In re Wathen

[2007] VSC 80

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1454 of 2004

IN THE MATTER of R v Ian Mark WATHEN

and

IN THE MATTER of Applications pursuant to Sections 85A-M of the Sentencing Act 1991

BETWEEN

Joan Teresa BEAUMONT, Mark Anthony BEAUMONT, Christopher BEAUMONT, Peter BEAUMONT & Rosemary BEAUMONT

Applicants

and

Ian Mark WATHEN

Respondent

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2005, 21 November 2006
DATE OF RULING:	27 March 2007
CASE MAY BE CITED AS:	In Re Ian Mark WATHEN
MEDIUM NEUTRAL CITATION:	[2007] VSC 80

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Crimes Compensation – Sentencing Act 1991 – Compensation Orders pursuant to S. 85B – compensation orders for mother, father, two brothers and a sister of the deceased.

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APPEARANCES:	Counsel	Solicitors
For the First, Second and Third Applicants	Mr P. McCaffrey	Garry A. Nicholson
For the Fourth and Fifth Applicants	Mr T. Vinga	Michael Smith
For the Respondent	Ms C. Sparke	Wilmoth Field Warne

HIS HONOUR:

1. I am required to assess the amounts of compensation that should be the subject of orders for payment by Ian Wathen (“the respondent”), who was convicted of the murder of his wife, to five relatives of his wife. 

1. Joanne Beaumont was murdered by the respondent on 28 May 2003.  Joanne Beaumont was the adopted daughter of Peter and Joan Beaumont.  Peter and Joan Beaumont married in 1960.  He was a chemist, and later a horse breeder.  She was a teacher.  They lived first in Shepparton, and later in Oakleigh.  They divorced in 1976.  They adopted five children.  The oldest of the five merits only this passing reference, as no claim for compensation is made by him.  Joanne Beaumont and the other three adopted children, Mark Beaumont, Christopher Beaumont and Rosemary Beaumont, like their two parents, are very much the focus of my attention.  

1. Peter Beaumont, Joan Beaumont, Mark Beaumont, Christopher Beaumont and Rosemary Beaumont have made applications for compensation under the provisions of the Sentencing Act 1991 (“the Act”). The application by Rosemary Beaumont was not made within the time set by those provisions. There is an issue as to whether her application should be permitted. There is also an issue as to what materials placed before me should be had regard to. There is also the issue as to the amounts of compensation to be awarded. That issue is materially affected by the fact that there is an amount of $137,517.53 (“the amount held”) being held in an interest bearing account, pending resolution of the claims for compensation. Expressed overly shortly, the amount held represents that part of what remained after the sale in 2005 of the Ormond home that had been in the names of the respondent and Joanne Beaumont, that would have been paid to the respondent if there had been no claims for compensation. Under the applicable provisions of the Act, the total of the amounts of compensation ordered to be paid by me could exceed the amount held. The applicants have specifically requested that I should not make orders accordingly. I will return to the specifics of that submission. In any event, the total amount ordered to be paid will necessarily reduce the amount that the respondent will have available for his own current and future needs.

1. On 21 September 2004, I sentenced the respondent, who had pleaded guilty to the murder of Joanne Beaumont, to eighteen years imprisonment.  I set a non-parole period of thirteen years.  He is likely to be released on parole in May 2016.  He will then be almost 47 years of age, as he was born in June 1969.

1. The applicants are represented by two solicitors.  One acts for Joan Beaumont, Mark Beaumont and Christopher Beaumont, while another acts for Peter Beaumont and Rosemary Beaumont.  The costs associated with the bringing and advancing the applications will have been substantial.  The further costs of a contested hearing would have further reduced the amount available for the applicants or the respondent.  I have benefited from the provision to me of written submissions prepared on behalf of the five applicants and an outline prepared by Ms Sparke of counsel on behalf of the respondent.  After first setting out some basic comparative information about the five applicants, I will refer to the issues raised by the submissions and the outline.

1. In providing the following basic information, I have noted ages, but only as approximate as at present, as I did not have all dates of birth.  Under “Tribunal award” I have noted the amounts awarded and paid to each of the applicants in September 2004 under the Victims of Crime Assistance Act 1996. Under s.85I of the Act, the amounts of such awards must be applied in reduction of the compensation ordered to be paid by the court.

Name	Joan	Peter	Christopher	Mark	Rosemary
Relationship to Joanne	Mother	Father	Brother	Brother	Sister
Age now (approximate)	69	71	42	40	34
Tribunal award	$25,000	$15,000	$12,000	$15,000	$10,000
Victim Impact Statement	Yes	Yes	No	Yes	Yes
Date application filed	20/1/2005	23/5/2005	3/5/2005	20/1/2006	7/7/2006

1. In her outline, Ms Sparke has raised several issues that have to be addressed.  One is as to Rosemary Beaumont’s application, which was opposed as it was made out of time. Another is that any application made without a victim impact statement ought to be dismissed.  Another is that affidavits filed after sentencing ought to be disregarded.  Other submissions in her outline are directed to reasons why only modest awards of compensation would be appropriate.

1. I was referred by Ms Sparke and in the other submissions to a number of decisions.  In addition, I have considered other decisions, including two quite recent decisions: DPP v Energy Brix [2006] VSCA 116 and Josefski v Donnelly [2007] VSCA 6. Of the others, two were decisions of mine: Scarborough [2000] VSC 255 and Farfalla [2002] VSC 385, three were of Cummins J: Gregory [2000] VSC 190, Parsons [2000] VSC 327 and Esso Australia [2003] VSC 367, one was of Judge Morrow: Shaw 17 June 2003, and the remaining two were of VCAT Deputy President Coghlan: Vita 12 July 2000 and Valentic and Filipec 8 December 2000.

1. There were two matters of particular significance in the submissions made on behalf of the five applicants.  The first was that they requested that an amount not exceeding $10,000 from the amount held be retained for the respondent.  The second was contained in the submissions on behalf of Joan Beaumont, Christopher Beaumont and Mark Beaumont.  I was informed that they had agreed that, because of the relatively small amount held, even though they may be assessed for varying amounts of compensation, they would urge that all five applicants should receive equal awards of compensation.

1. I have formed the following conclusions:

1.That I should make an award to Rosemary although her application was made out of time;

2That I should make an award to Christopher although he made no victim impact statement;

3That I am not obliged to disregard material placed before the court after sentencing;

4That I should permit a small part of the amount held to be retained for the respondent;

5That I should make (after making the appropriate reduction under s. 85I of the Act) awards of compensation as follows:

Name	Joan	Peter	Christopher	Mark	Rosemary
Award	$50,000	$20,000	$10,000	$30,000	$20,000

6That I should make no order as to costs.

1. I turn briefly to the provision of an outline of the position of each of the five claimants.  Joan Beaumont is the adoptive mother of Joanne Beaumont. I had before me as to the effects of Joanne Beaumont’s death on Joan Beaumont, her police statement, her victim impact statement, reports of Dominic Greco, a psychologist, prepared in August and November 2003, a report of Dr Piesse prepared in September 2003, and nine pages of materials which appear to have been written by hand by Joan Beaumont on 21 March 2005.  I would note that there are some matters raised in the 21 March 2005 document which would not be admissible as evidence, and are thus appropriately put to one side.  Joan Beaumont has for some years suffered a number of medical conditions including immune deficiency disorder and chronic fatigue syndrome.  She has received psychiatric assistance in the past.  She has been affected by the sexual abuse of some of her adopted children at different times from more than one person.  The materials attest to her great grief, to her having suicidal ideas on many occasions, to her anxiety and mood swings, to her intrusive memories and flashbacks of the deceased, to her times of emotional numbness, to her times of tearfulness, to her depression, to her continuing to visualise the stabbing of Joanne, to her regret that the manner of Joanne’s death denied Joan Beaumont the opportunity to say goodbye adequately.  The materials compellingly spell out the enormity of the adverse consequences to her of the death of her older adoptive daughter.

1. Peter Beaumont is the adoptive father of  Joanne Beaumont.  I had before me his police  statement, his victim impact statement, and a declaration made in December 2006, to which were attached cards which appeared to have been sent to him on Father’s Day and the like by the deceased.  He talked to Joanne on at least three occasions in the week prior to her being killed, a consideration indicating his closeness to her.  He indicated that he had had counselling from a psychologist, Ruth Rolls, and that he had seen doctors to have medication prescribed to deal with feelings associated with the death of Joanne.  He refers to his having felt a deep sense of grief at Joanne being taken away in such an untimely and savage way, and to his having suffered nightmares, and a general feeling of insecurity and worry not present before the murder.  He writes of the greatest impact suffered by him being the loss of the love of a daughter, of how he misses Joanne, and of how he is distressed at the sight of anyone who looks like her.

1. Christopher Beaumont is the second of Joanne’s three older brothers.  There is, as to Christopher Beaumont’s problems, little material before me.  There appears to have been no victim impact statement prepared by him.  There is no material written by Christopher Beaumont.  It appears that Christopher Beaumont has been living with Mark Beaumont.  There is no indication of his having received professional help from a psychologist or psychiatrist.  What is before me is a 5-page affidavit of Joan Cowan.  She is a long-time friend of the Beaumont family.  She portrays a strong picture of Christopher Beaumont as a very introverted man, whose introversion has been markedly aggravated by the death of the deceased.  Sexual abuse as a child appears to have contributed to the introversion in the first place.  She writes  of  Christopher Beaumont’s ability to communicate having  been markedly diminished, and of his appearing to have greatly lost interest in living, since the death of his sister.  There is some further detail, including as to his closeness to the deceased, his visits to her, his considered attention to the music played at her funeral service.

1. Mark Beaumont is the third oldest of the adopted five.  The materials before the court from Mark Beaumont include his police statement, the transcript of his evidence at the committal hearing, his victim impact statement and a report from a psychologist, Dominic Greco prepared in August 2003.  The materials attest to his disbelief at the news of the death of the deceased and to his subsequent grief, depression,  anxiety, loneliness, intrusive memories, nightmares, avoidance of social contact, suicidal ideation, self-harming behaviour, the exacerbation of pre-existing dysthymic disorder,  and of pre-existing alcohol and gambling problems.  He has worked for many years as a customs officer.  It is apparent that he has had his share of problems.  He had been subjected to sexual abuse as a child.  He considered himself to be the closest of the other four to Joanne.  Mr Greco’s report is a useful addition to better understanding the adverse impact of the death of Joanne Beaumont upon Mark Beaumont.  Mr Greco indicated that the murder of Joanne Beaumont significantly exacerbated underlying conditions which were largely the result of his early childhood sexual abuse, social dysfunction disorder, alcohol abuse disorder, and anxiety disorder

1. Rosemary Beaumont is the fifth of the adopted five. She is the younger sister of the deceased, who was fourth. In May 2003, Rosemary Beaumont was pregnant with her first child. She has subsequently given birth to another child. She did not lodge her application for compensation within the period specified in the Act. She had lodged a victim impact statement at the time of sentencing. In that statement, matters to which she referred included her long-term feelings of grief, of guilt, of the need to work and be with her sister, of being over-protective of her own children, of the sleeplessness and effects on her life of no longer having her sister, including having to cease work earlier than intended.

1. There is opposition to the application of Rosemary Beaumont being dealt with. It was not lodged within the 12 months of conviction as provided for in s.85C of the Act. It is put against her that she knew of her rights but chose not to exercise them. Rosemary Beaumont’s materials refer to her reasons for being late. She indicated that, at the critical time, she was putting her primary focus on the needs of two small children, and that she wanted to put behind her the death of her sister. She went on to declare that she was still attending the psychologist that she had already consulted for counselling on more than fifty occasions. Under s.85D of the Act, the time for making the application may be extended if the court is of the opinion that it is in the interests of justice to do so. I am of that opinion, after noting the matters raised by her and the absence of any claim of specific additional prejudice to the respondent arising from the delay.

1. Further matters raised in the outline prepared by Ms Sparke require attention. She has submitted: (a) that affidavits filed after sentencing out to be disregarded; (b) that applications made without victim impact statements ought to be dismissed; (c) that the court ought not to make any assumptions about the nature of “their” relationships, which I take to mean the relationships between Joanne Beaumont and the applicants, and between themselves; and, (d) more specifically as to certain cards annexed to the affidavit of Peter Beaumont. She has referred to s.85F of the Act. That section addresses the subject of the pre-condition to a hearing and determination. Section 85G addresses the subject of the evidence that can be given on the hearing of an application. I cannot accept that s.85G is substantially limited by s.85F. However, I do accept that there are some limits. I would have given the respondent a further reasonable opportunity to be heard as to those limits if I had been requested to do so.

1. When making my assessments of the appropriate amounts of compensation, I must have, and have had, regard to the matters specified in the Act. As the cases make clear, this is far from being a straight-forward exercise. I have been guided very much by what was said in Energy Brix. I found particular guidance as to the approach to assessing compensation from what was said by Vincent JA at paras [30], [31], and as to assessing compensation for emotional and like consequences from what was said by Vincent JA at paragraphs [36] and [40], and by Neave JA at paragraph [50]. The Energy Brix case was one in which awards were re-assessed. The award to the 21 year-old daughter of the deceased was re-assessed at $50,000, and that to the 22 year-old son of the deceased was re-assessed at $35,000.  Even those figures can be seen to be modest compared with the figures of $125,000, $125,000 and $75,000 awarded by Cummins J in Parsons to two children and a sister of the deceased.  I am not suggesting relative comparability, but I am conscious that awards in tens of thousands of dollars cannot be seen to be unusual.

1. There are matters that were put to me that I ought to take into account on behalf of the respondent: that before he killed his wife, he had given up drinking and had continued to seek reconciliation; that his action in killing her was not premeditated; that he was depressed at the time; that he had shown genuine remorse; that he had shown a positive response to medication and counselling; that he has a desire for rehabilitation; that he had shown himself to be a good worker; that his most productive years (between 34 and 48) will have been served in prison; that a substantial award for compensation will burden him further; that it would represent a crushing burden; and, that it would deprive him of a nest-egg for his older years. Other matters which appear from the report of Dr Walton included that the respondent appears to have the ongoing support of family and friends, and that he did not have a background of more generalised antisocial conduct. Given the terms of the Act, I can only take account of these matters to the limited extent that they can be seen to bear upon the requirement of the Act to take account of the financial circumstances of the offender. The dilemmas posed for the court in assessing what are appropriate orders for compensation have been pointed out at some length in Parsons and in Josefski v Donnelly.

1. Other submissions made on behalf of the respondent were directed to diminishing awards either on evidence admissibility grounds or on the bases that none of the five victims actually lived with the deceased at the time of her death, and that the past significant problems of Joan Beaumont and Mark Beaumont had to be taken into account.  Those submissions have been noted.  In this area, as in others comparably, the assessing of compensation must proceed on the basis that the respondent must take the victims as they were affected by the crime.  See Josefski v Donnelly at para [26]. Although Joanne Beaumont was not living with any of the five, all five appear to have been in continuing close contact with Joanne in the period shortly prior to her death. The circumstances of the murder, a stabbing many times, followed by a burning of the body, were such as were likely to make the impact on close relatives more profound.

1. The applicants have all had significant problems in their own lives.  Adopting as many as five children was ambitious.  It is understandable why dysfunctional concerns seem to arise more often in large families than in small ones, even where none are adopted.  The position was aggravated by the situation that the marriage of Peter Beaumont and Joan Beaumont was not happy, and did not last.  Sexual abuse to some of the children, apparently by people in religion, is referred to in some of the materials, particularly the reports.  Airing matters of early sexual abuse can be a troubling matter.  I can understand why reports of psychologists and psychiatrists are not readily provided for scrutiny on applications such as these, since what is revealed may well create a potential for very considerable embarrassment.

1. The circumstance that the applicants have proposed that up to $10,000 be left for the respondent is a matter that carries considerable weight. The applicants could have asked that in each case, and overall, there should be no restriction. If they had done so, I would have made orders for amounts in excess of the amount held. That could have led to some enforcement problems. That is a subject addressed in part by s.85M of the Act. Aspects of the subject were considered in Josefski v Donnelly.

1. I am not prepared to accede to the proposal that I should make compensation orders in the same amount for each of the five applicants.  I can understand why as a matter of intra-family psychology, the proposal has merit.  Ongoing relations between the five are more likely to be improved by equality, rather than differentiation. However, from a legal standpoint, it is a result that could be justified, if at all, only where the claims of each of the five could clearly be seen to exceed one-fifth of a total amount which is well in excess of what is the maximum available, or ever likely to be available, to satisfy the claims.

1. I direct that appropriate orders to give effect to my conclusions be prepared for signing by me.

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