2)(b), (c) or (d) was filed by the applicants. Nor did the applicants make any oral submission that compensation should be awarded for any other matter.

[3] R v Lee [2017] VSC 678 ('Lee').

[7] Lee v R [2018] VSCA 63 ('Lee v R').

[11] These reports were all written for the purposes of recommending to VOCAT that the subject should have more than five hours of counselling.

[12] This report was written for the purposes of recommending to VOCAT that Robyn Cronin should have more than five hours of counselling.

[13] Amey Report (Matthew Cronin) 26 June 2016, [4.6].

[14] Amey Report (Matthew Cronin) 26 June 2016, [6.5].

[15] Forrester report, 7 November 2016, [5.1].

[16] Forrester report, 7 November 2016, [6.5].

[17] Amey Report (Emma Cronin) 11 July 2016, [6.5].

[18] Amey Report (Lucas Cronin) 1 December 2016, [5.1].

[19] Amey Report (Lucas Cronin) 1 December 2016, [6.5].

[20] The frequency of this payment was not clear.

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

[22] [2009] VSC 14. ('Mirik').

[25] Esso Australia Pty Ltd v Robertson [2005] VSCA 138, [21]-[30] (Warrant CJ, Batt and Chernov JJA).

[31] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116, [50] (Neave JA) ('Energy Brix'); Liang v Chalmers [2011] VSCA 439, [4] (Maxwell P, Redlich JA and Kyrou AJA_); Shepherd v Kell & Day_ [2013] VSC 24, [27 (Lasry J).

[32] Energy Brix, [30] (Vincent JA, Buchanan JA agreeing).

[33] Outline of Submissions of the Applicants, dated 24 October 2018, [13.3].

[34] Outline of Submissions of the Applicants, dated 24 October 2018, [17.2].

[35] The phrase appears as part of the final sentence of each applicant's affidavit.

[36] Energy Brix, [36] (Vincent JA, Buchanan JA agreeing).