Stevens v Baxter [2009] VSC 257

2 The respondent was convicted on 12 March 2009 of Linda's murder; the jury rejected his defence pursuant to s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). On 15 May 2009, he was sentenced to 20 years' imprisonment with a non-parole period of 16 years' imprisonment.

3 Each child seeks compensation pursuant to s 85B(1) and s 85B(2)(a) of the Sentencing Act for the pain and suffering occasioned by the death of their mother.

Relevant Provisions of the Sentencing Act

4 Division 2 of Part 4 of the Sentencing Act provides that a victim may obtain a compensation order from the offender. Both Taryn and Grady are victims within the meaning of the Act.

5 Recently, in RK v Mirik[2], Bell J comprehensively and helpfully set out the relevant principles to an application of this kind.[3] In a nutshell, they are as follows:

• The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court provided the claims fall within categories set out under s 85B(2).[4]

• An order for compensation is determined by the application, where relevant, of common law principles,[5] however the order itself is one for compensation not damages.[6]

• Where a claim for pain and suffering is maintained, it must be a direct result of the offence.[7]

• The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.[8]

• Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.[9]

• Unlike a common law claim for damages the financial circumstances of the offender are relevant.[10]

• A court is not obliged to reduce the amount of compensation payable on the basis of the offender's financial circumstances; it is a relevant but not controlling consideration.[11]

6 I have, in sentencing the respondent, set out the surrounding circumstances.[12] In relation to the children they can be summarised as follows.

7 Up until 2 August 2006, both Taryn and Grady had led a happy and nurtured childhood. Each were doing well at school and their parents readily attended to their needs.

8 Linda was stabbed approximately 30 times with a kitchen knife by the respondent in the dressing room of the main bedroom in the evening on 2 August 2006. Both Taryn and Grady were asleep in separate bedrooms in the house. I accept the evidence of Taryn that she was awakened by the noise coming from the bedroom and heard the respondent screaming and calling Linda a "bitch" and a "slut".

9 Having killed his wife, the respondent then ordered the children to leave the house and get into his motor car. They did not see the body of their dead mother. However it was clear to both of them that something had gone drastically wrong. The respondent had initially wanted to leave them at the Lara Police Station and he drove there. In the course of that trip he told the children that nothing was wrong. When he reached the police station it was unmanned so he changed his mind. At that time he wrote out his note in which he admitted murdering Linda. Taryn saw part of that note. The respondent then took the children to the house of Mark and Sharon Melvin and left them there. Sharon Melvin took the two children upstairs and managed to get them to sleep. The respondent subsequently drove his car into a stand of trees on the Princes Highway.

10 In the early hours of the morning of the 3rd, the children's maternal grandparents arrived at the Melvins' house and the children have been cared for by members of the family since that time. Indeed, the kindness and generosity of Linda Baxter's siblings is outstanding and in particular that of her sister, Ms Stevens and her partner Mr Doug Mitchell. Ultimately, they moved from their own home in Romsey and have raised the children, effectively as their own, at the Lara house.

11 Both children have, understandably, required psychological counselling since the horrific events surrounding the death of their mother. Subsequent to her death, during the balance of 2006 they each saw Mr Steve McLachlan, psychologist, on a number of occasions. Since 2007 they have not required counselling or treatment. However, for the purpose of this application Mr McLachlan has reviewed each of them.

12 Grady was born in 1997 and was eight years of age at the time of his mother's death. At that time, he was a student at the Lara Primary School.

13 Between 25 August 2006 and 9 December 2006, Grady saw Mr McLachlan on seven occasions. Grady told Mr McLachlan[13] that prior to his mother's murder he was "really happy, I loved school and I got annoyed when it was the weekend". I have no reason whatsoever to doubt the accuracy of this statement, given the evidence at the trial and the contents of the Victim Impact Statements.

14 In the initial stages, Ms Stevens noted "no outward signs of grief", however there was a clear reluctance on Grady's part to discuss the circumstances surrounding his mother's death.

15 Grady continued as a student at Lara Primary School and this year transferred to Grade 5 at a different school. However, he has experienced a range of behavioural issues described as "rigid thinking, tantrums and meltdowns, lack of consideration for others, inability to share and that he could be selfish".

16 When seen recently by Mr McLachlan, Grady said that he had experienced a lot of sadness and it had "heaps of effects". He used expressions to Mr McLachlan such as "sad", "sometimes overwhelming" and "very hard". Fortunately, the support that is provided by Ms Stevens and Mr Mitchell has ameliorated some of the potentially devastating effects of the consequences of his mother's death.

17 Mr McLachlan carried out total problem behaviour analysis in 2006 and 2009. Grady's score on both occasions was at the lower end of the clinical range. It was noted in particular that he -

Other tests revealed a boy who was clingy, preferred to be with younger kids, is secretive and keeps things to himself.

18 Mr McLachlan's opinion was expressed in the following terms:

"In the opinion of the author of this report, Grady has been significantly affected by the murder of his mother by his father. Following his mother's death in October 2005 he was reported to be very reluctant to express his feelings, displayed rigid thinking and would throw tantrums when he did not get his way. He had significant thought problems, attention problems and displayed aggressive behaviours. He appears to have made little progress since he was last seen in December 2006, with regard to his current behaviour and general psychological adjustment. There appears to be a delay in his emotional development as demonstrated by his 'clingy' behaviour when with his aunt. Of particular concern is the significant increase in his hyperactive and inattention (sic) behaviour. During discussions with Jenny Stevens on May 5th 2009, an assessment by a paediatrician was recommended, particular in relation to his attention problems.

On a more positive note, the psychological impact of his mother's murder has been significantly ameliorated by the support and care he has received from Jenny Stevens, Doug Mitchell, and from the extended family and friends. Through their efforts the potential negative psychological consequences of his mother's death have been reduced. Doug and Jenny have minimized changes in Grady's life by relocating from Romsey to Lara to ensure that he has continued to live in his Lara home, ensuring that both children stayed at their local school and community, and by providing a loving family environment which has enhanced both Grady and Taryn's emotional security."

19 Taryn was born in 1994 and was 12 years of age at the time of her mother's death. She, like Grady, was a good student with no behavioural problems. She was a student at Lara Primary School at the time of her mother's death.

20 Subsequently, Taryn then progressed to Lara Secondary School but left this year to take up Year 9 at a different school.

21 She was clearly very close to her mother and described the effects upon her of her mother's death to Mr McLachlan as being "pretty horrible".[14]

22 Her Victim Impact Statement[15] demonstrates the angst and the pain resulting from the death of her mother:

"After my mum passed away there has been a massive hole inside me, because I didn't just loose my mother I lost my best friend and the only person in the whole world that I could talk to about any thing. I feel like I have no one to talk to that wouldn't judge me for what I have to say. I hate that I heard her scream on the night she died and I didn't do anything to help her. I feel that massive amount of pain every day. Some nights I lie awake and run the night she died over and over again in my head and think of ways I could have saved her. She was taken away from me by my father and I hate him more than anything you could imagine. But still, people bullied me, like kids at school saying that I looked like I was going to stab them and someone saying to me that if I don't watch out I will turn into my father. All of that made me hate myself because people made me believe that I was like him all of this got too much and I thought about hurting or killing myself. I get so angry that I will never see my mum again, that she will never see me grow up, that I will never get any older with her and that I won't have an even better relationship with her. I cry so much because I know that I will never be able to cuddle up to my mum or tell her how much I love her ever again."

23 Although Taryn has been described as coping well with her changed situation, she has not been able to shut out the events of that night. In particular, she identified to Mr McLachlan the following:

• Getting upset when she thinks about what happened.

24 Mr McLachlan saw Taryn on three occasions between 3 October and 8 December 2006. He carried out a variety of assessments both in 2006 and 2009. He formed the following opinion as a result of his 2006 and 2009 examinations:

"In the opinion of the author of this report, Taryn has showed extraordinary resilience and excellent coping strategies after the death of her mother at the hands of her father. In 2006 she was reported to be coping well and further counselling was considered unnecessary at that time. Currently she appears to still be generally coping well and has shown remarkable resilience in the light of the trauma and grief that she has experienced. Support for this positive view of her recovery was obtained from her presentation during counselling, reports from her care-givers, her behaviour checklist self-report and an impact of events scale. In marked contrast to the overwhelming evidence of her resilience was her victim impact statement which revealed powerful feelings of deep sorrow at the loss of her mother and unspeakable anger towards her father. One possible interpretation of this contrast could be that the Victim Impact Statement provided Taryn with an opportunity to vent her very strong feelings that normally she would repress. Both self-report and 'parent' reports of her behaviour indicated a higher than expected level of somatic complaints such as skin problems. These could be an indication that Taryn's effort to cope with the trauma through avoidance and not reporting and/or adequately dealing with intrusive thoughts could be exacting a hidden emotional toll. During discussions with Jenny Stevens on May 5th 2009, the need for further counselling was raised. It is the opinion of the author of this report that Taryn would benefit from further counselling from a female counsellor who has specialized skills in grief and trauma. However counselling is unlikely to be effective unless and until Taryn is willing to be open with and express her feelings. Perhaps this may occur in the near future when the court proceedings have been finalized. If further counselling is believed to be unnecessary by Taryn and/or her care-givers, there may be alternative means for her to deal with her grief such as participation in groups such as the Seasons Program or bereavement programs such as Wombat's Wish.

Finally it should be noted that the psychological impact of her mother's murder has been significantly ameliorated by the support and care that she has received from Jenny Stevens, Doug Mitchell, and from the extended family and friends. Through their efforts the potential negative psychological consequences of her mother's death have been greatly reduced. Doug and Jenny have minimized changes in Taryn's life and provided a stable loving family environment which has enhanced her psychological growth."[16]

25 The respondent provided a statement of financial affairs which estimated his current assets at just over $550,000, which includes his interest in the Lara house (subject to a restraining order under s 15(3)(a) of the Confiscation Act 1997 (Vic)) and the value of superannuation fund accounts held in his name (contingent at the present time).

26 It was accepted by counsel for the children that the Lara house had a value of approximately $310,000. Although the property was held in joint names by Robert and Linda Baxter, given the circumstances of Linda's death, the position in relation to the Title is unusual. If necessary, equitable relief will be available to Linda's executors: the joint tenancy can be severed and a constructive trust imposed so that the respondent will hold Linda's share on trust for the children. His own share will remain unaffected.[17]

27 Victoria Legal Aid holds an equitable charge over the Lara house, which is the subject of a caveat.[18] Any order I make will take priority over the charge. I was told by Mr O'Sullivan, who appeared for the respondent both on the trial and on this application, that Victoria Legal Aid would not take any steps to prevent the respondent's interest in the property being transferred to the children in the event of a compensation order being made.

28 Mr O'Sullivan also drew my attention to the uncertainty of the value of any superannuation entitlement. The earliest at which the entitlement can be realised is when the respondent turns 55 and, depending upon his decision, it may not come into his hands until far later. Moreover, there is no predictability about the amount that may then be available as part of his assets (whether as a lump sum or as a pension).

Payments under the Victims of Crime Assistance Act

29 Both children[19] have received payments of $30,000 under the Victims of Crime Assistance Act 1996 (Vic). Section 85I of the Sentencing Act requires the Court to reduce any amount of compensation by the amount of any award made under that Act.

30 The past expenses relating to psychiatric and psychological counselling have been met by orders made pursuant to the Victims of Crimes Assistance Act.

31 The effect of the respondent's actions will live with both his children forever. They will be forced to live with both the fact of the ghastly death of their mother and the betrayal by their father of the trust that they reposed in him. The selflessness and kindness of Jenny Stevens and Doug Mitchell has and will, hopefully, ameliorate to some extent the scars of the events of the night of 2 August 2006.

32 Although each application is to be dealt with separately, I am of the view that there is no good reason to distinguish between the amounts of compensation to be ordered in favour of each of the children.

33 I accept, of course, that each child's application involves somewhat different considerations. In Taryn's case, there is the fact that she heard her mother's dying words, which will remain with her for the remainder of her life. In Grady's case, it is clear that he has not been able to adjust as well as Taryn to the upending of the safe and protected world he enjoyed prior to Linda's death. However, each has clearly suffered major psychological trauma, experienced in different ways and manifested by different presentations over the past three years. Each of their lives, as they knew it as young children, have been destroyed. Both will have to live with the memory of what has happened and the inevitable toll that will take upon each of their psyches.

34 There is, applying both commonsense and accepting the opinion of Mr McLachlan, no prospect of either of them escaping the memories of that day and its consequences. They have long lives ahead of them. At times, their psychological states will invariably wax and wane.

35 I have considered carefully the question as to whether I should, in determining the amount of compensation, make any allowance for the financial circumstances of the respondent. I have concluded that I should not. The circumstances of the crime and the consequences for the two children militate strongly against such a course. Moreover, this is not a case such as that involving a youthful offender whose rehabilitation could be assisted by having resources available upon his or her release from custody. Notwithstanding the submissions made by Mr O'Sullivan, I do not accept that this is a relevant diminishing factor in respect of the orders for compensation.

36 I am of the view that an appropriate award of compensation for each of the children is in the sum of $240,000. I am required to reduce this amount by the moneys paid under the Victims of Crime Assistance Act.

37 Counsel for the children sought that I make an order in favour of the children in relation to costs of the application. Section 85K of the Sentencing Act mandates that each party "must bear their own costs of the proceeding" unless the Court otherwise determines. Although counsel advised me that in applications in the County Court there have, on occasions, been orders for costs against the offender, the clear tenor of the section is that the costs should lie where they fall, absent unusual or special circumstances. Such circumstances, it seems to me, cannot be the events surrounding the crime as one would imagine that in many, if not all, cases in which applications under s 85B are made the circumstances are such that a Court would (absent legislative direction) be readily disposed to order costs in favour of the victim or victims.

38 In my view, there should be no order as to the costs of the application.

39 Pursuant to s 85B(1) of the Sentencing Act, I order:

(a) that Robert Gordon Baxter pay compensation in the sum of $210,000 to Taryn Baxter; and

(b) that Robert Gordon Baxter pay compensation in the sum of $210,000 to Grady Baxter.

40 I further order, in accordance with s 85E(2) of the Sentencing Act, that such sums be paid to the Senior Master to be invested on behalf of the children and, subject to further order, paid to the children on each attaining the age of 18 years.

[1] Written applications filed 1 April 2009.

[2] [2009] VSC 14.

[3] [2009] VSC 14 [15] - [20], [50] - [67], [135] - [142], [144] - [154]; see also DPP v Esso Australia Pty Ltd (2001) VSC 401, (2001) 126 ACrimR 13.

[4] Sentencing Act s 85B(1).

[5] RK v Mirik [2009] VSC 14 [148], DPP v Energy Brix Australia Corporation Proprietary Limited [2006] VSCA 116; (2006) 14 VR 345, 352, 356.

[6] Esso Australia Pty Ltd v Robertson [2005] VSCA 138, [21] - [30].

[7] s 85B(2)(a).

[8] R v Mirik [2009] VSC 14 [150]; s 85L Sentencing Act.

[9] Section 85B(2) Sentencing Act.

[10] Sentencing Act s 85H(1).

[11] R v Mirik, [2009] VSC 14 [135] - [143].

[12] [2009] VSC 180.

[13] Exhibit A1, report of S. McLachlan dated 7 May 2009, p.3.

[17] See Public Trustee v Hayles (1993) 33 NSWLR 154, 160, Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407, 411; Re Thorp and the Real Property Act 1900 (1961) 80 WN (NSW) 61, 63.

[18] King J, on 28 November 2007, ordered that Legal Aid be provided to Mr Baxter upon the provision of an equitable charge being provided by Mr Baxter. This was done.