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[2015] VSC 409
General information, not legal advice.
Supreme Court of Victoria
2015-08-11
KING J
Original judgment source is linked above.
CRIMINAL LAW - Application for compensation pursuant to s 85B of the sentencing Act 1991 - Post Traumatic Stress Disorder as a result of the murder of a family member - Application by all four members of victim's family - Nature and extent of psychological injury - Direct result of offending - Aggravating circumstances - Veracity and exaggeration - Assessment of damages.
1 There are four applications for compensation pursuant to the provisions of s 85B of the Sentencing Act 1991 ('the Act'), relating to one criminal episode. The applicants are:
• Helen Daou, the mother of the deceased Michael Daou (first applicant);
• Eli Daou, the father of the deceased (second applicant);
• Simon Daou, the brother of the deceased (third applicant); and
• Daniel Daou, also a brother of the deceased (fourth applicant).
2 Initially, the application was a claim against four respondents including Garry Hargrave as the second named respondent, until, during a directions hearing it was made clear to the applicants that Garry Hargrave had not been convicted in respect of any offence related to the death of Michael Daou, and accordingly the application pertaining to Garry Hargrave was withdrawn. The three remaining respondents are:
they have all been convicted of a charge of murder arising out of the prosecution relating to the kidnapping, false imprisonment and killing of Michael Daou.
3 Andrew Johnston pleaded guilty to the offence of murder, and Adam Hargrave and Ngoc Bui were convicted by a jury after a trial. The offending occurred on 18 November 2006 and Adam Hargrave and Ngoc Bui were ultimately sentenced on 11 September 2009[1]. Adam Hargrave received a total sentence of 31 years with a minimum period of 26 years to be served before becoming eligible for parole; Ngoc Bui was sentenced to a total effective sentence of 25 years and six months' imprisonment and was directed to serve a minimum of 20 years before becoming eligible for parole; Andrew Johnston, as indicated, had pleaded guilty at an earlier period and had agreed to give evidence on behalf of the Crown, he was originally sentenced to a total of 23 years with a minimum of 15 years. That sentence was the subject of a successful appeal by Johnston and he was resentenced by the Court of Appeal to a term of 16 years with a minimum of 11 years[2]. All were convicted and dealt sentenced for other offences as well as the murder.
4 The convictions and sentences imposed upon Bui were also the subject of appeal, and on 7 December 2011 the Court of Appeal delivered judgment in the matter of Lanh Ngoc Bui and Garry Charles Hargrave.[3] Leave to appeal in respect of convictions for both applicants was refused, but the appeal against sentence for Garry Hargrave was allowed on the basis of his ill-health and the sentence was varied.
5 There was a further appeal to the High Court by Bui and special leave was ultimately refused by that court on 15 March 2013.
6 In respect of the first respondent Andrew Johnston, a prisoner at Barwon Prison, an affidavit was filed on his behalf by Victoria Legal Aid sworn on 14 April 2014. In that document, he asserted that at the time of his arrest he was in possession of a Holden Monaro motor vehicle and a motor bike; both of which were the subject of loans, that he owed at least $28,000 for the car, which he had purchased for $39,000 and he owed $12,000 for the bike, which he had purchased for approximately $15,000. The resale value of the motor bike he believed to be some $10,000 at the time of his arrest. Those assets were seized and an automatic forfeiture occurred subsequent to his conviction. He swore that at the time of his arrest he had no other assets and he became bankrupt on 3 March 2008. He has no financial support. He does not have a job waiting and he does not have a trade qualification or links with any potential employers. He said he would be unable to satisfy any claim for compensation. This was not disputed by the applicants.
7 In respect of Ngoc Bui, there were restraining orders in place in relation to a property at 45 Gattinara Drive, Frankston; two bank accounts in the name of Ngoc Quoc Bui and $234,270 cash which was seized from the premises at 45 Gattinara Drive, Frankston, all of which has been automatically forfeited. The sum of $130,455.25 cash was restrained against Adam Hargrave which has also been automatically forfeited. Those funds are held on trust, pending the determination of the compensation applications. Andrew Johnston, Ngoc Bui and Adam Hargrave were all served with the documents related to these applications but none sought to participate in any way in this hearing, with the exception of Johnston who filed the affidavit indicating he had no financial resources.
8 In support of the applications, I received, numerous documents, initially a first tranche of documents in relation to all applicants, and as result of discussions at later directions hearings, a subsequent tranche of updated material was provided. This was occasioned by the original filed reports being from 2007 and the trial and subsequent appellate processes not completed until 2013. As a result an assessment, or at the very least information, about the current health, both physical and mental, of each of the applicants, was required to enable an appropriate and informed determination and assessment pursuant to the Act.
9 Accordingly, I received the following documents; firstly in relation to Helen Daou:
• a victim impact statement dated 14 January 2009;[4]
• a report of Juliette Hooper registered psychologist, dated 20 February 2007;[5]
• a report of Dr Nashwa Botros, General Practitioner, dated 23 May 2007;
• an affidavit of Helen Daou sworn 9 February 2010.
• a report of Dr Lim dated 26 March 2013, with attachments;[6]
• a report of Dr Lim dated 22 April 2013;[7]
• an affidavit of Helen Daou sworn 8 October 2013;[8]
• a report of Dr Melissa White dated 26 October 2013.[9]
• a VOCAT award of assistance dated 23 April 2008.[10]
10 In relation to the applicant Eli Daou, I have received the following documents:
• a report from Dr Juliette Hooper dated 20 February 2007;[11]
• a report dated 23 May 2007 from Dr Nashwa Botros;[12]
• an affidavit of Eli Daou sworn 9 February 2010;[13]
• a report from Dr Juliette Hooper dated 28 March 2013;[14]
• a report of Dr Lim dated 11 April 2013;[15]
• a VOCAT award of assistance dated 23 April 2008,[18]
11 In respect of Daniel Daou, I have received the following documents:
• a report from Dr Juliette Hooper dated 22 March 2007;[19]
• an undated victim impact statement of Daniel Daou;[20]
• a VOCAT award of assistance dated 23 April 2008;[21]
• affidavit of Daniel Daou sworn 9 February 2010;[22]
• a report from Joan Callahan psychologist dated 23 April 2013;[23]
• affidavit of Daniel Daou sworn 8 October 2013;[24]
12 In respect of Simon Daou, I have received the following documents:
• a VOCAT award of assistance dated 23 April 2008;[25]
• a report from Dr Juliette Hooper dated 23 March 2007;[26]
• affidavit of Simon Daou sworn 9 February 2010;[27]
• report from Joan Callahan psychologist dated 24 April 2013;[28]
• affidavit of Simon Daou sworn 8 October 2013.[29]
13 The circumstances leading up to the murder, and the detail of what occurred are set forth in the reasons for sentence, firstly in the matter of R v Andrew Steven Johnston[30] before Bongiorno J and in the reasons for sentence in the decision of R v Adam Hargrave, Garry Hargrave and Ngoc Bui.[31] In brief compass, the circumstances are, that in approximately 2006 a man by the name of Andrew Ferguson was employed in a business called Logistics Plus, in Scoresby Victoria, which was run by Garry Hargrave, Adam Hargrave and Ngoc Bui, with Adam Hargrave and Ngoc Bui, in particular, also being involved in drug trafficking on a significant scale from the warehouse in Scoresby. Ferguson was employed by the two men in both the warehouse and was also involved in the very significant drug trafficking that was taking place at those premises.
14 During 2006, Ferguson sought from Adam Hargrave 2000 ecstasy tablets, the price for which was $20,000. Those tablets were being sold to a man called John Feretanos. At the time of the sale, instead of paying Ferguson for the drugs, Feretanos produced and gun and stole the 2000 ecstasy tablets from him. Consequently, Adam Hargrave was informed of what had occurred and arrangements were made that Ferguson could pay the money back over a period of time by an instalment process.
15 The deceased, Michael Daou, was a friend of Feretanos. He was also the son of the first and second applicants and the brother of the third and fourth applicants. There was a belief, due to the friendship that existed between Feretanos and the deceased, that the deceased was also involved in the rip-off of the drugs. The respondent, Andrew Johnston known as AJ, was also employed at the warehouse, predominantly selling drugs. He resided at the warehouse and had a former partner by the name of Kylie McDonald who was a drug user and drug dealer. It was after the cessation of their relationship that AJ moved into the Logistics Plus warehouse. His former partner used to sell ICE, ecstasy, speed and occasionally cocaine which she purchased either from AJ or from Adam Hargrave. She had ceased getting her drugs from those people and was sourcing them elsewhere after the breakup with AJ.
16 On Friday, 17 November 2006, Adam Hargrave contacted Kylie McDonald and told her that Michael Daou was involved in a rip-off relating to $20,000 worth of drugs and asked if she could organise a drug deal between him, Adam Hargrave and Michael Daou for the express purpose of obtaining your drugs, and arrangements were made for her to participate in a rip-off of the deceased Michael Daou. Michael Daou was a small time drug dealer who purchased and sold drugs as he could obtain them. A dry run was held and subsequently Kylie McDonald met Michael Daou for the purpose of obtaining the ecstasy tablets. She got into his car, and eventually ended up, as arranged by the parties, at a particular place where Daou could be kidnapped.
17 Feretanos, who was also involved in this transaction, had followed Daou and McDonald, in another vehicle towards the reserve but he lost the car whilst he was following them. McDonald and the deceased, Michael Daou, were in Michael Daou's car, parked near a reserve. Kylie McDonald was messaging Adam Hargrave on the way to, and whilst at the reserve. Michael Daou was seized whilst at the vehicle, placed into the boot of his car and transported back to the Logistics Plus warehouse. Others were involved in that activity but they are not the subject of this application.
18 The deceased was removed at some stage from the boot of his motor vehicle whilst in the Logistics Plus warehouse. Adam Hargrave questioned Michael Daou for quite some period of time as to the location of the ecstasy pills that had been stolen from Hargrave, together with other information relating to drugs. It would appear that there was a degree of physical brutality inflicted upon the deceased, Michael Daou, for the purpose of extracting information. I was unable to be satisfied that Adam Hargrave or Ngoc Bui were involved in the infliction of those physical injuries, but I was satisfied that he was held for a number of hours and he was forcibly questioned before being murdered.
19 Subsequent to the infliction of injury upon him during this questioning process, Adam Hargrave fired at least two shots into the head of Michael Daou from a firearm and was assisted in this by Ngoc Bui, his body was put in the boot of his own motor vehicle, driven to an area of bushland and, using accelerants, the car was set on fire and thoroughly burnt, as was the body of the deceased Michael Daou.
20 The applicants in these matters have, as indicated, provided affidavits and reports; I will deal firstly with the matter of Helen Daou. The first report relating to Helen Daou is a report from Dr Juliette Hooper, psychologist, dated 20 February 2007.[32] Ms Hooper stated that Helen Daou presented for counselling, which she provided over three sessions. I am unable to say when those sessions occurred, but at the stage she saw Mrs Daou she said there was no identified motive for the murder and that Mrs Daou was struggling to accept the violent nature of his death. She described her as being inconsolable, in a state of shock and disbelief following the news of his murder and that there had been not much improvement when she last saw her. She stated that in terms of the impact it had on her lifestyle Mrs Daou found it impossible to leave the house, only went out if necessary for appointments, expressed a feeling that it was all like a nightmare, spent a lot of the time lying down becoming increasingly withdrawn from others, had severe intrusive distressing ruminations about what had occurred and imagined multiple scenarios. She stated at page 2 of the report:
Helen lost interest in performing usual ADL's (activities of daily living) and relied upon her husband (for keeping house, cooking, shopping, looking after the two younger boys etc). Helen stated that previously, she and her husband had enjoyed an active lifestyle and they would often go out and have visitors at home. They had been looking forward to the future, looking forward to buying a new home and moving on in their lives. Helen lost complete interest in this as she became more withdrawn and lost interest in everything.
21 She determined that Helen Daou was suffering post-traumatic stress disorder and a major depressive disorder, (a single episode severe without psychotic features). She said there were no improvements in the three times that she saw her and that the prognosis for Mrs Daou was poor if she did not at some stage continue with counselling. Her symptoms she thought were serious and may become chronic and impact upon her physical health. Her treatment recommendations were that Helen Daou receive counselling and psycho-therapy for a period of at least 12 months on a weekly/fortnightly basis, gradually reducing over a period of time to adequately deal with her symptoms of post-traumatic stress and depression. The desired approaches would include cognitive behavioural therapy to assist with anxiety and depressive symptoms, counselling and coping skills. In addition to counselling, Mrs Daou would benefit from any measures that would assist her to regain her sense of safety and improved well-being. It would appear that Mrs Daou did not persist with counselling after the initial sessions organised through the Victims of Crime.
22 The next report was from Dr Nashwa Botros on 23 May 2007. Dr Botros reported that Helen Daou attended the clinic for treatment as a result of the trauma she had suffered in relation to the tragic loss of her son. Dr Botros found that Helen Daou was suffering from major depression, with denial and with a loss of sense of reality. She was to see the grief counsellor from the victims of crime the following day. She was on medication of four tablets of Valium once a day and also prescribed 20 milligrams of Lovan anti-depressant once a day. The diagnosis was grief reaction with signs and symptoms of major reactive depression. Treatment offered was counselling and medication, being Lovan anti-depressant, on a regular basis.
23 She was next seen on 30 January 2007, no signs of improvement were noted and her medication was changed to Avanza 30 milligrams. She was also offered formal psychiatric assessment with a psychiatrist but did not wish to proceed with that. The next appointment was 12 April 2007 where she was seen to be slightly better. She was moving house to the other side of town and her file was offered to be transferred to another LMO close to where she lived, on the basis that the Doctor believed that she would need continuity of care and on-going support.
24 A victim impact statement was made by Ms Daou,[33] it contained a 10 page typed statement under the heading of Other Relevant Information. In that document, she documents her concern when Michael Daou was missing, the impact of being told that he was dead, and that people had been charged with murdering and torturing him, the fact that she did not get to say goodbye to her son. She stated that her whole life had fallen apart since the murder, that she can no longer be the mother to her sons, Simon and Daniel, or the wife to her husband Eli. She said her life before Michael died was one of laughter, parties and family-life full of joy. She stated that her son Michael had been helping them financially as her husband Eli had been injured in a work accident in 2000. She described her son Michael as a good son, a good brother who cared about everybody, he loved life and did things for other people, and as a result of his generosity he was as close to perfection as you could get in a person and a son. That she was unaware that he had been involved in any trouble at that time. She stated the dreams that she and Michael both had for the future and that they are not now going to occur. She also referred to how she feels the whole trial process let her down in that the jury did not convict every-one of the crime of murder, and that some of the guilty people were not convicted.
25 Mrs Daou also swore an affidavit on 9 February 2010 in relation to this matter in which she stated similar things to what was contained in the victim impact statement - that she is no longer the same mother that she used to be, that the person she was died with Michael, that she used to have a loving relationship with her husband, that she was now dead inside, she doesn't leave home very much, sometimes she would go out to church, she stopped praying, given up going to church, sometimes she leaves the house to go to a medical appointment or to visit the cemetery, she doesn't usually do the shopping her husband does that. She sees her other children suffer which causes her pain. She stated that her relationship with her husband has completely gone. She has spoken with her psychiatrist and her priest about it but nothing has changed. She is empty and living a lie and she cannot see a time when she might move on. This is her life and will remain her life. She said that about two years before Michael's death she had been on anti-depressant medication but only for a short time and has never had any mental health issues prior to Michael dying.
26 She said that since Michael's death she's had many problems; she is in receipt of the disability support pension and she is depressed. Prior to Michael's death she stated she was on New Start Allowance. She said Dr Botros was her family doctor who prescribed anti-depressant medication for her which didn't work. She was referred to a psychiatrist Dr Fhami who she said she saw for a while but stopped as she couldn't understand the point of talking about Michael. She said she cannot face any treatment and she doesn't wish to talk about it. She says she now sees a local doctor who prescribes her medication which she just takes. She used Helen Adams a support worker for a while. She said she refuses to get any medical help, that she now drinks a lot now and never used to drink. She said she drinks about a 700ml bottle of brandy on a daily basis and was going through a stage of drinking 4ltrs of wine a day. Her final paragraph states:
I am here just breathing. My life is gone. My family is gone. The whole lot of us are affected forever. I just want to go. I just want to leave this world. I just want to see my kids settled and alright. That is all I want. There are no words I can say that describe what my life and what I am going through, I don't know how to explain. To me, this is the end. I am just breathing, nothing else, all I can do is take one day at a time. That is all.
27 On 8 October 2013, Mrs Daou swore a further affidavit[34] and stated at paragraph 14 that she has sought medical treatment from her general practitioner Dr Jee Hao Lim, and produced a report from Dr Lim dated 26 March 2013. She says she has been treated for depression and anxiety by Dr Lim and prescribed anti-depressant medication. The report also enclosed a letter from Michele Wynes, social worker, dated 8 June 2012, which diagnosed her with major depressive disorder, alcohol dependence, cannabis dependence and DDX complicated grief. She said since the crime she has used cannabis and alcohol and that she had received a victims of crime assistance tribunal award of $20,000 for distress as a related victim.
28 There is also an affidavit filed by Dr Vivian Waller, solicitor for the applicant, producing a copy of a report from psychologist Dr Melissa White dated 26 October 2013. Dr Waller noted that the report opines that the applicant suffers from chronic major depressive disorder, alcohol dependence and cannabis dependence. The report notes a considerable variation between many aspects of the applicant's life prior to the murder of Michael Daou and following, specifically, a decline in the applicant's social function including suffering a panic attack in the social setting on one occasion. It also notes that the applicant no longer drives herself to social outings, but instead relies upon her husband for the limited social engagements she participates in and that since the murder she has not been gainfully employed. Prior to the offences against her son, the applicant, it was noted was employed in various roles. The reported noted that the applicant is often emotionally and physically unavailable to her remaining sons, that there is significant pressure on the applicant's marriage as a result of her emotional deterioration, that she consumes high quantities of alcohol and cannabis and that overall the murder of her son has had a profound effect upon her life.
29 There is also a report from the Northend Medical Centre, 48-50 Charles Road, Epping dated 26 March 2013. It states that the author Dr Jee Hao Lim saw Mrs Daou on 24 April 2012 for depression and anxiety. That she was referred to Primart Mental Health Team on 27 April 2012. That she was then assessed by a social worker, Michele Wynes on 8 June 2012 and the 31 July 2012. Dr Lim also referred her to a psychiatrist, Dr David Hickingbotham at North Park Consulting Suites on 26 June 2012 and on 25 July 2013 a mental health assessment was conducted by Dr Lim's nurse, Regina MacLeod. Dr Lim reviewed the applicant on 25 March 2013 and she said she had stopped Pristiq as it had not helped and said that she had previously had Sertraline Efexor and Valium; they were of no help previously. She confessed to using marijuana and alcohol since her son's murder to make her feel better. She has been offered drug and alcohol services, review and referral but has declined to use them. It noted that Mrs Daou was still under the psychologist, Melissa White, which is of some help, however, no letter was received from the psychologist by the doctor. When reviewed on 25 March 2013, she had denied any suicidal thoughts. Attached to that report[35] were notes pertaining to a mental health plan drafted on 25 July 2012. It noted the number one problem was depression/anxiety/frustration. It listed her medications at that stage. Her medical problems, including chronic lower back pain, smoker, osteoarthritis, irritable bowel syndrome, iron deficiency/anaemia/B12 deficiency and depression/anxiety. It was noted that she was worried about her health and family, that she was no risk of self-harm or to others. A copy of a referral to the Primary Mental Health Team dated 24 April 2012 was also attached. In that referral of that date, it stated.
Thank you for seeing Mrs Helen Daou for your opinion and further management. She has been referred to Northern Mental Health Team but advised to refer to yourself. She is known to have depression and anxiety. Noted son murdered in 2006, which worsened condition. Has had alcohol abuse before, not now. But has used marijuana now. Mood worse recently as worried about son. No suicidal thoughts. Had three different anti-depressants before, no help. Also has seen psychologist last year, no help.
30 In a letter to Dr David Hickenbotham psychiatrist at North Park Consulting Suites, the letter says:
Thank you for seeing Mrs Helen Daou for your opinion and further management. She has been seen by her social worker (Michele Wynes), see letter on 26.12. She has advised referral to yourself regarding Helen's depression/anxiety. I will be grateful if you can bulk bill her.
31 The letter from Michele Wynes is exhibited[36] and the affidavit states that she has assessed Helen Daou diagnosis as major depressive disorder, alcohol dependence, cannabis dependence, DDX complicated grief. Recommendations:
And at pages 154-155 the notes of Michele Wyne, social worker are exhibited. It was noted by Ms Wyne, as follows under Presenting Problem:
Helen Daou was referred by her GP, Dr Jee Hao Lim, due to concerns about her on-going depression and anxiety, and recent commencement of THC use. Helen reports she first experienced depression following the murder of her eldest son six years ago, but had noticed that symptoms have been worse for the last 12/12, since ceasing all medication during a home based detox. Upon assessment;
32 Ms Wyne then deals with the background of Mrs Daou and says:
Born in Beirut, Lebanon, fourth born of nine children. Recalls early memories of living in a village. Her father was in the army and was often away from the family for long periods of time. Her mother cared for all the children while he was away. Recalls being very poor, and were not permitted to attend school. Vivid early memories being physically abused by her father (including being hit by a rubber belt and having her leg cut open). Remembers that other children were also abused, but not to the same extent as her. Throughout her life she says her father constantly referred to her as "dumb", called her "donkey or cow". From age 13/14 would run away from home, her parents would call the police and she would return a few hours later. Denies any sexual abuse. Moved to Australia aged 9 and lived in Footscray and attended primary school for the first time there. Continued to experience physical and verbal abuse from her father. Attended Girls High School in Altona, but was not allowed to catch public transport due to the potential for socialising with boys. Didn't enjoy school, as she knew she could only attend until 16 so questioned the relevance. Serious motor vehicle accident at age 16; car was driven by her sister, accident resulted in loss of consciousness for three days, lost her right eye, required facial plastic surgery, damage to kneecap, neck and back injury. Mother lost her arm and leg. Following the accident worked at a supermarket and noticeably poor concentration levels since. Ongoing physical abuse by father - deliberate blows to the right side of her head after surgeon warning against further trauma to RHS could result in permanent injury. (............................... ...........................redacted.................................................................................................................................................................................................................................................................................)
Six years ago Michael was kidnapped, tortured and murdered by a gang of nine. They were later caught, charged and some are now incarcerated. Michael was apparently a small-time drug dealer who was accused of stealing and selling someone else's drugs. Helen also believes that the murder was payback for an affair Michael might have had with one of the perpetrator's girlfriends. Helen reports that her mental health problems started as a result of this trauma.
.... her older son, Michael, was violently kidnapped, tortured and murdered six years ago and she reports that this precipitated her difficulties. Since this event she has commenced using alcohol and cannabis as a coping strategy. She reports having had a very close and special relationship with her son, who was born from her first marriage, and she struggles with the violent nature of his death, as well as his young age; he was 22 at the time of his death. She also describes on-going and persistent feelings of guilt and blame both directed at herself and her husband for not doing more to help her son. Helen has poor physical health (liver, pancreas and liver problems). She has an extended family, but conflictual relationships with many of her siblings, and describes herself as very isolated following her son's murder. Positively she describes her two remaining sons and her strong religious beliefs as protective factors. Helen states she is willing to recommence on medication and engage with a psychologist. As indicated, she received from VOCAT the sum of $20,000, together with an additional $500 in expenses, she was also awarded 26 sessions of counselling and any future counselling reserved for further consideration. The $500 was payment of the counselling sessions with Juliette Hooper which were held on 7 December, 18 January, 30 April and 14 May.
33 I have also received a report from Dr Melissa White, psychologist, dated 26 October 2013 . It is a clinical psychological assessment of Mrs Helen Daou, who was referred following an assessment by the Northern Primary Mental Health Team by her GP, due to concerns about her ongoing deteriorating mental state and use of alcohol and THC.
34 She stated that the clear identifiable percipient for the disintegration to Mrs Daou was the violent kidnapping, torture and murder of her eldest son Michael in 2006. Mrs Daou was referred to the writer's practice in July of 2012, where she has attended on average monthly for ongoing support. Therapeutic focus has primarily been around grief, utilising a cognitive behavioural therapy framework with the aim of helping her better resolve her feelings about what transpired to be able to more adaptively be a part of her life, family and community. Her presentation is frequently distressed, tearful and messy, but she is cooperative and respectful. She is at times uninterruptable with moods fluctuating between angry, stressful, tearful, sad anhedonia and amotivation, unexpected panic attacks, she is consumed by issues surrounding the murder of her son and focussed upon all details and aspects of it. Her additional subsequent stresses, according to the writer, include the impact of her current state on her marriage and on her relationship with her two remaining adult children. No suicidal ideation.
35 Her functioning is described by Dr White as significant impairment across all domains: sleep is poor, characterised by frequent waking; insomnia, with reduced quantity, average of four hours per night; appetite reduced; energy low. She is of the view that Mrs Daou has good insight into her problems.
36 She noted that Mrs Daou had been in and out of hospital after the birth of her second child Simon in 1988. In 1991 she had consultations with a psychiatrist in the context of her husband's affair, and some six months prior to the murder of Michael, Mrs Daou consulted with a GP due to a stress rash which had emerged in the context of interpersonal stress with her son Michael. She was prescribed Lovan an anti-depressant. Mrs Daou reports taking this only once. Her medical history is extensive in terms of her physical health, some of which are treated, some of which have returned nil abnormalities being noted.
37 In relation to her functional capacity, some extensive detail was given to Dr White which appears to be at odds with the information contained in other reports. For example, under the heading:
prior to Michael's death she described herself as 'always out and partying, often hosted parties at her home. Travelled extensively, domestically and internationally, for the love of travel and curiosity about the world. Also enjoyed doing floral (dry) decorations. Describes herself as 'having been outgoing, vivacious' and 'the life of the party'. Helen 'took great pride in her personal presentation and hygiene'.
Post Michael's death she is described in the following way: 'Helen by-and-large denies and refuses any invitation to engage in recreational activities. She has been out once with her boys for dinner to celebrate her birthday. This, however, took considerable effort on her behalf, time was devoted in therapy sessions to get her to a position of willingness and behavioural activation. There was another occasion where Helen accepted an invitation to attend a social function. This experience however did not go well, Helen became emotionally overwhelmed, experienced a panic attack and left prematurely.
'Helen had an extensive and active friendship network which she actively and regularly pursued and engaged. She has throughout her life established friendships with people in various parts of Melbourne, corresponding to the locations in which she lived and worked. She would travel, drive herself across Melbourne to regularly catch up with her friends.
currently her contact is limited only to her sister (rarely) and an annual catch-up with a girlfriend. Helen does not drive herself, she is transported by her husband.
'Mrs Daou worked variously throughout her adolescence, that is, factory work within the family fish and chip business. Her adult curriculum vitae; had a 'big beautiful' milk bar business in Croydon 1989 through to 1996 which she and her husband owned and managed where they employed two staff; purchased, managed and worked in fish and chip shop in Surrey Hills 1997 to late 1999. During the period 1999 to 2005 Mrs Daou was engaged in home duties and occasionally helped out a friend in the cleaning business. Of note, Mr Daou had a significant car accident in 2001, subsequently Mrs Daou was required to care for her husband and his injuries. Additionally she was the carer for both her mother-in-law who died in 2001 and father-in-law who died in 2004, both of whom lived on-and-off in the family home. At the time of Michael's murder Mrs Daou was working in a takeaway shop in the CBD, she had been there since 2005.
'Mrs Daou has not been gainfully employed or engaged in any form of meaningful activity since her son's murder'.
38 In respect of Drugs and alcohol, the following was noted:
Mrs Daou was only a very occasional drinker, ie when celebrating New Year's Eve had a 'shottie' and an occasional 'puff on a joint' very recreationally and socially.
alcohol - currently starts drinking at 12 noon (if needing to venture outside of the home), starts at 14.00 otherwise, drinks through until 19.30, ceases before taking her medication, consumes generally one bottle of wine per day.
Marijuana - regretfully using on average 10 joints per day.
Typical day post-Michael's death - 'Spends time engaged in avoidance activities ie staying in the lounge, socially withdrawn, spends time sleeping on and off, watching TV, playing IT games. Reduced motivation for usual activities. Mrs Daou does attend to some aspects of the domestic load, ie, the washing and tidying, however, no-way near in the meticulous houseproud manner that she has historically, rather doing the basics and what's necessary': 'I drag myself to clean so I don't feel guilty about my kids... (and their accusations that I am lazy)... 'I don't give a shit anymore sorry'.
39 In respect of Eli Daou, the first report is that of Dr Juliette Hooper dated 20 February 2007.[37] Ms Hooper, a registered psychologist, also saw Helen Daou, his wife, and their two children. Eli Daou presented for four sessions of counselling to Ms Hooper and reported to her a range of feelings, including extreme sadness and despair, guilt at not being able to protect his son or prevent his death, through to helplessness as he felt unable to help his family through their grief. He also spoke about anger towards those who had committed the crime and a strong desire for justice. His shock and disbelief subsided over time as he sought to be strong for the sake of his wife and two sons. He said that he had to take on the responsibility of running the household and performing chores which had previously been his wife's tasks, his sleep and appetite had diminished and health deteriorated. He stated that he and his wife had previously enjoyed an active social life, but after Michael's death they did not go out socially. He felt anxiety around people within the Lebanese community gossiping about his son's murder. He lost the ability to relax or experience any pleasure in life and became increasingly worried about how his family were handling their loss.
40 Ms Hooper diagnosed Eli Daou with post-traumatic stress disorder and that he was also at that time experiencing a major depressive disorder of single episode moderate severity. He had attended four sessions with her, three with his wife. It was her opinion that there had been little improvement in his well-being. She stated:
His commitment to trying to stay strong and maintain a normal routine for the sake of his children has been helpful in one respect but may also prolong the time for recovery. In addition, he reported a number of medical conditions which have been complicated by his psychological state and for which he is receiving medical advice. His wife's very poor progress is complicating his own distress as he worries about her well-being and tries to come to terms with the change in their relationship. My opinion is that Eli will improve over time, providing he receives adequate support and treatment. A factor which will affect his progress is how his family copes and progresses over time. There is a risk that his physical health may deteriorate if he continues to experience a significant amount of stress. The upcoming court cases of the individuals involved in his son's murder will likely exacerbate his symptoms and will be an extremely traumatic time for the family.
41 Ms Hooper recommended that Eli Daou receive counselling and possibly psycho-therapy for a period of between six to eight months.
42 A report from Dr Nashwa Botros, general practitioner, 23 May 2007[38] stated that Eli Daou attended Dr Botros' clinic on 11 December 2006 following the loss of his son in November 2006. He found that he had a grief reaction, and anxiety about his wife Helen's mental health. He stated that Eli was prescribed Zoloft in 100mg doses once a day as anti-depressant with continuing counselling sessions which are automatically offered to victims of crime and their family. He was of the view that Eli needed on-going psychological care and medication at that date.
43 A further report was tendered from Dr Juliette Hooper, clinical psychologist, dated 28 March 2013, which states:[39]
This is to confirm that Eli was a client of mine from late 2006 to early 2008.
That report then reiterated what is contained in the previous report to which I have just referred. And then under a heading of 'Prognosis Current Treatment' she stated:
I have not seen Eli for several years and I cannot make comment on his current psychological state although, he stated in brief discussions that little had changed. I believe him to be honest and genuine in his reporting of symptoms and do not envisage that there has been significant improvement as there are strong maintaining factors including; his wife's pathological bereavement, changes in lifestyle, and functioning. In addition, the lengthy legal process would have been distressing. In regards to future psychological treatment, Eli would benefit from counselling, however, his motivation would determine whether he wished to pursue that. I cannot comment on the exact number or frequency of sessions as I have not performed an assessment recently.
44 A VOPAT award was also exhibited,[40] that order was made on 23 April 2008. The award was for $20,000 for distress, $1,426 paid directly to other agents and authorised future expenses of $1,170 being for six sessions of 90 minutes duration of counselling over a period of not less than 12 months to be paid upon filing of receipt or invoice. The amount relating to the expenses paid directly to the other agents are: counselling sessions with Juliette Hooper - 5 sessions being 17 December 2006, 9 January 2007, 21 February 2007, 27 April 2007, 24 May 2007, and counselling reports by Juliette Hooper: three reports as per invoice dated 22 March 2007 in the sum of $726.00; and a Family Care Medical Centre report dated 23 May 2007 by Dr Botros in the sum of $200.00.
45 An affidavit was filed on 8 October 2013 by the applicant Eli Daou[41] in which the applicant deposes the history, as earlier set out, of the conviction, sentencing and appeals of the respondents and refers to the previous treatment with Dr Juliette Hooper, to which I have already referred. The applicant stated that his condition had not substantially improved since his treatment with Dr Hooper. He has sought medical treatment from his general practitioner Dr Jee Hao Lin, and a report from Dr Lim dated 11 April 2013 was provided to the court as an exhibit to the affidavit which states:
I reviewed Mr Daou on 9 April 2013 regarding psychological distress and depression after his son's murder in 2006. He is currently on Zoloft 100mg once daily which has helped. He has also seen psychologists in the past, but stopped now as symptoms well controlled with oral anti-depressant. I have attached the letter from the clinical psychologist Dr Juliette Hooper for your information.
This is the most current and up-to-date information I have regarding Eli Daou.
46 Also on behalf of Eli Daou, a victim impact statement dated 14 January 2009 was tendered, which I have read, and is particularly relevant to the court case.[42]
47 In relation to Daniel Daou, the first relevant document is a report from Dr Juliette Hooper, registered psychologist, dated 27 March 2007. Dr Hooper saw both Daniel Daou and his brother Simon Daou on one occasion for the purpose of assessing their psychological well-being. At the time of the murder of Michael Daou, Daniel was in Year 11 at school and stated that he found it hard to continue at school, he talked of missing school, resulting in him falling behind and adding to his stress. He reported strong feelings of despair and anger at the death of his brother. He reported difficulty being at home due to the constant reminders of his brother. He had difficulty in discussing the anger and his feelings generally except with his mother who he described as struggling to cope herself. He reported problems sleeping and that he felt tired, low on energy and having poor concentration. He also reported that he, like his mother and his father, ruminated upon the distressing manner of his brother's death and replayed potential probable events in his mind. He did not sleep in a room by himself any longer and had moved into his brother Simon's room.
48 Dr Hooper diagnosed Daniel as experiencing post-traumatic stress disorder and was of the view that he would require a significant amount of time to overcome the trauma of his loss and that the upcoming court case may intensify his emotions in the short-term. She was of the view that the loss, amplified by the violent and shocking circumstances of his brother's death, had led to a serious deterioration in Daniel's psychological well-being, as with his brother Simon and the fact that both were reluctant to engage in counselling suggested to her a desire to cope on their own within the comfort of the family. It was her view that a professional counsellor may be able to facilitate that improvement more rapidly. A victim impact statement dated 19 January 2009 was also tendered on behalf of Daniel in which he referred to his anger and his depression.
49 Upon reading the document, and although it is attached to a document sworn in January 2009, it is clearly a document written in 2007 at the latest, as it refers to his brother Michael doing things with him last year.
50 He said in that document that his relationship with his parents had changed, and talks about how difficult school is and his inability to concentrate at that time. The family moved from a rented house in Doncaster to a house they purchases Lalor in 2007, and he lost some of his friends from that friendship group in Doncaster but stated he had made new friends in the Lalor area. The victim impact statement indicated that he has just finished Year 11 and intended to do Year 12 next year. He stated he was worried about Year 12 because he felt he had no motivation left and the only reason he was going to finish was because Michael wanted him to complete school. He indicated that he was a person not keen on completing school and was going to complete it only to try and please his brother Michael.
51 In his affidavit dated 9 February 2010, he stated that he was currently doing a pre-apprenticeship in plumbing and was on youth allowance. He was 15 at the time of his brother's death, and 19 at the time of the making of the affidavit. He completed half of Year 11 at Camberwell High School, and the other half at Thomastown Secondary after the family moved premises. Year 11 did not go that well but he completed Years 11 and 12 and passed. He went to TAFE for a few months after school, but he didn't enjoy the course and then took a year off. He stated:
When it first happened everyone was shattered and we were all on edge and found it hard to talk to each other without bursting out and it was hard to communicate with each other. It has eased up a little but it is still pretty much the same.
I did have a few sessions with a psychologist, my solicitor is currently seeking a medical report and I did a couple of anger management sessions with someone whose name I can't recall. I miss Michael, I get depressed about it. He was my big brother and used to look out for Simon and I. My mother will never be the same. My family is devastated. Our family life used to be happy but now there is a lot of frustration and anger and we all miss Michael.
An updated affidavit was filed on behalf of the applicant sworn on 8 October 2013. Once again it sets out the legal history of the proceedings. He also tendered the report of Juliette Hooper stating:
I have sought psychological treatment in relation to the crime.
and exhibited a report by Joan Callahan, psychologist, dated 23 April 2013. He stated that he had suffered economic loss as a result of the offences of the respondents because his ability to work is affected by his psychological state as the result of the murder of his brother. He is currently working part-time as a personal trainer. He exhibited a Victims of Crime Assistance Tribunal Award dated 23 April 2008 in which he was awarded the sum of $18,454.50 for distress. The Tribunal also authorised six sessions of 90 minutes duration over a period of not less than 12 months in the future. Such authorisation has not been taken up by the applicant.
52 The report from Joan Callahan dated 23 April 2013: I find the reports by Ms Callahan of quite limited assistance. They are repeating what she has been told by, in this case, Daniel and also in another report for Simon. Her opinions go well beyond her field of expertise, and even counsel appearing for the applicants conceded that the reports were not of the independent and impartial standard expected or an expert opinion. Some of the information to which she refers does not necessarily accord with information of which I am satisfied, and accordingly the reliance that I will place upon it is limited.
53 In relation to Simon Daou, I have also a report from Dr Juliette Hooper in respect of him she having seen him separately but on the same day as she saw his brother Daniel. It is a joint report that has been prepared. She described Simon as a pleasant 18 year old boy who had a close relationship to his older brother Michael. She said he reported a number of changes including disturbed sleep and appetite problems, waking a number of times through the night and intrusive thoughts and images as to the circumstances of the death of his brother Michael. He was angry and used to physically use a punching bag to vent his feelings of anger and tried to keep himself occupied. Occasionally he would talk to his family and a close friend about his feelings, but he often preferred not to talk to anyone. He and his younger brother became closer after the loss of Michael.
54 He told Dr Hooper that he found it difficult to concentrate and focus, had lost motivation and had little in the way of energy; feeling tired and low in energy most of the time. When he went out socially he found it difficult to enjoy himself and would feel guilty. He was also focussed on the fact that he did not do anything to help prevent his brother's death. He feels that nothing is as important as it was before. Once again she diagnosed him with post-traumatic stress disorder and suggested that he should receive counselling for approximately six months to overcome the worst of the symptoms. She was concerned he would develop mal-adaptive behaviours without some form of therapy. He also received a VOCAT award in the sum of $18,454.51 for distress and had six sessions of 90 minutes duration of future counselling authorised in the sum of $1,170, of which the applicant did not avail himself.
55 An affidavit dated 9 February 2010 made by the applicant stated that he had completed Year 11 at Swinburne Secondary College, that at the time of the making of this affidavit, he had just started a new job with ASAP (Australian Sales and Promoting) as someone who conducts home sustainability assessments of houses to see if they are environmentally efficient. He said he was about 19 when Michael died and working full-time in security. He worked for some seven years in security, The impact of the events, he described as awful and devastating. It made him really angry and he couldn't express it in words. He had a lot of anger and feelings of depression. He stated that it has changed things in his family for ever. Again he referred to treatment by a psychologist, but Dr Hooper only had one session with him, being the assessment session. He said he was not having any treatment at the moment preferring to isolate himself. He did not believe that talking did any good in respect of offending of this nature. He said he did not do a victim impact statement as he couldn't bear to talk, think or read about Michael's death. He said that he missed Michael terribly and their family life has never been the same and it never will be the same. He said his mother is totally devastated and he didn't think his mother would ever get over it or that he would ever get over it. Michael's death has made him angry with everyone and he disrespects people and doesn't care what people say.
56 A further affidavit was sworn by Simon Daou on 8 October 2013, again detailing the legal history of the matter. In that document, he refers to psychological treatment, being the one appointment with Juliette Hooper and her diagnosis. He says that he has suffered significant emotional distress and relied upon the report of Joan Callahan, psychologist, and her diagnosis of post-traumatic stress disorder and the fact that he is deeply traumatised. He stated that he has suffered economic loss as a result of the offences of the respondents in that he is not currently working and has had difficulties retaining employment since the death of his brother. He last worked 18 months ago and is now unable to hold down any jobs. He was also seen by Joan Callahan who provided a report on 24 April 2013. I have read that report and will place only limited reliance upon it, as indicated earlier in this judgment.
85B Compensation order
(1) If a court -
(a) finds a person guilty of an offence; or
(b) convicts a person of an offence -
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).
(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.
(3) In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.
(4) In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.
85A Definitions
...
...
(b) mental illness or disorder ...
...
(d) grief, distress or trauma or other significant adverse effect ...
(e) any combination of matters referred to ... arising from an offence.
58 Both the offender and the victim are permitted to give or call evidence on their behalf in relation to the application, it is not circumscribed (s 85G). The injury suffered must be as a 'direct result' of the offending pursuant to s 85B(1). The question of causation has been considered in a number of authorities including in Kaplan v Leigh-Archer.[45] I am satisfied that the injuries suffered are a direct result of the offending of the respondents. Whilst s 85H provides that in determining the amount and method of payment of compensation a court may take into account the financial circumstances of the offender, and the nature of the burden that this payment will impose, it in my view has no particular relevance in the determination of the award in this case. In RK v Mirik,[46] Bell J said that the Act established a system which deprived the respondent from the conventional testing of the applicant's case as may occur in a civil proceeding. His Honour therefore considered that there should be a reduction in what the court considered to be full compensation to offset the advantage the applicant held by having the streamlined simple system available with the consequent disadvantage to the respondent. The respondents did not challenge the material put forward by the applicants in this case. Some of the material caused me some significant concern as to truthfulness and reliability, which I shall deal with shortly.
59 In the very helpful decision of Liang v Chalmers,[47] an appeal against the award of compensation to the father and step-mother of the deceased murdered by Mr Chalmers, the Court determined that the correct factors to be considered are those enunciated by Neave JA in Director of Public Prosecutions (Vic) v Energy Brix Australia Corporation Pty Ltd.[48] Those factors were:
• the effect on the person on hearing of the events causing loss;
• the closeness of the relationship between the person and the victim;
• the extent of grief and psychological suffering experienced as a result of the loss.
60 The circumstances of the offending in that case were such that the offender who was in a sexual relationship with the deceased, killed her in her own home, removed her body and buried her in a grave in Tallarook. He had covered the body with lime to ensure that it decomposed and then initially pretended that she had disappeared. When subsequently identified as the person who had removed the deceased's body from the scene of the death, had refused to disclose the location of that body for well over a year-and-a-half, in fact only during the running of his murder trial in the Supreme Court did he disclose it. As a result, the body was very substantially decomposed and not able to be buried in a timely manner. All factors that the court considered.
61 In this case the deceased was a small time drug dealer, who clearly became involved with persons well beyond his level of criminality. He was kidnapped and whilst I was unable to find that he was tortured, I was able to find that he was physically held and punished, to a degree, whilst trying to extract information about the location of drugs from him. Ultimately he was shot, his body placed in the boot of the car, the car taken into the country and his body burnt beyond recognition. All of those matters are circumstances of aggravation in terms of the murder.
62 In Liang v Chalmers, Chalmers had sought to have the court declare that the body having been buried and hidden for that duration was not a source of aggravation of pain and suffering of her father or step-mother. The court rejected that application and drew an analogy with the matter of Josefski v Donnelly[49] where the offender was involved in an accident, failed to stop and render assistance and the deceased in that case died alone and without assistance.
63 Here, there is no doubt the circumstances in which Michael Daou was killed, the physical punishment of him prior to his murder and the appalling burning of his body, to the point that his parents or siblings were unable to ever see or say goodbye to him, was clearly an aggravating circumstance.
64 In Chalmers v Liang, the court attached an appendix with a table of comparable cases. I have examined those cases listed in the appendix and whilst useful it is clear, however, that each case must be determined upon its own facts and circumstances. As was said by Vincent JA in Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd:
Bearing in mind the caution with which the making of comparisons between the awards of compensation in other cases under the Act or awards of damages under the common law or other legislation, I have had regard in a general fashion to those to which our attention has been directed. Due, inter alia, to the difficulty of identifying the precise considerations to which the various judges had regard in the individual matters and the weight attributed to the differing relevant factors as well as the significant variations in the circumstances and awards themselves, I found this process even less useful than the comparison of sentences imposed in different or not clearly identified fact situations.
65 I accept that as a result of the kidnapping and murder of the deceased Michael Daou, his mother Helen Daou, his father Eli Daou, and his brothers Simon and Daniel Daou have suffered psychological consequences including post-traumatic stress disorder of varying degrees. I accept that such injuries are a direct result of the offending. I have some doubts as to the veracity of Helen Daou in her descriptions of her life prior to the death of her son Michael Daou, and her evidence when she was called before me was far from satisfactory, for example, she claimed not to be able to remember whether she was her husband's carer's for several years prior to the murder occurring. Despite those doubts as to her veracity, and her potential for exaggeration, I have no doubt that she has suffered considerably. It may well be her personality, her background, which was very harsh in her youth, or some other factor has caused her reaction to be so intractable, or it may be, as it appears to me to be an over statement of the actual injury sustained. Whatever it may be, there was no need for any exaggeration as I accept that any parent in her position who loved their child would suffer real and unimaginable pain at the loss of a child in these circumstances. There is no doubt that for a mother to lose a child is a tragedy from which they will never usually totally recover.
66 Mrs Daou's claim that she is becoming worse rather than better with the passage of almost nine years is surprising, and whilst I do not reject it out of hand, it does not fit well with her claims that her religion and her two remaining children are her sustenance. It also strikes me as unusual for a religious person to become mired in heavy marijuana and alcohol usage, as the applicant currently claims. Hopefully, the completion of these proceedings may bring her some relief. On the other hand, Mr Daou, Michael's father, equally has suffered as outlined, but appears to have been able to make a substantial form of recovery from the loss of his son.
67 Mrs Daou and Mr Daou both attended the trial, Mrs Daou in particular was a noticeable presence during the proceedings. I have become more firm in my view that sitting through a murder trial wherein your child, sibling, parent or someone you deeply love is the victim, is not something that is good for the psychological well-being of the person left behind. Whilst I cannot and would not stop any person from attending, I do think it is time some serious consideration was given to the psychological damage that we are inflicting upon people as we encourage them to attend proceedings in which they hear about the dissection of their child or parents body and the often minute detail of how they met their hideous death, together with exposure of matters that may well have been unknown to family members or loved ones.
68 Each of Mr and Mrs Daou expressed in their victim impact statement the horror that they felt in having to sit in court and not be able to display their emotional reaction to the evidence that they were hearing, due to the impact that emotional displays could have had upon a jury. There is constant talk of the necessity of obtaining closure, but closure and satisfaction are not necessarily to be found in a trial in a courtroom. My experience of the criminal law over the last 40 years confirms me in my view.
69 There was mention of Michael being a person who hopefully was going to contribute to the family finances by, at some stage, going into business with his father. At the time of his death, despite the protestations of his mother, he was not contributing in any way financially to the family and in fact his father had just paid the bank a large sum of money on Michael's behalf. What may have become of Michael financially I am unable to determine.
70 The loss of a child, as indicated, is indescribable. He was not an only child and there are two other children of the relationship who are also affected quite severely by his murder, they are his siblings who have lost their older brother. Unfortunately both of those young men ascribe financial loss to the murder of their brother on the basis for the youngest, that he didn't continue at school as successfully as he anticipated, and for the other on the basis that he is unable to hold employment due to his anger and resentment of the world at large. Whilst I find in relation to those financial matters that those claims are entirely speculative, I do accept that they have suffered significant grief at the loss of their brother and particularly as a result of the circumstances in which his life was lost.
71 It may well have been beneficial for each of these young men, if there had been more counselling accepted by them, and perhaps some of this trauma that they are currently undergoing may have been avoided. But that is hindsight. There appears to be an inconsistency of treatment with Mrs Daou, with her undertaking some therapeutic treatment, and some anti-depressant medication, but there also appears to be some years when there was no treatment reported. The information provided in relation to her treatment over the years is difficult to follow, but it is clear that she consistently refused any assessment, treatment or assistance at all, in respect of her drug and alcohol abuse. Apart from the prescription of anti-depressants again there has been virtually no therapeutic treatment for Mr Daou beyond the initial treatment provided by victims of crime counselling.
72 Like many other people in the community each of the applicants have suffered other stressors in their lives, and not all adverse circumstances that apply in their life can be attributed directly to this offending, but I do find that the major cause in relation to the post-traumatic stress disorder from which each of the applicants suffered, to differing degrees, was caused by the offending of the respondents. Taking the most beneficial view of those matters, I am prepared to accept that there is a possibility that those other stressors of life, may well be matters that normally the applicants may have been able to cope with, and that each may have been rendered less capable of dealing with, as a result of the PTSD.
73 There are, in my view, sufficient assets available to satisfy the awards that I intend to make.
74 I find no basis to suggest that the compensation orders should be reduced to give any effect to the rehabilitation aspects of the respondents nor for any other reason. Taking into account all the matters to which I have referred, in my view it is appropriate to assess compensation, including the matters relating to veracity and exaggeration, in the following amounts:
• The first applicant Helen Daou - the sum of $120,000.00
• The second applicant Eli Daou - the sum of $90,000.00
• The third applicant Simon Daou - the sum of $45,000.00
• The fourth applicant Daniel Daou - the sum of $50,000.00
75 I have not taken into account the awards made by VOCAT in respect of each of the applicants, and the amount will be reduced by the relevant award made to each applicant.
[1] R v Adam Hargrave, Garry Hargrave and Bui [2009] VSC 634.
[2] R v Johnston [2008] VSCA 133.
[3] R v Bui and Hargrave [2011] VSCA 404.
[33] Court Book, 29-141, 14 January 2009.
[48] [2006] VSCA 116; (2006) 14 VR 345, 356-357.
Daou
Johnston & Ors [2015] VSC 409
(2007) 15 VR 405
(2006) 14 VR 345