DPP v Parsons
[2000] VSC 327
•10 August 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1555 of 1998
In the Matter of Applications pursuant to Section 86(1) Sentencing Act 1991
by Joanna Collins, Jessica Parsons and Michael Parsons:
| Director of Public Prosecutions |
| v |
| Robert Clive Parsons |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 1999, 26 July, 2 and 3 August 2000 | |
ATE OF JUDGMENT: | 10 August 2000 | |
CASE MAY BE CITED AS: | DPP v Robert Clive Parsons | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 327 | |
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Criminal law - Crimes compensation - Pain and suffering - S.86(1) Sentencing Act 1991 - Murder - Claims by children and sister of deceased - Not present at scene or physically injured - Considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
For the Applicants | Mr C.H. Francis QC | Daniel S. Slattery & Associates |
| For the Offender | Mr D. Perkins | Kuek & Associates |
HIS HONOUR:
On 18 May 1999 the offender, Robert Clive Parsons, was convicted by a jury of the murder of Angela Elizabeth Parsons. The next day, 19 May 1999, the applicants, Joanna Clare Collins, who was a younger sister of the deceased, and Jessica Catherine Parsons and Michael Edward Parsons, the children of the deceased and of the offender, through senior counsel, made oral application pursuant to s.86(1) Sentencing Act 1991 for orders that the offender pay compensation for the pain and suffering caused to them by the offence of the murder of their sister and mother, respectively. It is those applications I now determine.
The child, Jessica, was born on 26 November 1984. The child, Michael, was born on 24 February 1988. At the time her father murdered her mother, Jessica was 13 years and 2 weeks of age. She is now 15 years and 8 months. Michael, at the time, was 9 years and 9 months. He is now 12 years and 6 months of age. Mrs Joanna Clare Collins is now 50 years of age, having been born on 29 March 1950. The offender, at the time he murdered the children's mother, was 54 years of age, having been born on 25 July 1943. He is now 57. The applications are brought by Mrs Collins on her own behalf and on behalf of Jessica and Michael. On 23 December 1997, the Family Court (Dandenong Registry) made an order that Mrs Collins be the next friend for the children Jessica and Michael. However, given their ages (now 15 and 12 years) and the fact that they have endured pain and suffering, in this judgment I shall refer to each of them as applicants.
The offender met Angela Graham, as then she was, in 1983 and they commenced living together. Ms Graham changed her name by deed poll to Parsons. The two children were born of the union, the daughter, as I say, in 1984 and the son in 1988. The offender was violent in the relationship, and the deceased and the offender separated in 1992.
After the separation, the offender was not denied proper access to his children. The deceased never at any time sought any maintenance from the offender for herself. The offender paid a small amount of maintenance for the two children, but by 1997 had ceased even to do that. Thus the deceased was obliged to turn to the law to obtain some maintenance, not for herself but for the two children. She commenced proceedings in February 1997. The offender's response was to threaten her that if she proceeded, he will kill her, and by the end of that year, that is what he did.
The violent demeanour and threats of the offender personally terrified the deceased but, bravely, in fulfilment of her duty as a mother, she sought to secure her children's rights and welfare by access to the law. On 6 February 1997, she had applied in the Prahran Magistrates' Court for an intervention order against the offender. On 17 February 1997, she issued proceedings in the Family Court of Australia, at its Dandenong Registry, relating to the maintenance and custody of the children and of access or contact with them. A week after she had applied in the Prahran Magistrates' Court for the intervention order, the offender applied for one against her. The deceased was unrepresented at the hearing and, when the hearing came on, both applications were dismissed.
Fearful, but loyal to her children, the deceased pursued her lawful recourse. Time and time again the offender sought to defeat or delay the matter. The delays were no burden on the offender; he was paying nothing and he intended to continue to pay nothing. He lied about his assets, saying he had no money. The proceedings made their way through the conciliation process and the court process of the Family Court during 1997. The final hearing concerning custody and contact was scheduled for March 1998. In December 1997, at last, a hearing was to be held on interim financial matters. The Family Court proceedings for interim financial relief ultimately were scheduled for Monday, 8 December 1997 at the Dandenong Registry of that court. The matter was not reached on the Monday. It was reached late on the Tuesday, and adjourned over. It was listed for hearing at 2.25 p.m. on Wednesday, 10 December 1997.
The offender thus had reached a crossroad. His attempts to delay had run their course. Accordingly, he murdered the mother of the children.
Numerous witnesses gave evidence of the vicious and deadly attack the offender imposed upon the deceased as she was walking quietly back to the Family Court on the west side of Robinson Street, Dandenong, just after 2 p.m. on Wednesday, 10 December. She was just under 90 metres from the door of the court when the offender ran 15 metres across the road with a knife he had brought with him for that purpose and attacked her. He inflicted 41 knife wounds to her neck and upper body, 8 into her heart or its surrounds, 8 to the lungs, and numerous through the neck, all directed to the vital organs. She had only moments to live but, to ensure that his deadly work was done, as the offender walked away from the body on the ground, he stabbed the deceased twice in the leg, not to kill her, but to make sure she was dead. He was charged with the murder of the deceased.
As soon as Mrs Collins, the younger sister of the deceased, was told by telephone of the terrible news, she hurried back to the deceased's home because of something the deceased had said to her earlier in 1997. For, amongst his many assaults inflicted on the deceased during their living together, the offender had assaulted the deceased severely in 1990. In March 1997, when the deceased's application to the Magistrates' Court for an intervention order was dismissed, she spoke of that earlier matter to her younger sister, Mrs Collins, the applicant before me. The deceased had had photographs taken in 1990 of the injuries inflicted upon her then by the offender. Fearful though she was, ominous though the future was, she had placed into the lining of her coat the photographs. After her application for an intervention order was dismissed in March 1997, she told her younger sister that she had hidden the photographs and where they were "in case anything should happen to me." On the day of the death of the deceased, her younger sister went to her home and found the photographs there, in the lining of the deceased's winter coat left in her son's wardrobe, just as the deceased had foretold.
It is thus apparent that none of the applicants was present at the scene of the offence and none was physically injured in or as a result of the offence. These claims are for non-physical pain and suffering.
After the murder of the deceased, another discovery was made. In the backyard of the home of the offender, under the wood heap, was buried $400,000 in cash. He had sworn in the Family Court less than a month before, on 27 November 1997, that his cash consisted of $300. In truth, he had assets of approximately $1 million.
The offender at the time was 54 years of age, having been born on 25 July 1943. He is now 57. On 24 May 1999, I sentenced the offender to life imprisonment. I directed that he serve a minimum term of imprisonment of 25 years. Allowing for the 530 days the offender had spent in pre-sentence detention, the offender will be 79 years of age when first he becomes eligible for parole.
On 23 February 2000, the Court of Appeal unanimously dismissed the offender's applications for leave to appeal against conviction and sentence.
I have had the opportunity of observing over time Mrs Collins, both in the witness box and in court. Mrs Collins impresses me as a truthful, honourable, decent and selfless woman. I have also observed Jessica. Jessica, brave and truthful, gave evidence before the jury. She was informed that she, as the daughter of the accused, had the right to apply to be excused from giving evidence. She did not apply to be excused. She gave evidence that in the kitchen of her father's home two weeks before her mother was killed, her father said to her, "It costs $10,000 to kill someone." What a burden for this innocent child to carry forever: the knowledge that her father, supposedly her protector, had darkly revealed his murderous mind to her two weeks before her mother was killed by her father. And she, an innocent and loyal child, did not think the unthinkable.
Mrs Joanna Collins came to Australia from England with her sister, the deceased, in 1972. The deceased was then 23 years of age and Mrs Collins 21. Mrs Collins and the deceased were very close. The deceased shared many of her private problems with Mrs Collins, who sought to counsel and advise her. Indeed, in February 1997, the month that I have referred to in relation to the intervention proceedings, the deceased rang Mrs Collins, terrified and hysterical, and said that the accused had threatened her life if she sought any of his money for the children. She had not at any time sought any of his money for herself. Mrs Collins rightly gave her sister counselling and said, "Go to court, it's your only choice." Her advice was right, and she should have given it; but that is another burden for Mrs Collins to bear. At the end of that year, in the mortuary, she identified the body of her sister, who she had advised, rightly, to go to court. The body was there because her sister went to court.
In these applications I could have had regard to the material filed on the plea, being three exhibits, a victim impact statement of Mrs Joanna Collins of 19 May 1999, a report of Dr Shirley Prager, consultant child adolescent and family psychiatrist, of 24 May 1998, and that of Ms Johnson-Tidey, grief counsellor, of 16 February 1999. However, I informed senior counsel that I considered it was the right of the offender that any material which was to be relied upon in these applications ought be properly available to be tested by him, and that, accordingly, the deponents or authors of that material, should be available to be cross-examined if the material was to be relied upon. There appear to have been lengthy Family Court proceedings in which lengthy cross-examination has occurred on all sides and which are part heard and, in the circumstance, senior counsel said that those three exhibits were not relied upon, doubtless to avoid further oppression of these proceedings upon the victims of this crime. Accordingly, I have no regard to those three exhibits, which I had read for the purposes of the plea and sentence, but have not read since, and now have no regard to.
There is in this case no need for detailed reports. This was a particularly horrific murder: a mother, going to court, not for herself, but for her two children, killed on the door of the court in the most terrible of circumstances. What a burden for her sister, Mrs Collins, who found the photographs, identified the body, having advised her to go to court not knowing she was going to her death, a woman loyal, loving and close to the deceased, an applicant who I consider is honourable, truthful and most impressive.
And what a terrible legacy for the children, to know that their mother was murdered by their father, and because she was seeking help for them. It strikes at the very heart of childhood, of parenting, of safety, of confidence and of the future. How hard for them to have trust or to bond. No psychiatrist is needed, no report is needed, for those painful truths conclusively to be established.
The offender, through his counsel, made a number of submissions at the outset. A purported notice of a constitutional matter under s.78B Judiciary Act 1903 was filed, seeking to remove the matter herefrom, to be heard in the High Court, because it is said that the matter involves a constitutional question under Ch III. I have already made a ruling upon that (Ruling No.2). It was a contrived and wasteful attempt to remove the proceedings, which failed.
Next, it was submitted on behalf of the offender, on 2 August 2000, that it was too late for the applications to be made. Yet, but a week before, on 26 July, the same offender was applying for the matter to be adjourned effectively to the year 2001. Despite the fact that the jury had taken less than two hours to reach its verdict and the Court of Appeal found that it was "an open and shut case of murder", it is proposed that, on 8 September or, more probably, 15 December this year, an application for special leave to appeal to the High Court will be heard, thus taking this matter into next year. When I put to counsel that that was indeed a long time away, he replied, "it is practicable to deal with the matter after the special leave application" - that is in 2001 - but a week later was submitting that it was too late to hear it. Such contradiction does not engender credibility. I have set forth the history of the matter in the transcript of 26 July at pp.1-3. When the applications were made the day after the conviction, I said to counsel that, in fairness to the offender, I would not then hear it. As I say to all counsel when persons are convicted of murder, they are entitled to time to compose themselves before the next step is taken. Thereafter, both sides more than once sought that the matter be adjourned, requests I acceded to in particular because of the sentence I had imposed upon this offender. This point fails.
Next, it was submitted that the applicants, the sister of the deceased and the two children of the deceased, were not "persons suffering as a result of the offence" within the meaning of s.86(1) Sentencing Act 1991. When pressed to its logical conclusion, counsel submitted that under the provisions of s.86(1) the only victim of the crime was the deceased, who could not make a claim, and that her estate was not entitled to make a claim. Thus, as I said to counsel, in homicides s.86 may as well be written out of the statute book. The "persons suffering as a result of the offence" as contemplated by s.86(1) are the three persons before me, Mrs Collins, Jessica and Michael. Nothing in life could be more direct than the suffering of those persons as a result of the offence, the murder of their mother (and sister). The law of tortious liability has come a long way since the dissent of Evatt J. in Chester v Waverley Corporation (1939) 62 C.L.R. 1 at 14. This statute expresses itself in plain terms. This point fails.
Next, it was submitted that the discretion to award compensation should not be enlivened under s.86(1) because the applicants had commenced proceedings under Part 3 Wrongs Act 1958. In fact such proceedings have not been issued but are proposed or contemplated. In any event, an award under s.86 would be deducted from any award under Part 3 Wrongs Act to obviate double counting. This point fails.
Next, it was submitted that I should not proceed with this matter because, it being criminal process, the offender was prevented from joining persons responsible for this crime. When pressed as to whom those persons were, it was submitted on behalf of the offender that the Family Court was in part responsible for his crime, in the person of a hapless family counsellor in her office in Dandenong, because, it was said, a safety net was never erected. When asked as to whom the safety net should be directed, counsel understandably declined to pursue the matter, but ultimately said, in a most unfortunate submission, that the danger from the children's point of view was "a danger in respect of both their parents". A most unfortunate submission. In truth, the mother of the children was their loyal guardian. This point fails.
Next, it was submitted as to the exercise of the discretion in s.86(1) that another Judge ought consider the matter. The section contemplates that the sentencing judge deals with the application. That also is the practice, and for the sensible reason of efficiency in the dispatch of business. The sentencing judge acts (and I have acted) on the evidence relevant and admissible pursuant to the provisions of s.86, and to consider compensation, not further punishment. See generally Braham (1977) V.R. 104, Landholdt (1992) 63 A.Crim.R. 200, McDonald (1979) 1 N.S.W.L.R. 521 and In re Poore (1973) 6 S.A.S.R. 321, decisions under preceding or like legislation, where the practice is set out. This point fails.
I do agree with counsel for the offender that s.86 has within it some inherent tensions and difficulties. I have pointed to those tensions and difficulties previously: see Gregory and Anor. v. Gregory (1423 of 1999) on 7 April 2000, and I shall not repeat those difficulties; they are set forth at paragraph 28 and thereafter of that judgment. It does seem to me that the elements of criminal sentencing, including rehabilitation, in many cases would not sit easily with a substantial order for compensation. That is because a crushing burden upon an offender is likely to be antipathetic to his or her prospects of rehabilitation when he or she comes out of prison. It may be that a more appropriate modus of proceeding than the provisions of s.86(2) (that the Court "may ... take into account ... the financial circumstances of the offender and the nature of the burden that its payment will impose") would be for the State to assume the burden of payment of compensation, and for the State to be given the right of recovery from the offender, such recovery to be governed by the sentencing judge, who would take into account in particular the question of rehabilitation.
However that may be, the difficulty (compensation or rehabilitation) does not assume substantial significance in this case because of the assets of the offender and the sentence of imprisonment I imposed upon him.
Section 86(2) operates as a potential restriction upon the quantum of compensation where an offender has limited means. Of course, the quantum of compensation does not increase because an offender has substantial means.
An award is compensation, not punishment.
After a multitude of what counsel called "preliminary matters" and which were traversed in detail, there was little advanced as matters of substance (transcript 135 lines 8-10). When invited to make submissions as to quantum, counsel for the offender substantially declined the invitation. No oral evidence was called in response to the applications. However, a report of Dr David Sime, psychiatrist, of 10 May 1999 was tendered on behalf of the offender. The report notes, at p.9, that the author of the report termed the coin "the gentle murderer", having reviewed "a substantial number of domestic cases". That was in 1982. If that ever were right, and it was not, it is not now right. Further, the report, at p.10, speaks of provocation by the deceased to the offender. There was no provocation in this case. I so ruled, and the Court of Appeal agreed. Accordingly, I am unassisted by the report of Dr Sime.
For the reasons I have stated, I find that each of the applicants, Joanna, Jessica and Michael, has proved that each is a victim who has suffered pain and suffering as the result of the murder of the deceased and that an order for compensation in each case should be made. I compensate them for pain and suffering, but not for any financial consequences of it. I put completely aside in the compensation I order, any financial burden that falls upon them, including any psychiatric or other medical expenses which may be the consequence of the trauma they have suffered. Further, the pain and suffering is the pain and suffering as the result of the offence, not any pain and suffering which might come from, for example, concern about Family Court proceedings or any other apprehension they presently have about the offender. Further, I do not compensate the victims for the disruption, dislocation and difficulty imposed upon them by the present reordering of their lives (Jessica and Michael now residing with the Collins family). That disruption is substantial and doubtless involves significant expense particularly for Mrs Collins. No award is now made by me for any of that. The awards I make are purely for pain and suffering. Their pain and suffering is amply made out in each case, in their different ways - a loyal sister and innocent children - and no psychiatrist or affidavit is needed for it to be crystal clear - the knowledge, the burden, the anguish and the pain they have suffered and will continue to suffer.
In each case, half the award is for pain and suffering up to the present time, today, and half is for the future pain and suffering which, sadly, will pursue them down the years.
In the case of Jessica, for her pain and suffering as a result of the offence, I order that the offender pay her compensation of $125,000. In the case of Michael, for his pain and suffering as a result of the offence, I order that the offender pay him $125,000. Mrs Collins, being an adult and not a child of the deceased, I consider should be awarded a lesser amount, despite her great loyalty. She fortunately is married and has her supports. I order the offender to pay her $75,000. The total amount of compensation I order therefore, is, in respect of the three applicants, $325,000.
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