Shepherd v Kell
[2013] VSC 24
•8 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0412 of 2011
No. 0413 of 2011
| BRIAN ERNEST SHEPHERD MAUREEN CLAIRE SHEPHERD | Applicants |
| V | |
| SIMON NICHOLAS KELL ROBIN DEY | Defendants |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2012 | |
DATE OF JUDGMENT: | 8 February 2013 | |
CASE MAY BE CITED AS: | Shepherd & anor v Kell & Dey | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 24 | |
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CRIMINAL LAW – Application for crimes compensation order pursuant to Sentencing Act 1991 s 85B – Parents of manslaughter victim – Pain and suffering – Whether allowance should be made for offenders’ financial circumstances under Sentencing Act 1991 s 85H – Defendants young and prospects for rehabilitation good.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr D Bracken | Kenna Teasdale Lawyers |
| The Defendants were not represented and were not present. |
HIS HONOUR:
These are two applications seeking compensation pursuant to s 85B of the Sentencing Act 1991 (“the Act”). The applicants are the parents of Tyrone Shepherd who was killed by the respondents on 26 June 2007. Both applications are for compensation for pain and suffering pursuant to s 85B(2)(a) of the Act.
Background to the applications
On 18 December 2008, the two defendants to this application, Simon Nicholas Kell and Robin Dey were found guilty by a jury of the manslaughter of Tyrone Shepherd. On 19 March 2009, both were sentenced by me to be imprisoned for a period of ten years and I fixed a minimum term of seven years before they were eligible for release on parole. Taking into account pre-sentence detention, the date on which the defendants will first become eligible to apply for release on parole is mid-2014.
On 27 March 2012, the Victims of Crime Assistance Tribunal (“VOCAT”) concluded that the applicant Brian Shepherd was entitled to the sum of $35,000 for distress together with $250 expenses and that in addition to that amount the sum of $2,412 was payable as funeral expenses. On the same day, the applicant Maureen Shepherd was found to be entitled to assistance in the sum of $35,000 for distress and $495 for expenses. The present claim is one for pain and suffering and does not include expenses. Therefore, any award I make must in each case be reduced by the sum of $35,000.
The applications for compensation now before me were not filed until 14 October 2011 and were therefore some two years out of time pursuant to s 85C(1)(a) of the Act. An application was made pursuant to s 85D of the Act to extend the time for the application to be made and on 9 March 2012 I ordered that the time be extended.[1]
[1] See Shepherd & Shepherd v Kell & Dey [2012] VSC 80.
For the purpose of the application in relation to the extension of time, which was heard on 1 March 2012, Victoria Legal Aid provided representation for the respondents but only on a limited basis. Prior to the application for extension of time being determined, the respondent Robin Dey had indicated that he did not wish to take any part in these proceedings. Indeed, on 4 November 2011 during the course of a mention of this application Mr Kell and Mr Dey were both asked whether they wished to get legal advice about the application. At that stage the defendant Kell said that he did but Dey said he did not. The following then occurred:
HIS HONOUR: You don’t. All right. Perhaps, Mr Dey, do you want to participate in the hearing in relation to these compensation orders that are being sought?
MR DEY: No, I do not.[2]
[2] Transcript 4 November 2011, p 2.
On 30 March 2012, before I resolved the issue of the extension of time for these applications, the defendant Kell, who was now appearing unrepresented, said:
If the court will allow, I wish to raise two issues for your Honour to consider in this matter and beyond that, I would like to be excused from the remainder of this hearing and all future hearings. I do not wish to enter into any discussion in relation to the Shepherds’ assertions of pain and suffering. All I would like to say in relation to this is offer my deepest apologies to the Shepherd family for the loss of their son, Tyrone, and I express my regret and my remorse for my wrongdoings. I have previously mentioned the issue of my impecuniosity and I submit an affidavit to that effect. This is not some kind of ploy to avoid payment. It is, unfortunately, a very scary and depressing reality for me. I am currently on the Office of Public Housing waiting list as I have no home to go to upon my release.[3]
He went on:
I also have no vehicle or assets. I expect I will face grave difficulty in finding work as an ex-criminal with a manslaughter conviction. These circumstances provide a bleak outlook for my future and I have a real concern about my ability to support myself financially, let alone service any additional debts. The second issue I will ask your Honour to consider is that of my rehabilitation. I face significant challenges trying to return to life outside of prison. I came to prison as a 25 year old drug addict and feel a great deal of anxiety about my ability to handle the stress of outside life. I feel a judgment order in this case will substantially hinder my rehabilitation as it negates any assets that I may have to set myself up in life and this would be extreme de-motivating. It is, realistically, unlikely that I will ever be able to provide the Shepherds with financial compensation of any real substance. Therefore, on this application, should it be successful, will have very little positive impact on the Shepherds’ life and will really only serve as a means of further punishing me and impeding my rehabilitation. That is all I wish to say, your Honour.
[3] Transcript 30 March 2012, p 1.
As I indicated therefore, the application for extension of time was granted and the substance of the application proceeded before me on 6 June 2012. During that hearing neither of the defendants were present.
Circumstances of the offence
The two defendants were friends and had attended the same secondary school. The sister of Simon Kell, Sarah Kell, had maintained a relationship with the deceased man Tyrone Shepherd for 18 months commencing on or about Christmas 2005. The evidence revealed that their relationship was problematic and there had been incidents during that time which involved violence between her and Shepherd which she claimed he initiated. The relationship thus broke down and was in that state on 26 June 2007 when the incident which led to the death of Shepherd occurred.
On that day at about 5.00am, Tyrone Shepherd visited Ms Kell at her home in Huntingdale Road, Ashwood. Shortly after that, he was directed by her to leave, which he did. About fifteen minutes later she rang Robin Dey and told him that Shepherd had been at her home and that she felt rattled. Relevantly, by this stage, a sexual relationship had developed between Ms Kell and Robin Dey. After the phone call, Dey went to Ms Kell’s premises and in the course of discussion produced a knife which he suggested she display to Shepherd if he were to return. She declined to accept the offer of the knife and Dey left.
At about 11.00pm that night Tyrone Shepherd appeared again at the window of Ms Kell’s premises. He was unarmed. She then made contact with her brother, who was with Dey, and told him that Shepherd was at her premises. Kell announced that they were going over there and he and Dey did so. They took a baseball bat and a knife with them. By then they had each consumed alcohol, amphetamine and marijuana. When they arrived at Ms Kell’s premises, having parked away from the house, they climbed over the gate of the driveway which was closed. As to what occurred then, I announced the following conclusions of fact in the course of sentencing the two defendants:
At that stage you, Simon Kell, had the baseball bat and you approached Mr Shepherd and accused him of having physically harmed your sister. Mr Shepherd at one stage said “you are a good brother for sticking up for your sister”. Mr Shepherd had done no more than that and stand his ground. Without any physical act by Mr Shepherd, you Simon Kell then struck him with the baseball bat you were holding and a struggle ensued. During the course of that struggle a large number of incised wounds and blunt force trauma injuries were inflicted on the deceased man. When the struggle, which involved both of you, concluded Mr Shepherd lay in the driveway asking for help. By that stage he had received at least two wounds which, in the opinion of the pathologist, had caused his death. There were many other signs of injury and incised wounds, but according to the pathologist, Dr White, the fatal wounds were a stab wound to the back which penetrated the right lung and a very severe incised wound to the left calf. They were such as to be life threatening purely as a result of the blood loss that would have resulted.
Once Mr Shepherd was totally disabled and severely wounded, you, Robin Dey, asked Ms Kell to leave with you but she declined to do so. You both then left the premises while Mr Shepherd was lying in the driveway either dead or near death.[4]
[4] R v Kell & Dey [2009] VSC 90, [9]-[10].
In determining the sentence which was to be imposed on the defendants, I came to the following conclusion:
The sentence I impose on you must be consistent with the verdict of the jury and so the question arises as to what can be made of that verdict for the purpose of imposing sentence. On this issue counsel for both of you and the Senior Crown prosecutor seemed to be agreed. As they suggest, you were acting in concert with each other in that there was some kind of arrangement which involved arming yourselves with the baseball bat and the knife with an appreciation on both your parts of the prospect of confrontation with Mr Shepherd which was both unlawful and dangerous and which confrontation led to his death. It does appear to me that the jury were not able to resolve the dispute between the two of you as to which of you had the knife. I would agree that had they been able to do so, the person they found had used the knife was highly likely to have been convicted of murder, subject to issues of self-defence – those issues would have been unlikely to have prevented such a result.[5]
Subsequently, I concluded as follows:
Based on the manner in which the trial was conducted and the outcome through the jury’s verdict, I am unable to see a basis for any distinction between you as to the sentence that should be imposed. Further, your personal history and attitudes to the commission of this very serious offence are difficult to distinguish. The viciousness of the attack on Mr Shepherd and your joint willingness to leave him to die in Ms Kell’s driveway is repelling conduct and deserves severe condemnation.[6]
[5] R v Kell & Dey [2009] VSC 90, [12].
[6] R v Kell & Dey [2009] VSC 90, [34].
The evidence on the applications
Both of the applicants are “victims” within the meaning of s 3 of the Act and for the purpose of these applications. The applicants had filed victim impact statements for the purpose of the sentencing proceedings and have also filed affidavit material in support of these applications.
The father of the deceased, Brian Shepherd, swore an affidavit in support of the application on 21 September 2011. The affidavit describes his overall condition. He describes himself as a Vietnam veteran suffering from post-traumatic stress disorder. He was suffering from that condition before the death of his son. His affidavit asserts that he has had great difficulty coping with the death of his son and has subsequently had repeated hospital admissions of five to seven days at a time and he has been diagnosed with depression. He suffers physical symptoms including chest and other pains and his pre-existing diabetes has worsened. He has struggled with the need to explain his son’s death to his mother-in-law who was suffering from dementia.
He described his relationship with his son as difficult and attributes those difficulties to his tour of duty in Vietnam. He deposed that the relationship improved substantially in the few years before his death. Following the death of his son, Mr Shepherd describes his own loss of interest in life generally. His military career spanned 21 years including two tours of duty in Vietnam and Malaysia but the images that he says most dominate his mind are the images of the way in which his son apparently died. The death of Tyrone Shepherd has also had an adverse effect on the Shepherd’s marriage and he frankly admits that he has been struggling to engage in the making of this application.
In his original victim impact statement, Mr Shepherd described in graphic detail the shock that he had to deal with upon being informed that his son had been killed. He described feeling sharp pain in his chest, finding it difficult to breathe and being sure that his wife would collapse while crying uncontrollably before the police officers assisted her to sit down. In addition to the matters I have already mentioned, he describes a number of other pre-existing difficulties which make coping with this trauma all the more difficult. They include quadruple bypass surgery after his return from serving in Vietnam, the effects of Agent Orange and the onset of post-traumatic stress disorder. He described the efforts that he had made to deal with particularly the post-traumatic stress disorder and his confronting the fact that his son at that time was “well into drugs”. He supported his son’s rehabilitation in relation to his drug difficulties.
It is important for me to note that the experience of Mr and Mrs Shepherd in the justice system has not been satisfactory. In his victim impact statement Mr Shepherd said:
I felt disappointed in the justice system and how it caters for people like Maureen and I and the situation we found ourselves in. I think there should be a little room next to the court with one way glass where you can sit and listen to the proceedings. A place where you can react with tears and anger and overwhelming grief if you have to when you hear the evidence presented. Instead, there I was in the court room having to be a robot again. I was told not to show any reaction to who was there and what I heard. I was so anxious about doing the right thing I didn’t want to upset the proceedings with any emotional outburst which I really felt like showing. I felt like screaming out every time the defence questioned a witness challenging the truth. Having to keep all my emotions inside has taken its toll on me.
Observations like this should be acknowledged by those of us in the criminal justice system and governments and courts should consider the way in which the experience of people such as Mr and Mrs Shepherd can be made more comfortable than it is at the moment.
In a later affidavit sworn 27 March 2012, Mr Shepherd added some evidence to his earlier affidavits describing the fact that by the time of swearing the affidavit he felt if anything worse. He said he was finding it more difficult to operate and deal with the ordinary things of everyday life.
The consultant psychiatrist Dr Lester Walton has provided a report in relation to Mr Shepherd, having examined him on 1 July 2011 and reassessed him on 27 March 2012. His opinion is that Mr Shepherd suffers from chronic post-traumatic stress disorder with a parallel depressive disorder. He expresses the opinion as he had in his earlier report that the pre-existing condition of post-traumatic stress disorder was exacerbated by the death of Tyrone Shepherd and has been permanently aggravated.
In his earlier report, Dr Walton expressed the opinion that at the time of his son’s death Mr Shepherd was well established in appropriate psychiatric treatment. He said in July 2011 that the prognosis appeared to be “quite gloomy”. He then concluded:
Mr Shepherd was afflicted by significant psychiatric problems prior to the killing of his son and he has been left with an additional permanent psychiatric injury as a consequence of the death such that I would describe him now as quite markedly psychiatrically disabled and the probability is that that will persist for the foreseeable future.
The mother of the deceased, Mrs Maureen Shepherd, swore an affidavit on 8 September 2011. Tyrone Shepherd had lived with his grandmother, who suffered dementia, and his death left Mrs Shepherd to care for her. In her affidavit she describes in detail the difficulties involved in doing so, including the terrible burden of repeatedly explaining the death of Tyrone to her mother as a result of her dementia and subsequently dealing with her mother’s grief. When Mrs Shepherd’s mother died in April 2010 following palliative care, the ritual surrounding the death demonstrated to Mrs Shepherd the contrast with the way in which Tyrone died.
In her affidavit, Mrs Shepherd describes suffering migraines, withdrawing socially and becoming overly sensitive to things which remind her of her son or his death. For example, seeing baseball gear displayed in a sports store will upset her. Approximately once a month, she suffers a “flashback” during which she vividly imagines Tyrone’s death. She takes days to recover. The various treatments for these issues have been of no assistance. In a further affidavit dated 27 March 2012, Mrs Shepherd describes her continued difficulty with social engagement and over sensitivity, as well as feeling bad tempered and constantly tired. She describes the stress she feels in relation to the proceedings and the need to obtain an updated medical report.
The social withdrawal and extreme sensitivity were also described in Mrs Shepherd’s original victim impact statement. In that she also describes brief moments of thinking that she sees or will see her son, as well as the shock, grief and trauma of learning of his death and, in particular, the manner of his death. She describes barely being able to shower and dress each day.
Dr Walton also made two reports in relation to Mrs Shepherd after examining her on 4 July 2011 and 27 March 2012. In the report of 2011, he notes that Mrs Shepherd is taking anti-depressant medication and medication to help her sleep. He finds that she ‘is afflicted by a pathologically severe and protracted grief which, in diagnostic terms, amounts to a post-traumatic stress disorder. There is also significant parallel depression.’ He describes her psychiatric injury as ‘stabilised’ and states ‘she is properly described as suffering from a permanent condition’. This opinion remained after the 2012 re-examination, although Dr Walton noted ‘a very modest overall improvement in this woman’s psychiatric condition’.
The relevant considerations
These applications are governed by s85B of the Sentencing Act 1991 which reads in part:
If a court—
(a)finds a person guilty of an offence; or
(b)convicts a person of an offence—
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).
(1)A compensation order may be made up of amounts—
for pain and suffering experienced by the victim as a direct result of the offence;
(a)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;
(b)for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(c)for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.
[…]
(4)In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.
Injury is defined in s 85A as meaning:
(a) actual physical bodily harm; or
(b)mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock;
(c)regnancy; or
(d) grief, distress or trauma or other significant adverse effect; or
(e)any combination of matters referred to in paragraphs (a), (b), (c) and (d) arising from an offence—
but does not include injury arising from loss of or damage to property;
The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court provided that the claims fall within the categories set out under s 85B(2).[7] These claims for pain and suffering clearly do. The grief, distress and trauma of the applicants, and, in the case of Mr Shepherd, the exacerbation of his pre-existing post-traumatic stress disorder, are a ‘direct result of the offence’ within the meaning of the Act.[8]
[7] Sentencing Act 1991, s 85B(1); Liang & Zhu v Chalmers [2010] VSC 241, [12]; Tanner & ors v Smart [2010] VSC 463, [25]. See also RK v Mirik and Mirik [2009] VSC 14 at [15].
[8] See Liang and Zhu v Chalmers [2010] VSC 241, [13]; Tanner & ors v Smart [2010] VSC 463, [26]; Kaplan v Lee-Archer (2007) 15 VR 405, [56].
Like Vincent JA, I acknowledge that ‘there is no and there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, and no method of conversion of a human emotion or psychological reaction to an amount of money exists.’[9] Neave JA has however, outlined some factors relevant to assessing compensation for a person’s grief or trauma under s 85B of the Act. They include the following:[10]
· the circumstances in which the death occurred;
· the effect on the person of hearing of the event causing loss;
· the closeness of the relationship between the person and the victim;
· the age of the person; and
· the extent of grief and psychological suffering experienced as a result of the loss.
[9] DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, [36]. See also Liang and Zhu v Chalmers [2010] VSC 241, [54].
[10] DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, [50]. See also Chalmers v Liang and Zhu [2011] VSCA 439, [4].
The affidavit material and victim impact statements show that the death of Tyrone Shepherd has had an enormous impact upon the lives of his parents. Their descriptions of their reactions to hearing of his death, viewing his body, attempting to deal with their grief and the trial all illustrate the extent of their suffering. The circumstances of his death have particularly contributed to their suffering. Their grief has, in effect, taken over their lives and Dr Walton has provided opinions that for both Mr and Mrs Shepherd, their current emotional state is likely to be permanent. Their suffering is at the greater end of the scale.
However, the applicants’ pain and suffering is not the only relevant consideration. Section 85H of the Act reads:
(1)If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.
In Dura Constructions (Aust) Pty Ltd v Dovigi,[11] Williams J stated that by enacting s 85H(1) ‘the legislature was concerned to ensure that the rehabilitation of the offender should not be adversely affected by an award of compensation.’ The purpose of s 85B is to provide for compensation to victims and not to further punish offenders.[12] This does not mean that is ‘an error of principle to make an order for compensation that might affect the offender’s rehabilitation’.[13] A ‘court is not obliged to reduce the amount of compensation payable on the basis of the offender’s financial circumstances; it is a relevant but not controlling consideration.’[14]
[11] [2004] VSC 252, [50].
[12] Liang and Zhu v Chalmers [2010] VSC 241, [7].
[13] RK v Mirik and Mirik [2009] VSC 14, [139] referring to Josefski v Donnelly [2007] VSCA 6, [17]-[19].
[14] Tanner & ors v Smart [2010] VSC 463, [25] referring to RK v Mirik and Mirik [2009] VSC 14, [135] and Liang & Zhu v Chalmers [2010] VSC 241.
Similarly, in RK v Mirik and Mirik Bell J held that the Act:
permits the court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to imprisonment. These are very significant considerations in the exercise of the discretion. After taking these considerations into account, the court could order no or reduced compensation, defer payment of compensation or order payment of compensation by instalments over a reasonable period.
Admitting the significance of these considerations, there are cases where the court could exercise its discretion to order compensation despite the offender’s lack of means and the burden that payment of compensation would impose. In such cases, the interests of giving the victim just civil compensation will have priority over the interests of the offender in avoiding that result in criminal proceedings.[15]
[15] RK v Mirik (2009) 21 VR 623, [137]-[138].
In this case, I am not convinced that I should disregard the offenders’ financial circumstances. Instances where they have been disregarded include where the defendant was the father of the two applicants, having murdered their mother;[16] or where the offender was 57 years of age and had increased the applicants’ suffering by failing to disclose the location of the victim’s body.[17] This is not such a case. This is, instead, the type of case mentioned in those decisions as being one where the offenders’ financial circumstances would be relevant: the offenders are young and their prospects for rehabilitation are good.
[16] Stevens v Baxter [2009] VSC 257, [35].
[17] Tanner & ors v Smart [2010] VSC 463, [30].
Simon Kell was born on 17 September 1981 and Robin Dey on 27 July 1983. Once they have served their non-parole period they will be 32 and 30 years of age respectively. Both have education to at least a pre-tertiary level and were continuously employed from the time they left education until being placed in custody following the offence. As I noted in my sentencing remarks, their prospects for rehabilitation are good. In the course of those reasons I said:
I am told that you, Simon Kell, have completed a number of courses, and certificates in relation to those courses were provided during the plea on your behalf. The documents show that you have completed courses in communication skills, mood management, and conflict management. You have also completed a smoking management program, and your negative assay results of 9 October 2008 indicate that your drug use has ceased during your period in custody. You apparently hold a trusted position in the staff canteen and, at the Metropolitan Remand Centre, occupy your own room in a self-contained cottage which you claim is a measure of the trust that the prison has placed in you. You have plans for your release including to study electrical engineering and work in the mining industry in Western Australia.
Robin Dey, your negative assay results also indicate that your drug use has ceased during your period in custody. In addition, whilst in custody you have been involved in meditation and worship under the supervision of the Buddhist Chaplain at the Metropolitan Remand Centre. You have done courses under the supervision of the Kangan Batman TAFE as well as skills programmes in various aspects of your life.
Neither of you have any prior convictions and as I have earlier noted I would have to assess your attitudes and approach to being in custody as positive and both your prospects of rehabilitation as good. You both have family and peer group support to draw on. [18]
I refer to this conclusion despite Kell’s expressed concern and anxiety about his life upon release.
[18] R v Kell & Dey [2009] VSC 90, [30]-[32].
In these circumstances, it is appropriate for me to take into account the financial circumstances of both defendants and the impact any order I may make will have on them and their rehabilitation.
Simon Kell affirmed an affidavit on 23 February 2012 stating he has no savings and no assets save for those in a superannuation fund. He outlined what seems to be $30,000 worth of debts with a further $5,783 owed under the Higher Education Loan Program. The debt owed to HSBC is described in this affidavit at “$6,7772.45”. I am inclined to find that this was an error and the debt owed is likely to be $6,772.45. There were no materials exhibited to this affidavit. In these circumstances, the burden of any order I make may not be merely financial but also psychological in that the burden of paying the debt may remain with him for some time.
Unfortunately, there is no evidence as to the financial circumstances of Robin Dey. However, he is young and his employment history involves having worked in the security industry, in nightclubs, call centres and in the family business. It seems that save for some inheritance he is unlikely to have substantial assets. It was reported by his brother-in-law in a character reference that upon his release, Robin Dey will have the option of employment at his father’s small furniture business, where he has previously worked.
At the hearing there were submissions as to whether the defendants should be jointly and severally liable for the debt. The defendants being unrepresented, there was no opposition provided to Mr Bracken’s submission on behalf of the applicants that this is the appropriate manner in which to impose the order. He submitted that as a result of the defendants being sentenced on the basis of acting in concert there was no basis on which to impose an order which may prevent the applicants recovering in full in circumstances where only one defendant had the ability to pay. I find it likely that the imposition of joint and several liability would increase the impact of this order on the financial and psychological state of the defendants. I am of the opinion that the fact that the defendants were sentenced on the basis that they were acting in concert is not a determinative reason for making them jointly and severally liable for the total amount of the order I propose to make. Given their circumstances I propose that they will be each liable for 50% of the total amount.
Conclusion
Although heard without the defendants’ participation, this case involves two strongly competing considerations. The legislature has provided that victims of crime are to be compensated for pain and suffering. Mr and Mrs Shepherd have suffered greatly. If this were simply an assessment for the pain and suffering of the applicants, then I would have been inclined to order that the defendants pay to each applicant the sum of $120,000, less the VOCAT award of $35,000 in each case. However, this is not the only relevant consideration.
The legislature has determined that the financial circumstances of the offender are also relevant, in order not to impede their rehabilitation. I find that the defendants are not in a position to pay such an award or any significant portion of it outright. However, I am not convinced that this is a case where no order for compensation should be made.[19] Those factors which militate towards the relevance of the defendants’ financial circumstances, their youthfulness and good prospects for rehabilitation, also increase the likelihood that each defendant will be able to meet some award of compensation; though I suspect this will have to be done over time through payment of a portion of income. In addition to these factors, neither Kell nor Dey has any dependants. Therefore, my approach will be to reduce the award that I would otherwise give to what I consider to be a manageable level, that is, payable within a reasonable time, given all the circumstances of the case.
[19] RK v Mirik and Mirik [2009] VSC 14, [137]-[141].
I propose to make orders on the basis that the sum of compensation for each of the applicants will be $80,000. That order will be then be reduced by the sum of $35,000 that each applicant received from VOCAT. The result will be that I will order that the defendants be liable for the sum of $45,000 to be paid to Mr Brian Shepherd and for the sum of $45,000 to be paid to Mrs Maureen Shepherd. As I have indicated, the limit of the liability of each of the defendants will be $45,000. I intend to stay the execution of the orders against Simon Kell and Robin Dey until three months after each is released from custody.
Let me make it clear that this order is not a monetary assessment of the value of the life of Tyrone Shepherd. It is an order in which I have sought to balance the factors relevant to the application. Nor is this to be further punishment of the defendants for the commission of the offence. That is not what these applications are about. This is an order for compensation for pain and suffering, and it has been adjusted to take into account those factors deemed by the legislature to be relevant including previous compensation paid under the VOCAT scheme and the defendants’ financial circumstances.
I order as follows:
1. That Simon Kell pay to Brian Shepherd the sum of $22,500;
2. That Simon Kell pay to Maureen Shepherd the sum of $22,500;
3. That Robin Dey pay to Brian Shepherd the sum of $22,500;
4. That Robin Dey pay to Maureen Shepherd the sum of $22,500;
5. Pursuant to s 85K of the Act, I order that each defendant pay 50% of the costs of this application on a party-party basis. This is not to include the application for leave to apply out of time and is therefore limited to the costs of the application heard 6 June 2012;
6. That execution of these orders be stayed until three (3) months after each defendant is released from custody.
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