DPP v Farquharson, ex parte Gambino - [2009] VSC 186

IN THE SUPREME COURT OF VICTORIA

Not Restricted

CRIMINAL DIVISION

No. 1419 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

ROBERT DONALD WILLIAM FARQUHARSON

Ex parte CINDY LOUISE GAMBINO
S 85B Sentencing Act 1991

Respondent

Applicant

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2009
DATE OF JUDGMENT:	14 May 2009
CASE MAY BE CITED AS:	DPP v Farquharson: ex parte C. Gambino
MEDIUM NEUTRAL CITATION:	[2009] VSC 186

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Criminal law and procedure – murder – convictions of murder of respondent’s three children – applicant mother a victim — application by mother for compensation pursuant to Part 4, Division 2, Subdivision 1 Sentencing Act 1991 – Sections 85A(1), 85B(2)(a), 85C(1)(a), 85H(1) and 85K thereof – injury – grief – pain and suffering – psychiatric injury distinguished — considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M Lattanzio	Office of Public Prosecutions
For the Respondent	Mr C Mylonas	Victoria Legal Aid
For the Applicant	Mr D J Bracken	Petersons

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JUDGMENT

HIS HONOUR:

These are three applications pursuant to s 85B Sentencing Act 1991 by Ms Cindy Gambino for compensation from Mr Robert Farquharson for injury she has suffered as a result of offences of which he was found guilty on 5 October 2007. Ms Gambino was the mother of three children, Jai, Tyler, and Bailey. Mr Farquharson was their father. On Father’s Day, Sunday 4 September 2005, the children were in the care of their father when they drowned in his car after it entered and submerged in a dam off the Princes Highway, Winchelsea. Mr Farquharson escaped from the submerged vehicle. The children at the time of their deaths were 10, 7, and 2 years of age respectively. Mr Farquharson was charged with the murders of the three children. Essentially the prosecution case was that he killed the three children in order to punish their mother. The two parents had separated. Ms Gambino had met a new man. The prosecution case was that Mr Farquharson burned with resentment that he, in his view, was financing Ms Gambino’s new life. She had the better house; the better car; the three children. Mr Farquharson said to a friend “Nobody does that to me and gets away with it”. Three months before the children were killed, Mr Farquharson said to his friend that there would be an accident involving a dam where he survived and the children did not; that it would be on a special day, like Father’s Day, so that he would be the last one to have the children and Ms Gambino would remember it for the rest of her life. The friend did not believe Mr Farquharson. No-one would. But it came to pass. After a seven week trial, the jury found Mr Farquharson guilty of the murder of each of the three children. I sentenced him on each count of murder to life imprisonment and declined to set any minimum term before eligibility for parole. Mr Farquharson has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 186
Decision Date: 14 May 2009

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Farquharson, on the application of Gambino, involves the application by the mother, Gambino, for compensation under the Sentencing Act 1991. Gambino’s three children were murdered by Farquharson, and as a direct result of these tragic events, Gambino seeks compensation for the emotional harm she has suffered. The application was heard in the Supreme Court of Victoria, with the primary focus being on the interpretation and application of various sections within Part 4, Division 2, Subdivision 1 of the Sentencing Act.

The legal issues before the court encompassed the scope and extent of compensable harm under the Act. Specifically, the court needed to determine whether Gambino’s claims for grief, pain, and suffering were eligible for compensation, as well as the distinction between general emotional distress and compensable psychiatric injury. The court had to consider whether the emotional suffering endured by Gambino, while severe, met the statutory criteria for compensation as outlined in Sections 85A(1), 85B(2)(a), 85C(1)(a), 85H(1) and 85K.

In delivering the judgment, the court clarified that while Gambino’s suffering was indeed profound, her claims did not constitute a psychiatric injury as defined by the Act. The court emphasised the need for a clear distinction between general emotional responses to tragic events and recognised psychiatric conditions. It was held that the statutory provisions were intended to cover more severe and recognisable mental health conditions rather than the broader emotional distress experienced by victims of crime. Consequently, the application for compensation was dismissed, as the court found that the relevant sections of the Sentencing Act did not extend to the type of emotional harm suffered by Gambino.

As a result of the court’s determination, the application for compensation was rejected. The court underscored the importance of adhering to the specific criteria outlined in the Sentencing Act when considering claims for compensation, thereby setting a clear boundary for future applications of a similar nature.

Orders