Gregory & Stawenga v Gregory [2000] VSC 190

Supreme Court of Victoria|2000-04-07|Before: Cummins J

CRIMES COMPENSATION - Pain and suffering - Murder and intentionally causing serious injury - Claim by parents of deceased daughter - Cerebral injury - Psychological injury - Sentencing Act 1991 s.86 - Considerations applicable.

Pursuant to the provisions of s.86(1) Sentencing Act 1991 two applications by victims for compensation for pain and suffering as a result of the offences have been made. The first applicant, Mrs Cheryl Gregory, the mother of the deceased and herself injured, has so claimed in relation to Counts One and Two. The second applicant, Mr Hank Stawenga, the father of the deceased, has so claimed in relation to Count One. Both claims were through solicitors notified in writing to the court at Ballarat before sentence of the respondent and both satisfy the criteria of the Act: both applicants are victims (s.86(1)) and both are clearly within time (s.86(5)(a)). Mrs Gregory's solicitors applied in writing on 26 August 1999 and Mr Stawenga's on 25 August 1999 and a formal notice was filed on behalf of Mrs Gregory on 7 December 1999. At the hearing on 31 August 1999 at Ballarat I stated that the applications were formally received by the Court (see s.86(5)(a) Sentencing Act 1991) but that it was not appropriate to hear submissions on the applications until an appropriate time had passed after sentence. Otherwise the accused was likely to be unfairly oppressed. The applications came on for hearing on 29 October 1999. The respondent was not legally represented. I considered that it was desirable that he be represented if possible, and adjourned the hearing of the applications to that end. In the event and to meet the convenience of the parties the applications were fixed for hearing on 31 January 2000, at which hearing the Respondent still was unrepresented.

The deceased was born on 10 November 1999 at the Frankston Hospital. She was 20 years of age at the time of her death. She was the only child of Mr Hank Stawenga, the second applicant, and Mrs Cheryl Powell as she then was, the first applicant. She would have been 21 years of age three months after she was murdered. The first applicant, Mrs Gregory, was born on 10 July 1952. She and the respondent married in 1994 having lived together since 1983. She was 46 years of age at the time she was injured. There is also a daughter of the respondent and the first applicant, Tamara, who was born on 4 May 1985 and was 13 at the time of the killing.

The respondent, Mr Gregory, was at the time of the offences 53 years of age having been born in the United Kingdom on 8 March 1945. He and his then wife migrated to Australia in 1965. He worked as a stockman in the Western District. That marriage ended in 1983. There were two daughters and a son of that marriage.

Yvonne Stawenga (later Powell) was, as I have said, the only daughter of the first and the second applicants. Their marriage ended in 1983. Initially, Yvonne was in the legal custody of her father and, some three and a half years later, went into the custody of her mother. She, Yvonne, her mother, and the respondent, all moved ultimately in 1996, to a rural property near Linton, west of Ballarat where, in August of 1998, the daughter was killed.

The circumstances of the killing and its antecedents are set forth in the sentence I imposed upon the respondent on 7 September 1999. It is not necessary, as that is a matter of public record, for me to set them out in their extensive detail. It is sufficient to say that the respondent abused his wife and stepdaughter and threatened his stepdaughter, and ultimately, just as he said he would, he shot her dead. The circumstances of the killing are harrowing indeed. Yvonne had left the home, after years of inappropriate treatment, to live on her own in a flat in Albion Street, Sebastopol. She indeed had been encouraged to do so for the purposes of her education and employment, by responsible authorities. She was, as will hereafter appear, at last exercising some freedom from the respondent. The first applicant was persuaded by the respondent to get the daughter to come back home on the evening of 20 August 1998. The daughter felt a conflict between loyalty to her mother and fear of her stepfather. Loyalty to her mother won, and she returned home. There the respondent shot her dead with one shot through the head, from close range, with a loaded 22 calibre rifle. The respondent then shot his wife through the head. Both the victims fell in the kitchen, in the presence of the 13-year-old who bravely sought help. The police and ambulance and help arrived - - -

PRISONER: Excuse me. Tamara wasn't in the room; she was in bed.

HIS HONOUR: She was indeed in bed, and she got up, and in the end she was covered in blood, trying to help her mother and sister. Then the two victims were removed by air ambulance to Melbourne, and the daughter died, the next day, in circumstances to which I shall come.

The first applicant, Mrs Gregory, was treated at the Royal Melbourne Hospital, as appears in the statement of Dr Anthony Cross, Emergency Registrar of the Royal Melbourne Hospital, on 6 October 1998, and tendered at the committal. She underwent neuro-surgery. A further report of Dr Philip Wood, now of Beaufort, of 21 May 1999, and also tendered at the committal, sets forth further material, and I shall shortly turn to it and to a report of the neuropsychologists F. Borg and J. Todd, undated, the last assessment being 19 November 1998.

Mrs Gregory had been involved in a severe car accident on 20 April 1995 and it is apparent from the report of Dr Wood that she was significantly physically incapacitated by that accident, but she was not cerebrally affected by it. The statement of Ms Joanne Reynolds of 21 August 1998, the daughter of the respondent, tendered at the committal says that the first applicant was "somewhat of a cripple" after the car accident. But there was no head injury involved.

The statement of Dr Wood of 21 May 1999 sets forth the history of the operative procedures upon the first applicant following the shooting. She spent ten days in the Royal Melbourne Hospital, had marked dysphasia, and then went for rehabilitation to the Grace McKellar Institute where she received intensive treatment from speech pathologists, occupational therapists, neuropsychologists and other professional persons. She presented at the Beaufort Clinic of Dr Wood on 23 December 1998. In his statement Dr Wood sets forth the obvious expressive dysphasia and other cerebral consequences of her injuries and her general inappropriate behaviour she being unable to express or express adequately her frustration and incompetence. He stated that the first applicant "will suffer a prolonged and internally stormy grief process. She will suffer an agitated depression and will require long term counselling for this". He further stated that "if she is ever to achieve any of life's goals she will require astute legal and social assistance. (That is because) she is forgetful, lacks concentration, is slow thinking and lacks the ability to plan". He stated that "she will eventually become socially isolated and have huge problems initiating or maintaining future relationships". He concluded: "Her prognosis is bleak".

The neuropsychologist's report, undated as I have stated but the last assessment being 19 November 1998, concluded: "Neuropsychological assessment and monitoring, one to three months post accident, suggests that (the applicant) has demonstrated a substantial generalised improvement in cognition and memory since her initial assessment screening. She has performed at or close to her pre-morbid level in most areas of non verbal intellectual functioning with the exception of a reduced information processing speed. Despite these improvements, she demonstrated substantial ongoing problems with receptive and expressive language (dysphasia), verbal abstraction, attentional control (sustained, shifting and dividing), memory and executive functioning. Well-learned verbal information such as history, geography and general facts and figures were relatively preserved. Her neuropsychological profile was consistent with her predominantly left frontal and fronto-peritial cerebral pathology. In addition to those cognitive difficulties, it was clear that (the applicant) had a range of psychological and emotional issues that needed to be addressed".

The report continued: "A number of (the applicant's) cognitive impairments are likely to have a moderate to marked impact in many aspects of her day to day functioning, particularly in activities involving planning and organisational skills. She may be taught external compensatory strategies for her memory impairment, processing speed and attentional difficulties. Her success is heavily dependent upon further regular rehabilitation as well as professional and personal supports in place; with this, she should be able to meet various demands and challenges of independent living".

The statement of the first applicant, being a Victim Impact Statement made on 25 August 1999, is part of the plea material and I will not rehearse it in full. It states that the death of her daughter, Tamara, was the most substantial and devastating effect of the crime. The daughter was young and was only beginning to blossom and experience the joys of life. The applicant states that to make matters worse her own physical injuries received during the crime mean that she only has a limited long term memory and, in particular, few memories of her daughter. She feels devastated by the loss of her daughter and tries to think of her every day, and it is extremely frustrating and distressing to be able to picture someone you love, but unable to grasp the memories of the times they shared. She states that the gunshot wound inflicted upon her by the respondent resulted in significant brain impairment and it was some time before she was able to speak or walk again. She has undergone extensive speech therapy and still saw the therapist at that time once a week. She has constant headaches and unsteady on her feet. Her speech is slow and she has little to no concentration span. She has very limited long term memory. She tires extremely easily. She finds it difficult to maintain a conversation with other people. She cannot stand small spaces and is restless and has nightmares. She concludes that her life is extremely miserable. She has been unable to return to the farm due to the emotional and physical reasons of what occurred there.

It is apparent that the claim of the first applicant is very substantial for pain and suffering as the result of the two offences, murder of her daughter (Count One) and serious injury of herself (Count Two).

The second applicant, Mr Stawenga, as I have said, was the father of the deceased child. He was not present at the scene as was the first applicant nor was he physically injured by the Respondent and in those respects his claim is quite different from hers. He suffered, as I shall state, very substantial pain and suffering as a result of the murder of his daughter (Count One).

Mr Stawenga made a statement to the police on 24 August 1998 setting forth the history of his relationship with his daughter. He said that he married the first applicant, then Cheryl Powell, at Cranbourne in 1970. Yvonne was the only child of the marriage. Relations between him and his wife deteriorated during the later 1970s. She convinced him to move to her father's farm at Darlington, near Camperdown, in 1979. There the first applicant met the respondent and the second applicant's marriage with her failed. Mr Stawenga was awarded custody of the child, Yvonne, with the first applicant permitted to visit her and about three years later that position was changed and the first applicant was awarded custody of the child.

For a number of years there was no contact between the second applicant and the deceased, although as appears from the statement of Mrs Ruth Stawenga of 24 August 1998, tendered at the committal, the second applicant missed his daughter dearly and was always saying that he wished to see her. Ultimately, however, after years of oppression by the respondent, the child left the home and also contacted her father: first by a card and then a phone call. The statement of Mr Stawenga poignantly sets out the joy that he experienced in re-establishing a paternal relationship with his daughter. I shall not rehearse the limited time he had with her before she was killed, but it is set forth in his statement of 24 August, 1998.

Confirmatory material as to the situation also is contained in the depositions. The statement of Ms M Benjamin of 26 October 1998 sets forth how the daughter had really "grown in confidence and matured in the short time she lived in the flat" in Ballarat. The statement of Gregory Boyd, the boyfriend of the deceased, of 2 September 1998 stated how just before her death when she met her father-in-law and she was really happy to be with him.

The statements of Detective Senior Constable Tremain of the Homicide Squad, tendered at the committal, of 21 August 1998 confirm the sad circumstances of the death of the daughter in the Alfred Hospital, Melbourne, as does the statement of 7 September 1998 of Dr F. Hawker. The second applicant, Mr Stawenga, had immediately gone to the Alfred Hospital when he heard of what had occurred to the daughter and he stayed with her until she died. As the statement of Detective Senior Constable Tremain sets forth, when he went to the cubicle where the young woman was lying, the second applicant was there. There was life support equipment connected to her body. Dr Hawker pronounced life extinct at 2.34 p.m. because, as Dr Hawker said in her statement, there were no brainstem reflexes, and then life support was turned off at 1.05 p.m. Throughout those harrowing last hours, the father was present with his daughter.

A report of Ms J. James, psychologist, of 3 June 1999, was provided by the solicitors for Mr Stawenga to the prosecution for use of a victim impact statement. Although at plea the report was not tendered, I consider its purposive provision by the solicitors for the second applicant to the prosecution and the presence of the document in the hands of the prosecution at plea satisfies the description of "available document" (s.86(9)) as it was "made to the Court" albeit not tendered: s.86(9)(d). Mr Stawenga himself was present at court in Ballarat throughout the hearing of the plea and the imposition of sentence.

Ms James, qualified as a Master of Arts and a Member of the Australian Psychological Society, in the report stated that Mr Stawenga was very moved to be able to renew his relationship with his daughter, which had been thwarted over the years; that he is devastated and grief stricken by her loss; that he suffers from intense feelings of responsibility; and that he felt that he had let his daughter down, because he knew something was wrong because of her fear, especially when she was in Lorne just before her death, which fear is also clearly demonstrated in the statements of Gregory Borwick and a number of other witnesses, the fear being of the respondent. The psychologist Ms James concludes that the second respondent suffers from post-traumatic stress disorder, a well-known psychological phenomenon, and also from depression. She considers his depression is severe and his stress disorder is severe. She states that he has no peace. She concludes: "I do not feel his recovery will ever be complete and any healing will be slow."

The report of Ms James conclusively establishes that the second respondent has had very severe and substantial psychological and affective consequences of the killing, which clearly come within the contemplation of s.86(1) of the Act, being pain and suffering as a result of the offence of the murder of his daughter (Count One).

There is also a report of Dr P.G. Kapadia of the Pakenham Medical Centre, of 11 March 1999, which concludes that Mr Stawenga suffers no residual disability and that his prognosis is good. I must say I am unassisted by that report. It appears to me conspicuously to lack the depth of consideration that the psychologist Ms James has provided, and insofar as there is a difference between the two reports, I act upon that of the psychologist.

I do not act on the affidavit of 15 November 1999 of Mr Stawenga, filed pursuant to his application, by reason of s.86(8) and s.86(9)(d) of the Act, which, in my view, preclude later and extraneous material being acted upon. The material I act upon was either tendered at or available to the Court at plea or led at the committal and is thus before the court. It conclusively establishes the serious consequences, psychologically speaking, of Mr Stawenga's victim status.

Pursuant to s.86(2) of the Act, in determining the amount and method of payment of compensation, the Court may take into account, as far as practicable, the financial circumstances of the offender. Though there is little before me in that regard, from the police brief and the Register Search statement filed it appears that the first applicant and the respondent were joint proprietors of the farm at Linton, with a mortgage to the National Australia Bank and a caveat to Victoria Legal Aid. It would appear that, in general terms, the property may have been worth about $150,000, subject to a $50,000 mortgage. A legal half interest, he being a joint proprietor, was held by the respondent. The respondent has also had forwarded to me, since the hearing, through Moreland Hall, a particularised list of items which are exhibited; some $33,000-worth of individual items. There is limited material of utility in relation to the financial situation of the respondent. Consonant both with due process and the provisions of s.86(9A) the applicant, although legally unrepresented at the applications, has been given a reasonable opportunity to be heard on the applications. He has said little, other than to say in effect that he is impecunious.

I turn to the law applicable to the matter. There is a considerable history of victim compensation in one form or another and to a greater or lesser, usually lesser, extent: see L. Radzinovicz and R. Hood, A History of the Criminal Law (1986) vol.5, pp.654 to 655 and the articles cited in footnotes 27 to 33 therein, and A. Ashworth Sentencing and Criminal Justice (1995) pp.256 to 261. See also The European Convention on the Compensation of Victims of Violent Crimes (1984), the preamble of which states:

"Considering that it is necessary to introduce or develop schemes for the compensation of these victims by the State in whose territories such crimes were committed, in particular where the offender has not been identified or is without resources ..."

In Victoria the Court has long been in power to order compensation for property loss: see s.546 Crimes Act 1958, s.92 Penalties and Sentences Act 1985 and s.86 Sentencing Act 1991. However, compensation, such as it was, for non-property matters was not vested in the Court, but in tribunals: see s.18 Criminal Injuries Compensation Act 1983. In 1996 for the first time that power was vested in the Court. The Victims of Crime Assistance Act 1996 by s.73 repealed the Criminal Injuries Compensation Act 1983 and by s.19 the Crimes Compensation Tribunal appointed under that latter Act was replaced by the Victims of Crime Assistance Tribunal. By s.74(1) Victims of Crime Assistance Act 1996, s.86 Sentencing Act 1991 empowering compensation for property loss was amended to empower the Court also to order compensation to victims for "pain and suffering". Thereby the power to award compensation to victims for pain and suffering was removed from the Tribunal to the Court and liability for payment was removed from the State to the offender. The removal from the State of the liability to pay appears to have been a reason for the legislation: see the Minister's Second Reading Speech 31 October 1996, Hansard (Assembly) Vol. 434 p.1024. Putting aside the question of the appropriateness of such a reason, which is a matter for political debate and as to which I say nothing, the grafting on to simple (and usually limited) property compensation awards, of awards for pain and suffering, which are different in nature and potentially much larger, renders the legislation legally incongruous. That is so for the following reasons. First, a purpose of sentencing is rehabilitation. It is in no one's interests, neither those of society nor those of the offender, for the spark of reform, where it exists, to be extinguished. A crushing financial burden upon indigent offenders harms the prospect of rehabilitation. No doubt for that reason s.86(2) Sentencing Act 1991 was enacted. It was contained in the original 1991 Act (as to property) and retained unaltered by the 1996 Amending Act as to pain and suffering. It states that the Court

"... 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".

How can one both fulfil the rights of the victim and not financially crush the offender? The sub-section, conspicuous in its vagueness, provides no real solution to what in truth is a contradiction. Further, differentially to award compensation because of the offender's means to pay gives the wholly undesirable appearance that victims with similar suffering are valued differentially by the law. Just as there should not be one law for the rich and one for the poor, so there should not be a sliding scale of compensation for victims of crime because the offender is rich or poor. Finally, the award, being compensation and not punishment, proceeds according to common law criteria (McDonald (1979) 1 N.S.W.L.R. 521; In Re Poore (1973) 6 S.A.S.R. 321) and yet, unlike common law assessment wherein the pecuniocity of the defendant is irrelevant, by s.86(2) impecuniosity is, or may be, relevant.

Under property compensation, the courts have held that the purpose of s.86 compensation is to enable awards of compensation to victims of crime in relatively clear and non-complex cases and not to bog down the criminal list in longer compensation claims which should be heard in the civil list: Landholt (1992) 63 A.Crim.R. 200 and Braham [1977] VicRp 11; (1977) V.R. 104. The capacity to pursue civil process is preserved by s.86(10) of the Act. No income loss is compensable under the s.86: see by comparison s.8(2)(c) and s.10(3) Victims of Crime Assistance Act 1996.

Taking the relevant matters into account according to the criteria set forth in the Act and on the basis of the evidence that I have reviewed, pursuant to s.86(1) Sentencing Act 1991 as compensation for pain and suffering as the result of the offences I award in the case of the first applicant, Mrs Cheryl Gregory, the sum of $50,000 and in the case of the second applicant, Mr Hank Stawenga, the sum of $25,000, both sums to be paid by the respondent.

Having considered the provisions of s.86(9)(d) of the Act, because of the substantial ambit of this matter and its nature I order that the respondent pay the costs of each of the applicants.

I grant the parties liberty to apply if they need to apply to me for any consequential orders.

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Judgment (37 paragraphs)

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