Crespo v Kelson
[2021] VSC 264
•14 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2020 01975
| IN THE MATTER of an application under s 85B of the Sentencing Act 1991 (Vic) | |
| MELANIE CRESPO | Applicant |
| v | |
| THOMAS KELSON | Respondent |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 December 2020 |
DATE OF JUDGMENT: | 14 May 2021 |
CASE MAY BE CITED AS: | Crespo v Kelson |
MEDIUM NEUTRAL CITATION: | [2021] VSC 264 |
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CRIMINAL LAW – Application for crimes compensation order – Mother of murdered 17-year-old child – Application for extension of time – Pain and suffering – Whether financial circumstances of respondent should be taken into account – Costs of application - Sentencing Act 1991 s 85B, 85D, 85H, 85K.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Hancock | Rightside Legal |
| For the Respondent | Mr T Danos | Acting pro bono under the Victorian Bar Pro Bono Scheme |
HIS HONOUR:
Introduction
This is an application for compensation pursuant to s 85B of the Sentencing Act 1991 (‘the Act’). Melanie Crespo (‘the applicant’) is the mother of Cayleb Hough (‘Cayleb’) who was murdered by the respondent on 20 December 2015.
The applicant seeks a compensation order comprising amounts for pain and suffering and for past and future counselling.
The application was launched out of time and hence proceeded as an application for extension of time pursuant to s 85D of the Act. I reached a determination during the running of the application that it would be in the interests of justice to extend the time for the commencement of the application for compensation to 29 April 2020. Having granted that extension of time, I indicated I would publish my reasons for that decision, along with my decision on the application for a compensation order itself at a future time.
What follows are my reasons for granting an extension of time, and my decision on the substantive application for compensation.
Circumstances of the offence
Cayleb was 17 years old at the time he met his tragic and violent death at the hands of the respondent. The circumstances of that death are set out in detail in the sentence I passed upon the respondent on 10 August 2018.[1] I will summarise those circumstances only briefly here.
[1]R v Kelson [2018] VSC 442 (‘Sentence’).
In sentencing the respondent, I noted that the murder to which he had pleaded guilty occurred in exceedingly strange circumstances. That, I believe, was no exaggeration.
Cayleb and the respondent, who was some nine years his senior, were friends who, for some time leading up to the events, had been frequent users of drugs together. In the days preceding the murder, they were in each other’s company, not sleeping, using ice and other drugs, and observed to be substantially affected by drugs and behaving strangely.
On the morning of 20 December 2015, Cayleb and the respondent attended at a residential address in Dight Street, Collingwood. There they spent time in the company of a friend of the respondent named Nathan Bordonaro, Bordonaro’s mother Debra Brincat, and, later, another friend who arrived at the address named Rhys Mewburn (‘Mewburn’).
The respondent and Cayleb were both observed to be substantially affected by drugs, and the respondent smoked ice throughout the day and into the evening.
Shortly after the arrival of Cayleb and the respondent at the address, the respondent began to express concerns that his father was missing and may have been killed by bikies, and made it clear that he believed that Cayleb had been involved in this. He made accusations against Cayleb, and commenced to assault him over a period of some hours, repeatedly striking him to the head and inflicting a deep gash to his forearm by stabbing him with a kitchen knife. The constant accusations by the respondent, which were described by onlookers as amounting to the respondent ranting and raving at Cayleb, and the ongoing physical assaults of Cayleb by the respondent, eventually resulted in Cayleb falsely admitting that he had been involved in the sexual assault and disappearance of the respondent’s father. In fact, the father of the respondent had not been harmed in any way, and there was no foundation in fact at all to the respondent’s concerns, and no truth to the admissions forced from the lips of Cayleb. Throughout the ongoing physical attack upon and intimidation of Cayleb by the respondent, the others present tried in vain to calm the respondent down and have him desist.
After Cayleb had made the false admissions to which I have referred, the respondent said to him, ‘You’re gunna die today. You killed my dad…You’re gunna die today. I’m gunna kill you’. The respondent asked Mewburn if he knew a location where Cayleb could be ‘put’. Mewburn told him of a shallow mine shaft of which he had knowledge in the Lerderderg State Forest (‘Lerderderg’).
The respondent bound Cayleb with the use of grey duct tape, some of which was used to secure his hands together at the front of his body, and some of which was placed over his mouth. He then forced Cayleb into his, the respondent’s, vehicle, which was brought to the front of the residence by Mewburn. Having been given some directions by Mewburn, the respondent then set off in the direction of Lerderderg along the Western Freeway, with Mewburn following along behind in his vehicle.
On the respondent’s account given to a psychiatrist to whom he spoke, while he was driving in the direction of Lerderderg, Cayleb, still bound up in the back seat of the vehicle, kicked the respondent in the back of the head as he drove along. The respondent said that he stopped the car, put on some knuckledusters he had in his possession, and struck Cayleb to the head with the knuckledusters, killing him. He described himself as having ‘lost it’ and having gone ‘ballistic’ during the assault, with thoughts of what had happened to his father. In a later police interview, he said:
He was kicking me. I just snapped … It was the brass knuckles that killed him. He knew when I hit him. I’m not sure how many times I hit him, I just lost it. I was thinking about my dad getting…[2]
[2]QQ 184-6.
When asked how he knew that Cayleb was not just unconscious after this attack, he said, ‘No, he was dead. He was cold, like, he was fucked.’ [3] [4]
[3]Q 190.
[4]This was the version of the facts upon which I sentenced the respondent, as was urged upon me by his counsel.
Having killed Cayleb in that brutal fashion, the respondent then followed Mewburn to a secluded area in Lerderderg. The area was within a logging coupe near the Bacchus Marsh-Gisborne Road several kilometres from Bacchus Marsh. There was a disused and incomplete mine shaft at that location.
Having stopped at this location, the respondent dragged Cayleb from the rear of his vehicle. There was still duct tape around Cayleb’s hands, mouth and head. The respondent placed Cayleb’s body on a tarpaulin that he had also removed from his vehicle. He prevailed upon Mewson to assist him in dragging the body of Cayleb to the shallow mine shaft. On the way, Mewburn heard him saying, ‘You shot me dad. You raped me dad. You’re a dog.’ The respondent pushed Cayleb’s body into the mine shaft and climbed down there himself. While in the mine shaft, he cut the tape off Cayleb, continuing to rant and rave about his father. He departed in his vehicle shortly afterwards, returning to Melbourne. He disposed of the knuckledusters in a drain in an unknown location. He made a prompt decision to leave the country. He drove to Sydney and, from there, flew to Argentina where he remained for a month or so, intending, initially, never to return. In the end, he decided to return and was arrested at Melbourne Airport on 26 January 2016.
He was interviewed for the first time by the Homicide Squad on that day, and exercised his right to make no comment to allegations that were put to him. He was released from custody on that day, and nominated a location in Doveton where he claimed he had last seen Cayleb.
On 10 March 2016, a member of the public discovered the remains of Cayleb where he had been dumped some two-and-a-half months earlier. It was in an area that was not visible from the road and was obscured by low shrubs and vegetation. On an examination of the scene, police found a large bundle of grey duct tape on the ground 44 metres from the mine shaft. Another smaller length of tape was located a few metres from the main bundle of tape. The DNA of Cayleb was located on some of the tape.
An autopsy was carried out on 15 March 2016 by a pathologist. The body of Cayleb was largely skeletonised with limited soft tissue remaining. The autopsy examination and a further examination by a Forensic Anthropologist revealed the existence of a fracture to the maxilla (upper jaw) and a fracture to the mandible (lower jaw). The pathologist considered these injuries to be the result of blunt force trauma and the absence of healing changes to the injuries to be suggestive of the fractures having been caused close to the time of death. The cause of death could not be ascertained due to the very substantial decomposition of the body.
The respondent was interviewed for a second time by the Homicide Squad on 1 June 2016. He admitted to having killed Cayleb, but in a number of respects his answers were not truthful.
The respondent was charged with murder on 1 June 2016 and has been in custody ever since.
In the plea hearing conducted before me on 2 August 2018, there were a number of disputed facts. As the reasons for sentence reveal, these concerned the questions whether Cayleb was bound up with tape, whether the respondent threatened to kill him while they were at the Collingwood address, and whether there was a plan to go to Lerderderg before Cayleb’s death. All of these disputed matters were decided in favour of the prosecution. In addition, I rejected the claim made on behalf of the respondent that he should be sentenced on the basis of reckless murder. I was satisfied beyond reasonable doubt that he had an intention to kill at the time of the murder.
On the question of the gravity of the offence, I said:
I consider yours to be a serious instance of the crime of murder with a high level of moral culpability on your part. You murdered a 17-year-old boy over whom you were able to exercise control throughout the last hours of his life. At the heart of your decision to carry out this crime was an irrational belief you had formed substantially as a result of the severely drug-affected state to which you had reduced yourself by your use of illicit drugs. While it was by no means a well-thought-out or carefully planned crime, the continuing assaults that preceded the actual murder extended over hours, during which time you, even in that drug-addled condition, had ample opportunity to desist from your violent and criminal actions — something that you were repeatedly encouraged to do by others. The steps that you took at Dight Street to seriously assault Cayleb Hough, to threaten his life, to enquire as to a place to dispose of his body, and to bind him with duct tape, were all steps that should have had you reflecting on the seriousness of what you were doing, and, as earlier indicated, would no doubt have caused considerable fear to him. Further opportunity for reflection was provided by the drive in the direction of Lerderderg. For some of that drive, it seems, Cayleb Hough was still alive. Your eventual assault of him leading to his death was a long way from being a spur of the moment thing. You acted on the murderous intent that you had earlier formed in Collingwood and, to this extent, the crime was a planned one. Hough was still bound at the arms and face at the time of your attack, rendering him helpless. You must have taken the step of putting on the knuckledusters after stopping the car and before the assault commenced. Your repeated infliction of blows to the head of this young man with the use of the knuckledusters was a brutal and completely unnecessary crime, in no way justified by your irrational belief that he had done something to your father. The number of blows administered by you is unknown, but one thing is clear: acting pursuant to your unbridled and irrational anger, and intending to cause his death, you continued to hit him until you had achieved precisely that outcome. Your subsequent disposal of the body was a callous action which is a substantial aggravating feature of your offending. [5]
[5]Sentence [64].
Background to application
On 29 June 2016, a restraining order pursuant to the Confiscation Act 1997 (‘Confiscation Act’) was made by this Court in respect of the respondent’s interest in the property located at 34 Bardia Avenue, Seaford. The property was purchased and settled in August 2014 for $387,000 and the relevant title documents name the respondent as tenant in common in equal shares with his father, Brendan Kelson.
A committal hearing was held in May 2017 and the respondent was committed for trial. A year later, on 3 May 2018, it was indicated by the respondent’s legal representatives that he would plead guilty to murder on a contested facts basis. He was arraigned and pleaded guilty on 2 June 2018. On 2 August 2018, the plea hearing proceeded before me. At the hearing, a victim impact statement by the applicant was filed. In the statement, the applicant stated, inter alia:
You took away my only son. My daughters (sic) only brother. A child who was only 17 years, 4 months, and one week old. He was still a baby in so many ways but looked like a grown man. He was the puzzle that will always be missing out of our family, and without that piece, it will never ever be complete again. Cayleb is just another number to you all, another case of many, but to us he was our world, he was one of our kind, unique and ours.
I sentenced the respondent on 10 August 2018 to 24 years’ imprisonment with a non-parole period of 19 years.
On 6 December 2018, the applicant was awarded assistance of $15,395 by the Victims of Crime Assistance Tribunal (‘VOCAT’) for ‘distress’. Other payments were made for expenses for which compensation is not being sought in this application.
The respondent applied to the Court of Appeal for leave to appeal against the sentence imposed upon him. On 11 May 2020, the Court refused leave.[6]
[6]Kelson v The Queen [2020] VSCA 112.
The evidence for the applicant
The applicant’s affidavit
In an affidavit affirmed 2 July 2020, the applicant detailed the increasing terror she felt in the months following the disappearance of her son as she pondered what might have happened to him. On being told that his body had been found, her feelings of horror and dread were confirmed. The applicant stated that for the first two years after Cayleb’s body was found, she wanted to die. She did not want to see anyone and became very socially isolated. She struggled with severe depression and anxiety and developed a dependence on tranquillisers. She frequently contemplated suicide and was admitted to psychiatric wards on two occasions. She struggled with impaired concentration and sleep. She noted the distress caused by not being permitted to see Cayleb’s body. The manner of Cayleb’s death, the media attention it attracted, and the ongoing court cases, magnified the effects upon her. She felt judged and blamed by others, and found herself avoiding mentioning Cayleb because to do so would lead to questions. She has found it easier to say that she only has three children, but it has broken her heart to do so. She finds it difficult to trust people. She agonises over the last hours and minutes of Cayleb’s life, often considering ‘what if’ scenarios. She described herself having become anxious and overly protective of her surviving children because of her fear of something happening to them. Her relationship with them has been affected and she has struggled to provide the mothering to them which she would like to. Her relationship with her partner of 19 years, Michael, has also been badly affected. They now hardly speak and there is no intimacy. She described the impact of Cayleb’s death and the protracted court proceedings brought about by the respondent’s refusal to make a timely admission of guilt as having made her mental health worse than she had ever experienced. She feels upset and sad so much of the time, and never laughs. The applicant made mention of the protracted court proceedings, and the distress caused to her as, in spite of his eventually admitting guilt 2 ½ years after the murder, the respondent still tried to dispute the true nature of his crime. She described the anxiety and distress caused by those events. She was further distressed when the respondent appealed, and the protracted process in the Court of Appeal caused further heartache, with the thought that the respondent may get a reduced sentence firmly in her mind. The appeal proceedings were not finalised until more than four years after the death of Cayleb.
Touching on the issue of the late commencement of her application, the applicant indicated that on two occasions during the criminal proceedings, one of the detectives had told her about a restraining order which had been taken out over the respondent’s property. She was not ‘in a good head space’ when informed of this fact, and did not appreciate its significance. On one of the occasions, the applicant was informed of some complications in respect of the restrained property. She did not realise that she would be able to apply for compensation notwithstanding the complications.
Early on, the applicant was advised to go and see a lawyer in connection with bringing a VOCAT claim. She did so, but was not advised of her right to seek compensation under the Act.
In March 2020, having received a letter from the Office of Public Prosecutions (‘OPP’) informing her about the restraining order, the applicant contacted the OPP solicitor. She was informed she could make a claim under the Act. In April 2020, she contacted her present lawyers and instructed them to bring an urgent application. The application was commenced the next day.
The report of Dr Timothy Entwisle
Dr Timothy Entwisle, a Consultant Psychiatrist, was engaged by the applicant’s solicitors to conduct an assessment of the applicant and prepare a report. He carried out the assessment via Skype on 10 June 2020. In his report dated 23 June 2020, Dr Entwisle set out a number of aspects of the personal background of the applicant, the troubled relationship she had had with Cayleb in the years leading to his death, her psychiatric history, and the substantial effects that the death of Cayleb and its aftermath have had upon her. He indicated he had reached the diagnosis that the applicant suffered from Complex Grief Reaction, Major Depressive Illness and Generalised Anxiety Disorder.
In his summary of his assessment, he stated:
The breakdown in the relationship between herself and Cayleb continues to haunt Ms Crespo to this day who is clearly an attentive and caring if not worrisome mother whose children were always the highest priority for her. At interview the searing nature of the loss that she experienced and her heartbreak resulted in her becoming overwhelmed with grief which was palpable at interview with a sense of devastation and loss which has had a corrosive impact upon the relationship between Ms Crespo and Michael. For some years she acknowledged that she was largely incapable of mothering her children and running the household in her maternal way in keeping with her Spanish upbringing and traditions. At interview there were signs of Ms Crespo slowly and painfully recovering and with assistance from her psychologist, Thane Camwell, she has been able to return to work but remains somewhat socially avoidant and mistrusting of others nonetheless.[7]
[7]Report of Dr Timothy Entwisle, page 7.
Dr Entwisle stated his conclusion as follows:
1. …
2. The impact of Cayleb’s murder on Ms Crespo has been severe, longstanding and elements of her grief and loss will continue for the foreseeable future. The impact upon her family has been described and is not uncommon in such circumstances and most unfortunately parental relationships often do not survive and can be likened to a bomb going off in a family whereby collateral damage is severe and widespread.
3. Whilst the prognosis in Ms Crespo’s case is guarded there are signs that she is slowly beginning to recover but she is likely to bear the emotional scars of Cayleb’s death for the rest of her life.
4. Ms Crespo’s current treatment and management with her Psychologist…should continue currently on a fortnightly basis for a further four months moving to monthly thereafter for a year. Ms Crespo does not require management with psychotropic medication and her reliance upon Diazepam has thankfully slowly waned. I would strongly recommend that Ms Crespo and Michael be provided with some relationship counselling to explore the impact of Cayleb’s death upon their relationship and to assist in them coming to understand that this is something that they shared each in their own way and hopefully to assist some form of rapprochement to occur between them.
The affidavits of Rachael Nevill
The affidavit of Ms Nevill affirmed 2 July 2020 exhibited a number of documents including the restraining order taken out on the property jointly owned by the respondent and his father at 34 Bardia Avenue, Seaford, the applicant’s victim impact statement dated 21 July 2017, and copies of the sentence I imposed on 10 August 2018 and the decision of the Court of Appeal in this matter.
In a subsequent affidavit affirmed 30 November 2020, Ms Nevill attested to the results of internet searches she had conducted on a number of real estate websites concerning the estimated value of 34 Bardia Avenue, Seaford. Varying estimates of a value between $575,000 and $790,000 were obtained.
List of special damages
The applicant filed a list of special damages on 2 July 2020 setting out in brief terms some important aspects of the assessment of Dr Entwisle pointing to the need for future psychological treatment. The cost of the treatment was estimated at $5250, based on fortnightly sessions for a further 4 months, then monthly sessions for a year, at $250 per session. The applicant also claimed future relationship counselling costs of $8,800, based on fortnightly sessions for three months, then monthly for 21 months, at $320 per session. The total claimed for future psychology treatment and future relationship counselling was $14,050. During the hearing of the application, it was noted that correspondence from VOCAT reveals that there is a sum of $640 remaining from the amount awarded by VOCAT for counselling which is still available to be claimed. Any award for future counselling expenses should be reduced by that amount.
The evidence for the respondent
Affidavit of the respondent
The respondent swore an affidavit dated 22 July 2020 in which he indicated that he was listed on the title of 34 Bardia Avenue as tenant in common with equal shares with his father, Brendan Kelson. He indicated that the property was purchased and settled in August 2014 for $387,000. He contributed approximately $60,000 towards the purchase. This amount represented the extent of his savings at that time. He indicated he had never made any contribution towards mortgage payments or maintenance of the property, or the payment of utilities. Indeed, he had made no further contributions towards the property beyond his initial contribution. He sometimes stayed at the property after settlement, but never paid rent. When he applied for legal aid after being charged, funding was provided subject to an equitable charge being placed on his interest in the property. He understood this to mean that Victoria Legal Aid (‘VLA’) could seek reimbursement from him for his legal costs once the restraining order is lifted. He indicated that considering his lack of contribution to the property, he does not regard his interest to be a half share with his father. The property is his father’s principal place of residence. He indicated that at all times, he has considered the property to be his father’s. The respondent indicated that he has no income in custody, and no other assets.
Affidavit of Brendan Kelson
Brendan Kelson made an affidavit sworn 22 July 2020. He indicated that the property at 34 Bardia Avenue settled on 29 July 2014. The purchase price was $387,000, with a loan of $270,000 being taken out through the National Australia Bank. He confirmed the initial contribution of $69,000 by the respondent, and that this was the only contribution ever made by him. Mr Kelson himself contributed an initial $67,000. Since then, he has borne all of the costs of the property, with no contributions from the respondent. Since living there, Mr Kelson calculated that he has spent a total of $162,500 on mortgage repayments, council rates, insurance, loan charges and repairs. The mortgage debt stood at $191,263 at the date of the affidavit. He noted that he was aware of the existence of a restraining order on the property, and an equitable charge in favour of VLA. The property requires extensive renovations which he has been unable to fund due to his equity being unavailable to him. Nor can he sublet the property due to its deficiencies. Whilst the title reflects the joint ownership of the property by himself and his son as tenants in common, their actual circumstances do not reflect that. He does not consider the respondent to have any interest in the property beyond his initial contribution. Mr Kelson detailed some acts of vandalism carried out by others at the house, a number of medical complaints from which he suffers, and difficulties he has had in securing employment.
Legal principles
Section 85B of the Act provides that if a person is found guilty of an offence, a court may make a compensation order of such amount as the court thinks fit against the offender in favour of a person who has suffered injury as a direct result of the offence. ‘Injury’ for these purposes is defined in s 85A to include mental illness or disorder or exacerbation of a mental illness or disorder and ‘grief, distress or trauma or other significant adverse effect’.[8]
[8]The Act, s 85A(1)(d).
Section 85B(2) provides, in part:
(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;
…
The relevant principles for applications for compensation have been considered in numerous decisions of this Court. In the recent decision of Paulino v Paulino,[9] Elliot J at [27]-[33] had the following to say in respect of some of those principles:
[9][2020] VSC 642 (‘Paulino’).
The Sentencing Act does not define ‘as a direct result of’, but for the purposes of section 85B, it is taken to mean ‘an injury that is judged as a matter of fact, according to common sense and experience, to have been caused by the offence’.[10] There is no requirement that the crime be the sole cause of the injury sustained; it is sufficient that the offending played a significant role in the injury that is the subject of the claim.[11]
[10]Kaplan v Lee-Archer (2007) 15 VR 405, 416 [56] (Nettle JA); and for a more complete explanation, see: 416-417 [53]-[59].
[11]Ibid, 411 [25]-[26], [28] (Buchanan JA with whom Vincent and Nettle JJA agreed). See also RK v Mirik (2009) 21 VR 623, 655 [151] (Bell J).
The court’s power to make an award for compensation is discretionary. Common law principles are relevant to determining an order for compensation;[12] but they do not curb the types of injuries that are compensable, and the court may take into account that the injury has been suffered because of a crime.[13] In the context of an application for pain and suffering, the injuries compensable include ‘loss of enjoyment and amenity of life’.[14]
[12]RK v Mirik (2009) 21 VR 623, 655 [148].
[13]Ibid, 655 [149]; Josefski v Donnelly [2007] VSCA 6, [21] (Nettle JA with whom Buchanan and Vincent JJA agreed).
[14]RK v Mirik (2009) 21 VR 623, 655 [148] (Bell J).
Applications made under the compensation regime set out in the Sentencing Act are incidents of criminal proceedings.[15] The regime is not punitive.[16] Rather, the regime is geared towards compensation and restitution of victims;[17] it is ‘an endeavour to address through the payment of money, the injury and loss sustained’ by the victims.[18] Therefore, when assessing compensation, the focus is on the actual effects on the victim;[19] the assessment is to be objective, rational and evaluative.[20]
[15]Director of Public Prosecutions v Esso Australia Pty Ltd (No 2) (2001) 126 A Crim R 13, 16 [11] (Cummins J).
[16]RK v Mirik (2009) 21 VR 623, 655 [150]; Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 352-353 [30] (Vincent JA with whom Buchanan and Neave JJA agreed).
[17]RK v Mirik (2009) 21 VR 623, 636 [54], 639 [66].
[18]Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 352-353 [30].
[19]Ibid, 353 [31].
[20]St Clair v Jamieson [2019] VSC 57, [22(e)] (Bell J).
If the court is minded to make a compensation order, the financial circumstances of the offender, and the burden the payment will impose, may be considered in determining the amount and method of payment.[21] The offender’s rehabilitation must be properly considered, but ultimately is not determinative or controlling of the discretion to award compensation; and, at all times, must be balanced with the victim’s interests.[22]
[21]Sentencing Act, s 85H. See also RK v Mirik (2009) 21 VR 623, 652 [137].
[22]St Clair v Jamieson [2019] VSC 57, [22]; RK v Mirik (2009) 21 VR 623, 652-653 [137]-[139], 653-654 [141]-[143].
In assessing the quantum of compensation, where grief and trauma were the substance of the application, Neave JA in Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd considered the following factors to be relevant:[23]
[23](2006) 14 VR 345, 356-357 [50], cited with apparent approval (the adoption of these factors was agreed between the parties) in Liang v Chalmers [2011] VSC 439, [4] (Maxwell P, Redlich JA and Kyrou AJA). See also St Clair v Jamieson [2019] VSC 57, [22(e)]; Cronin v Lee [2019] VSC 509, [87] (Taylor J); Sullivan v Gibson [2018] VSC 785, [72] (Croucher J).
(1) The circumstances in which the death occurred.
(2)The effect on the victim on hearing, at the time, of the events causing the loss.
(3)The closeness of the relationship between the victim and the deceased.
(4) The age of the victim.
(5)The extent of the pain and suffering, including grief and psychological suffering, experienced by the victim as a result of the crime.
As to the last of these matters, it may be relevant to consider circumstances before the time of the offence, which rendered a victim more vulnerable,[24] as well as for the purpose of considering whether any particular injuries were, in fact, a direct result of the offence.
Ultimately, what is required is an intuitive synthesis of all of the circumstances of the case to determine the amount of compensation to be paid.[25]
Finally, while compensation awards in other cases may be relevant to consider as part of the exercise of determining the appropriate amount of compensation to be awarded on a particular application, caution must be exercised with respect to the weight such other awards are given. Each compensation award must be determined based on the particular facts and precise considerations that are before the court.[26]
[24]Cf Shepherd v Kell [2013] VSC 24, [26], [15]-[16] (Lasry J); Kaplan v Lee-Archer (2007) 15 VR 405, 411 [26] (Buchanan JA with whom Vincent and Nettle JJA agreed).
[25]Moresco v Budimir [2015] VSC 51, [25] (T Forrest J).
[26]See, for example, Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 352-353 [40] (Vincent JA with whom Buchanan and Neave JJA agreed).
The application for an extension of time
In this case, as previously indicated, the application was commenced out of time. Section 85C(1) of the Act requires an application for a compensation order to be made ‘within 12 months after the offender is found guilty, or convicted, of the offence’.
Section 85D(1) provides that a court may extend the time within which an application for a compensation order may be made ‘if it is in the interests of justice to do so’. An extension of time may be granted ‘before or after the time expires and whether or not an application for an extension is made before the time expires’.
As indicated, the respondent pleaded guilty to murder on 2 June 2018 and was sentenced on 10 August 2018. It was common ground between the parties that the time commenced to run for the purposes of s 85C(1) at the time of sentencing. The application was commenced on 29 April 2020. That was some 8 ½ months out of time.
The affidavit of the applicant contained an explanation why the application was launched outside the required time. In a nutshell, the explanation was to be found in the very distressed and preoccupied state of the applicant in the aftermath of the murder of her son and for a long time after that, and her failure to understand her right to make an application for compensation and the time limit applying to that.
The principles governing applications for extensions of time for the commencement of compensation applications have been the subject of consideration in many cases which were drawn to my attention by Ms Hancock for the applicant. In the circumstances, I will not summarise those principles. Suffice to say that judges of this Court have, in many appropriate cases, granted extensions of time for periods ranging from a few months to in excess of seven years.
In this case, it is of some note that it was very fairly conceded by Mr Danos on behalf of the respondent that ‘given the preponderance of authority, in the circumstances of this case’, it would be open to the Court to grant an extension of time, albeit that the respondent did not consent to that course being followed.
I accepted the reasons advanced by the applicant for her late application. There was nothing to indicate that the respondent had suffered any prejudice or would be at any forensic disadvantage as a result of the delay. Nor would his prospects of rehabilitation be prejudiced by the late commencement of the application. In terms of the delay in the parties reaching a state of finality, the delay in commencing the application had only a small part to play in that.
In all of the circumstances, and taking the liberal approach to the application for an extension of time which the authorities would indicate is appropriate,[27] I extended the time for the commencement of the application for compensation to the day on which the application was commenced, that is, 29 April 2020.
[27]See, for instance, Robertson v Esso (Australia) Pty Ltd [2004[ VSC 101 (Cummins J).
The applicant’s submissions
Ms Hancock commenced by submitting that the loss of a child is always tragic, but to lose a child of 17 in the circumstances that have been faced by the applicant should mean that an order for compensation at the highest end of the range for cases where a parent has lost a child should be made. The seriousness of the crime committed by the respondent was emphasised. As for the pain and suffering of the applicant, they have been ‘immeasurable’, made all the more so by the secreting of Cayleb’s body, the flight of the respondent, and the protracted criminal proceedings which followed.[28] The applicant’s devastation over the loss of her son will likely continue for the rest of her life, it was submitted.
[28]Application 24.
Ms Hancock submitted that the evidence of Dr Entwisle in combination with that of the applicant should satisfy the Court that the injury suffered by the applicant was as a direct result of the respondent’s crime, and that the applicant is therefore eligible for compensation.
Turning to the matter of the financial circumstances of the respondent, Ms Hancock submitted that the financial circumstances of the respondent, should they be able to be established on the balance of probabilities, would be a relevant consideration in the exercise of the Court’s discretion to award compensation. The applicant, however, took issue with the respondent’s claim of being impecunious. The Seaford property is owned by the respondent and his father as tenants in common, which means that legally, the respondent is entitled to 50 percent of the value of the property, no matter that he has made no contribution beyond his initial one. The equitable interest that Brendan Kelson asserts in his affidavit in respect of the respondent’s interest in the property is not a matter for this Court to determine, particularly in circumstances where Brendon Kelson has not sought to pursue that equitable claim in VCAT or by making an application to this Court for an exclusion order under the Confiscation Act. Ms Hancock described the course taken by the respondent as ‘a troubling attempt to subvert Thomas Kelson’s responsibilities, pursuant to the Sentencing Act and pursuant to the law’.[29] The respondent owns a 50 percent share of the property by law. The Court should not speculate on whether Brendan Kelson would later take some steps to assert his equitable interest, or the likely outcome of such steps. In light of the uncertainty as to the respondent’s interest in the property, and indeed, as to the value of the property, the respondent has not proven on the balance of probabilities what his financial circumstances are, and therefore, his financial circumstances should be disregarded.
[29]Ibid 29.
In the alternative, Ms Hancock submitted that even if the Court could be satisfied as to the financial circumstances of the respondent, those would only be taken into account as a matter relevant to the burden that an award of compensation would place on the respondent’s prospects of rehabilitation. It was submitted that the onus was on the respondent to prove on the balance of probabilities that an award of compensation would affect those prospects. The respondent’s affidavit material did not address that issue. Therefore, even if I was satisfied as to the financial circumstances, I should not take them into account as there was no material pointing to any potential impact on the respondent’s prospects of rehabilitation by an award of compensation.
Furthermore, even if I was satisfied that the respondent was impecunious, that would not prevent an award of compensation. The cases clearly demonstrate that in the case of offenders of limited financial means, orders well above their proven means may be made.
Finally on this matter, Ms Hancock submitted that the employment prospects, health and financial circumstances of Brendan Kelson are not relevant considerations, and should be disregarded.
Ms Hancock submitted that in light of the significant loss suffered by the applicant, which would be with her for the rest of her life, the age of her son at the time of his death, the sustained nature of the violence inflicted upon him, and the protracted nature of the criminal proceedings, with the respondent refusing to take full responsibility for what he had done, the ongoing pain and suffering of the applicant were such that an award towards the highest end of such awards should be made.
Ms Hancock sought an award of compensation of $250,000 (less the $15,395 awarded for distress by VOCAT) for pain and suffering, $5,250 for reasonable future psychological treatment, and $8,800 for reasonable future relationship counselling costs, less the amount of $640 still available to be claimed from VOCAT for future counselling.
Ms Hancock also sought an order for costs against the respondent pursuant to s 85K of the Act. The amount sought was $12,351.60. In justification for an award of costs in spite of the usual rule reflected in s 85K, Ms Hancock pointed to the complexity of the case which was increased by the material calling into question the value of the respondent’s interest in the Seaford property, the protracted nature of the criminal proceedings brought about by the respondent’s conduct, and the delay in the current proceedings caused by his change of representation.
The respondent’s submissions
Mr Danos, for the respondent, submitted that the material showing no contribution by the respondent to the Seaford property beyond his initial contribution to the purchase price was clear and unchallenged. Brendan Kelson, it was submitted, would be in a position to argue ‘at least an equitable and a constructive trust, as to the amounts that he had paid’. Mr Danos, by reference back to the percentage of the purchase price of the property reflected by the respondent’s initial contribution, posited that the respondent may still be entitled to claim 18 percent of the current value, equating to $126,000 on a sale price of $700,000.
The property is the home and residence of the father of the respondent, and he has no plans to sell it. In practical terms, it was submitted, the ability to realise the respondent’s equity in the property is severely restricted, especially in light of the restraining order in place.
Mr Danos submitted that the matter of the equitable interest claimable by Brendan Kelson ‘is very simply worked out’[30], and it would not be speculative at all to posit that the respondent will be entitled to claim only an 18 percent interest in the property. He submitted that it would be open for the Court to deal with it in that way.
[30]Ibid 55.
Insofar as the applicant had referred to the issue of rehabilitation, Mr Danos submitted that the ‘rehabilitation’ considered there is not the same question of rehabilitation considered by a judge upon sentencing an offender. He referred the Court to the decision of Kelly v R1[31] in support of the contention that what rehabilitation meant in such a situation is the question of whether the offender would have access to funds at the time of release. In this case, Mr Danos submitted that, on the figure he had earlier posited which may reflect the respondent’s equity in the property, he would be saddled with a substantial debt were an award of the magnitude of that sought by the applicant to be made. Given that he would not be released until his mid-forties at least, he would be capable of employment, but with his limited skill-set, his employment options would be limited. It was submitted that in the circumstances, any award made to him should be tempered by his limited assets at this time.
[31][2016] VSCA 90.
Turning to the question of costs, Mr Danos submitted that there was nothing unusual about this case which would warrant a departure from the normal rule that costs would not be awarded in these matters.
Analysis
There can be no doubt that the applicant has suffered injury as a direct result of the respondent’s murder of Cayleb, by way of a significant emotional and traumatic reaction to that crime which has had long-term and devastating effects upon her. She is undeniably entitled to an award of compensation in her favour. That this is so was not in dispute in the proceeding. What was in issue was the magnitude of the order for compensation which would be appropriate.
The brutal and senseless murder of Cayleb Hough had the effect of removing from the immediate presence and protective sphere of a loving and protective mother a much-loved 17 year old son, whose life she had hoped to observe and to play a strong part in for the remainder of her own days. The callous disposal and secreting of Cayleb’s body exposed the applicant to an almost unbearable period of uncertainty and increasing terror, before her worst fears were confirmed. Then, because of the state of Cayleb when his remains were located, the applicant was denied the opportunity of properly saying goodbye to him. All of these circumstances were such as to greatly magnify the terrible effect of this crime upon her which would already have been very substantial in light of the knowledge she eventually gained as to the frightening last few hours faced by Cayleb, the way in which he had been killed, and the heartless manner of the disposal of his body.
The protracted nature of the criminal proceedings against the respondent, due in no small part to the unwillingness of the respondent to take full responsibility for his actions, had the effect of substantially prolonging and magnifying the pain and distress of the applicant.
In the circumstances, there being clear evidentiary material warranting such a conclusion, I am satisfied that the grief, trauma and sense of loss suffered by the applicant have been and continue to be almost overwhelming to her. Dr Entwisle was of the opinion that the impact of the crime upon the applicant ‘has been severe, longstanding and elements of her grief and loss will continue for the foreseeable future’. That opinion was based on a consultation the witness had with the applicant almost 4 ½ years after her son was murdered. I am satisfied that she has suffered a significant psychological reaction, that her devastation and sense of loss have, to use the words of Dr Entwisle, had a corrosive impact upon her relationship with her partner, that her relationships with her surviving children have been markedly damaged, and that she will likely continue to suffer the effects of the loss of her son for the rest of her life.
Turning to the question of whether the financial circumstances of the respondent should be taken into account pursuant to s 85H of the Act, Bell J in St Clair and Holmes v Jamieson[32] stated:
Under s 85H(1), the court may take the financial circumstances of the offender into account as a relevant but not as a controlling consideration. This is not because the degree of the victim’s pain and suffering is somehow reduced in the court’s assessment by those circumstances. The court’s assessment in that regard is autonomous. It is because, despite the degree of that pain and suffering, for reasons of legislated public policy, the awarding, amount or terms of payment of the assessed compensation may be adjusted, even to nothing. Where the court is not given evidence of the offender’s financial circumstances, it may make an order anyway (s 85H(2)). The court does not have to conduct an inquiry of its own motion into an offender’s means. It is up to offenders to put their financial circumstances forward. The ultimate purpose of this discretion is to protect so far as possible the offender’s prospects of rehabilitation, which is an important consideration, especially for the young and vulnerable. But in many cases, this is either not relevant or outweighed by other considerations, such as the pressing need to compensate the victim.[33]
[32][2019] VSC 57.
[33]Ibid [22(f)] (citations omitted).
In that case, the respondent, Ian Jamieson, was the sole registered proprietor of the family home in which he had lived with his wife at the time of the crimes. A restraining order was placed over the property pursuant to the Confiscation Act and two days later, a caveat was lodged over the property in favour of the respondent’s daughter, Leann Caruana, claiming the existence of an agreement with the respondent. The respondent and Ms Caruana swore affidavits stating that they had agreed that she would maintain the family home on his behalf and would be compensated for doing so. She provided a list of expenses incurred and paid by her in pursuit of that agreement, totalling about $128,000. Bell J stated:
The court is not in a position to make any findings in relation to the value of Mr Jamieson’s interest in the property, whether in law, equity or under the Family Law Act. It is the same with his wife’s interest. The court is not in a position to make any findings in relation to what legal claim Ms Caruana might be able to make against her father under the agreement in contract personally or in property law against the property.
This is not a case in which the court can or should take the financial circumstances of the offender into account under s 85H(1) of the Sentencing Act. There is insufficient evidence of Mr Jamieson’s financial circumstances to enable the court to do so. If the mortgagee, Mrs Jamieson or Ms Caruana have any legal rights against Mr Jamieson with respect to the property or the proceeds of its sale (if that were to happen in consequence of compensation orders being made), they will have the opportunity to exercise these rights if they wish to do so. The court will not take into account the possible existence and enforceability of any such rights in assessing the compensation payable to Maree and Paul by reason of Mr Jamieson’s crimes because they have not been substantiated. More fundamentally, the impact of the crimes upon Maree and Paul has been so profound that it would be inappropriate to take Mr Jamieson’s financial circumstances into account when assessing and ordering compensation, especially when regard is had to the fact that he is an elderly man who will probably spend the rest of his life in prison and whose potential for limited rehabilitation will not be seriously prejudiced by compensation orders.[34]
[34]Ibid [38]-[39].
There is considerable uncertainty as to the financial circumstances of the respondent. On any view of it, he is not impecunious, but neither is he wealthy. It is clear that he is the joint owner with his father of a property which is apparently now of considerable value. As I understand it, the respondent would therefore be legally entitled to a 50 percent interest in the property. His father may have an equitable interest in a portion of the respondent’s half share, but whether that turns out to be the case remains to be seen. For what it is worth, I make the observation that in circumstances where the respondent, at the age of 25, made a contribution towards the purchase of a property with his father which slightly exceeded the contribution by his father, it would seem somewhat unlikely, in view of the relationship between them, that the intention of the purchasers at the time of purchase was that the property would end up being owned almost entirely by the father, no matter what contributions were subsequently made.
It does seem to me that for the Court to entertain the contention made on the respondent’s behalf by Mr Danos that the true interest the respondent has in the property only amounts to 18 percent would require the Court to engage in speculation as to Brendan Kelson’s prospects of success in asserting the equitable interest which he has sought to advance.
The fact is, accurate quantification of the value of the respondent’s current assets is not possible at this time, which does create a difficulty for the Court in taking his financial circumstances into account in any meaningful way.
Another matter tending to minimise the significance of the financial circumstances of the respondent in the task facing the Court is that there is no material which would indicate that an award of compensation, at all or to any particular level, might interfere with the respondent’s prospects of rehabilitation. The term of imprisonment I imposed upon the respondent would leave open the prospect that he may be released into the community when still in his mid-40s. I said, at the time of passing sentence, that the sentence would leave the respondent with ‘the hope and prospect of some useful life after its completion’.[35] I expressed the opinion that if the respondent could avoid any return to the use of illicit drugs in future, his prospects of rehabilitation may be reasonable, but that it was very difficult to form a concluded view on this.
[35]Sentence [68].
In the circumstances, I do not believe that there is any proper basis for a finding that an award of compensation made against the respondent in favour of the applicant would materially interfere with the former’s prospects of rehabilitation. Of far more importance to those prospects than the magnitude of his assets at the time of his release will be whether he is able to defeat the scourge of illicit drug use and, in the years remaining to him, to devote himself, through the pursuit of employment and other avenues, to living a productive life.
Other matters speaking to the relative insignificance of the financial circumstances of the respondent to the Court’s task are the gravity of the respondent’s crime and the profound impact of that crime upon the applicant.
In the circumstances, whilst I have not ignored the matter of the respondent’s financial circumstances, those circumstances have not had a great part to play in my determination of the appropriate award of compensation.
The pain and suffering felt by the applicant as a direct result of the death of her son cannot be adequately described by words. There is no question that she is entitled to an award of compensation in her favour. As to the magnitude of that award, it is in my discretion to determine it. I note the words of Vincent JA in DPP v Energy Brix Australian Corporation:[36]
There is no and there obviously cannot be a yardstick by which the extent of personal grief and distress can be measured, and no method of conversion of a human emotion or psychological reaction to an amount of money exists.[37]
[36](2006) 14 VR 345.
[37]Ibid [36] (Vincent JA, Buchanan and Neave JA agreeing).
The award I will make is designed to compensate the applicant, as far as money can do, for the loss she has suffered from the murder of her son. The award will be based upon a consideration of all of the factors relevant to this case, including awards of compensation made in other cases which have been drawn to my attention. The award will not constitute a monetary assessment of the value of the life of Cayleb Hough. Nor is it intended to further punish the respondent.
In the circumstances, and balancing each of the relevant factors as well as I can, I will make an award of compensation in the amount of $230,000 for pain and suffering, to be reduced by $15,395 on account of the award for distress by VOCAT, and an award of compensation of $13,410 for future psychological treatment and relationship counselling, reduced by $640 in view of that amount still able to be claimed under the VOCAT order.
Application for costs
The applicant applied for costs, on a basis I have already set out. The respondent resisted that application.
The drafting of s 85K of the Act makes it plain that whilst in the ordinary course of events, cost will not be awarded in connection with applications for compensation, there will be some circumstances in which it would be appropriate for the usual position to be modified. The decision on the Court’s exercise of its discretion as to costs will turn on the facts of each case.[38]
[38]Paulino [94].
Having considered the application in light of the authorities, I am not satisfied that the circumstances of this application are such as to warrant a departure from the ordinary rule. I am not prepared to make an order for the payment of costs.
Conclusion
Pursuant to s 85B of the Act, I order that Thomas Kelson pay compensation in the sum of $228,015 to Melanie Crespo.
I make no order as to costs.
I note that Mr Danos appeared pro bono for the respondent under the Victorian Bar Pro Bono Scheme. The assistance of Mr Danos to the respondent and the Court was invaluable. I express the appreciation of the Court for that assistance, which was provided in accordance with the finest traditions of the Victorian Bar.
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