Schloss; In re Farfalla [2002] VSC 385 (16 September 2002)

Supreme Court of Victoria|2002-09-16|Before: TEAGUE J

Sentencing Act 1991 S.85A-M - Compensation for victims of crime - Manslaughter - Claims by mother, father and sister of deceased - Assessment of pain and suffering.

Mark Schloss, born December 1957, and Rhonda Schloss, born December 1959, had three children, Wayne, born May 1979, Rebecca, born October 1981, and Jessica, born July 1985. In their teenage years, both Wayne and Rebecca had problems with illegal drugs. Between 1995 and 1999, Rebecca Schloss led the life of a drug addict. She declined to follow the guidelines set by her parents. She became a daily heroin user. Her parents feared for her welfare, but found they could do little beyond remaining supportive. She was sent to prison for 2 months early in 1999. That meant that she was compulsorily detoxed. It also meant that her parents were able to re-establish contact with her. Within 24 hours of her release, Rebecca Schloss had overdosed. She had to be revived by ambulance officers. After that, she was not able to remain drug free. She was agreeable to seeing more of her family during 1999. Her parents continued to act in a supportive way. They hoped that Rebecca Schloss would be able to transform her life. They believed that with maturity she could get her life back on track.

Her 18th birthday was due on 17 October 1999. Mark Rhonda and Jessica Schloss last saw Rebecca Schloss on 15 October 1999. She was due to visit the family on 16 and 17 October. She did not arrive. The family initially feared that she had suffered an overdose. They then embarked on measures to try and find her. They learned she had made no contact with friends after 15 October. Their enquiries led to their being given information of Rebecca Schloss having been sighted. They found that the information came from Francesco Farfalla. They had not met Francesco Farfalla. Telephone contact with him was made in late October. Early in November, Mark Schloss met with him. He seemed to be sincere in wanting to help them find their daughter. They trusted him. He lied to them. He provided them with false hope. On 10 November 1999, they made a public plea for information. That meant contacting the media and asking that anyone with information contact the police. They got no response. The anguish for the family increased as the weeks passed.

On 2 December 1999, the family was informed by the police of a number of matters. They were informed that the police were satisfied that Rebecca Schloss was dead. The police told them that she had been killed by Francesco Farfalla. He had admitted killing her. He had been charged with murder. They were also informed that Francesco Farfalla had told the police that he had strangled Rebecca and had then put Rebecca's body in an industrial rubbish bin in Keilor Park. Police inquiries revealed that waste from the bin was customarily dumped at the Campbellfield Landfill Disposal Site, which is commonly known as the Broadmeadows tip. The police were not in a position to provide details beyond what Francesco Farfalla had said. They said that it had to be accepted that much of what Francesco Farfalla had said could not be verified. There was an added sense of devastation to the family to learn from the police that Francesco Farfalla had been leading them astray.

On 7 January 2000, an extensive search for the body of Rebecca Schloss was carried out at the Broadmeadows tip. The search failed to find the body. On 14 February 2000, there was a memorial service at the tip. In August 2000 a commemorative plaque was dedicated to Rebecca Schloss in the Bunorong Memorial Park in Carrum Downs.

On 22 August 2000, the presentment of Francesco Farfalla for murder was filed in this court. On 20 September 2000, Smith J made an order, under Section 18 of the Confiscation Act 1997, restraining Farfalla from dealing with the property registered in his name at 10 Nancy Street, Ardeer. On 24 January 2001, Vincent J made an order, under Section 143 of the Confiscation Act 1997, requiring Victoria Legal Aid to provide assistance for the defence of Farfalla in the then pending trial for murder. On that same day, the trial of Francesco Farfalla on the charge of murder commenced before Vincent J and a jury. The family members attended at court during the trial. On 1 February 2001, the jury returned a verdict of not guilty of murder but guilty of manslaughter.

On 16 February 2001, orders were made by the Victims of Crime Assistance Tribunal ("the Tribunal") in favour of each of the applicants, under the Victims of Crime Assistance Act 1996, stating that each applicant was entitled to compensation in the sum of $33,333. I have been informed that payment has subsequently been effected. On 6 April 2001 Mr Ian Joblin provided a report on Francesco Farfalla which was provided to Vincent J. On 7 May 2001, Vincent J sentenced Francesco Farfalla to nine years in prison with a non parole term of seven years. He noted pre-sentence detention of 523 days. Francesco Farfalla subsequently applied for leave to appeal. On 10 August 2001, Farfalla's application for leave to appeal was heard by Brooking JA. Leave was refused under Section 582 of the Crimes Act 1958. Francesco Farfalla subsequently filed notice that he had elected to proceed with his application for leave to appeal to the Court of Appeal.

On 22 November 2001, applications for compensation under the Sentencing Act were filed with the Prothonotary. Accompanying the applications were affidavits of each of the applicants, and other documents. Those documents included reports of a psychologist Ms Jan Heath who had provided counselling to each of the applicants, and a number of copies of newspaper clippings. Because of the elevation of Vincent J to the Court of Appeal, it fell to me to deal with the application. It became apparent that there were likely to be a variety of complications attending a resolution of the applications. On 20 December 2001, the applications were the subject of a mention hearing before me. The applicants were represented by counsel. Mr Sheales of counsel who had appeared for Francesco Farfalla at the trial for murder also appeared. Ms Ellyard appeared for Victoria Legal Aid. I was informed that Francesco Farfalla had not applied for legal aid for the current applications. I was also informed that, in the papers lodged by Francesco Farfalla, when he sought legal assistance for the defence of the murder charge, he had stated that the Ardeer property was estimated to be valued at $150,000, and that there was a mortgage of $88,000. I was further informed that the amount of the costs for which Victoria Legal Aid had a charge over the Ardeer property was $15,000. On 8 February 2002, Francesco Farfalla gave notice of abandonment of his application for leave to appeal to the Court of Appeal.

On 18 March 2002, the applications were again the subject of a mention hearing before me. Francesco Farfalla appeared in person. He had been brought to court from Ararat prison. He indicated his preference that he be permitted to participate in any further hearing by videolink. His mother was in court. I was informed that she had an interest in the matter. The nature of her interest was not explored at that stage. Her address was obtained to permit the nature of her claimed interest to be clarified. At the mention hearing, I was informed that there had been a "drive-by" valuation of the Ardeer property at between $170,000 and $180,000. I was also informed that the amount owed on the mortgage was believed to be approximately $84,000.

On 24 June 2002, there was a further mention hearing, at which the applicants were again represented by counsel. Mr Lavery of counsel appeared to represent Mrs Farfalla. He indicated that her claim was for the return of the amount of the deposit that she had provided to enable Francesco Farfalla to purchase the Ardeer property. I was informed that Mrs Farfalla had been arranging for the property to be let, with the rental received being applied to meet outgoings on the property. I was informed that the applicants had moved to Hervey Bay in Queensland. There was brief discussion as to legalities and practicalities. In short, it appeared that issues as to competing claims of the applicants and Mrs Farfalla were likely to be academic unless the proceeds of sale of the Ardeer property, clear of the costs of sale, were in excess of $200,000. That was the approximate figure needed to meet what was potentially payable to the mortgagee, Victoria Legal Aid, and under the Victims of Crime Assistance Act.

A number of matters warrant express comment in the light of the summary that I have set out above. I have read the materials on the court file. That includes an affidavit filed prior to Smith J making his order. I have read the papers filed by the applicants, including several reports of Ms Jan Heath. I have also read the report of Mr Joblin and the sentence of Vincent J. I did not have available to me a copy of the handup brief or of the transcript of the trial or plea. I had no information as to what papers were before the Tribunal, nor what parties were before the Tribunal, nor whether any reasons were provided by the Tribunal. I have gleaned information from various sources at three mention hearings. Francesco Farfalla has been present, but has not been represented at the mention hearings.

I turn to Section 85A-M of the Sentencing Act.

* If a court convicts a person of offence it may, on the application of a person who has suffered injury as a result of the offence, order the offender to pay compensation of such amount as the court thinks fit.

* A compensation order may include an amount for pain and suffering

* The court may in determining the amount 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.

I am aware of recent decisions of judges of this court who have recently had to deal with applications under the relevant provisions as they are or as they were before amendment in 2000. I refer to the decisions of Harper J on 23 December 1999 in Baltas and Roberts; In re Berichon [1999] VSC 551 and of Cummins J on 7 April 2000 in Gregory and Stawenga: In re Gregory [2000] VSC 190 and on 10 August 2000 in Collin and others: In re Parsons [2000] VSC 327. I dealt with applications on 26 June 2000 in Streigher and others: In re Scarborough [2000] VSC 255. I have also noted what was said by Cummins J in W_ard and others: In re Esso_ Australia [2001] VSC 401, where there was an agreement as to the amounts payable being kept confidential.

Under s. 85H, I am required to take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. I have no evidence of Francesco Farfalla having other than an equity in the Ardeer property. I have proceeded upon the assumption that he has only that equity, and competing liabilities likely to exceed the equity. I have also proceeded upon the assumption that he is likely to remain in prison for at least another 4 years. The process of dealing with applications under Section 86 is intended to be simple. There is no opportunity to assess individual applicants by hearing from them orally.

Bearing relevant considerations in mind, the figures for compensation I have assessed are as follows: Mark Schloss and Rhonda Schloss, each $60,000, Jessica Schloss, $40,000. The resultant total of $160,000 seems neither obviously too high nor too low, having regard to what evidence is before me as to the pain and suffering of the applicants and the financial circumstances of the prisoner. I have noted below a number of considerations, some of which apply collectively to all three applicants, some to the three as individuals and some only to Mark and Rhonda Schloss.

All three have already had to undergo a substantial period of trauma and uncertainty. There will continue to be suffering, albeit diminishing with the passage of time. Each has had regular counselling. More is needed. Family occasions are and will continue to be especially hurtful, because of the absence of Rebecca. They have had to endure a long period of lacking power to affect events, and a sense of injustice at the powerlessness of victims. They have moved to Queensland.

Rhonda Schloss had suffered a serious back injury at work in 1989. In October 1999, she was only able to work 4 hours per day in her duties with her employer, BHP. She was unable to work as from 10 November 1999 until January 2000. After October 1999, she was obliged to get prescriptions for medication that was stronger and more extensive than had been required before October 1999. In order to cope with work, she found she had to minimise contact with colleagues at work. She suffered from appetite loss, disturbed sleep, nightmares, and problems with concentration. She found her attendance at the murder trial a gruelling experience. She has been assessed as satisfying all the diagnostic criteria for a diagnosis of Posttraumatic Stress Disorder. She has also been assessed as suffering from moderate to marked depression. Measures taken to avoid situations or person that reminded her of her daughter have impacted severely on her social life.

As at October 1999, Mark Schloss had been working as a self-employed hire car driver for 8 years. From the time that he set out to locate Rebecca, he did not return to work for 5 months. After his return, the number of hours that he was able to work was substantially reduced from what it had been before. His business suffered due to his unavailability, and to his change in his attitude to his clients. Regular clients were troubled by the publicity in which he had to engage in his attempts to locate his daughter. Conversations between him and his clients which had been easy before the events of October 1999, became stilted after that. The previously regular clients opted not to contact him but to use his competitors instead. He has had a heart condition which was diagnosed in his late 20's. The condition was managed with medication. His treating physician, Dr Cacek has said that the condition has been worsened significantly by the events of October 1999 and their aftermath. The medication he has been prescribed has had to be increased. He has not been able to sleep soundly since his daughter disappeared. That led to his needing further medication. The lies told to him by Francesco Farfalla have caused him to be much less trustful of people. This has had an impact on his social life and on his work.

Both Rhonda and Mark Schloss have suffered symptoms of a severe reactive depression and a generalised anxiety disorder. Those symptoms included: muscle tension, problems with concentration, sleep disturbance, restlessness and irritability. Both have been forced to lose contact with long close friends. Both found it discomforting to be with old acquaintances. The relationship between husband and wife underwent severe strain. It was stressful to talk about Rebecca, but stressful to take pains not to talk about her. Their sexual life was impaired. The financial problems emanating from the death of Rebecca and its aftermath led to their having to sell their Crib Point home in disadvantageous circumstances. They have opted to move to Hervey Bay in Queensland. That move was prompted by constant disturbing reminders of what they had lost in Melbourne. They perceived that it was necessary to distance themselves from those reminders. Newspaper reports of missing people and like indicators of people having "disappeared" have continued to trouble them. The indications are that they will continue to haunt them indefinitely.

Jessica was aged 14 as at October 1999. She went from being talkative to being withdrawn. She became markedly distressed on occasions, such as at the memorial at the Broadmeadows tip. She found difficulty discussing her feelings as to Rebecca's death. She declined to talk with others, save one close friend, about Rebecca. She tried to cope by staying occupied. During the period up to the murder trial, she experienced problems with concentration, motivation, social contact, and sleep, including recurrent nightmares. Like her parents, she has been diagnosed as satisfying the criteria for Posttraumatic Stress Disorder. Her grades at school fell from excellent before October 1999 to the stage that she failed Year 9. In the period after October 1999, the intrusions of teachers and media caused her additional upset. In August 2001, she gave birth to a son. That son has been named Beckham, in memory of Rebecca. Two years after the death of Rebecca, she was still experiencing distress in talking about her sister. She has had symptoms of being hypervigilant. She appears not to have reconciled herself to Rebecca's death. She has plans to return to study, and has the support of her parents in doing so.

A recurrent theme which comes through in the materials is a particular kind of added pain. It is added pain because it comes on top of the pain of losing a child. It is partly the pain of not knowing the position as to the body of Rebecca Schloss. It is partly the pain of not being able to provide a proper funeral and burial. It is partly the pain of not having a proper place to pay respects. The pain has not been relieved by the residual vivid images of the search site at the Broadmeadows tip. The deceit of Francesco Farfalla and the lack of reliable information has materially affected the processes of the applicants grieving and reconciling themselves to the loss of Rebecca Schloss.

Now that I have made the assessments above, there is a need for further mention hearings. They should be arranged on a basis calculated to keep costs to a minimum. Each party is almost certain to be meeting his or her own costs. I direct that a copy of this ruling be sent to all interested parties. Thereafter my associate can be contacted as to when the matter is appropriately the subject of a further mention hearing.

Crime Assistance Act 1996

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