The evidence of Mr and Mrs Francis
46 Initially the Court had not heard the voices of Nathan's parents, Brian and Jessica Francis. Whilst the pain of the loss of a 13 year old son is, on the one hand, obvious, and, on the other hand, indescribable, it seemed wrong for the Court not to hear from those most closely affected. There was a danger that the result of the proceedings being based on a largely agreed outcome could be seen as bypassing those left who are most closely affected by the events. It was likely that Mr and Mrs Francis could give the Court a deeper understanding of the context of the events and the events themselves, as well as some evidence of any steps taken by the Commonwealth to ease their pain and demonstrate acceptance of responsibility for Nathan's death.
47 In the case of victims of criminal acts, legislation now provides for courts to hear their voices through victim impact statements: for example see Div 1A of Pt 6 of the Sentencing Act 1991 (Vic). That legislation broadened the type of evidence which a court could consider in the course of sentencing in criminal cases: R v Dowlan [1998] 1 VR 123 at 138-9 per Charles JA. But even at common law a criminal court was entitled to take into account the impact on a victim in order to assess the severity of criminal conduct: R v Medini [2002] VSC 12 at [45]. In Director of Public Prosecutions v DJK [2003] VSCA 109 (DJK) Vincent JA explained the value of victim impact statements in a way which is equally applicable to evidence given by those affected by the failure of employers to comply with their occupational health and safety obligations. He said at [17] - [18] that such statements:
17 … constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statement must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
18 … It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for the wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.
48 Counsel for Comcare indicated that an invitation had already been extended to Mr and Mrs Francis to give evidence but had not been taken up. He said that Comcare would facilitate their attendance if they now wished to give evidence. In view of the tragic circumstance of Nathan's death the Court indicated that Mr and Mrs Francis could give their evidence in less formal surroundings than the courtroom, and that a certain level of privacy could be arranged at the time when the evidence was given.
49 Although the Court could provide a degree of privacy to Mr and Mrs Francis when they gave evidence, it was made clear to them that a transcript would be taken of their evidence, the parties would be able to question them at a later date on the transcript, and the transcript would be publicly available in the usual way. These requirements follow from the entitlement of the parties to the proceeding to natural justice, and from the open nature of Court proceedings.
50 Mr and Mrs Francis took up this invitation. On 15 May 2009, they gave evidence in a small conference room in the presence only of myself, my Associate and the transcript operator. The parties and Scotch College had access to the transcript and decided not to question Mr and Mrs Francis.
51 Mr and Mrs Francis' evidence has been of considerable assistance to the Court. Nobody can fail to understand the depth of the grief that Mr and Mrs Francis feel but the trouble they took to tell the Court about that grief has added a further dimension to the Court's understanding of the context in which this decision must be made. They explained the enormous gap in their family resulting from the loss of Nathan. Mrs Francis said:
It sounds silly and simple but things like we used to always sit down to dinner across the table and all of a sudden, you know, after - we actually went to sit down and realised well, it doesn't work anymore, there's a seat missing.
52 Mr Francis described his loss of faith, his loss of motivation and his loss of social interaction. Mrs Francis vividly explained how she felt when she reflected on the fact that Nathan's death was preventable. She said:
I went through a stage that, to me, it was like they've killed - it was murder, they killed my son, and I wanted to - I wanted to physically go in and kill one of those teachers, you know, I had nightmares that I was ..... them.
And I actually had to tell them - we arranged a meeting with one of the - with the chaplain, and we sat like we are sitting now, and I just looked at him and said "I'm sorry, I have to tell you that I want to kill you, you know, because if I don't tell you this, I'm going to bottle it up, and I'm going to hurt myself". So it's this feeling of frustration. It should not have happened, and you know, we gave - I can understand if they were camping and a tree fell on him; he fell off a cliff, God forbid; he was in a car accident or something. You can almost understand that. If a child is sick in hospital with an illness, you understand what's going to happen, you expect the death, you have got time - you know, there's a bit more - it's never okay, but it's - there's a reasoning. But there was no reasoning with Nathan's death. You know, there was so much - you know, there was so many people involved. Even if one person showed a bit of initiative, he would have been okay. There were four packs. If he got any of the other ones, he'd still be okay. It wasn't as if he made the choice, or you know, he made a wrong choice. They took - you know, it was given to him.
There was no control about - you know, we had letters come back from the school to say great care has been taken in the preparation of the meals and the food for this camp, and so we had no reason to worry about his allergy. You know, he'd been on camps before, so there was no reason to even suspect that there would be a problem with his meals, because it was - they knew about it, and so, for us, that's the hardest thing for me, and I'm sure for Brian, is that it just should not have happened. We should be enjoying Nathan in year 11.
53 Mr and Mrs Francis were critical of Scotch College. Mr Francis said:
We subsequently found out - we spoke to Gordon Donaldson, who was the Headmaster at the time - the Principal is now no longer there, but he had no understanding of the ramifications of an allergic reaction to peanuts. The school had no peanut allergy policy, so there was no - the school tuck shop, at the school, there was no ban on any peanut products whatsoever. The school was utterly ignorant to the consequences of ingestion of peanuts to someone who had an allergic reaction to it.
54 Mr Francis later said:
That's why you send them to a good school, … . We feel very betrayed by that and we want to make sure that schools like Scotch College don't rely upon their 150-odd year history but they are on the curve or ahead of the curve. You would expect them to be ahead of the curve. So for the Principal of the school to say we have no policy, we don't understand, yet a State school out in the outer suburbs does have a policy in place. I have a sister-in-law who is a teacher, who was both a teacher in the State system and now in the private system. These policies were in place. Scotch College didn't have that policy.
55 Mrs Francis expressed concern that Scotch College had not learned from Nathan's death. She related that about six months after his death the junior school held an international day. At this time her younger son, Justin, attended the junior school. The boys were to bring food representing all parts of the world as part of an international food fair. As Mrs Francis had not received any notice about avoiding peanuts in the food to be brought to the school, she rang and then went to see the teacher in charge. As a result the event was cancelled on the day, and the food which had been brought to school was thrown out. To Mrs Francis this demonstrated that the junior school had not learned from Nathan's death.
56 In relation to the efforts of Scotch College to extend sympathy and understanding to them, Mr Francis said:
[O]ne of the grievances I had with - and I did say it to Gordon Donaldson, the Headmaster, the Principal of the school - he never, ever visited our house, from the time Nathan died to the day of his funeral. Never.
MRS FRANCIS: Or after.
MR FRANCIS: Or after. Never. Never. And I think that's something he should be very ashamed of.
57 Mr and Mrs Francis said that the Vice Principal and the Chaplain did visit. They said that the Chaplain had been superb and the new Principal, Mr Ian Batty, recently came to their home and was most understanding on the occasion of the second anniversary of Nathan's death.
58 Throughout their evidence Mr and Mrs Francis referred to the responsibility of Scotch College and of its conduct and the conduct of its teachers rather than the conduct of the Army. The Court commented 'you keep talking about the school, the case keeps talking about the Army'. In his response Mr Francis said:
The Army does have a role to play, undoubtedly, but the school are the people who are running this event.
59 And Mrs Francis said:
… I haven't used the word "Army" because when I have spoken to Stewart [Williams - the Comcare Investigator], and asked him questions - there was no Army personnel involved, so to speak. There was not one Army personnel at that camp, there was not one Army personnel who took the papers, there was not one Army personnel who issued meals. So that's why I say "school".
60 Later Mr Francis said:
[T]he anger I have - at least I think we both - I think the anger is not really to the Army, but to the school, because they were the people who… fell under the authority of the Army, but were really there representing Scotch College.
61 The transcript of the evidence of Mr and Mrs Francis was available to the parties and to the solicitor for Scotch College. The Court fixed a time within which they had to indicate whether or not they required to question Mr and Mrs Francis. Each indicated that they did not wish to do so.
62 The evidence of Mr and Mrs Francis is a good example of the purpose of such evidence as explained by Vincent JA in DJK [2003] VSCA 109. The extent to which their evidence is directly relied upon in the sentencing process is described later in these reasons.