DPP v Farquharson, ex parte Gambino [2009] VSC 186

1 These are three applications pursuant to s 85B Sentencing Act 1991 by Ms Cindy Gambino for compensation from Mr Robert Farquharson for injury she has suffered as a result of offences of which he was found guilty on 5 October 2007. Ms Gambino was the mother of three children, Jai, Tyler, and Bailey. Mr Farquharson was their father. On Father's Day, Sunday 4 September 2005, the children were in the care of their father when they drowned in his car after it entered and submerged in a dam off the Princes Highway, Winchelsea. Mr Farquharson escaped from the submerged vehicle. The children at the time of their deaths were 10, 7, and 2 years of age respectively. Mr Farquharson was charged with the murders of the three children. Essentially the prosecution case was that he killed the three children in order to punish their mother. The two parents had separated. Ms Gambino had met a new man. The prosecution case was that Mr Farquharson burned with resentment that he, in his view, was financing Ms Gambino's new life. She had the better house; the better car; the three children. Mr Farquharson said to a friend "Nobody does that to me and gets away with it". Three months before the children were killed, Mr Farquharson said to his friend that there would be an accident involving a dam where he survived and the children did not; that it would be on a special day, like Father's Day, so that he would be the last one to have the children and Ms Gambino would remember it for the rest of her life. The friend did not believe Mr Farquharson. No-one would. But it came to pass. After a seven week trial, the jury found Mr Farquharson guilty of the murder of each of the three children. I sentenced him on each count of murder to life imprisonment and declined to set any minimum term before eligibility for parole. Mr Farquharson has appealed from the three convictions and the sentences thereon. The appeals are due to be heard next month.

2 The sentences were imposed on 16 November 2007. Under s 85C(1)(a) Sentencing Act 1991 an application for compensation must be made within 12 months of conviction, unless an extension of time is granted pursuant to s 85D(2). Ms Gambino filed the applications for compensation on 5 September 2008. Because of her emotional unfitness, at her solicitor's request the Court stood over the hearing of the matters for some months. She swore the affidavit in support of the application on 6 April 2009. The matter proceeded to hearing on 1 May 2009.

3 Ms Gambino's claim for compensation in this proceeding is solely for suffering. By s 85B(1) Sentencing Act 1991 "a person who has suffered any injury as a direct result of the offence" may apply to the sentencing Court for compensation. "Injury" is defined by s 85A(1) to include (amongst other things)

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

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

By s 85B(2)(a) a compensation order may be made up of amounts

"for pain and suffering experienced by the victim as a direct result of the offence...."

4 Ms Gambino has been the subject of an award of damages for psychiatric injury from the Transport Accident Commission - because the children's deaths arose from vehicular and highway use - by an agreement between the Commission and her. The agreement was made under Part 3 Division 1 Transport Accident Act 1986 relating to permanent impairment. It is a confidential agreement. Her counsel proffered it to the Court but I have not received it and do not know its contents, terms and amount save that it principally relates to Ms Gambino's severe psychiatric injury and that the assessment does not include any reference to a component for grief. Under the common law, damages can be awarded for psychiatric injury but not for grief, distress, or grief-like suffering[1]. Under the provisions of Part 3 Division 1, compensation pursuant thereto is not circumscribed as are common law damages in relation to grief. Compensation under that Division proceeds under criteria stated in the American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.) (other than Chapter 15 (headed "Pain")). The assessment was made pursuant to sections 46A and 46B of that Act and payment was made pursuant to s 47.

5 Under s 85B Sentencing Act 1991 compensation can be awarded both for psychiatric injury and for grief, distress and grief-like suffering. In order not to double count[2], in these Orders I have awarded compensation only for grief, distress, and grief-like suffering (which is not the subject of the T.A.C. agreement) - that is, only for s 85A(1)(d) injury - and have awarded no compensation for psychiatric injury (which is the substantial subject of the T.A.C. agreement) - that is, not for s 85A(1)(b) injury. Counsel for Mr Farquharson did not submit to the contrary. The awards by this Court pursuant to s 85B are incidents of the curial criminal process and are very much characterised by that process. The TAC agreement was not. In these applications the existence of the three criminal offences, and their nature, impact, and consequences, are central.

6 As to the true cause of the children's deaths, Mr Farquharson's story was that their deaths were an accident. He had had a coughing fit while driving and had blacked out. He regained consciousness under water in the dam. He was only able to save himself. He was unable to save the children. Ms Gambino believed him. Anyone would want to. No-one would want to believe the alternative. Least of all the woman who had married him and who bore the three children to him. However, extensive personal and forensic investigation ensued. Ultimately the fruits of that investigation were presented at trial. After seven painstaking weeks the jury found Mr Farquharson guilty on each of the three counts of murder.

7 No-one who was present will ever forget the solemn delivery of the three verdicts and their consequence. Ms Gambino, present in court, uttered cries of desolation. She collapsed and was bodily carried from the court. Her cries were of more than anguish. They were of desolation beyond anguish. Ms Gambino had to face her darkest fears.

8 Ms Gambino is truly a victim of these terrible crimes. She was intended by Mr Farquharson to be so. She fulfils the criterion of victim as stated in s 85C(1)(b)(i) Sentencing Act 1991.

9 Ms Gambino's odyssey from belief to desolation is a constituent of her grief and suffering the subject of these Orders for compensation. It is a direct result (s 85B(2)(a)) of the offences. This does not mean that Mr Farquharson is to have to pay compensation for exercising his right to trial; of course not. It simply chronicles her odyssey, all of which was a direct result of the offences.

10 The applications are supported by an affidavit of Ms Gambino sworn 6 April 2009. In it she sets out numerous matters of personal sensitivity which it is not necessary here to rehearse. The loss by a mother of her three children, found by a jury to have been murdered by their father, her husband, and on the prosecution case murdered in order to punish her, needs no elaboration of fact. I proceed upon that holistic premise. No witness evidence was given on the applications.

11 For like reason, and the additional reason that they relate primarily to psychiatric injury which is not the subject of these Orders, I do not rely upon or rehearse the medical reports tendered on her behalf, save to say that they reveal extensive grief and grief-like suffering. The medical reports, and the TAC agreement, addressed sequaelae of Ms Gambino's severe psychiatric injury including medical expenses. These s 85B awards do not comprehend such matter and do not comprehend medical and like expenses.

12 Mr Farquharson does not oppose the making of Orders. However he took the occasion to "maintain his innocence" by instructing his counsel so to state. I shall return to that matter.

13 Under s 85H Sentencing Act 1991 the Court in determining the amount and method of payment of compensation may take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. This provision stands in contrast to common law damages wherein the defendant's ability to pay is not taken into account in assessment of damages. It appears that Mr Farquharson's only asset is an amount of $66,000.00, held in a trust account of the Bendigo Bank. He is serving three life sentences of imprisonment with no minimum term. The amount of $66,000 presently is the subject of Restraining Orders made by this Court (on 2 March 2006, 7 April 2006 and 27 October 2006) in order to preserve it for the circumstance of an Order under s 85B Sentencing Act 1991. Plainly the amount of $66,000 would be inadequate to compensate Ms Gambino for the grief and grief-like suffering she has endured and will endure. It goes part of the way towards such compensation.

14 The two pivotal elements constituting Ms Gambino's grief and grief-like suffering are the loss of her three beloved and young children, and the fact on the jury's verdicts that it was her own husband who murdered them. Both elements fuse to render her claim as profound, deep, and long-lasting.

15 Unfortunately it is necessary to address another matter.

16 In criminal trials the burden is upon the prosecution to prove the charges it brings, and an accused has the right not to give evidence. These matters in my view are fundamental to a civilised system of criminal justice. The law says, and commonsense and fairness also say, that the party which brings the charges has the burden of proving them. A corollary is that an accused has the right to remain silent at trial without adverse comment in court. As the High Court stated in Tuckiar v The Queen[3]:

"Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance."[4]

17 In this case Mr Farquharson instructed his junior counsel to state at the compensation hearing that he "maintains his innocence". His leading counsel after the jury's verdicts said in a doorstop media statement "He maintains his innocence". Certainly Mr Farquharson did so to the police. But as every lawyer and police officer knows, police in interview are forbidden to cross-examine suspects. If they did, the interview would be ruled inadmissible. Also, as every lawyer and police officer knows, the formal statement by an accused at trial of "not guilty" is not a maintenance of innocence. It is not on oath or affirmation. It is a procedural step - assuredly vital, but limited in character - whereby an accused says "You prove it". Just as the High Court stated in Tuckiar v The Queen at p.346. There was only one person alive who had direct knowledge of the cause of the children's deaths - Mr Farquharson.[5] When he came to court, where he could be cross-examined about his story, he did not take one step towards the witness box. In court Mr Farquharson could have "maintained his innocence" by giving evidence. He did not do so. What he did was require the prosecution to prove the charges by his pleas of not guilty. In those circumstances, thereafter to assert he "maintains his innocence" is inappropriate, and undermines the right to silence. Mr Farquharson's criminal trial, and Ms Gambino's compensation application, are curial proceedings, not public relations exercises.

18 In assessing proper compensation for Ms Gambino pursuant to the Sentencing Act 1991 I have had regard to Mr Farquharson's financial means and the burden the awards will make upon him, a serving life prisoner. I put aside psychiatric injury and award compensation solely for Ms Gambino's grief and grief-like suffering. There is no element of punishment in the awards. I have sentenced Mr Farquharson for the murders. The awards are compensation only, not punishment[6]. I order separate and cumulative amounts of compensation in respect of the murder of each child, because each offence is a separate offence, each child was a separate human being, and Ms Gambino grieves and suffers for each child. I direct the lifting of the Restraining Orders made by the Court on 2 March 2006, 7 April 2006 and 27 October 2006 in order partly to satisfy the Orders made.

19 Taking into account the limited matter that I have stated, the applicable statutory and common law criteria, and the existence and ambit of the TAC agreement above described, in respect of the murder of each child I order that Mr Farquharson pay Ms Gambino for her grief and grief-related suffering as a direct result of the murders of the three children, the sum of $75,000 each, making a total of $225,000.00.

20 I shall hear counsel on the matter of the costs of this compensation proceeding, bearing in mind the provisions of s 85K Sentencing Act 1991.

[1] Jaensch v Coffey [1984] HCA 52; (1984-1985) 155 CLR 549; McLoughlin v O'Brian & Ors [1982] UKHL 3; [1983] A.C. 410; Tame v State of NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317.

[2] See s 85I as to an award under the Victims of Crime Assistance Act 1986 - not the case here - and general principle stated in Bentley v Furlan [1993] 3 VR 63. Especially, double counting should be avoided where the payee is in custody (in the present case, for life terms). This is not a case of prior payment pursuant to insurance policy or like instrument: see Watson v Ramsay [1960] NSWR 462 and authority there cited.

[3] [1934] HCA 49; (1934-1935) 52 CLR 335.

[4] At 347 per Gavan Duffy CJ and Dixon, Evatt and McTiernan JJ.

[5] Cf. Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217, RPS v The Queen (2000) 199 CLR 217 and authorities flowing therefrom.

[6] R v Braham [1977] VicRp 11; [1977] VR 104; Bentley v Furlan [1999] VSC 481; [1999] 3 VR 63.