First Applicant v Respondent

1 These are two applications for compensation orders made pursuant to s 85B of the Sentencing Act 1991 (Vic) (the 'Act') by Mr Bradley Charles Pawley and Mr Colin Jesse Cosgrove ('the applicants'). The applicants are two sons of Ms Caroline Willis ('the deceased') who was murdered by Mr Jamie Ian Willis ('the respondent') on 24 May 2018 at a premises in Werribee, Victoria. The respondent is also a son of the deceased and is the half-brother of the applicants.

2 Both applicants have proceeded on the basis that they will need to also apply for an extension of time to make their applications, pursuant to section 85D of the Act. However, as will be explained later in these reasons, only Mr Cosgrave needed to make that application.

3 On 25 May 2018, the respondent was charged with the murder of the deceased. Upon application of the Director of Public Prosecutions (the 'Director') under the Confiscation Act 1997 (Vic) ('the Confiscation Act'), on 9 November 2018 in this Court Moore J granted a restraining order in relation to real property at 16 Taworri Crescent, Werribee ('the Werribee property') that was jointly owned in some form by the respondent and the deceased.[1] The restraining order declared that the property was restrained for the purpose of satisfying any future compensation claims.

4 On 3 May 2019, the respondent pleaded guilty before this Court to the murder of the deceased. On 20 June 2019, I sentenced him to imprisonment for 20 years with a minimum period of 14 years to be served before being eligible for parole. Pre-sentence detention was declared at 392 days.[2]

5 By the applications filed in this Court on 4 June 2020 and 26 August 2020, the applicants seek compensation pursuant to s 85B of the Act. The applications were heard before me over a period of three days between April and August 2021.

6 I set out a complete account of the offending at the time the sentence was imposed.[3] It is unnecessary to repeat it here beyond a brief summary.

7 At the time of the offence, the respondent was living at the Werribee property with his mother, the deceased. For some time prior to the deceased's murder, her relationship with the respondent was poor. A family violence intervention order was made in the Magistrates' Court on 21 May 2018 protecting the deceased from the respondent ('the FVIO'). The FVIO required the respondent to leave the home. He did so three days later upon the FVIO being served on him. The same day, he withdrew money from his mother's bank account and then returned to the property and stabbed her to death. He again left the premises and then again returned, staying overnight. The following day he rang emergency services with a fabricated story about four men committing the murder while holding him as a hostage. He later admitted to the killing of his mother.

8 At the initial hearing of these applications, the respondent was not represented by legal counsel. I considered that it was in the interests of justice to refer the respondent for pro bono legal assistance to ensure that he understood the nature of these applications, and his entitlement to challenge the evidence and debate any relevant issues. Counsel was then appointed to the respondent through the direct referral scheme offered by the Supreme Court of Victoria and Victorian Bar. As I said to Mr Gordon of counsel for the respondent at the conclusion of the hearing, this is a most valuable service so far as the Court and people in the respondent's circumstances are concerned and I am most grateful for the assistance I received from counsel appearing for him.

(1) An application for a compensation order -

(a) must be made within 12 months after the offender is found guilty, or convicted, of the offence;

10 In this case, as I have said, the respondent pleaded guilty to the charge of murder on 3 May 2019. I sentenced him on 20 June 2019. Mr Pawley's application was made on 4 June 2020 and Mr Cosgrave's application was made on 26 August 2020. The initial question to be determined is whether the relevant date for the respondent being 'found guilty, or convicted, of the offence' is the date the respondent pleaded guilty or the date the respondent was sentenced. If it is the former, both applications are made out of time. If it is the latter, only Mr Cosgrove's application is made out of time.

11 On the obvious meaning of the words of section 85C as they apply to this case, time starts to run from the date of sentence. In my view this is not a controversial conclusion. For example, in DPP v Croaker, Bongiorno J had occasion to consider the meaning of 'conviction' in a road traffic context and said:[4]

[9] In Maxwell's case, which concerned the question of the court's power with respect to a plea of guilty accepted by a prosecutor, Dawson and McHugh, JJ. said, at 509:

"Whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court."

In the same case, Toohey, J., at 519, quoted Cobiac v Liddy, and in particular McTiernan, J., as saying of the word "conviction":

"It may mean a mere determination of guilt or a finding of guilt, plus a judgment on the finding."

His Honour, at 520, approved the passage in R v Tonks to which I have already referred, and went on to say:

"Thus, Australian authority indicates that at common law a conviction encompasses a determination of guilt by the court and does not necessarily require judgment on the basis of that determination."

12 In this case, that step in the process is the imposition of sentence. The result is that it is only Mr Cosgrove's application that was filed out of time. The question then is whether leave should be given to him to pursue the application.

13 Section 85D of the Act gives the Court a discretion to grant an extension of time to make a compensation application if it is in the interests of justice to do so.[5] That discretion remains even if the application for the extension is made after the 12-month limitation period has already expired.[6] Leave for an application to be made out of time must not be given without giving the respondent a reasonable opportunity to respond to the application.[7]

14 The purpose of the compensation scheme under the Act is to provide a convenient mechanism for redress to the victims of crime, and this Court has found that the term 'interests of justice' within s 85D should be construed liberally.[8] To do otherwise would render legitimate claims for compensation dismissed in favour of the objective of finality of litigation.[9] The discretion to grant an extension of time may however be refused in circumstances where the application would significantly prejudice an offender's rehabilitation.[10]

15 To determine whether to discharge the discretion under s 85D, it is necessary to consider the reason for the delay. The explanation for this, which was not in contention, is that Mr Cosgrove mistakenly believed that he could not engage the same solicitors as Mr Pawley and was otherwise experiencing significant mental hardship due to the death of his mother at the time the application ought to have been made.

16 Counsel for Mr Cosgrove, Mr Vinga, submitted that the application for extension of time ought to be granted given the reasons provided for the late filing of the application, the breadth of the term 'interests of justice' and that exercising the s 85D discretion would not significantly prejudice the respondent's rehabilitation in circumstances where the delay in filing the application was negligible.

17 Mr Gordon for the respondent noted that the time limit in s 85C of the Act encourages finality of litigation and provides offenders with some certainty in respect of their liability to pay compensation orders to victims.[11] Mr Gordon submitted that sound policy reasons militate against courts permitting an extension of time in these types of applications. Enforcement of time limits encourages timely applications and ensures that a Court can make all and any compensation orders at one time in the knowledge that all prospective applicants have made their claim. This enables the Court to award appropriate amounts to all prospective victims apportioned from the known available pool of assets and monies. Mr Gordon ultimately submitted that it is a matter for Mr Cosgrove to establish to the satisfaction of the Court that it is in the interests of justice to grant the extension of time. Mr Gordon conceded that granting the extension of time would not prejudice the respondent's rehabilitation.

18 In my view, notwithstanding the policy considerations Mr Gordon validly raised in the course of submissions, the application for extension of time should be granted for the following reasons:

(a) First, Mr Cosgrove has provided cogent reasons for the lateness of the application which are to be considered in the context of the liberally construed 'interests of justice' test;

(b) Second, Mr Cosgrove has a genuine and well-founded claim for compensation under this regime;

(c) Third, the respondent, as indicated previously, has had the opportunity to be heard on the matter and does not oppose the extension application nor has he suggested that he has suffered any real and significant prejudice as a result of the delay; and

(d) Fourth, the application was made just over two months out of time. The delay is insignificant.

19 Mr Cosgrove's application for extension of time pursuant to s 85D of the Act is granted.

20 Section 85B of the Act governs applications for compensation. The Court may make a compensation order against an offender in favour of a person who suffered injury as a direct result of the offence.[12] The compensable injury need not arise solely due to the offence. The regime is engaged so long as the offence had a significant role in causing the injury.[13] Injury as defined in s 85A of the Act means:[14]

(a) actual physical bodily harm; or

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

(c) pregnancy; or

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

(e) any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence -

but does not include injury arising from loss of or damage to property.

21 Accordingly, if the evidence establishes that the applicants suffered an injury they will be victims within the meaning of s 3 of the Act.

22 Pursuant to s 85B(2) of the Act, compensation orders may be made up of amounts:[15]

(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 likely to be incurred, by the victim as a direct result of the offence;

(d) for some or all of any other expenses actually or 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.

23 Although assigning monetary value to personal grief of trauma is a necessarily artificial exercise, the authorities state that factors relevant to assessing compensation in relation to grief or trauma include:[16]

• the circumstances in which the death occurred;

• the effect on the person of hearing of the event causing loss;

• the closeness of the relationship between the person and the victim;

• the age of the person; and

• the extent of grief and psychological suffering experienced as a result of the loss.

24 The quantum of any compensation order is entirely within the discretion of the Court so long as the claims fall within the categories set out in s 85B(2) of the Act.[17]

25 If the Court determines to make a compensation order, regard may be had to the financial circumstances of the respondent and the nature of the burden that its payment will impose.[18] The Court is not prevented from making a compensation order only because the financial circumstances of the offender are unknown.[19]

26 Any compensation ordered must be reduced by any amount awarded to the applicants under the Victims of Crime Assistance Act 1996 (Vic).[20]

27 The applicants seek a compensation order for pain and suffering pursuant to s 85B(2)(a) of the Act. The applicants rely on affidavits and medical reports filed for the purpose of these applications, and Victim Impact Statements filed for the purpose of the respondent's plea hearing in 2019.

28 A psychiatric report of Dr Ash Takyar dated 26 November 2018 and two psychological reports of Mr Anthony Molteleone dated 19 April 2019 and 2 July 2019 were filed on behalf of Mr Pawley. Only the report of Mr Anthony Molteleone dated 2 July 2019 was referred to in his counsel's written and oral submissions. In the circumstances, I will proceed on the basis that Mr Molteleone's report dated 2 July 2019 is the primary psychological evidence relied upon and the other two reports, which primarily address a workplace injury Mr Pawley suffered in 2005, are relied upon to the extent they are relevant. A single psychological report of Dr Graeme Miller dated 2 February 2021 was filed on behalf of Mr Cosgrove.

29 Mr Pawley was approximately 50 years of age at the time of the deceased's death. The report of Mr Anthony Molteleone dated 2 July 2019 describes the profound effect the offence had on Mr Pawley, initially resulting in feelings of shock and disbelief which developed into feelings of intense anger towards the respondent. Mr Pawley suffered trauma when confronted with the circumstances of the deceased's death. This trauma reaction was compounded when he was given access to the crime scene and saw large sections of carpet removed from the deceased's bedroom as evidence.

30 In his affidavit, Mr Pawley describes imagining the deceased's final moments and the circumstances of her death causing him significant stress and anxiety. These traumatic images and scenarios are said to continue to plague him. Mr Pawley in his Victim Impact Statement notes that, whilst the time he had with his mother was limited, they began to spend more time together in the final five years of her life and that time together was almost always positive.

31 In his 2 July 2019 report, Mr Molteleone diagnoses Mr Pawley with moderate Acute Stress Disorder and moderate anxiety. Mr Molteleone also noted evidence of marked depression. Mr Molteleone states that Mr Pawley's Acute Stress Disorder and moderate anxiety are directly related to the offending. Mr Pawley had been previously diagnosed with depression following a low-back injury sustained at work in 2005, however the offending aggravated his depressive symptoms. Mr Pawley has been treated with the mood stabilising drug Endep (Amitriptyline). Mr Molteleone confirms that as at 2 July 2019 Mr Pawley had attended five one-hour sessions with him. Mr Molteleone describes Mr Pawley's treatment prognosis as 'unclear' at the time of writing the 2 July 2019 report.

32 Mr Cosgrove was approximately 53 years of age at the time of the offence. In his affidavit Mr Cosgrove describes the decline in his mental state after the deceased's death, which led to persistent and overwhelming feelings of grief and the eventual breakdown of his marriage. Mr Cosgrove notes that he was estranged from his mother when he was young, but reconnected with her as an adult. He describes himself as "haunted by the fear and terror [the deceased] must have felt in the last minutes of her life" and blames himself for not being there for her. Mr Cosgrove also notes he previously had a good relationship with the respondent, which he has now lost due to the offending.

33 In his report dated 2 February 2021, Mr Miller "[considers] that Mr Cosgrove experiences Post Traumatic Stress Disorder ('PTSD') symptomology, such as major depression, anxiety, intrusive experiences, avoidance, dissociation and externalisation." As to the link between the offending and Mr Cosgrove's psychological state, Mr Miller opines that the offending "had a traumatic effect on [Mr Cosgrove]" to the extent that at the time of the offending in 2018, Mr Cosgrove's mental state deteriorated to the point that he was unable to seek counselling. Mr Miller confirms that Mr Cosgrove had attended 10 consultations between 10 June 2020 and 5 January 2021. Mr Miller notes that Mr Cosgrove's stress and anxiety symptoms have improved since attending therapy.

34 The respondent filed an affidavit outlining his financial circumstances. The respondent deposed to having an asset, being the Werribee property which he owned with his mother, but otherwise having no assets or monies of which he is aware. The respondent stated that the purchase price of the property was $417,000, of which he paid $150,000. The balance of $267,000 was paid by the deceased, who also paid the stamp duty and other fees and charges associated with the property purchase. The respondent is unsure whether the Werribee property was held as a tenancy in common or a joint tenancy. Mr Vigna in the course of oral submissions noted that documents in the possession of the applicants, which were neither filed in these proceedings nor served on the respondent's counsel, show that the respondent is a joint proprietor.

35 There was no evidence before the Court as to the current value of the Werribee property. The Werribee property was purchased sometime after February 2016 and it would be expected that its value would have increased in the intervening period given the state of the housing market, however there is no material before the Court that can assist me in determining its current value.

36 Mr Vigna noted in the course of submissions that the respondent deposed in his affidavit that he had worked for about eight years. Mr Vigna submitted that this would mean that he would have some superannuation currently sitting in abeyance. There was no evidence before the Court of the value of any superannuation in the respondent's name.

37 Mr Vigna submitted that the evidence establishes that the applicants have suffered an injury within the meaning of s 85A of the Act, namely pain and suffering, as a direct result of the offending and that compensation orders should be made accordingly. Mr Vigna submitted that the circumstances in which the deceased's death occurred bear significantly upon the assessment of appropriate compensation.

38 Mr Gordon conceded on behalf of the respondent that the applicants have cases for compensation and it would be open to the Court to make compensation orders in their favour pursuant to s 85B of the Act. It was not in issue that the applicants are 'victims' within the meaning of s 3 of the Act. Mr Gordon's submissions primarily addressed the Court's assessment of the appropriate quantum of any compensation order that might be made.

39 Mr Gordon noted that psychologist Mr Miller has observed an improvement in Mr Cosgrove's stress and anxiety symptoms since attending therapy and that Mr Pawley appears to have suffered from mental health difficulties and other challenges in the years prior to the offending. Whilst acknowledging the obvious distress and grief visited upon the applicants as a result of the respondent's actions, Mr Gordon submitted that the evidence shows this has been somewhat ameliorated through counselling.

40 In the course of oral argument Mr Gordon submitted that, given the paucity of evidence before the Court of the Werribee property's value, I should be slow to conclude whether or not it has increased in value since its original purchase. Mr Gordon submitted that the principle of overshooting is particularly apposite in circumstances where the value of the property is effectively unknown.[21]

41 There is also the issue of whether any of the proceeds of the property can flow to the respondent given that he is likely to be have been a joint proprietor (as opposed to a tenant in common) of the property with the person he murdered. The uncertainty about the circumstances is complicated by the law in this State, as I understand still to be, that it is a rule of public policy that no person can enforce a right directly resulting to the person as a result of that person's crime. That rule applies to homicide cases.[22] I am not required to resolve any of these issues but they reflect on whether any order that I make for compensation is capable of being complied with.

42 Mr Gordon also submitted that care should be taken when making any compensation order to ensure that the respondent's prospects of rehabilitation are not unduly affected. The respondent's earliest release date, taking into account emergency management days, will likely be around August 2031. At this time, he will be approximately 51 years old. Mr Gordon acknowledged that a sentencing court should not speculate about the possible future exercise of an administrative or judicial discretion that might affect or relate to an offender at the completion of their non-parole period or sentence.[23] Mr Gordon submitted however that, as the applications before the Court do not form part of the sentencing exercise, it is open to me to consider that the respondent may be granted parole and need to re-enter the community as part of my assessment of the appropriate quantum of any compensation order. Mr Gordon described the respondent's anticipated needs upon release as "likely to be substantial" given his mental health history.[24] Given the respondent's uncertain future living arrangements and anticipated difficulties obtaining paid employment due to his mental health difficulties and criminal antecedents, it was submitted that he should be left with sufficient funds with which he can support himself upon release from custody. Mr Gordon conceded that Court cannot in terms 'carve out' a portion of funds to be made available to the respondent upon his release, however the respondent's prospects of rehabilitation remain pertinent and should be a significant consideration in determining the quantum of any compensation orders.

Payments under the Victims of Crime Assistance Act 1996 (Vic)

43 Mr Vinga submitted that no awards under the Victims of Crime Assistance Act 1996 (Vic) have been made to the applicants to date.

44 It is not in contention that it is open to me to make an order for compensation pursuant to s 85B of the Act. Both applicants have established a basis for such an order being made - that is, they have both suffered injury as the result of the criminal actions of the respondent. Under s 85A, the injuries suffered fall within sub paragraphs (b) and (d) individually and in combination.

45 The evidence about the state of each applicant was not as complete as I suspect it could have been but I can only deal with the evidence that is before me.

46 In Mr Pawley's case, the evidence is that he suffered from shock and disbelief which developed into feelings of intense anger towards the respondent. He suffered trauma when confronted with the circumstances of the deceased's death. He also gained access to the crime scene as I have earlier described. He has said he imagines the deceased's final moments and the circumstances of her death causing him significant stress and anxiety which continue to plague him.

47 In Mr Molteleone's report, Mr Pawley is diagnosed with moderate Acute Stress Disorder and moderate anxiety and depression that are directly related to the offending. Mr Pawley already had a diagnosis of depression after a low-back injury at work in 2005, and the offending aggravated his depressive symptoms. Mr Pawley has been treated with the mood stabilising drug Endep (Amitriptyline) and as at 2 July 2019 had attended five one-hour treatment sessions. His prognosis as 'unclear' at the time of writing the 2 July 2019 report.

48 Mr Cosgrove has suffered a decline in his mental health and an overwhelming feeling of grief. His marriage broke down. He has the symptoms of PTSD which include depression, anxiety, intrusive experiences, avoidance, disassociation and externalisation. He has attended some 10 consultations and the symptoms of anxiety have shown some improvement.

49 A further difficulty I have is not being aware of the actual value of the respondent's assets. All I know is that he owns the property at 16 Taworri Crescent Werribee. That property was purchased for $417,000.00 sometime after February 2016. He does not appear to have any other assets and has sworn that is so. Surprisingly there is nothing at all before me to indicate the current value of the property. I expect the value has increased but even that is a guess and if it has fallen into disrepair its value may have fallen. The only figure that is known is the purchase price. The property would appear to have been jointly owned by the respondent and the deceased. This lack of evidence is unsatisfactory but does not prevent me from making an order which in my discretion I consider appropriate.

50 In the absence of detailed evidence apart from what I have already recited the compensation order I will make is based only on s 85B(2)(a) being for pain and suffering experienced as a direct result of the offence.

51 These two applicants are in their early to mid-50s. In neither case would it seem that their relationship with the deceased was particularly close though in more recent times the relationships were positive. Ironically, it may that the person closest to her may have been the respondent.

52 For the injuries which I have described, and which were in the evidentiary material before the Court, I order that each applicant receive compensation in the sum of $50,000.00.

53 I have previously reserved an application for costs by the applicants on 19 April 2021 while the respondent was trying to obtain legal advice. I decline to make that order in favour of the applicants and will further order that they bear their own costs of this application.[25]

[1] Confiscation Act 1997 (Vic), s 18.

[2] R v Willis [2019] VSC 398, [58].

[3] R v Willis [2019] VSC 398, [5]-[17] (Lasry J).

[4] [2001] VSC 342, [9] (Bongiorno J - citations omitted).

[5] Sentencing Act 1991 (Vic), s 85D(1).

[7] Ibid, s 85D(3).

[8] See e.g. Moresco v Budimir [2015] VSC 51, [14] (T Forrest J); Paulino v Paulino [2020] VSC 642, [10] (Elliott J); St. Claire and Holmes v Jamieson [2019] VSC 57, [7] (Bell J).

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

[10] Moresco v Budimir [2015] VSC 51, [15] (T Forrest J).

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

[12] Above n 5_,_ s 85B(1).

[13] Kaplan v Lee-Archer [2007] VSCA 42, [28] (Buchanan JA).

[14] Above n 5_,_ s 85A.

[15] Above n 5, s 85B(2).

[16] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116, [36] (Buchanan JA) and [50] (Neave JA); Liang v Chalmers [2011] VSCA 43, [4] (Maxwell P, Redlich JA and Kyrou AJA).

[17] Above n 5_,_ s 85B(1); RK v Mirik [2009] VSC 14, [154] (Bell J); Stevens v Baxter [2009] VSC 257, [5] (Forrest J) .

[18] Above n 5, s 85H(1).

[19] Ibid, s 85H(2).

[20] Ibid_,_ s 85I.

[21] RK v Mirik [2009] VSC 14, [153]-[155] (Bell J).

[22] Re Estate of Soukup 97 A Crim R 103 (Gillard J).

[23] Director of Public Prosecutions (Cth) v Besim; Director of Public Prosecutions (Cth) v M H K (No 3) [2017] VSCA 180, (Warren CJ, Weinberg and Kaye JJA).

[24] R v Willis [2019] VSC 398, [26]-[33] (Lasry J).

[25] Above n 5_,_ s 85K.