Applicants v Respondent

2 After pleading guilty to three charges of murder, Mr Jamieson, then aged 65 years, was sentenced in 2016 to life imprisonment with a non-parole period of 30 years.[1] He was refused leave to change his plea.[2] An appeal against conviction on the charge relating to Gregory was dismissed in 2017 by the Court of Appeal.[3] Mr Jamieson will probably spend the rest of his life in prison where he might attain a degree of rehabilitation. At the hearing of the application, Mr Jamieson's McKenzie Friend informed the court on his behalf, and in his presence, that he wanted to express remorse and contrition for what he had done and that any overt lack of such expression at an earlier stage was due to his psychiatric/psychological condition at the time.

3 Maree was born in 1960 and is presently aged 59 years. She is the eldest of the five children. Her mother Mary was aged 75 years when she died. Paul was born in 1961 and is presently aged 57 years. He is the second of Mary's children. Gregory was aged 48 years when he died. There are two other sisters. After a long marriage, Mary and her first husband separated and divorced. She married Peter in 1983 and he became the stepfather of the five children. At that time Maree was aged 23 years and Paul 21 years, so they had a good 31 years with Peter as their stepfather, who was aged 78 years when he died. He and Paul were close.

4 The circumstances in which the three murders were committed beggar belief. As described in the sentencing judgment, Peter and Mary lived on a farming property in Wedderburn and Gregory lived on a property nearby so as to be close to his mother and stepfather. Mr Jamieson lived with his wife just across the road from Peter and Mary. He became completely obsessed with the amount of dust being generated by Peter, Mary and Gregory when using a common road. This was ordinary low-order farm use, not intensive high-order industrial use. One tragic afternoon that is forever etched with acid in Maree and Paul's memory, Mr Jamieson went to his neighbour's property and stabbed Gregory to death with a hunting knife. He then returned to his home, loaded up two shotguns and walked back to the Lockhart's farm where he shot and killed Mary and Peter. Mr Jamieson shot Mary once to the head and twice to the body. He shot Peter twice to the head and twice to the body. Mary and Peter were so horribly mutilated by their wounds that the coroner would not let their family see them and they had to be identified by DNA.

5 Before determining the applications for compensation that arise out of these circumstances, it is necessary to decide whether or not Maree and Paul should be granted an extension of time. Applications for crimes compensation must normally be made within 12 months after the offender is found guilty, or convicted, of the offence (s 85C(1)(a)). The applications in the present case should have been made by 22 July 2017, 12 months after Mr Jamieson was sentenced. They were made on 25 October 2017, some 95 days later.

6 The court has power to grant an intending applicant an extension of time in which to make an application 'if it is in the interests of justice to do so' (s 85D(1)). The court may extend time before or after the time expires and whether or not the application is made before that time (s 85D(2)). Maree and Paul made their application for an extension of time after the time expired.

7 It is established that the test of whether it is 'in the interests of justice' to extend time is interpreted and applied liberally and flexibly.[4] That victims may seek reparation for crime is now just as much part of the system of criminal justice as the prosecution and trial of offenders. Based on human rights principles, this is internationally recognised.[5] Finality of legal proceedings, including of the processes of the criminal law, is an important objective,[6] of course. But this includes finality and closure for victims as well.[7] Crimes compensation can play an important role in bringing this about, for which an extension of time may be in the interests of justice. Prejudice to the offender is a relevant and potentially highly relevant consideration.[8] But otherwise legitimate claims for compensation should not be defeated unless real (not just presumptive) injustice is likely to be experienced by the offender. The discretion to grant an extension of time may be refused where the application might significantly diminish the offender's prospects of rehabilitation.[9] Where that is not so, time may be extended even where the delay has been long, especially where it has been adequately explained, as the decided cases reveal.[10]

8 The modest delay of about 95 days in the present case was explained mainly by reference to Mr Jamieson's appeal against conviction for murdering Gregory. He was convicted and sentenced upon the basis of his plea of guilty. As we have seen, his application for leave to set aside that plea was refused and his appeal against conviction was dismissed by the Court of Appeal. On legal advice, the applicants waited until the Court of Appeal handed down its reserved judgment before making the application for compensation. The understandable concern of the lawyers was that, if the appeal were to be successful, Mr Jamieson might end up being acquitted, in which case, however shocking the circumstances, crimes compensation would be ruled out in relation to Gregory's murder. So the view was taken that the applications in relation to Mary, Peter and Gregory would all have to wait.

9 The appeal process consumed almost the entire year within which the applications should have been made, and they were made only 95 days or so outside that time. This is an adequate explanation for the delay. Mr Jamieson is presently aged 68 years and will likely be in prison for the rest of his life. His rehabilitation, such as it may be, will not be prejudiced, and he will experience no injustice, if time were to be extended. I will therefore extend the time for the making of Maree and Paul's applications to 25 October 2017 (the day on which they were made).

10 Under s 85B(1) of the Act, an application for compensation may be made against a person found guilty, or convicted, of an offence by a person 'who has suffered any injury as a direct result of the offence'. The term 'injury' is defined broadly in s 85A(1):

injury means -

(a) actual physical bodily harm; or

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

(c) pregnancy; 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; ...

In relation to victims of crime, the concept of injury is not confined to physical harm but extends to grief, distress, trauma or other significant adverse effects, which captures the reality that the impact of crime, especially serious crimes of violence, is typically experienced by a victim not just at the physical level but at a deeply personal level: as injury to one's dignity and self-worth, to one's relationships with family and friends, to one's capacity to feel confident, trusting and secure, to one's sense of justice and to one's feeling of continuity, connection and belonging.

11 Under s 85B(2), a compensation order may be made up of amounts for (and only) the following:

(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.

12 These provisions differently mark out who is eligible and what is compensable: to be eligible to make an application for crimes compensation, the applicant must have suffered an injury (s 85B(1)) as a direct result of the offence; and then crimes compensation is available for pain and suffering (s 85B(2)(a)) and certain expenses (s 85B(2)(b)-(d)) experienced by the applicant as that direct result.

13 Section 85F(1) requires the court to hear and determine an application unless the relevant facts do not sufficiently appear from the evidence given at the hearing of the charge or any undisputed statement of material facts given by the prosecution, together with any admissions. Evidence may be given on the hearing and determination of an application (s 85G(1)) and the offender must be given a reasonable opportunity to be heard (s 85G(2)).

14 In determining the amount and method of payment of compensation, the court may (not must) take into account, as far as practicable, the financial circumstances of the offender (s 85H(1)), if known (s 85H(2)).

15 Under s 85I, the court must reduce compensation by any amount awarded under the Victims of Crime Assistance Act 1996 (Vic) 'for the expense or other matter for which compensation is being sought' under s 85B. That is fair, for otherwise there would be double compensation. This will be most relevant in relation to awards for pain and suffering under s 85B(2)(a) where an award for distress has been made under the Victims of Crime Assistance Act, for that is clear case of double-up. Where awards are made under that Act for expenses, they may not double-up with awards made under s 85B(2)(b)-(d) of the Sentencing Act and therefore may not need to be deducted. It will depend on 'the expenses or other matter for which compensation' (s85I) is being sought, as compared with what was awarded under the Victims of Crime Assistance Act. To apply s 85I, the court first assesses the amount of compensation for pain and suffering (and any eligible expenses) that is appropriate without reference to, and then reduces the amount actually to be ordered by, any award made under the Victims of Crime Assistance Act.

16 The provisions relating to orders for compensation do not take away from or affect the right of any person to recover damages in civil proceedings insofar as the compensation does not satisfy their full entitlements (s 85L).

17 Crimes compensation is based on the fundamental value of the common law and human rights law that every person has a unique human dignity that must be respected.[11] Of course, accused persons have that universal dignity, and their rights as alleged offenders are protected by long-established and fundamental rights, such as the presumption of innocence and the several elements of the fair trial guarantee.[12] The rights of victims of crime have not been sufficiently recognised in the past, but this has changed in the contemporary period.[13] It is now well-accepted that the human dignity of victims of crime is protected by a framework of rights and principles whose elements, in the language of human rights, may be explained as follows: recognition of the impact of crime and criminal justice processes upon them, and facilitation of their participation in appropriate (and evolving) ways in those processes (the right to respect);[14] judicial determination of the facts relating to the commission of the crime and identification of the persons who are criminally responsible (the right to truth);[15] prosecution, trial and (on conviction) punishment of offenders (the right to justice);[16] and restitution, compensation and other remedies, as well as protection from further wrongdoing (the right to reparation).[17]

18 These rights have deep philosophical and historical underpinnings.[18] The core right is enshrined in art 8 of the Universal Declaration of Human Rights,[19] which provides:

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Building on this core, international human rights instruments typically contain a provision requiring State Parties to respect and secure the specified rights and provide an effective remedy where a right is violated.[20] For example, art 2.1 of the International Covenant on Civil and Political Rights[21] requires State Parties (including Australia) 'to respect and to ensure' the specified rights 'to all individuals within its territory'. Article 2.3(a) requires State Parties '[t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy'. Crime involving violence against persons is a breach of the human rights of victims for which, under international law, they must have access to an effective remedy. In its modern conception, 'remedy' extends beyond the prosecution and sentencing of offenders through a disempowering criminal process that treats victims as mere witnesses in a line of seats in an excruciating waiting room or, even worse, mere anonymous observers in a cold public gallery with poor visibility and acoustics.

19 As regards domestic crime, the general right to an effective remedy in the UDHR and other human rights instruments laid the foundation for the adoption by the United Nations in 1985 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.[22] As regards international crime, it led to the adoption by the United Nations in 2005 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.[23] The resolution adopting the declaration of 1985 called upon Member States (including Australia), as regards victims of domestic crime, to take all necessary steps to give effect to the principles underlying these rights, including respect for dignity, access to justice and reparation.[24] The resolution of 2005 recognised, as regards victims of international crime, the right to equal and effective access to justice[25] and to adequate, effective and prompt reparation for harm suffered, and (influentially) expanded upon the concept of reparation.[26]

20 In common with most comparable countries, in Australia all jurisdictions have introduced or amended criminal justice legislation to give effect to these principles and rights, thus filling out in the contemporary period[27] the content of the criminal justice system in respects now considered to be indispensable. The main legislation in Victoria is discussed in RK v Mirik and Mirik[28] and includes the Victims of Crime Assistance Act 1996 (Vic), the compensation and restitution provisions of the Sentencing Act and the Victims Charter Act 2006 (Vic). Several human rights specified in the Charter of Human Rights and Responsibilities Act 2006 (Vic) implicitly or explicitly extend to victims of crime and protect a 'victim's fundamental human right to personal integrity',[29] which provides further support for recognising their interests and respecting their rights in the criminal justice system. The process is far from concluded.[30]

21 It is therefore now well-accepted that victims of crime are human beings whose fundamental rights are violated by violent criminal offending and whose dignity must be respected in the criminal justice system, including through participation in that system in various ways when appropriate. As one of its elements, reparation legislation (such as the compensation and restitution provisions of the Sentencing Act) is intended to vindicate their rights in a respectful and victim-centred manner. The purpose of such legislation is to recognise, remedy and as far as possible to alleviate the suffering of victims of crime upon the footing that they are entitled to respect as rights-bearing persons and should not to be treated as mere occasional contributors to a criminal trial or after-the-fact objects of pity or charity.

22 Divisions 1 and 2 of pt 4 of the Sentencing Act seek to achieve these purposes by giving victims of crime 'easy access'[31] to restitution and compensation 'in the criminal process'[32] itself. Better easy access to reparation in the existing criminal process than (relatively) hard access to damages in a separate civil process, for that would be burdensome, costly, slow and probably retraumatise the victim.[33] The principles governing the determination of applications for crimes compensation under s 85B reflect this fundamental reparatory principle and may be summarised as follows:

(a) An application may be made by a person who has 'suffered any injury as a direct result of the offence' (s 85B(1)) (emphasis added). But the definition of injury is wider than the concept of compensable injury at common law[34] and whether it has been suffered as a direct result of the offence is a matter of 'common sense and experience'.[35] A result may be brought about directly by more than one cause.[36] The categories of eligible victim are not closed and include for example adult children of dead parents.[37]

(b) While the court retains a fall-back discretion to refuse unsuitable compensation applications, the modern legislative expectation is that the trial or sentencing process will ensure that the court has what justice requires for the assessment of appropriate compensation against the offender in almost all cases.[38] That is the court's actual experience.

(c) For the victim's easy access to justice, the connection between an application for crimes compensation and the criminal justice process is important. Even so, it is the civil standard of proof that applies: the balance of probabilities.[39]

(d) The purpose of the order is to compensate the victim, not to punish the offender.[40] Therefore the court must not allow the proceeding to drift into a quasi-resentencing process in which an assessment is carried out by reference to the retributive rather than compensatory considerations. It is recognized that no award of money under s 85B(2)(a) can actually compensate for a victim's pain and suffering, for money and pain and suffering are incommensurable. The purpose of such an award is to restore the victim to the position that the victim would have been in had the crime not been committed and therefore the resulting pain and suffering had not been experienced, that is, to make the victim whole only so far as money can.

(e) Compensation for pain and suffering, which encompasses loss of enjoyment and amenities of life,[41] is assessed according to well-accepted principles that are applied by judges and juries in common law damages cases on comparable materials every day. At common law, the general principle of damages, which applies equally to the pain and suffering component, requires assessment of 'a sum which, so far as money can do, will put [the injured party] in the same position as he or she would have been in if [the wrong had not been committed]'.[42] It is understood that it is 'impossible to assess damages [and therefore crimes compensation] for pain and suffering and loss of amenities of life by any process of arithmetical calculation', but the amount must be 'fair and reasonable'.[43] The assessment is to be objective, rational and evaluative.[44] In the context of crimes compensation, what is required is an assessment of compensation for pain and suffering resulting from criminal conduct that has a particular impact upon the victim,[45] which is typically experienced at a deeply personal level (see above). Therefore, the focus is upon 'the actual impact' of the (criminal) acts of the offender upon the victim,[46] about which it is proper for judges 'to draw inferences from human experience',[47] not upon the compensability of the (tortious) acts of the offender at common law.[48] Relevant considerations include:

• the nature of the crime and the circumstances in which it occurred, as regards the impact of the crime upon the victim;
• where the applicant victim and the primary victim are different persons, the closeness of the relationship between the two;
• the age and background of the victim, as these bear upon the pain and suffering experienced by the victim, noting that, for crimes compensation purposes, as with common law damages, the offender takes the victim as found;[49] and
• most of all, having regard to the above, the nature and extent of the pain and suffering experienced by the victim as a result of the crime.[50]

(f) Under s 85H(1), the court may take the financial circumstances of the offender into account as a relevant but not as a controlling consideration.[51] This is not because the degree of the victim's pain and suffering is somehow reduced in the court's assessment by those circumstances. The court's assessment in that regard is autonomous. It is because, despite the degree of that pain and suffering, for reasons of legislated public policy,[52] the awarding, amount or terms of payment of the assessed compensation may be adjusted, even to nothing.[53] Where the court is not given evidence of the offender's financial circumstances, it may make an order anyway (s 85H(2)).[54] The court does not have to conduct an inquiry of its own motion into an offender's means. It is up to offenders to put their financial circumstances forward. The ultimate purpose of this discretion is to protect so far as possible the offender's prospects of rehabilitation, which is an important consideration, especially for the young and vulnerable. But in many cases, this is either not relevant or outweighed by other considerations, such as the pressing need to compensate the victim.[55]

(g) The court should avoid over-compensating the victim,[56] but not by applying a set discount or following a formulaic approach,[57] for each case must be decided on its own merits.

23 Turning to the assessment of compensation, the three crimes that were committed by Mr Jamieson were the murders of Maree and Paul's mother, step-father and brother. Gregory, the brother, was stabbed multiple times. Mary and Peter, the mother and step-father, were so badly mutilated by shotgun blasts that the family was not allowed to see them to say goodbye. The circumstances in which Mary, Peter and Gregory were killed have shaken Maree and Paul, the two eldest children, to their foundation and damaged their capacity to feel trusting and safe. The pain and suffering of these two applicant victims must be understood in the context that they lost a mother, step-father and brother, the primary victims, in a shocking multiple murder. The compensation must reflect the fact that this was three murders, not one.

24 The relationships between the applicant victims and the primary victims were intimate and familial. Maree and Paul were Mary's first two children, and they and Gregory (and the other two children) grew up together with their young mother (and father). Gregory was the youngest child and Maree saw him as her 'baby brother'. Peter was their step-father for 31 years. The family members maintained close contact. The relationships between Maree and Paul with Mary, Peter and Gregory is now, for unimaginable unnatural reasons, that of the living with the dead.

25 Maree and Paul are adults, aged 59 years and 57 years respectively, and therefore middle-aged and not children themselves. I take this into account. However, they were expecting, and were entitled to expect, to have Mary, Peter and Gregory as part of their lives for many years. Their backgrounds are unexceptional, and nothing did or could prepare them for the experience of their mother, step-father and brother being murdered, at all and especially in the particular circumstances. They had no previous psychological or psychiatric problems and the dreadful pain and suffering they have experienced has directly resulted from the crimes. They were normal people living normal lives to whom something horribly abnormal occurred, causing those lives to be redefined forever for the worse.

26 The nature and extent of Maree and Paul's pain and suffering was the subject of evidence.

27 In Maree's Victim Impact Statement, she stated that 'I cry for the loss of my mum everyday', saying they often talked and would meet in Bendigo. She refers to Peter as family and that she 'missed the banter of his opinions'. In reference to Gregory, she noted that he was happy and had plans for the future, concluding 'I miss him terribly and I am gutted at the loss of his potential at such a young age'. Maree adds that she was tormented by the words of the coroner regarding the severe injuries that her family members suffered, and haunted by the images in her mind of their final distressful moment. She describes having 'super sensitised fears for her children and grandchildren' and not being able to be in her home without every window and door being locked. At the time of making the statement, she was unable to participate fully in her life or in business, saying that Mr Jamieson 'destroyed my enjoyment of life'.

28 On 29 October 2014, Maree was first assessed by a psychologist. The report states that Maree 'presents as tearful and agitated at the beginning of each of her sessions to date, which was consistent with the violent, sudden and complexity of the deaths'. Maree scored in the severe range for depression and anxiety and a moderate level of stress on the DASS (Depression Anxiety Stress Scales) test. The report states 'there is a direct link between the client's current psychological problems and symptoms and the deaths of her family members. She became distressed talking about the deaths, particularly her Mother's. Her prognosis was described as favourable and that she 'will make steady progress through the issues'.

29 Maree was again assessed on 17 September 2015. The report states that A SUDS (Subjective Units of Distress) test was undertaken, in which she indicated levels of 6-7/10 in relation to her step-father's death, 10/10 in relation to her mother and 8-9/10 in relation to her brother. At the time of the assessment, the psychologist opined that she would benefit from further sessions to separately process her step-father's death, having 'only just begun to process his murder' and becoming sad and tearful when stating 'he didn't deserve to die that way'.

30 Maree has been awarded $30,000.00 for distress under the Victims of Crimes Assistance Act.

31 In Paul's Victim Impact Statement, he stated that 'the events of October 22nd, 2014, totally devastated me with the loss of my Mother, Stepfather and brother'. He said that he had a close relationship with the victims, describing hour-long phone calls with his mother, a shared love of music and lamenting the loss of 'a truly great person from my life'. Paul also had a close relationship with his stepfather, describing him as an important piece of the family and stating that 'I was certainly lucky to have him as a second father figure in my life'. Paul stated that the loss of his only brother Greg 'left an even deeper hole in my life' adding that 'he was my best mate for 48 years'. Since the day of the offending, Paul states that his life has been dramatically altered, that his family life has suffered and so too has his faith in religion, concluding that 'life has been a nightmare I wouldn't wish on anybody, and it's a nightmare that keeps on going'.

32 Paul was assessed by a mental health professional on 19 November 2014. The report states that he presented as a 54-year-old 'suffering a normal reaction of intense shock and grief following the violent and unexpected murder of three family members'. His life had been fundamentally altered. In a DASS self-assessment, Paul scored in the severe range for stress and moderate range for depression and mild range for anxiety. A second report dated 22 May 2015 noted that Paul's DASS scores in April 2015 were in the 'extremely severe' range in relation to depression, anxiety and stress, noting that this time was the six-month anniversary of the murders. At that time, Paul and his wife had recently cleared out the home of his mother and step-father and found the process to be re-traumatising and distressing. Paul described having a 'terrific relationship' with Peter following his biological father's death.

33 On 15 January 2018, a psychologist assessed Paul. The report states that 'he tried to feel nothing' for six months following the family deaths. However, at the time of the assessment, Paul still presented as tearful when reflecting upon the events, and 'visibly emotional'. In the first DASS self-assessment in late 2014, he had reported mid-anxiety and severe stress, but this had escalated to extremely severe depression, anxiety and stress by mid-2015. At the time of assessment in 2018, these symptoms had moderated to severe anxiety and moderate depression and stress. Paul was diagnosed as suffering from 'Adjustment Disorder with Mixed Anxiety and Depression'. The symptoms were assessed to be chronic and, due to the severity and trauma of the loss, Paul's recovery may never 'be fully achieved'. The prognosis was 'guarded'. Further counselling sessions were recommended, at a cost of $3,141.60.

34 Paul was awarded $30,000.00 for distress and $420.00 expenses for a counselling report under the Victims of Crimes Assistance Act.

35 In relation to s 85H of the Sentencing Act, the court has received virtually no information about Mr Jamieson's financial circumstances. By reason of his background, imprisonment and apparently poor health, I am prepared to infer that he has very limited means. He is the sole registered proprietor of the family home in Wedderburn, which is a rural property with a five-bedroom house where he lived with his wife. I am prepared to infer that it is joint matrimonial property for the purposes of the Family Law Act 1975 (Cth). To assist the court, Mr Jamieson supplied a recent rate notice that gave the property a capital improved value of $403,000, which is probably under its actual market value. A title search statement in respect of the property dated 23 February 2018 revealed registration of a first mortgage dated 24 October 2006, a restraining order under the Confiscation Act 1997 (Vic) dated 27 April 2015 and a caveat dated 29 April 2015 in favour of Leann Gay Caruana claiming an agreement with the registered proprietor.

36 The court has no evidence about how much is owing under the mortgage. It appears that the restraining order was made under s 15(1)(e) of the Confiscation Act for the purpose of satisfying any order for restitution or compensation under the Sentencing Act. Therefore, under s 30 of the Confiscation Act, 'the State must ensure that the order for ... compensation ... is satisfied, to the value of the restrained property, before any other purpose for which the restraining order is made'. The restraining order predates the caveat.

37 Leann Caruana is Mr Jamieson's daughter. Mr Jamieson and Ms Caruana have sworn affidavits stating that he and she have agreed that she would maintain the family home on behalf of her father and be compensated both as to principal and interest for doing so. She has provided a list of the expenses incurred and paid, including mortgage and farm maintenance expenses and personal expenses on behalf of Mr Jamieson, totalling about $128,000 and no doubt increasing. If the agreement is in writing, it is not in evidence.

38 The court is not in a position to make any findings in relation to the value of Mr Jamieson's interest in the property, whether in law, equity or under the Family Law Act. It is the same with his wife's interest. The court is not in a position to make any findings in relation to what legal claim Ms Caruana might be able to make against her father under the agreement in contract personally or in property law against the property.

39 This is not a case in which the court can or should take the financial circumstances of the offender into account under s 85H(1) of the Sentencing Act. There is insufficient evidence of Mr Jamieson's financial circumstances to enable the court to do so. If the mortgagee, Mrs Jamieson or Ms Caruana have any legal rights against Mr Jamieson with respect to the property or the proceeds of its sale (if that were to happen in consequence of compensation orders being made),[58] they will have the opportunity to exercise these rights if they wish to do so. The court will not take into account the possible existence and enforceability of any such rights in assessing the compensation payable to Maree and Paul by reason of Mr Jamieson's crimes because they have not been substantiated. More fundamentally, the impact of the crimes upon Maree and Paul has been so profound that it would be inappropriate to take Mr Jamieson's financial circumstances into account when assessing and ordering compensation, especially when regard is had to the fact that he is an elderly man who will probably spend the rest of his life in prison and whose potential for limited rehabilitation will not be seriously prejudiced by compensation orders.

40 To conclude, this is a case in which two adult children have sought compensation for pain and suffering against the man who murdered their mother, stepfather (of 31 years standing) and brother. In assessing compensation, I take into account cases in which the court has ordered compensation in favour of the children or siblings of deceased parents or siblings, noting the difference in circumstances.[59]

41 Ian Jamieson has been convicted and sentenced for the offences of murder of Mary and Peter Lockhart and Gregory Holmes. Mary and Peter were Maree St Clair's and Paul Holmes's mother and step-father. Gregory was their brother. Maree and Paul have suffered grief, distress and trauma, and other significant adverse effects, and therefore an injury, as a direct result of the crimes. Under s 85B(1) of the Sentencing Act, they are eligible to make, and have made, applications for an order for crimes compensation against Mr Jamieson. Those applications will be granted. The court's assessment of the compensation under s 85B(2) is:

• in the case of Maree St Clair, compensation for pain and suffering under s 85B(2)(a) in the sum of $130,000, reduced by the sum of $30,000 that she was awarded under the Victims of Crime Assistance Act, bringing the amount to be ordered to $100,000; and

• in the case of Paul Holmes, compensation for pain and suffering under s 85B(2)(a) in the sum of $150,000 and for reasonable counselling services pursuant to s 85B(2)(b) in the sum of $3,141.60, reduced by the sum of $30,000 that he was awarded under the Victims of Crime Assistance Act, bring the amount to be ordered to $123,141.60.[60]

42 There will be orders extending time and for compensation accordingly.

[1] DPP v Jamieson [2016] VSC 407 (22 July 2016) (Hollingworth J).

[2] DPP v Jamieson (Ruling) [2016] VSC 406 (22 July 2016) (Hollingworth J).

[3] Jamieson v The Queen [2017] VSCA 140 (16 June 2017) (Ashley, Osborn and Santamaria JJA).

[4] Robertson v Esso Australia Pty Ltd [2004] VSC 101 (19 March 2004) [4] (Cummins J) ('Robertson'); Marceta v Efandis [2016] VSC 265 (20 May 2016) [15] (Beach JA) ('Marceta'); Hunt v Akkus [2017] VSC 79 (7 March 2017) [28] (Jane Dixon J) ('Hunt').

[5] See eg Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN Doc A/RES/40/34 (29 November 1985).

[6] R_obertson_ [2004] VSC 101 (19 March 2004) [4] (Cummins J); Marceta [2016] VSC 265 (20 May 2016) [12] (Beach JA).

[7] Moresco v Budimir [2015] VSC 51 (25 February 2015) [14] (T Forrest J) ('Moresco').

[8] Marceta [2016] VSC 265 (20 May 2016) [14] (Beach JA).

[9] Robertson [2004] VSC 101 (19 March 2004) [4] (Cummins J), cited with approval in Shepherd v Kell [2012] VSC 80 (9 March 2012) [13]-[14] (Lasry J_)_; Moresco [2015] VSC 51 (25 February 2015) [15] (T Forrest J).

[10] See, eg, Marceta [2016] VSC 265 (20 May 2016) (Beach JA) (more than seven years); Hunt [2017] VSC 79 (7 March 2017) (Jane Dixon J) (nearly seven years).

[11] See generally RK v Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 625-627 [5]-[9] (Bell J) ('Mirik and Mirik').

[12] See Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24-5.

[13] See generally David Miers, 'Offender and state compensation for victims of crime: Two decades of development and change' (2014) 20(1) International Review of Victimology 145, 147.

[14] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN Doc A/RES/40/34 (29 November 1985) annex, [4]-[6]; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UN Doc A/RES/60/147 (21 March 2006, adopted 16 December 2005) annex, [1]-[3].

[15] Prosecutor v Katanga (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07, 13 May 2008) [31]-[36] (Judge Sylvia Steiner).

[17] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res 40/34, UN Doc A/RES/40/34 (29 November 1985) annex, [8]-[13]; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UN Doc A/RES/60/147 (21 March 2006, adopted 16 December 2005) annex, [15]-[23].

[18] See M Cherif Bassiouni, 'International Recognition of Victims' Rights' (2006) 6(2) Human Rights Law Review 203, 206-211; Jonathan Doak, Victims' Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Hart Publishing, 2008) ch 1.

[19] GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) ('UDHR').

[20] A list as at 2006 can be found in M Cherif Bassiouni, 'International Recognition of Victims' Rights' (2006) 6(2) Human Rights Law Review 203, 226, n 114.

[21] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 Mach 1976).

[22] GA Res 40/34, UN Doc A/RES/40/34 (29 November 1985).

[23] GA Res 60/147, UN Doc A/RES/60/147 (21 March 2006, adopted 16 December 2005).

[24] GA Res 40/34, UN Doc A/RES/40/34 (29 November 1985) annex, [4].

[25] GA Res 60/147, UN Doc A/RES/60/147 (21 March 2006, adopted 16 December 2005) annex, [12].

[27] For discussion of the historical legislation in Victoria: see R v Braham [1977] VicRp 11; [1977] VR 104, 107-12 (Young CJ, Gowans and Harris JJ); Gregory v Gregory [2000] VSC 190; (2000) 112 A Crim R 19, 25-6 [27]-[30] (Cummins J).

[28] [2009] VSC 14; (2009) 21 VR 623.

[29] Ibid 654 [147] (Bell J). See also ibid 625 [5] (Bell J).

[30] See Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016).

[31] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623. 627 [11] (Bell J).

[32] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 351 [24] (Vincent JA) ('Energy Brix'). See also 353 [30] (Vincent JA) approving the connection between the substantive criminal proceeding and the compensation proceeding under the Sentencing Act as stressed in DPP v Esso Australia Pty Ltd [2003] VSC 222 (23 June 2003) [8] (Cummins J).

[33] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 639 [66]-[68] (Bell J).

[34] Energy Brix [2006] VSCA 116; (2006) 14 VR 345, 346 [2] (Buchanan JA); Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 654 [145] (Bell J).

[35] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 417 [56] (Nettle JA)) ('Kaplan'). See also Moresco [2015] VSC 51 (25 February 2015) [22] (T Forrest J).

[36] Kaplan [2007] VSCA 42; (2007) 15 VR 405, 410 [24] (Buchanan JA, Vincent JA and Nettle JA agreeing).

[37] See Energy Brix [2006] VSCA 116; (2006) 14 VR 345, 357 [54] (Neave JA) and the cases there referred to; Stevens v Baxter [2009] VSC 257 (31 July 2009) (J Forrest J) ('Stevens').

[38] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 639 [66]-[68] (Bell J).

[39] Ibid 628 [14] (Bell J), cited with approval in Hunt [2017] VSC 79 (7 March 2017) [59] (Jane Dixon J).

[40] DPP v Robert Clive Parsons [2000] VSC 327 (10 August 2000) [24], [28] (Cummins J) ('Parsons'); Josefski v Donnelly [2007] VSCA 6 (31 January 2007) [14], [26] (Nettle JA, Buchanan JA and Vincent JA agreeing) ('Josefski').

[41] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [148] (Bell J).

[42] Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60, 63 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[43] Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 412, 413 (Gibbs CJ and Wilson J).

[44] Sullivan v Micallef [1994] Aust Torts Reports 81-308, 61,790 (Mahoney AP, Powell JA agreeing) (New South Wales Court of Appeal).

[45] Energy Brix [2006] VSCA 116; (2006) 14 VR 345, 353 [31] (Vincent JA), approved in Josefski [2007] VSCA 6 (31 January 2007) [21] (Nettle JA, Buchanan JA and Vincent JA agreeing). See also Liang v Chalmers [2011] VSCA 439 (16 December 2011) [5], [14] (Maxwell P, Redlich JA and Kyrou AJA) ('Liang').

[46] Energy Brix [2006] VSCA 116; (2006) 14 VR 345, 353 [31] (Vincent JA).

[47] Liang and Zhu v Chalmers [2010] VSC 241 (4 June 2010) [54] (Osborn J) citing Josefski [2007] VSCA 6 (31 January 2007) [22] (Nettle JA, Buchanan JA and Vincent JA agreeing). See also Tanner v Smart [2010] VSC 463 (15 October 2010) [26] (Lasry J) ('Tanner'). The appeal against the decision of Osborn J was dismissed: Liang [2011] VSCA 439 (16 December 2011).

[48] Josefski [2007] VSCA 6 (31 January 2007) [21] (Nettle JA, Buchanan JA and Vincent JA agreeing).

[49] For the underlying principle of the common law, see generally Carolyn Sappideen and Prue Vines (eds), Fleming's the Law of Torts (Thomson Reuters, 10th ed, 2011) 247-9 [9.170].

[50] See Energy Brix [2006] VSCA 116; (2006) 14 VR 345, 356-7 [50] (Neave JA) approved in Liang [2011] VSCA 439 (16 December 2011) [4] (Maxwell P, Redlich JA and Kyrou AJA).

[51] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 652 [135] (Bell J).

[52] Disputed in Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 236-7 [9.50].

[53] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 643 [101] (Bell J).

[54] Josefski [2007] VSCA 6 (31 January 2007) [8] (Nettle JA, Buchanan JA and Vincent JA agreeing); Tanner [2010] VSC 463 (15 October 2010) [29] (Lasry J).

[55] Stevens [2009] VSC 257 (31 July 2009) [35] (Forrest J).

[56] Mirik and Mirik [2009] VSC 14; (2009) 21 VR 623, 656 [153] (Bell J); Sullivan v Gibson [2018] VSC 785 (14 December 2018) [95]-[98] (Croucher J).

[57] Kelley v R1 [2016] VSCA 90 (6 May 2016) [21] (Beach and Ferguson JJA).

[58] Under s 85M of the Sentencing Act, compensation orders are taken to be and may be enforced as judgment debts, which might lead to the sale of the property.

[59] See Parsons [2000] VSC 325 (10 August 2000) (Cummins J) ($125,000 for teenage children, $75,000 for adult sister); Energy Brix [2006] VSCA 116; (2006) 14 VR 345 (Buchanan, Vincent and Neave JJA) ($50,000 for adult daughter and $35,000 for adult son); Stevens [2009] VSC 257 (31 July 2009) (J Forrest J) ($240,000 for each of two children, aged 8 and 12 years); Tanner [2010] VSC 463 (15 October 2010) (Lasry J) ($80,000 for adult brother); Moresco [2015] VSC 51 (25 February 2015) (T Forrest J) ($20,000 for adult sister); Hunt [2017] VSC 79 (7 March 2017) (Jane Dixon J) ($40,000 for adult sister).

[60] Paul received an award of compensation under the Victims of Crime Assistance Act of $420.00 for a counselling report. The amount of $3,141.60 is for future counselling for which he has not received compensation under that Act. Therefore there is no double-up and the amount of $420.00 need not be deducted under s 85I of the Sentencing Act from the award.