Applicants v Respondent

2 Fernando was found guilty by jury, on 15 June 2017, of murdering Teresa, his estranged wife.[3] On 21 December 2017, Bell J sentenced Fernando to 30 years' imprisonment, with a minimum non-parole period of 25 years.[4] Fernando sought leave to appeal his conviction. The application for leave to appeal was granted with respect to 1 of the 2 grounds, but the appeal was dismissed on both grounds on 21 November 2018.[5] Very recently, Fernando has taken steps to make an application for an extension of time to seek special leave to appeal to the High Court of Australia against his conviction. At the time of the hearing of this application, no documents had been filed with the High Court.[6]

3 For the reasons that follow, compensation orders will be made in favour of each of the applicants, though not in the amounts sought.

4 Section 85C(1)(a) of the Sentencing Act requires that an application for a compensation order be made within 12 months after the offender is found guilty, or convicted, of an offence. Any application for compensation was therefore required to be made by 15 June 2018.

5 However, section 85D(1) of the Sentencing Act confers a discretion on the court to extend the time within which an application for compensation may be made where the court is of the opinion that it is in the interests of justice to do so. This discretion may be exercised where the application for an extension of time is made after the statutory time limit has expired.[7] On 25 July 2019, approximately 25 months after Fernando was found guilty, an application for an extension of time was filed on behalf of Daniel, Luke and Patrick.

6 It was submitted that the delay in bringing the application for compensation was, in part, attributable to Fernando's appeal against conviction, which caused confusion as to the correct time within which the application could first be made. Daniel and Luke gave evidence that they mistakenly believed they had to await the outcome of the decision of the Court of Appeal before they could make this application. It was not until early 2019 that they decided to get legal advice about the situation.

7 Further, the solicitor who had been acting for Patrick, and initially gave advice that any application for compensation could not be made until there was a conviction, passed away in 2017. Patrick incorrectly assumed that the solicitor had given full instructions to someone in his firm of the intention of each of the applicants to make a compensation application, but did not learn until March 2019 that this was not the case.

8 Additionally, it was submitted that the delay was also attributable to the enduring grief stemming from Teresa's murder. Once legal advice had been obtained, time was taken to have discussions with various family members regarding the prospects of applying for compensation. After these discussions, it was decided that Luke, Daniel and Patrick would seek compensation.

9 For the reasons that follow, it is in the interests of justice to grant an extension of time to Daniel, Luke and Patrick.

10 First, a liberal construction should apply to the meaning of "interests of justice" as "[v]ictims should not be shut out readily" by the time limit prescribed in section 85C(1)(a) of the Sentencing Act.[8] The purpose of the court's power to order compensation to victims of crime under the Sentencing Act is to provide victims with quick, efficient and cheap access to redress.[9] Fernando has been found guilty of murder. In the sentencing hearing, Bell J characterised the offending as a very serious example of the crime of murder and a "grievous breach of trust".[10] Daniel, Luke and Patrick are the victims of this egregious crime. They should not be so readily barred from making an application under a legal system that was designed to provide an accessible compensation regime for victims of criminal offending.[11]

11 Secondly, Fernando does not oppose the application for the extension of time.

12 Thirdly, Daniel, Luke and Patrick have strong cases for compensation.[12]

13 Fourthly, the delay in question, although not immaterial, pales in comparison to the delay in other compensation applications where an extension of time has been granted.[13] The delay in this case has not engendered "prejudice of a forensic variety".[14]

14 Fifthly, the issue of finality of litigation must be considered. The purpose of a limitation clause is to ensure finality of litigation for defendants,[15] and the court must balance this with the countervailing interest of applicants seeking compensation.[16] In the context of criminal offending, finality "cuts both ways"; victims of crime are also entitled to some form of finality, in the form of compensation.[17]

15 Sixthly, Fernando's prospect of rehabilitation must be considered, and must not be prejudiced by delays in bringing applications for compensation.[18] The delay in this case has not generated significant, if any, prejudice or injustice;[19] particularly in circumstances where Fernando will serve a minimum of 25 years' imprisonment before he is eligible for parole, of which some 20 years remain.[20]

16 Accordingly, all the key considerations point towards an extension of time being in the interests of justice. Therefore, an order will be made granting Daniel, Luke and Patrick an extension of time.

C. The substantive application for compensation

17 The circumstances of the offending are set out in detail elsewhere;[21] for the purposes of this application it is sufficient to provide a brief summary.

18 On the evening of 15 July 2013, Fernando murdered Teresa, his estranged wife of some 23 years, in the garage of her mother's residence in Reservoir.[22] Teresa had separated from Fernando in January 2010, after years of enduring an unhappy marriage, and moved in with her mother. In the hours before her murder, Teresa had attended a family dinner, which Daniel and Luke also attended. At the time of her murder she was alone.

19 Teresa's body was discovered after neighbours, having heard their names called and being unable to contact Teresa, phoned her sister. Teresa's brother-in-law, accompanied by his friend, attended the residence and discovered Teresa's body, lying face down in a pool of blood, in the garage located at the rear of the property.

20 A post-mortem examination of Teresa's body revealed, amongst other injuries, at least 16 stab wounds to the chest, abdomen and back, and blunt force trauma and lacerations to the Teresa's head and face. The degree of force required to produce such injuries was "severe".[23] In sentencing Fernando, Bell J described him as being driven by "jealously, hatred and rage", and the crime as being "carried out with weapons, coldly and callously", involving "careful planning and premeditation" and a "high degree of violence".[24]

21 The circumstances leading up to the offending involved a bitter dispute over property (including the matrimonial home), a history of threats to kill, humiliation, nuisance calls, stalking and related behaviours, character assassination, and abusive and frightening behaviour. Worse still, the murder was committed in the face of an intervention order, intended to afford legally enforceable protection to Teresa from Fernando. Yet, notwithstanding this order, Fernando regularly stalked and threatened Teresa, which finally culminated in Teresa's brutal and untimely death. To reiterate what was said by Bell J, this offending was a "very serious example of the crime of murder",[25] involving the "intentional destruction of life" for which there was "no remorse".[26]

22 Fernando maintained his innocence.[27] He is still contesting his conviction.[28]

23 Although the prosecution's case was circumstantial, the Court of Appeal described it as "very strong, if not overpowering".[29] The prosecution relied upon, among other factors: (1) the opportunity to offend; (2) a strong motive demonstrated by Fernando's obsessive conduct towards, and "searing hatred" of, Teresa subsequent to their separation and the initiation of family court proceedings; (3) Fernando's behaviour being out of character on the evening of the murder; and (4) Fernando's sparse reaction to being officially told of Teresa's death.[30]

C.2 Applicable provisions of the Sentencing Act and relevant principles

24 The court's jurisdiction to award compensation is set out in Division 2 of Part 4 of the Sentencing Act.

25 Specifically, section 85B(1) provides that, where a person is found guilty of an offence, a court may make an order for compensation against the offender in favour of a victim who has suffered injury as a direct result of the offence.

26 In this context, injury includes mental illness or disorder (or exacerbation of a mental illness of disorder), grief, distress, trauma or other significant adverse effect, or any combination of these matters.[31]

27 The Sentencing Act does not define "as a direct result of", but for the purposes of section 85B, it is taken to mean "an injury that is judged as a matter of fact, according to common sense and experience, to have been caused by the offence".[32] There is no requirement that the crime be the sole cause of the injury sustained; it is sufficient that the offending played a significant role in the injury that is the subject of the claim.[33]

28 The court's power to make an award for compensation is discretionary. Common law principles are relevant to determining an order for compensation;[34] but they do not curb the types of injuries that are compensable, and the court may take into account that the injury has been suffered because of a crime.[35] In the context of an application for pain and suffering, the injuries compensable include "loss of enjoyment and amenity of life".[36]

29 Applications made under the compensation regime set out in the Sentencing Act are incidents of criminal proceedings.[37] The regime is not punitive.[38] Rather, the regime is geared towards compensation and restitution of victims;[39] it is "an endeavour to address through the payment of money, the injury and loss sustained" by the victims.[40] Therefore, when assessing compensation, the focus is on the actual effects on the victim;[41] the assessment is to be objective, rational and evaluative.[42]

30 If the court is minded to make a compensation order, the financial circumstances of the offender, and the burden the payment will impose, may be considered in determining the amount and method of payment.[43] The offender's rehabilitation must be properly considered, but ultimately is not determinative or controlling of the discretion to award compensation; and, at all times, must be balanced with the victim's interests.[44]

31 In assessing the quantum of compensation, where grief and trauma were the substance of the application, Neave JA in Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd considered the following factors to be relevant:[45]

(2) The effect on the victim on hearing, at the time, of the events causing the loss.

(3) The closeness of the relationship between the victim and the deceased.

(5) The extent of the pain and suffering, including grief and psychological suffering, experienced by the victim as a result of the crime.

As to the last of these matters, it may be relevant to consider circumstances before the time of the offence, which rendered a victim more vulnerable,[46] as well as for the purpose of considering whether any particular injuries were, in fact, a direct result of the offence.

32 Ultimately, what is required is an intuitive synthesis of all of the circumstances of the case to determine the amount of compensation to be paid.[47]

33 Finally, while compensation awards in other cases may be relevant to consider as part of the exercise of determining the appropriate amount of compensation to be awarded on a particular application, caution must be exercised with respect to the weight such other awards are given. Each compensation award must be determined based on the particular facts and precise considerations that are before the court.[48]

34 Daniel, Luke and Patrick each swore affidavits in support of their application for compensation,[49] which included as exhibits the victim impact statements prepared for the purposes of Fernando's sentencing hearing. Daniel and Luke also relied upon psychology reports prepared by Paola Piccione in December 2013 for the Victims of Crime Assistance Tribunal application.[50] Luke also relied on further psychology reports prepared in June 2018 and 2019 in the same context.

35 There was also a large body of evidence filed and relied upon in addition to the affidavits of Daniel, Luke and Patrick. That evidence included details concerning Fernando's assets, police statements made by Daniel and Luke, the amended summary of the prosecution opening for the murder trial, and the sentence delivered by Bell J.

36 It is clear that Teresa was a much loved person, and that she had close and loving relationships with Daniel, Luke and Patrick, and with the rest of her immediate and extended family, and friends.[51]

37 The brothers Daniel and Luke are the only children of Teresa and Fernando. At the time of their mother's death, Daniel was 23 years old and Luke was 20; they are now 30 and 27 respectively.[52] Following Teresa and Fernando's marriage breakdown, Daniel and Luke lived with Fernando, in their childhood home, but they maintained a close and loving connection with their mother. They frequently visited Teresa and attended weekly family dinners (in the absence of Fernando).

38 Neither Daniel nor Luke had any previous psychological history before the events in question. Not surprisingly, both of them suffered considerably as a result of their mother's brutal death. Further, both brothers found the 2 or so years between their mother's death and their father being charged with her murder particularly difficult. They both believed Fernando was the offender and were constantly stressed and anxious because of the circumstances and the ongoing uncertainty.

39 Moreover, independent of the timing of the filing of this application, the delay and ongoing uncertainty with respect to the final resolution of the murder charge and conviction has been an extenuating circumstance for both Daniel and Luke. With the time that lapsed before Fernando was charged, and then the considerable delay that has occurred in Fernando exhausting his appellate rights, a lingering uncertainty and accompanying anxiety has prevailed. Compounding these matters, it was submitted that the contested nature of this proceeding has added to the anxiety suffered.[53]

40 Prior to Teresa's murder, Daniel worked as the lead graphic designer at a printing company. During the course of the murder trial, Daniel took time off work. Later he resigned from his position as he was the sole graphic designer at his place of employment and he felt physically and mentally unable to attend to his work responsibilities. To support himself in the interim, Daniel found employment in freight work. He has since returned to graphic design.

41 Daniel described feeling anxiety, fear and a lack of safety during the period before Fernando was charged. He constantly worried about the ramifications for his safety. After Teresa's murder, Daniel and Luke moved to their aunt's home and had to share a room together. Daniel found it hard having to cohabitate with his brother in such circumstances, as adults trying to process the grief they were feeling.

42 Daniel attended as many days of the trial as he could. He described the difficulty and grief he experienced during the trial at the thought of losing "both [his] parents". It was challenging for Daniel to hear "the more gruesome matters" raised at trial. In addition, Daniel suffered physically from his grief in the form of alopecia, losing hair from his head, eyebrows and eyelashes. He found it difficult to see this manifestation of his stress and grief.

43 Daniel also addressed the challenge of watching Luke experience the physical and psychological ramifications of Teresa's murder. He said it "killed" him to see his brother in such a state. He also spoke of taking on a parental role for his younger brother and the helplessness he felt when Luke was admitted to hospital.[54]

44 In his victim impact statement, Daniel wrote that the murder of Teresa has "destroyed" some of his relationships with family members and friends. He described the elusiveness of happiness and motivation, and his issues with fear, anger, hurt, trust and love. He explained how the events had affected him psychologically, experiencing ongoing stress, depression and anxiety, all of which he felt will continue for the remainder of his life.

45 In his psychology report dated 9 December 2013,[55] Daniel was found to be presenting with clinically significant distress and impairment in social, vocational and general functioning. Daniel's score on the "Posttraumatic Stress Disorder Checklist-Civilian Version" was "clearly indicative" of post-traumatic stress disorder;[56] he had 12 out of 17 post-traumatic stress disorder symptoms criteria that were severe to extreme responses. Daniel was also diagnosed with major depressive disorder in the context of trauma, falling in the moderate range of depression, according to the "Beck Depression Inventory II".[57] It was also stated that Daniel was experiencing grief, and presented with heavy fatigue, significant thought disturbance, and sleeping problems. It was concluded that Daniel was experiencing trauma and depression symptoms as a consequence of Teresa's then unresolved murder.

46 Although he is no longer consulting a psychologist, Daniel raised the possibility of seeking treatment in the future, especially when faced with life events where he would have expected Teresa to be present. He seeks a compensation order in the sum of $350,000.

47 Luke described suffering from symptoms of post-traumatic stress disorder, insomnia, depression and anxiety following Teresa's death. He, in particular, emphasised the nurturing role Teresa played in his life,[58] even into adulthood.

48 Prior to Teresa's death, Luke was working in retail and described himself as financially self-sufficient. As the court hearings proceeded, Luke described the worsening of his symptoms, requiring him to take 4 to 5 months off work. Consequently, he developed financial worries, which added to his feelings of worthlessness.

49 Luke gave details of the eczema and psoriasis he has suffered from his entire life. He explained that stress is an exacerbating factor and how, when he was younger, he used to scratch himself until he bled in an effort to stop his parents from fighting. He described the supportive role Teresa played when these skin conditions were especially bad. Following the murder, Luke's eczema worsened and, without Teresa there to support him, he described the loss as making "everything worse", including being unable to sleep. With his worsening eczema, Luke struggled to work, particularly where manual labour was involved.

50 Luke described his self-worth plummeting, whilst both his physical and psychological well-being deteriorated. He experienced social isolation and suicidal thoughts, and considered that if he took his life, it would put an end to the pain and suffering, and might result in him being with his mother somewhere else. Luke's feelings of worthlessness were further exacerbated by his financial concerns at the time. He also described how his relationships suffered following Teresa's murder, and, how, as a result of her death, Luke "lost both of [his] parents".

51 Luke's suffering worsened in the lead up to and during the murder trial where he, like his brother, gave evidence,[59] and was cross-examined. He was required to detail his childhood and the family threats, dislocation and upheaval he witnessed.

52 In his victim impact statement, Luke described how Teresa's murder has "torn his life apart". He spoke not only of enduring the crime and the stress of being the son of a murderer, but described the loss of his mother as the loss of his "rock", on whom he was so dependent for the care of his debilitating skin conditions.

53 The compounding effect of all his symptoms and the surrounding circumstances left Luke more depressed and anxious, consequentially worsening his eczema, insomnia and feelings of worthlessness.

54 Returning to the stresses that Luke described as having to endure, and the toll this took, in the lead up to the trial where he had to face Fernando, in Luke's words, the "malicious combination of insomnia, anxiety and severe atopic eczema" lead to numerous hospitalisations, and severe depression and anxiety. Luke declined to take anti-depression medication that had been prescribed for him because he did not believe such medication would ultimately help him.

55 In seeking to ameliorate his severe skin conditions, Luke consulted a dermatologist and was prescribed some medication. The medication affected Luke's immune system, leading to 2 bacterial infections, for which he was rushed to hospital for week-long stays, and which added to his emotional and financial stress. Further, in addition to lowering the immune system, the side-effects of the medication he was given leading up to hospitalisation included shaking, headaches, dizziness, unusual body hair growth, nausea and vomiting. The medication also gave rise to a risk of raising his blood pressure, which meant he had to undergo regular blood tests and blood pressure tests.

56 Luke also described the consequential fear for his safety, which amplifies when he is alone and it is late at night.

57 There were 3 psychology reports submitted on Luke's behalf. In the first report dated December 2013, Luke was found to be presenting with clinically significant distress and impairment in social, vocational and general functioning; his score on the "Posttraumatic Stress Disorder Checklist-Civilian Version" was "clearly indicative" of post-traumatic stress disorder.[60] He had several severe to extreme responses. Luke was also diagnosed with a major depressive disorder in the context of trauma, in the normal to mild range, as revealed by the "Beck Depression Inventory II".[61] It was concluded that Luke was experiencing trauma and symptoms of depression as a consequence of Teresa's then unresolved murder.

58 The report recorded how Luke dropped to the floor upon hearing of his mother's death, suffered chills, heavy palpitations and rapid breathing, and soon after suffered a panic attack. Further, it was recorded that the lack of certainty and the suspicion that his father was to blame were extenuating circumstances that affected his progress.

59 In the second report dated 23 June 2018, an account was given regarding the stress of the murder trial and the relief felt by reason of the guilty verdict. Despite this relief, Luke was rattled even more by Fernando's lack of remorse. Further, the anxiety he was experiencing was exacerbated by Fernando's lodging an application for leave to appeal. As a consequence of the stress and anxiety, a skin condition similar to excoriation disorder developed.[62]

60 At the time of the second report, Luke was still suffering from post-traumatic stress disorder and depressive symptoms, and had exacerbated an anxiety condition which had beginnings in his childhood. It was noted that Luke first developed excoriation disorder when he was a young child, in response to witnessing the abuse perpetrated by Fernando against Teresa.[63]

61 In the final report dated 16 June 2019, Luke was described as presenting with symptoms of depression, low self-esteem and confidence, coupled with sleep disturbances. It was noted that Luke continued to suffer from symptoms of post-traumatic stress disorder and depression. The physical consequences of an exacerbated anxiety reaction or condition, or both (similar to excoriation disorder), continued manifesting in the compulsive need to pick and scratch at his skin. The report concluded by describing Luke's prognosis for recovery as "more guarded" than what was initially anticipated.

62 Luke continues to receive psychological treatment on a monthly basis, preferring this form of treatment over taking medication to treat his condition. He seeks a compensation order in the sum of $350,000.

63 Patrick attended the 6 week murder trial every day and felt overwhelmed with grief. For some time after the trial he was desperately trying to rebuild his business and his life. He described not only how Teresa's murder has affected his life, but also the impact on his family too, and how it will never be the same.

64 He described the guilt associated with Teresa's murder and not being there to protect her; stating that he still remains fearful when picturing Fernando's face.

65 In his victim impact statement, Patrick described the impact the surrounding circumstances of Teresa's death has had on his, and his family's, well-being and enjoyment of life. Patrick stressed how Teresa's murder has changed him, and the way he is in the presence of his loved ones. He described the hurt he feels as a "big hole in [his] heart", and the shock the night of her murder feeling like a "minor stroke". Patrick described the resulting anger and frustration stemming from his feeling that Teresa's murder could have been prevented, in the context of Teresa having stated that Fernando would "kill her one day". He then described his fears for his own safety. In relation to the 6 week trial, he stated it was the longest 6 weeks financially, socially and emotionally, and felt like it lasted 4 years.

66 Patrick also described the impact Teresa's murder has had on his hair salon businesses. At the time of her murder, he was running 2 hair salons. However, after Teresa's murder, he found it difficult to go back to work, noting a lack of drive and motivation, particularly with clientele who knew of the crime. He decided to sell 1 salon and work on his own to simplify his life, but stated that this decision has affected him financially.

67 Patrick also described the role he will take in looking after Daniel and Luke, assisting them emotionally, financially and socially, and adjusting to the reality of having lost both parents.

68 Patrick concluded by noting that his biggest fear is the retribution he and his family may face should Fernando be released from prison.

69 Patrick has not received any psychological treatment or counselling, and filed no medical materials in support of his claim. He seeks a compensation order in the sum of $100,000.

70 Fernando is not of insignificant means. The evidence demonstrated that the value of Fernando's asset pool totals in excess of $937,000, subject to outstanding liabilities owed for legal costs.[64] Pursuant to Federal Circuit Court orders made on 21 March 2014, Fernando transferred all rights and interests in the matrimonial home and a BMW motor vehicle to Daniel and Luke, in exchange for the payment of $20,000 and Fernando retaining all interests and rights in the remainder of the matrimonial property.[65] It was not in dispute that, broadly speaking, the transfer of the matrimonial home and the motor vehicle represented what Teresa would have received arising out of the divorce had she still been alive.[66]

71 Fernando's asset pool, comprising bank accounts, a factory, proceeds of sale from a motor vehicle and factory, and distributions from a family trust and company (but excluding Fernando's superannuation),[67] is subject to 2 restraining orders. The restraining orders were granted by this court for the sole purpose of satisfying any order for compensation made under the Sentencing Act.[68] Accordingly, in due course any amounts not the subject of compensation orders will be released to Fernando.

72 The applicants submitted that the court ought not be satisfied that Fernando's resources are limited to these assets. In so doing, they referred to the fact that Fernando had been able to retain solicitors to defend this proceeding and, based on the evidence relied upon in seeking the adjournment,[69] was able to access the funds provided to separate solicitors for a proposed High Court proceeding. These funds were sufficient to seek an extension of time for special leave to appeal, to make an application for special leave to appeal if the extension were granted, and also to conduct the appeal if special leave were granted. It was submitted (without any submission to the contrary) that the amount Fernando had been able to secure in this regard must be significant.

73 It was submitted by Fernando's counsel that the amounts sought by the applicants were excessive and that, if compensation orders were to be made beyond a nominal amount, those orders would detrimentally affect Fernando's prospects of rehabilitation. Further, it was submitted that his elderly age upon release,[70] and the serious conviction and his institutionalisation of about 25 to 30 years, mean that: he will have little or no prospect of obtaining meaningful and gainful employment;[71] he will require aged care services; and he will have little in the way of family support.[72] Fernando also has a number of medical conditions requiring ongoing treatment.[73] It was submitted these conditions are likely to deteriorate and require more treatment over the course of his incarceration.

74 In support of Fernando resisting the amounts claimed, Anna Paulino, Fernando's sister,[74] swore an affidavit as to the cost of aged care, but only in relation to 1 facility. Although the quote is of some assistance in giving a ball park figure as to Fernando's possible living expenses upon his release, it is also speaking to an eventuality that, if it arises, will not be for another 20 years, or more. Needless to say, this is a very long period where much can change.

75 In response, the applicants' solicitor swore an affidavit concerning financial and housing support available to prisoners upon release. Based on that evidence, it is not implausible that Fernando will be supported upon his release with his reintegration into society, particularly in light of current programs on offer by Corrections Victoria.[75] That said, just as there must be uncertainty about aged care facilities in 20 or so years, there must also be a considerable level of uncertainty about what programs will be available to prisoners being released 2 decades or more from now. In any event, self-evidently Fernando's prospects of reintegration into society are likely to be adversely affected if he were left with insufficient funds and resources to support himself.

76 I have considered the impact of making 3 compensation orders on Fernando's rehabilitation, including in the context of Bell J's sentencing remark, that his Honour was left "guarded" about Fernando's actual prospect of rehabilitation, given the "serious and resolute" nature of the offending and lack of remorse.[76] Further, upon his release, Fernando will be elderly, at a minimum, in his early 80s. As was said in Stevens v Baxter, this is not a case involving a youthful offender where financial resources are more important to rehabilitative efforts upon release.[77] Furthermore, as long as Fernando's prospects of rehabilitation are properly taken into account, "it is not an error of principle to make an order for compensation that might affect the offender's rehabilitation".[78]

77 Naturally, the impact on Fernando's financial circumstances depends upon the amount awarded. If the full amount claimed by each applicant were awarded, the burden imposed on Fernando might be quite severe. If lesser amounts are awarded, then the impact of this diminishing factor reduces commensurately.

78 It is not disputable that Daniel, Luke and Patrick, who are very clearly victims for the purposes of section 3 of the Sentencing Act, have each suffered a significant emotional and traumatic reaction to the murder of Teresa. Appropriately, it was conceded by Fernando that they are each entitled to an amount of compensation on the basis of pain and suffering. However, the quantum was disputed.

79 In Fernando submitting the amount of compensation sought by each of Daniel, Luke and Patrick was excessive considering their injuries, it was contended that evidence from a forensic psychiatrist ought to have been before the court. It was further submitted that the focus of the psychology reports relied upon was on the incident of offending and the reaction to it, rather than a focus on the overall or historical medical and psychological or psychiatric state of the applicants. In addition, it was contended that the report in relation to Daniel, being provided in 2013, was stale.

80 These submissions must be rejected, principally because the compensation regime does not merely target clinical and diagnosed manifestations of pain and suffering.[79] The materials relied upon by Daniel and Luke (and Patrick) clearly demonstrate that they have each experienced grief, distress and trauma, which have enormously impacted, and very likely will continue to impact, upon their lives. Further, the application is in the nature of a summary proceeding in which, ordinarily, applicants do not recover their costs. Applicants under this regime should not be required to run up substantial costs if they can be properly avoided. It was entirely appropriate for Daniel, Luke and Patrick to present the evidence in the manner in which they did. All of that said, the amount of weight that may be put upon the less formal evidence that was tendered is a further consideration.[80]

81 In the case of Daniel and Luke, it was clearly articulated in the psychology reports that the trauma and symptoms of depression experienced by both Daniel and Luke are a consequence of Teresa's murder. Diagnoses aside, the reports also provide intricate detail as to the toll the murder of Teresa has taken on their physical, mental and social well-being.

82 More broadly, no diagnoses were required to demonstrate the enduring and obvious pain Daniel, Luke and Patrick have suffered. Common sense dictates that the loss of Teresa in such violent and aggravated circumstances would lead to the "loss of enjoyment and amenity of life", thereby enlivening the availability of compensation.[81] Further, I accept, in respect of Daniel and Patrick, that their pain and suffering is not diminished by virtue of their deciding, respectively, not to continue with or engage in psychological treatment.[82]

83 In relation to Luke's pre-existing physical consequences of his anxiety, in the form of obsessive skin picking (or excoriation disorder), I am satisfied his condition has been exacerbated as a direct result of his mother's murder and the consequential circumstances. Accordingly this aspect of his claim falls within the requirements of section 85B(1) of Sentencing Act.[83] In my view, Luke's skin condition is appreciably more than "tenuously" related to Teresa's murder and the events that came after. The evidence demonstrated that Fernando's crime cannot be said to be only a "minor factor" in the re-emergence of Luke's skin condition.[84]

84 Counsel for Fernando additionally submitted that the court should take into account the risk of "overshooting". A number of cases were relied upon in which this court cautioned against over-compensating victims as a result of the way in which compensation applications proceed; that is, for want of detailed forensic and judicial examination.[85]

85 I accept there is a risk of overshooting. This risk of overshooting is inherent in every compensation application of this nature brought before the courts.[86] In short, in compensating Daniel, Luke and Patrick, an injustice must not be done to Fernando.[87] However, the words of the statute are clear; an award of compensation falls entirely to the court's discretion. That discretion may be exercised by decreasing an award of compensation to avoid the risk in question or may be exercised to award what is considered to be full compensation.[88] Each case must be determined on its own merits, and not by the application of a rigid formula to take into account the risk of overshooting.[89]

86 Further, I have considered the cases put forward by the parties, in which compensation orders were made where the primary victim was killed. Ultimately, as previously stated, section 85B(1) of the Sentencing Act very clearly imposes a discretion on the court to award an amount of compensation as the court thinks fit. As Neave JA stated, in Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd:[90]

there is no and there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, and no method of conversion of a human emotional or psychological reaction to an amount of money exists.

87 Nonetheless, and mindful of the differing circumstances in each case,[91] the amount of compensation sought by each of Daniel and Luke, as Teresa and Fernando's children, and Patrick, as Teresa's brother, is significantly more than what has been awarded to other adult applicants with the same relationship to the victim, and where the primary offence was murder.[92] To the extent that other cases were to be taken into account, Fernando's counsel submitted the circumstances of this case, particularly pertaining to Daniel and Luke, fell somewhere closer to Director of Public Prosecutions v Parsons and Brooks v Meade.[93]

88 Turning to the specific circumstances of this case, it is difficult to describe the profound effects, both immediate and long-term, of the loss of their mother, at the hands of their father, in the case of Daniel and Luke, and of his sister, in the case of Patrick. This is chiefly so when considering the violent and aggravated circumstances in which Fernando took the life of Teresa. From that moment, Fernando has deprived his sons, Daniel and Luke, of a life with their mother, of the ability to share her 50th birthday with them, and of the chance for her to be there as they celebrate their respective milestones (and by consequence, also deprived them of a life with their father). At the same time, Fernando has deprived Patrick of the likelihood of growing old with his sister.

89 In respect of Daniel and Luke, Fernando has shattered the bounds of trust that are inherent in a parent-child relationship, and this is further compounded by Fernando's apparent lack of remorse. No award of compensation will ever fill the deep sadness, hurt and trauma that will remain with not only Daniel, Luke and Patrick, but the rest of Teresa's family and friends as well, for the rest of their lives.[94]

90 The awards to be made in favour of Daniel, Luke and Patrick do not, by any stretch, reflect the value of Teresa's life; they are intended to compensate, as far as money can, for the injuries suffered by each of them.[95] Further, and in accordance with section 85I of the Sentencing Act, the awards will be reduced by $12,500 each, being the amount already awarded by the Victims of Crime Assistance Tribunal for distress under the Victims of Crimes Assistance Act 1996 (Vic).

91 As already noted,[96] this process is not punitive and the purpose of this proceeding is not to punish Fernando. That said, the brutal murder of Daniel and Luke's mother, and Patrick's sister, and the totally un-remorseful attitude of Fernando bears directly upon the applicants' ongoing pain and suffering. To repeat, there can be no question that Teresa's murder and its circumstances have profoundly affected each of Daniel, Luke and Patrick.

92 In the circumstances, and balancing each of the factors as best as I am able, compensation will be awarded in favour of Daniel in the sum of $150,000; in favour of Luke in the sum of $155,000;[97] and in favour of Patrick in the sum of $55,000.[98]

93 To the extent that it might be possible that the amounts of such compensation orders may impose a burden on the financial circumstances of Fernando both now and into the future, this has been taken into account. Amongst other things, the seriousness of the offence and the significant injuries that directly resulted from the offence mean that it would be inappropriate to make compensation orders for any less than the amounts referred to above.

94 Section 85K of the Sentencing Act provides that each party to a compensation proceeding must bear their own costs, unless otherwise determined by the court. The Sentencing Act was so drafted to take into account that "there may be circumstances when costs should be awarded against a party", for example, where an application is unreasonably contested.[99] The decision to exercise the court's discretion as to costs must turn on the facts of each case.[100]

95 Fernando ultimately conceded that Daniel, Luke and Patrick were entitled to compensation for their pain and suffering. This position was only adopted by Fernando on 9 June 2020. Before then, the entitlement to any compensation was disputed,[101] and Fernando foreshadowed the intention to cross-examine at the hearing of the application.

96 However, the evidence initially filed in July 2019 in support of the application was scant with detail. Both Daniel and Luke, together with their solicitor, filed further affidavits in early September 2019. Patrick filed a supplementary affidavit on 13 March 2020, again accompanied by another affidavit from the applicants' solicitor.[102] Accordingly, Fernando did not have a significant amount of the evidence to be relied upon until a relatively short time before he decided not to contest the right to compensation.[103]

97 Further, Fernando's position must be considered. He did not obtain legal representation until 14 October 2019.[104] In relation to being able to give meaningful instructions, not only has Fernando been incarcerated at all relevant times, but access to prisoners has been more difficult with the onset of the COVID-19 pandemic and the consequential restrictions that have been imposed upon prisoners. Moreover, Fernando's access to funds has been affected by the fact that his assets have been, and remain, the subject of restraining orders.[105]

98 The applicants' counsel submitted that costs should be awarded in their favour given how the proceeding has evolved, referring to, amongst other things: (1) circumstances that resulted in unnecessary contest between the parties; (2) the impact of the offence on each of Daniel, Luke and Patrick; and (3) the complexity of the matter necessitating legal representation. Counsel also submitted that requiring Daniel, Luke and Patrick to pay their own costs would deny them the full benefit of any order of the court.

99 Having due regard to these submissions, I am not satisfied that the circumstances of this application are such as to warrant a departure from the ordinary position under the statute. Ultimately, the hearing was able to be conducted in less than 2 hours, consistent with the intended summary nature of the proceeding. Further, given the subject matter intended to be dealt with by section 85B of the Sentencing Act, and while accepting completely the gravity of the pain and suffering experienced by the applicants, the extremely unfortunate circumstances of this case do not take it out of the ordinary.[106]

100 As to the submission concerning the full benefit of any order of the court, it cannot be accepted in circumstances where the Sentencing Act expressly contemplates that the parties to a compensation application will ordinarily bear their own costs, irrespective of the outcome of the application.[107] To reiterate, nothing about this case suggests that anything other than the usual position should be applied.

102 Pursuant to section 85B(1) of the Sentencing Act, orders will be made that Fernando Paulino pay the amount of:

(1) $137,500 to Daniel Paulino, being compensation in the sum of $150,000, less the amount of $12,500 ordered by the Victims of Crime Assistance Tribunal to him.

(2) $142,500 to Luke Paulino, being compensation in the sum of $155,000, less the amount of $12,500 ordered by the Victims of Crime Assistance Tribunal to him.

(3) $42,500 to Patrick Mancuso, being compensation in the sum of $55,000, less the amount of $12,500 ordered by the Victims of Crime Assistance Tribunal to him.

[1] At the time she was murdered, Teresa was 49 years of age (she was born on 14 June 1964).

[2] Sentencing Act 1991 (Vic), s 85B(2).

[3] Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [1] (Bell J).

[5] Paulino v The Queen [2018] VSCA 306 (Priest, Beach and Kaye JJA). For a summary of the evidence given at the murder trial by Daniel, Luke and Patrick, see [25]-[29], [30]-[36] and [39] respectively.

[6] At the commencement of this hearing, Fernando sought an adjournment on the basis of the imminent application to the High Court. The application for adjournment was neither consented to nor opposed by the applicants. The application was refused, essentially on the basis that the application was very late, there had already been significant delays both before and after the commencement of this proceeding, it was in the interests of all parties to provide finality in relation to this proceeding, the reasons for seeking special leave to appeal so significantly out of time were not properly explained, the details of any grounds of any such application were not before this court, and the fact that Fernando's lawyers (who are separate to the lawyers representing him in this proceeding) were taking steps to commence a proceeding in the High Court was not said to interfere with his ability to defend the application made in this proceeding.

[7] Sentencing Act, s 85D(2)(a).

[8] Robertson v Esso Australia Pty Ltd [2004] VSC 101, [4] (Cummins J).

[9] Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 346 [2] (Buchanan JA).

[10] Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [8] (Bell J). See further pars 20-21 below.

[11] Moresco v Budimir [2015] VSC 51, [14] (T Forrest J).

[12] Director of Public Prosecutions [2019] VSC 728, [161] (Croucher J); Sullivan v Gibson [2018] VSC 785, [41], [43] (Croucher J).

[13] See, for example, Hunt v Akkus [2017] VSC 79 (Jane Dixon J) (over 6 years' delay); Marceta v Efandis [2016] VSC 265 (Beach JA) (over 7 years' delay); Brown v Loveday [2012] VSCA 57 (Neave JA) (over 8 years' delay).

[14] Moresco v Budimir [2015] VSC 51, [16] (T Forrest J).

[15] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 639 [148] (Bell J); Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 346 [2] (Buchanan JA). See also Moresco v Budimir [2015] VSC 51, [14] (T Forrest J).

[16] Marceta v Efandis [2016] VSC 265, [12]-[13] (Beach JA).

[17] Moresco v Budimir [2015] VSC 51, [14].

[18] Ibid, [15]; Brown v Loveday [2012] VSCA 57, [27] (Neave JA); Robertson v Esso Australia Pty Ltd [2004] VSC 101, [4] (Cummins J).

[19] St Clair v Jamieson [2019] VSC 57, [9] (Bell J).

[20] Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [32]-[33] (Bell J).

[21] Paulino v The Queen [2018] VSCA 306, [3]-[23] (Priest, Beach and Kaye JJA). See also Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794.

[22] The prosecution's case against Fernando was wholly circumstantial: Director of Public Prosecutions v Paulino (Ruling No 1) [2017] VSC 343, [1]-[2] (Bell J).

[23] Paulino v The Queen [2018] VSCA 306, [15] (Priest, Beach and Kaye JJA).

[24] Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [8]-[9], [27] (Bell J).

[29] Paulino v The Queen [2018] VSCA 306, [198] (Priest, Beach and Kaye JJA). See also at [191].

[31] Sentencing Act, s 85A(1).

[32] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 416 [56] (Nettle JA); and for a more complete explanation, see: 416-417 [53]-[59].

[33] Ibid, 411 [25]-[26], [28] (Buchanan JA with whom Vincent and Nettle JJA agreed). See also RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [151] (Bell J).

[34] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [148].

[35] Ibid, 655 [149]; Josefski v Donnelly [2007] VSCA 6, [21] (Nettle JA with whom Buchanan and Vincent JJA agreed).

[36] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [148] (Bell J).

[37] Director of Public Prosecutions v Esso Australia Pty Ltd (No 2) [2001] VSC 401; (2001) 126 A Crim R 13, 16 [11] (Cummins J).

[38] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [150]; Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 352-353 [30] (Vincent JA with whom Buchanan and Neave JJA agreed).

[39] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 636 [54], 639 [66].

[40] Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 352-353 [30].

[42] St Clair v Jamieson [2019] VSC 57, [22(e)] (Bell J).

[43] Sentencing Act, s 85H. See also RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 652 [137].

[44] St Clair v Jamieson [2019] VSC 57, [22]; RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 652-653 [137]-[139], 653-654 [141]-[143].

[45] [2006] VSCA 116; (2006) 14 VR 345, 356-357 [50], cited with apparent approval (the adoption of these factors was agreed between the parties) in Liang v Chalmers [2011] VSC 439, [4] (Maxwell P, Redlich JA and Kyrou AJA). See also St Clair v Jamieson [2019] VSC 57, [22(e)]; Cronin v Lee [2019] VSC 509, [87] (Taylor J); Sullivan v Gibson [2018] VSC 785, [72] (Croucher J).

[46] Cf Shepherd v Kell [2013] VSC 24, [26], [15]-[16] (Lasry J); Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 411 [26] (Buchanan JA with whom Vincent and Nettle JJA agreed).

[47] Moresco v Budimir [2015] VSC 51, [25] (T Forrest J).

[48] See, for example, Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 352-353 [40] (Vincent JA with whom Buchanan and Neave JJA agreed).

[49] Daniel and Luke filed their affidavits in support on 4 September 2019, and Patrick's affidavit in support was filed 13 March 2020. Previously, all 3 filed affidavits in support of seeking an extension of time on 25 July 2019.

[50] It is of no moment that these reports were produced for the purposes of assessments by the Victims of Crime Assistance Tribunal. They are, nonetheless, evidence of the injuries experienced by Daniel and Luke as a result of the murder of Teresa: see pars 80-81 below.

[51] See Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [2], [5] (Bell J).

[52] Daniel was born on 5 June 1990 and Luke was born on 7 December 1992.

[53] See par 95 below.

[54] Luke was hospitalised on numerous occasions due to secondary bacterial infections stemming from an anxiety related, skin picking disorder that reappeared following Teresa's death. See further pars 54-55 below.

[55] For convenience, each of the reports prepared for the Victims of Crime Assistance Tribunal will be referred to as a psychology report or a report.

[56] The "Posttraumatic Stress Disorder Checklist-Civilian Version" is a self-report measure of post-traumatic stress disorder administered after 1 month or more of a traumatic incident. Total scores of over 50 are clearly indicative of post-traumatic stress disorder. Daniel's score was 61, but it was an underestimate because an item had been left out by him.

[57] The "Beck Depression Inventory II" is a self-report questionnaire on symptoms of depression over a 2 week period.

[58] When Luke was about 6 or 7 years old, and the relationship between Teresa and Fernando became strained, Teresa slept in the same bedroom as Luke for about 5 years.

[59] The giving of evidence at the murder trial was preceded by the provision of statements to the police dealing with the same subject matter, including the family unrest he had experienced as part of his upbringing. He was also subject to cross-examination at a committal hearing.

[60] See fn 56 above. Luke's total score on the "Posttraumatic Stress Disorder Checklist-Civilian Version" was 54.

[62] In the second report, Luke's skin condition was described as "a compulsive need to pick and scratch at his skin, resulting in bleeding and scarring", similar to excoriation disorder. In the final report, it was stated that excoriation disorder is classified as its own separate condition under "Obsessive Compulsive and Related Disorders in the DSM V". It was further stated that "episodes of skin scratching are often preceded or accompanied by tension, anxiety or stress", which symptoms were reported to be consistent with Luke's trauma.

[63] To be complete, on another occasion, Luke also described his father as being generous when he and Daniel were growing up. For their birthdays and Christmas, Fernando bought them good presents, including both of Daniel and Luke a car upon turning 18. Fernando would also arrange family holidays each year when they were young.

[64] This included outstanding legal fees for the murder trial. An invoice dated 30 November 2018 for $69,826.52 from his previous solicitors remains unpaid. In addition, legal fees in an amount not identified have been incurred as a result of this proceeding.

[65] The matrimonial home was listed on the market for sale at $480,000. The remainder of the matrimonial property at that time included chattels in the matrimonial home, a company and land title to 2 factories. The settlement offer was made on Teresa's behalf, following her death, by Daniel and Luke, in the context of the Family Court proceedings that had been on foot between Fernando and Teresa.

[66] Although there was a suggestion in written submissions that the transfer of these assets, which occurred on or about 3 October 2014, ought to be taken into account in assessing the quantum of any compensation order in favour of Daniel and Luke. During oral submissions, when asked how precisely it was said that this ought to be taken into account, the submission was not seriously pressed. Fernando's counsel stated that other than putting the evidence before the court, the matter could not be taken any further.

[67] As at 30 June 2019, Fernando had superannuation of $17,334.78, held with Construction and Building Industry Super.

[68] The first restraining order was granted on 22 June 2015 in anticipation of Fernando being charged with the murder of Teresa. The second restraining order was granted on 5 September 2016.

[70] Fernando was born on 31 December 1961.

[71] This was accepted by the applicants.

[72] In making this admission, no issue was taken with Bell J's observation in his sentence of Fernando that Fernando remained "very close" to his 2 younger sisters, Anna Paulino and Elizabeth Marasco, which his Honour stated was important in terms of his ultimate prospects for rehabilitation: Director of Public Prosecutions v Paulino [2017] VSC 794, [13]. Reference was also made in the sentence to Fernando being supported by loyal friends and family: [18].

[73] These include hypertension, diabetes, asthma, skin infections and metabolic syndrome.

[74] In her affidavit, Anna Paulino gave evidence of her limited financial resources and her precarious financial position. There was no evidence to demonstrate the financial position of Elizabeth Marasco: see fn 72 above.

[75] These programs include the Corrections Victoria brokerage program and the Corrections Victoria housing program. There may be certain eligibility requirements, and in any event it is not possible to properly consider whether Fernando would obtain support through these channels if they remained available 20 years hence or more.

[76] Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [28]. Bell J also accepted that Fernando was not "beyond redemption". See also fn 63 above.

[77] [2009] VSC 257, [35] (Forrest J). Note, in that case no allowance was made for the financial circumstances of the offender because of the severity of the murder and the consequence on the deceased's 2 children, the applicants in that proceeding. The applicants' mother was murdered by their father, after being stabbed 30 times, whilst the applicants were at home sleeping. Of notable difference in that application, was the young age of the applicant children (being aged 8 and 12) at the time of their mother's death. See also Shepherd v Kell [2013] VSC 24, [32] (Lasry J).

[78] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 653 [139] (Bell J). See also Josefski v Donnelly [2007] VSCA 6, [17]-[19] (Nettle JA with whom Buchanan and Vincent JJA agreed).

[79] Sentencing Act, s 85A. See, for example, Tanner v Smart [2010] VSC 463, [12], [28], [32] (Lasry J). In that case, compensation ranging from $80,000 to $120,000 was awarded to the deceased's parents and brother, notwithstanding the failure to produce specialist evidence. See also Director of Public Prosecutions v Parsons [2000] VSC 327, [16]-[17] (Cummins J). In that case, it was held that there was no need for detailed reports in support of the application for compensation made by the deceased's 2 children and sister, in light of the "horrific" circumstances of the murder. Compensation ranging from $75,000 to $125,000 for each applicant was ordered.

[80] See pars 84-85 below.

[81] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 655 [148] (Bell J).

[82] See cases cited at fn 79 above.

[83] See, for example, Shepherd v Kell [2013] VSC 24, [26] (Lasry J). In this case, Lasry J found that an applicant's pre-existing post-traumatic stress disorder, which was deposed to have been exacerbated by the crime, fell within the meaning of s 85B(1) of the Sentencing Act. Luke's skin condition was reported in the second psychology report as "an unfortunate consequence to [Luke]'s anxiety, in that it has had a significant physical ramification". Earlier in the report, Luke's anxiety was discussed in the context of the uncertainty of the outcome of Fernando's trial and his subsequent appeal against conviction. In the third psychology report, it was stated that "the trial's impact psychologically produced another unwanted and unexpected reaction; the remergence (sic) of [Luke's] excoriation disorder".

[84] Cf Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 410-411 [25], [28] (Buchanan JA with whom Vincent and Nettle JJA agreed).

[85] Director of Public Prosecutions v Pain [2019] VSC 728, [242]-[257] (Croucher J); Sullivan v Gibson [2018] VSC 785, [95]-[98] (Croucher J); Brooks v Meade [2017] VSC 172, [27] (Weinberg JA); RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 656 [153], [155], 660 [178]; Kaplan v Lee-Archer (2017) 15 VR 405, 406-407 [6].

[86] RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 656 [153] (Bell J).

[89] St Clair v Jamieson [2019] VSC 57, [22] (Bell J); Kelley (a pseudonym) v R1 (a pseudonym) [2016] VSCA 90, [21]-[22] (Beach and Ferguson JJA). See also RK v Mirik [2009] VSC 14; (2009) 21 VR 623, 654 [143], 658 [164], 660 [177]-[178].

[90] [2006] VSCA 116; (2006) 14 VR 345, 355 [36].

[91] Ibid, 353 [31]. See also par 33 above.

[92] Without being exhaustive, see, for example, in the case of applicant children: St Clair v Jamieson [2019] VSC 57 ($130,000 was awarded to the applicant adult daughter and sister of the 3 deceased, and $150,0000 was awarded to the applicant adult son and brother of the 3 deceased); Brooks v Meade [2017] VSC 172 (Weinberg JA) ($100,000 was awarded to each of the 3 applicant children of the deceased mother and respondent father, aged 13, 15 and 16); Stevens v Baxter [2009] VSC 257 (Forrest J) ($240,000 was awarded to each of the applicant children of the deceased mother and respondent father, aged 11 and 15); Director of Public Prosecutions v Parsons [2000] VSC 327 (Cummins J) ($125,000 was awarded to each of the applicant children of the deceased mother and respondent father, aged 15 and 12). In the case of an applicant sibling: see, for example, Hunt v Akkus [2017] VSC 79 (Jane Dixon J) ($40,000 was awarded to the applicant adult sister of the deceased); Moresco v Budimer [2015] VSC 51 (T Forrest J) ($20,000 was awarded to the applicant adult sister of the deceased); Daou v Johnston [2015] VSC 409 (King J) ($45,000 and $50,000 was separately awarded to each of the applicant adult brothers of the deceased); Director of Public Prosecutions v Parsons [2000] VSC 327 ($75,000 was awarded to the applicant adult sister of the deceased). See again Brooks v Meade [2017] VSC 172 ($600,000 was awarded to the applicant adult sister of the deceased who, in materially different circumstances to those at hand, had custody of the deceased's children).

[94] Of course, it is the pain and suffering of each of the applicants that is relevant.

[95] Josefski v Donnelly [2007] VSCA 6, [26] (Nettle JA, with whom Buchanan and Vincent JJA agreed).

[96] See par 29 above.

[97] Although no difference was made between the positions of Daniel and Luke in the amount claimed for compensation, and in no way diminishing the pain and suffering that has been suffered by Daniel, on the evidence before the court, it is appropriate that Luke be awarded a slightly larger amount than Daniel.

[98] These amounts are independent of the previously awarded amounts of $12,500 respectively, which must be taken into account.

[99] Victoria, Parliamentary Debates, Legislative Assembly, 25 March 1999, 194 (the Hon JLM Wade, Attorney-General).

[100] See, for example, Gregory v Gregory [2000] VSC 190; (2000) 112 A Crim R 19, 26 [32] (Cummins J), where costs were ordered because of the nature and "substantial ambit" of the matter. In that case, the applicants, the deceased's biological parents, were seeking compensation for the murder of their daughter from the respondent, the deceased's step-father. The respondent also shot the deceased's mother, 1 of the applicants in the proceeding, in the head, leading to substantial disability. The court awarded the applicant mother $50,000 and the applicant father $25,000, in addition to the costs of the application.

[101] Fernando's position in relation to the extension of time application also changed. Up until 9 June 2020, it was also opposed.

[102] At the time, Fernando decided not to contest the right to compensation, he still did not have access to all the information to be relied upon. Yet a further affidavit was filed by the applicants' solicitor on 18 June 2020.

[103] For completeness, there was a number of mentions and directions hearings before this matter could be heard. In addition to the matters referred to above, some delay was caused by other disputes, the detail of which is not necessary to explain. Suffice to say for present purposes, Fernando was not the sole cause of all of the delay.

[104] The applicants acknowledged that considerable delay resulted from Fernando's initial lack of legal representation.

[105] See par 71 above.

[106] See, for example, Stevens v Baxter [2009] VSC 257, [37] (Forrest J).

[107] Sentencing Act, s 85K. See also Moresco v Budimir [2015] VSC 51, [60] (T Forrest J).