First Applicant Second Applicant Third Applicant Fourth Applicant v Respondent

2 Ms Brooks died on 11 July 2011 from injuries inflicted upon her when she was savagely attacked in her home in Donvale some 10 days earlier. She suffered multiple skull fractures which led to fatal brain injuries. These were the result of at least two blows having been delivered to her head with a blunt object. The respondent maintained throughout that he had had nothing whatever to do with the murder. The case against him was circumstantial, but was described by the Court of Appeal as 'strong'.

3 The motive for the murder was said to be the respondent's anger at Ms Brooks' decision to move to England, taking their three children with her. There had been a bitterly contested dispute in the Family Court in 2011, but that had seemingly resolved. Nonetheless, the Crown maintained that the respondent harboured deep resentment and hatred towards his former wife, culminating in his decision to kill her.

4 On 11 December 2013, the respondent was sentenced to 23 years' imprisonment, with a non-parole period of 19 years. He subsequently sought leave to appeal his conviction, but was unsuccessful.

5 This present proceeding involves Ms Brooks' identical twin sister, Alison, and the three children of the respondent's marriage, Elizabeth, Archie and Charlie. They seek compensation, pursuant to s 85B of the Sentencing Act 1991, for the death of Sally Brooks.

6 At the time of their mother's murder Elizabeth was aged 10, Archie was 9, and Charlotte was 7. They are now aged 16, 15 and 13 respectively.

7 Section 85B relevantly provides as follows:

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.

...

8 Alison Brooks is the legal guardian of the three children, and has sole parental responsibility for them. She resides in England. She took the children back with her in August 2011, and they remain in her full-time care.

9 Alison Brooks is now aged 54. She currently works as a solicitor in Nottingham. In 2011, she was single and a partner in a law firm. She had no children of her own. She claims that she has suffered injury as a direct result of the murder of her sister. She particularises that injury as being grief, distress and trauma, coupled with the onset and persistence of a major depressive episode.

10 In support of Ms Brooks' application, she relies upon a victim impact statement that she prepared as part of the sentencing process, as well as a statement that she made to police during the course of the investigation. She also relies upon an affidavit dated 2 September 2016, filed on her behalf by her solicitor. That affidavit exhibits a report prepared by Ms Brooks' treating psychiatrist, Dr Neil Nixon, a consultant psychiatrist and Honorary (Consultant) Assistant Professor at the University of Nottingham.

11 Dr Nixon says that, as a result of her sister's murder, Ms Brooks has suffered from a long period of major depression. He is also of the view that she has developed a late-life vulnerability to future periods of major depression. He says that she may never regain her previous career, and that she will require ongoing treatment for the foreseeable future. He is also of the opinion that her prognosis is uncertain.

12 In a statement dated 31 August 2016, Ms Brooks has set out the details of her claims for expenses that she has incurred as a direct result of her sister's murder. In summary, she claims amounts of approximately AUD $500 for past counselling, $6500 for future counselling, $800 for past medical expenses and $350 for future medical expenses.

13 Ms Brooks also claims some $350,000 as the cost of bringing up her sister's three children until they reach the age of 18. In addition, she claims to have expended about $14,000 in travel costs when she came to Australia in 2011 after her sister's murder. She further claims some $3000 as funeral costs, together with $6500 as travel costs for returning to Australia in 2013 to attend the respondent's trial. Finally, she claims $2000 as the cost of expert reports.

14 Ms Brooks makes further claims for loss of earnings, it being accepted that she is now unable to work full time as a solicitor, and is presently only capable of working two days per week. Ms Brooks says that she was formerly an equity partner, but that her profit share depended on hours spent in the office and, in particular, billable hours. She no longer has her own caseload, and substantially does only non-chargeable work. She says that she is unable to concentrate at work, and becomes easily fatigued.

15 Section 85K of the Sentencing Act provides a definition of 'injury' for the purpose of s 85B. That definition, in part, includes 'grief, distress or trauma or other significant adverse effect'.

16 It was submitted on behalf of Ms Brooks that she had suffered 'other significant adverse effect' by reason of the respondent's offence. This included having to bring up her sister's children, and pay for their education and upkeep.

17 In addition, as indicated, she is no longer able to earn anything like the amount that she previously did by reason of her part-time, rather than full-time, status as a lawyer.

18 The children each claim for pain and suffering. They jointly rely upon a report dated 24 June 2016, prepared by Mr David Trickey, a clinical psychologist. In that report, Mr Trickey outlines the grief, suffering and trauma experienced by each of them, by reason of their mother's murder. Mr Trickey notes that Elizabeth has developed obsessive compulsive disorder. He says of Archie that he has sustained post-traumatic stress disorder. He diagnoses Charlotte as suffering from enuresis, and anxiety.

19 Based upon Mr Trickey's report and diagnoses, the amounts sought to compensate the children for counselling for the future are: Elizabeth, $10,000; Archie, $12,000 and Charlotte, $4000.

20 The principles that govern the assessment of quantum for compensation under s 85B were discussed in Moresco v Budimir.[1] There, T Forrest J said:

Orders for compensation are not limited to injuries that would be compensable at common law. The Act's definition of 'injury' is broad and includes grief and distress. An application for compensation for pain and suffering is not subject to the restrictions in Part VBA of the Wrongs Act 1958 as being a claim for 'recovery of damages' for non-economic loss. I will return to s 85B(2), and the issue of quantum, shortly.

The expression 'direct result of', which means 'an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence.'

I have said that convenience and expediency are purposes of compensation order applications. A positive expression of those purposes is the evidentiary provision of the Act, s 85G. Subsection 85GI, in particular, provides that on an application for a compensation order a finding of fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact. A finding may also be proved by production of a document under the seal of the court from which the finding appears.

Other facts may be proved by more conventional methods. A victim or the offender may give evidence, or call another person to give evidence, and may be cross-examined and re-examined. Although the application is ancillary to the criminal proceeding, it is itself a civil proceeding, to which the civil standard of proof applies.

If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification. The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender's financial circumstances and the effect of an order on the offender's prospects for rehabilitation.[2]

21 A court making a compensation order is required to reduce the quantum of any such order to reflect any award made to the victims under the Victims of Crime Assistance Act 1996 for the expense or other injury for which compensation is sought. In that regard, Alison received the sum of $25,792 (for distress and expenses) from the Victims of Crime Assistance Tribunal. The three children each received $24,736 for distress.

22 The respondent does not challenge any of Ms Brooks' claims, or those of his children. He accepts that Ms Brooks has expended the amounts claimed, and that she has suffered the injuries identified by her. He also accepts the figures put forward on behalf of the children to cover the costs of future counselling.

23 Sections 85H(1) and (2) of the Sentencing Act provide as follows:

Court may take financial circumstances of offender into account

(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

24 In RK v Mirik, Bell J observed, in relation to s 85H, that:

When the legislature enacted ss 85A-M of the Sentencing Act 1991, I think it struck a different balance between the interests of victims and adult offenders than the previous legislation, and a different balance to the one struck under the legislation in the United Kingdom. The position here, I think, is that an adult offender's means are a relevant but not a controlling consideration.[3]

25 Very little is known of the respondent's financial circumstances at present. He says that he has nothing, apart from the sum of $41,377 that remains from the assets that were seized and restrained under confiscation of assets procedures employed in criminal matters in this State. After two orders releasing certain funds for legal fees, and some money to his second wife, the balance remaining is that very modest amount.

26 The fact that an offender has only a small sum available to meet any compensation order under s 85B does not mean that no greater amount should be ordered as compensation.[4] It was submitted on behalf of the applicants that it was theoretically possible that the respondent would benefit from the sale of a significant asset in the future, upon the death of his mother, who might choose to leave him part of her estate. It was submitted that, if that were to occur, her grandchildren ought to have the opportunity to benefit from it.

27 Section 85B is plainly intended to facilitate a swift, and relatively low cost means of redress for the harm suffered by victims of crime. It avoids the need to force them to embark upon lengthy, and complex, civil litigation. At the same time, because the process entailed is summary in nature, it is appropriate to take a somewhat conservative view of the amounts that should be paid, given that detailed evidence in support of claims may not necessarily be available, and a broad brush approach may have to be adopted.

28 I have had regard to a number of compensation orders that have been made within the Trial Division, in order to get a sense of how best to go about calculating the amounts that would be fair and just. I have also had regard to a decision of the Court of Appeal in that regard.[5]

29 Doing the best that I can, and bearing in mind the other compensation orders I have had regard to, I order that the respondent pay to:

(a) Alison Brooks - compensation in the sum of $600,000;

(b) Elizabeth Catherine Meade (now known as Elizabeth Catherine Brooks) - compensation in the sum of $100,000;

(c) Archie Meade (now known as Archie Brooks) - compensation in the sum of $100,000; and

(d) Charlotte Jenifer Meade (now known as Charlotte Jenifer Brooks) - compensation in the sum of $100,000.

30 These amounts encompass pain and suffering, in the case of all four applicants, and costs directly incurred by Ms Brooks in having to bring up and educate her sister's children. They also encompass compensation to her for the lost earnings associated with her reduced employment capacity.

31 I reduce the amount ordered to be paid in each case by the amounts already received under the Victims of Crime Assistance Act.

32 Accordingly, I order that Ms Alison Brooks receive the sum of $574,208. The three children each receive $75,264.

33 In accordance with the approach adopted in Moresco, I make no order as to costs.

[1] [2015] VSC 51 ('Moresco').

[2] Ibid [21]-[25] (citations omitted).

[3] [2009] VSC 14; (2009) 21 VR 623, 652.

[5] Chalmers v Liang & Zhu [2011] VSCA 439.