ABC v Victims of Crime Assistance Tribunal
[2021] VSC 730
•8 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
No. S ECI 2021 02564
| ABC | Applicant |
| v | |
| VICTIMS OF CRIME ASSISTANCE TRIBUNAL | Respondent |
---
JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 October 2021 |
DATE OF JUDGMENT: | 8 November 2021 |
CASE MAY BE CITED AS: | ABC v Victims of Crime Assistance Tribunal |
MEDIUM NEUTRAL CITATION: | [2021] VSC 730 |
---
STATUTORY CONSTRUCTION – Referral of a question of law pursuant to s 96 of the Victorian Civil and Administrative Tribunal Act 1996 – Meaning of the term ’primary victim of an act of violence’ for eligibility for an award of financial assistance – Applicant a victim of an aggravated burglary pursuant to Crimes Act 1958 s 77(1)(b) – Whether aggravated burglary was an ‘act of violence’ where applicant was asleep at time of the offending – Whether direct physical violence was required for eligibility – Victims of Crime Assistance Act 1996 s 3, s 7 (1) – Re Reynolds and Crimes Compensation Tribunal [2008] VSCA 45; Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092; Director of Public Prosecutions v El Hajje [2009] VSCA 160; Mahdi & Abdulahl and Ors (Victims of Crime Assistance Tribunal, Unreported, 1 June 2012) considered.
WORDS AND PHRASES – ‘act of violence’ – ‘threat of violence’ – ‘significant adverse effect’ – ‘criminal act’ – ‘relevant offence’.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Alistair Pound SC with Colette Mintz | |
| For the Respondent | Estelle Frawley | Victorian Government Solicitors Office |
HER HONOUR:
Introduction
This proceeding determines a question of law referred to the Supreme Court pursuant to s 96 of the Victorian Civil and Administrative Tribunal Act 1996 (Vic) (VCAT Act).
The question of law arose from an application to review a decision of the Victims of Crime Assistance Tribunal (VOCAT), which had determined the applicant was not a victim of an act of violence and thus ineligible for compensation under the Victims of Crime Assistance Act 1996 (Vic) (VOCA Act).
The question of law referred for determination by the Supreme Court is as follows:
Whether the offence of aggravated burglary under section 77 of the Crimes Act 1958 (Vic) (Crimes Act) constitutes an act of violence for the purpose of section 3 of the Victims of Crime Assistance Act 1996 (Vic) in circumstances where the victim was unaware of the offending at the time the offence occurred but subsequently became aware of the offending.
Background Facts
The circumstances in which the referred question arose is set out in the reasons for decision of VOCAT and in the reference from the Victorian Civil and Administrative Tribunal.[1] An agreed statement of facts was also before the Court.[2]
[1]Order of Justice Quigley in ABC v Victims of Crime Assistance Tribunal (Supreme Court of Victoria, S ECI 2021 02564, 15 July 2021).
[2]The Victims of Crime Assistance Tribunal, ‘Reasons for Decision’, Filed in ABC v Victims of Crime Assistance Tribunal, S ECI 2021 02564, 3 March 2021 (‘Reasons for Decision’).
In summary, the relevant facts are these. In the early hours of 19 June 2019, the applicant was asleep in her bedroom when two intruders entered her home and stole a large number of her personal belongings of financial and personal significance. The intruders obtained entry and exit to her home on three occasions between about 1:30am and 2:30am. As she was asleep during the incident, the applicant did not directly encounter or confront the offenders and became aware of the incident when she awoke at approximately 7:15am that morning.
When the applicant awoke, she realised there had been a burglary committed. She had access to home CCTV footage, which showed that one of the intruders went upstairs in the vicinity of her bedroom where she was sleeping.
There is no dispute that the offence of aggravated burglary occurred. Subsequently, at least one of the offenders pleaded guilty and was convicted of aggravated burglary and theft.
There was also no dispute that the applicant suffered a psychiatric injury as a result of the aggravated burglary. She has been diagnosed with Adjustment Disorder and anxiety.
On 15 October 2019, the applicant applied to VOCAT for an award for financial assistance pursuant to the VOCA Act as a primary victim of an act of violence. She sought financial assistance to defray the cost of several categories of expenditure resulting from her ordeal, including counselling sessions and safety related expenses such as a security system, CCTV system and video doorbells.
VOCAT determined the application on 8 February 2021, refusing her application on the basis that on the balance of probabilities, she was not a victim of a criminal act.[3]
[3] The Victims of Crime Assistance Tribunal, ‘Refusal to Make an Award of Assistance’, Filed in ABC v Victims of Crime Assistance Tribunal, S ECI 2021 02564, 8 February 2021.
Further extended reasons were provided on 3 March 2021.[4] The VOCAT found:
I am not satisfied that the Applicant has been the victim of “an act of violence” as defined in the VOCA Act and accordingly is not a primary victim for the purposes of Section 7(1) of the Act. She is certainly a victim of an aggravated burglary and I acknowledge the impact it has had on her...
When Parliament introduced the VOCA legislation it made it clear that it was to apply to violent offences and violent crime. In my view, by including in the definition of “relevant offence” that the offence must involve “an assault on, or injury or a threat of injury to, a person”, Parliament was saying there needed to be an immediate threat of injury rather than a hypothetical or speculative “threat of injury.” I find in this matter that there was no immediate threat of injury to the applicant and the threat asserted was speculative. I agree with the comments of TM Southey in the matter of Mahdi
But most telling of all, in my view, is the category in which Parliament has seen fit to include aggravated burglary: Category B of Schedule 1 of the Victims of Crime Assistance (Special Financial Assistance) Regulations 2000. This is the second most serious category of all: below rape and attempted murder, but a category above inflicting serious injury or robbery, and two categories higher than assault. It seems inconceivable to me that Parliament could have intended that the victims of what are essentially property offences, who had no contact whatsoever with the intruder, should receive a higher level of financial assistance than a victim who sustained a serious injury. In my view it is apparent that when Parliament included the offence of aggravated burglary in Category B, it had in mind the violent ‘home-invasion-style offences’ where the relevant intent of the offender was to commit an assault. This accords with Lowe: that “an act of violence against a person” is necessary (paragraph 42).
In the circumstances I find the applicant is not a primary victim pursuant to section 7(1) of the VOCA Act and accordingly the applicant for an award under the VOCA Act is refused.
[4] Reasons for Decision (n 2) 20.
On 9 April 2021, the Applicant applied to VCAT seeking a review of the respondent’s decision.
In the VCAT proceeding, the respondent identified a question of construction which went to the applicant’s eligibility as a question of law fundamental to the application for review. The respondent raised the prospect of referring the question to the Supreme Court pursuant to s 96 of the VCAT Act because the law was unclear, and there was no authoritative statement of the law. There was a divergence of approaches between respective divisions of VOCAT and of VCAT as to the relevance of victims being asleep or unaware when a crime is committed for the purposes of eligibility for the scheme. Additionally, the respondent identified that the question was a difficult question of law with factors for and against the interpretation that a victim who is asleep or unaware during a relevant crime can be eligible for the scheme.
VCAT determined that there was a question of law, which was appropriate to refer to the Supreme Court. The question was not hypothetical, there was no authoritative statement of the law and the circumstances of this matter provided an appropriate vehicle for determination of the interpretation question to clarify eligibility for the scheme.
The Court records that the respondent behaved in an exemplary manner upholding the principles of a model litigant by assisting both VCAT and this Court in the determination of the referred legal question. Pro bono legal assistance was provided to the applicant through the Victorian Bar and the matter proceeded expeditiously with thorough, clear and well-reasoned submissions to assist the Court in its task. The Court records its appreciation.
In substance, the reasoning set out in the submissions made on behalf of the applicant have been adopted by the Court. The Court notes that the position adopted by the respondent was not that of an adversary, but rather took on the role of providing assistance to the Court in accordance with the principles in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.[5]
[5][2008] VSCA 45.
The applicant submitted that she is a primary victim of an “act of violence” within the meaning of s 7(1) of the VOCA Act, as that term is defined in s 3(1). It was submitted that the term “act of violence” ought to be given a wide meaning given the beneficial context of the legislation. It was argued that when the definition in s 3(1) is applied, the determinative issue on this reference is whether the aggravated burglary of which the applicant was victim was an offence that ”involves an assault on, or injury or a threat of injury, to a person”.[6]
[6]Victims of Crime Assistance Act 1996 (Vic) s 3(1) (definition of ‘relevant offence’) (‘VOCA Act’).
It was submitted that that question ought to be answered by reference to what in fact occurred in this case. That is, that two trespassers invaded the sanctity of the applicant’s home in the middle of the night and their crime caused her injury in the form of a “mental illness or disorder”. In that sense, the offence was one that “involves…injury…to a person”.
Alternatively, it was submitted that the commission of the offence of aggravated burglary in her home, contrary to s 77(1)(b) of the Crimes Act, was one that involves at least a “threat” of injury to her. Aggravated burglary as referred to in s 77(1)(b) of the Crimes Act of itself involved, at minimum, an implied threat to of injury to a person.
For the reasons which follow, the referred question is answered in the affirmative.
The Current Case Law
The parties identified that there were a number of cases which were relevant to the interpretation question before the Court, albeit none of which were binding but demonstrated the differing approaches to the application of the eligibility criteria set out in the legislation.
Re Reynolds and Crimes Compensation Tribunal[7] was a claim under the then Criminal Injuries Compensation Act 1983. In that matter, the applicant awoke to her mother’s screams at finding an intruder in the house. The applicant never saw the intruder however the Tribunal held the Applicant was entitled to compensation as:
It is more probable and I accept that the nervous shock sustained by the Applicant was attributable to her realisation that her safety had been in jeopardy and might again be so… In my opinion the mere presence of the burglar in the Applicant’s bedroom… gave rise to the potential for the injury sustained by the applicant and I believe was a cause of the injury.[8]
[7](1998) 2 VAR 347.
[8] Ibid 349 (Deputy President Galvin).
In Lowe v Victims of Crime Assistance Tribunal,[9] VCAT held that the applicants, who had come home to find their home had been subject to an arson attack were not entitled as primary victims as the offence was to property and not to the person even though it was acknowledged that the substantial damage to their house was obviously traumatic. It was held that there must be an act of violence to a person. The Tribunal said at [15]:
The first question that must be asked is whether the applicants’ situation comes within the meaning of the words an assault or an injury or threat of an injury to a person. Counsel for the applicants submitted that what in fact happened was an injury to the applicants by reason of the arson attack on their house. He submitted that such an injury was caused by a criminal act and in order to come within the definition, it did not have to involve any offence that was punishable against the person itself. I do not agree with this interpretation. The definition contained in the definition of relevant offence in my view, makes it clear, reading all those words in a manner that they should be read, that the offence involves an offence to the person, not an offence against property which resulted in injury to the person. Put in a different way, it must mean that there is an act of violence against a person. In my view, that is the only sensible reading of the words it can be given. Having found the applicants do not fit into the definition of relevant offence, it necessarily follows that they cannot be primary victims of violence as committed against them for the purposes of section 7 or s 8a. The matter can be decided on that point alone.
[9][2004] VCAT 1092 (‘Lowe’).
The Tribunal went on to say at [19] that ‘It is my view that this Act is designed to compensate people for acts of violence against them where they are victims. It is not to compensate for matters that arise secondary to an act of violence on property which is the case here’.
In AVA and GAR v Victims of Crime Assistance Tribunal,[10] Vice President Judge Howard, when dealing with a sexual crime, found that the child victim was not asleep at the time of inappropriate photos being taken of her. However, the Vice President opined that even if she had been asleep, he would have found her to be a primary victim for the purpose of the VOCA Act. When considering the meaning of “threat of injury”, the Vice President found at [34] that actual physical violence is not required.
[10][2010] VCAT 2078.
In Mahdi & Abdulahl and Ors,[11] there was an allegation of attempted aggravated burglary. It was held that the applicants were not primary victims of an act of violence. In this case, there was no entry into the building and all occupants were asleep save for one nine year old boy who woke when he heard someone in the rear yard and pulling on the handle of a rear security door. The boy then turned on the light, which resulted in the would-be intruder running away. The boy then woke his mother and told her what happened. VOCAT found that the applicants were not victims of an act of violence within the meaning of the VOCA Act and their applications must fail.[12]
[11]Victims of Crimes Assistance Tribunal, Unreported, 2011/3180; 2011/3185; 2011/3186; 2011/3190; 2011/3191; 2011/3192, 1 June 2012 (P.R.C. Southey) (‘Mahdi’).
[12]Ibid [43].
At [36], VOCAT said:
This Tribunal acknowledges that for the average person it would be disturbing to know that an intruder had entered (or tried to enter) their home while they slept. But the same could be said for a burglary simpliciter: even if the homeowner was not present when the burglary took place, there is presumably still the potential that they too would suffer injury (i.e. nervous shock) from the knowledge that an intruder had been inside their home, and worse still, that the intruder might still have been inside when they returned. Have they too been subject to a threat of injury, and hence an act of violence within the meaning of the Act?
In its reasoning VOCAT expressed the view that if Parliament had intended to distinguish between the alternative forms of aggravated burglary (specifically, intent to assault as opposed to intent to steal) then it would have done so.[13] VOCAT considered that the legislation assists victims to recover from violent crimes and excludes claims arising from crimes against property.[14] Further, VOCAT considered it inconceivable that Parliament could have intended that the victims of what are essentially property offences who had no contact whatsoever with the intruder should receive a higher level of financial assistance than a victim who sustained a serious injury. At [42], VOCAT said:
… In my view, it is apparent that when Parliament included the offence of aggravated burglary in Category B, it had in mind violent ‘home-invasion-style’ offences where the relevant intent of the offender was to commit an assault. This accords with Lowe: that an act of violence against a person is necessary.[15]
[13] Ibid [40].
[14] Ibid [41].
[15]Ibid (citations omitted).
The circumstances in Mathews v Victims of Crime Assistance Tribunal (General)[16] involved an arson and a recklessly causing a bushfire offence. The Tribunal found that in reading the definition of “relevant offence” in s 3 of the VOCA Act, it was quite clear that what is meant by threat of injury is the act of making a threat by one person to another.[17] The Tribunal also found that, at no stage during the events giving rise to the application was the applicant under threat of injury and the Tribunal found that on the evidence, the applicant’s injuries appeared to have arisen as a result of the loss of property, rather than as a direct result of him witnessing the fire. The Tribunal found that the act of violence was committed against property and not against the person and any injury suffered by him was not directly caused by the act of violence.[18]
[16][2012] VCAT 1099 (SM Butcher).
[17]Ibid [20].
[18]Ibid [21]–[22].
In Lancaster[19] and Harding,[20] VOCAT determined that the victims who had slept through burglaries of their homes were primary victims on the basis that in each of those matters there was a threat of injury hence VOCAT was satisfied the aggravated burglary was a relevant offence. Having been so satisfied, VOCAT found in each matter that the aggravated burglary was an act of violence committed against victims who were eligible for assistance as primary victims.
[19]In the Application of Lyndal Lancaster in the Victims of Crime Assistance Tribunal, Unreported, 2018/1693 (Medina).
[20]In the Application of Norman and Jean Harding, Victims of Crime Assistance Tribunal, Unreported, 2017/01699 and 2017/01703 (Bartlett JR).
Against the backdrop of these inconsistent approaches to the construction of the eligibility criteria in the VOCA Act, the Court has considered the referred question of law.
The Legislative Scheme
For the purpose of construction of the legislation to determine eligibility the Court must consider the scheme of the legislation in the VOCA Act and relevant references to the Crimes Act.
The VOCA Act
The purpose of the VOCA Act is ”to provide assistance to victims of crime”.[21] Its objectives are to:
[21] VOCA Act (n 6) s 1(1).
a) assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and
b) to pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as a victim of crime; and
c) to allow victims of crime to have recourse to financial assistance under the Act where compensation cannot be obtained from the offender or other sources.[22]
[22]Ibid s 1(2).
Accordingly, it is apparent from the outset that the VOCA Act is beneficial in nature.[23] In this regard, it is a long standing and well-settled principle[24] that where the fair meaning of ”remedial” or ”beneficial” provisions allows, that they ought to be given a ‘fair, large and liberal interpretation’.[25] This principle is “a manifestation of the more general principle that all legislation is to be construed purposively”,[26] a principle which is in any event mandated by the Interpretation of Legislation Act 1984 (Vic).[27]
[23]See CZG v Victims of Crime Assistance Tribunal & Anor [2019] VSC 203, [36], [67] (McDonald J); Ross-Miller v Victims of Crime Assistance Tribunal [2014] VCAT 923, [12] (Senior Member Proctor). See also Savage v Crimes Compensation Tribunal [1990] VR 96, 100 (McGarvie, Beach and Hampel JJ) (which concerned earlier legislation).
[24] See, eg, Dapueto v James Wyllie & Co (1874) LR 5 PC 482, 492 (Sir Montague Smith); Re Coal Economising Gas Co (1875) 1 Ch D 182 (CA), 198 (Brett J); Bist v London & South Western Railway Co [1907] AC 209, 211 (Lord Loreburn LC); Butler v Fife Coal Co [1912] AC 149, 178-179 (Lord Shaw); Bill v A-G (NSW) (1913) 17 CLR 370, 384 (Isaacs J).
[25]See, eg, New South Wales Aboriginal Land Council v Minister for Administering the Crown Lands Act (2016) 260 CLR 232, 255 [32] (French CJ, Kiefel, Bell and Keane JJ) (and the authorities there cited).
[26] Ibid 270 [92] (Gageler J).
[27]See s 35(a).
This principle is not challenged.
In relation to the second objective at [33(b)] above, it is necessary to observe that “significant adverse effect” is defined in s 3(1) of the VOCA Act, as follows:
significant adverse effect, in relation to a victim of an act of violence, includes any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence but does not include any loss of, or damage to, property.
It is apparent that an objective of the VOCA Act is to provide certain victims financial assistance in recognition of the significant adverse effects, including non-physical but nevertheless significant effects, such as grief, distress, and trauma they suffered or experienced as victims of crime.
Part 2 of the Act concerns eligibility for assistance. It identifies three categories of persons eligible for assistance: primary victims, secondary victims, and related victims.
Division 1 concerns “primary victims”. The Division commences with s 7, which is in the following terms:
7 Who is a primary victim?
(1)A primary victim of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her.
(2)A person is also a primary victim of an act of violence if he or she is injured or dies as a direct result of—
(a)trying to arrest someone whom he or she believes on reasonable grounds has committed an act of violence; or
(b)trying to prevent the commission of an act of violence; or
(c)trying to aid or rescue someone whom he or she believes on reasonable grounds is a victim of an act of violence— whether or not an act of violence is actually committed.
It is only sub-s (1) of s 7 of the VOCA Act, which is relevant in the present case. It can be seen that the subsection introduces the concept of an “act of violence”, which is defined in s 3(1) as follows:
act of violence means a criminal act or a series of related criminal acts, whether committed by one or more persons, that has—
(a)occurred in Victoria; and
(b)directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs;
The term “act of violence” refers to the term “criminal act”, which is defined as follows:
criminal act means an act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of—
(a)age, mental impairment or other legal incapacity preventing him or her from having a required fault element; or
(b)the existence of any other lawful defence;
That definition incorporates the term “relevant offence”, which is defined in these terms:
relevant offence means—
(a)an offence, punishable on conviction by imprisonment, that involves an assault on, or injury or a threat of injury to, a person; or
(b)an offence against Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958 or any corresponding previous enactment (sexual offences) or an offence at common law of rape or assault with intent to rape; or
(c)an offence against section 21A(1) of the Crimes Act 1958 (stalking), section 63 of that Act (child stealing) or section 63A of that Act (kidnapping) or any corresponding previous enactment; or
(d)an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a), (b) or (c);
The word “injury” appears in the definitions of both “act of violence” and “relevant offence”. It is defined in this way:
injury means—
(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; or
(c)pregnancy; or
(d)any combination of matters referred to in paragraphs (a), (b) and (c) arising from an act of violence—
but does not include injury arising from loss of or damage to property;
The word “injured”, which appears in s 7(1), has a corresponding meaning.[28]
[28]Interpretation of Legislation Act1984 (Vic) s 39.
The eligibility requirements in requirement in s 7(1) of the VOCA Act are determined by the application of a series of defined terms. The definitions are not to be construed on their own, but rather are to be read into s 7(1) which is itself to be construed.[29]
[29]Kelly v The Queen (2004) 218 CLR 216, 253 [103] (McHugh J).
Section 8 provides for the financial assistance that may be available to primary victims. The amount is capped at $60,000,[30] and may be made up of counselling expenses, medical expenses, loss of earnings, loss of or damage to clothing, safety related expenses and, in exceptional cases, amounts to assist in recovery.[31]
[30]VOCA Act (n 6) s 8(1).
[31]Ibid s 8(1)-(2).
Section 8A provides a means by which a person may be eligible for other assistance. It is headed ‘Special financial assistance to primary victims for significant adverse effects’. Section 8A(1) provides:
Without limiting persons who are primary victims by virtue of section 7, for the purposes of this section a person is also a primary victim of an act of violence if he or she experiences or suffers any significant adverse effect as a direct result of an act of violence committed against him or her.
The meaning of “significant adverse effect” is set out above.[32] It includes “grief, distress, trauma or injury” experienced as a “direct result” of an act of violence.
[32]Ibid s 3(1).
Where the Tribunal is satisfied of the matters set out in s 8A(2), a person may be awarded special financial assistance in accordance with s 8A. Those matters are:
(a)an act of violence is committed against the person;
(b)the person experienced or suffered a significant adverse effect as a direct result of an act of violence; and
(c)that act of violence is a category A, B, C or D act of violence.
Section 8A(5) of the VOCA Act sets out the maximum and minimum amounts of financial assistance available under s 8A by reference to those categories. The offences allocated to each category are set out in the Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) (Regulations), which provide that any offence that involves aggravated burglary is a Category B act of violence.[33] The Regulations also increase those amounts in particular circumstances.[34] Those amounts are lower than the amount available under s 8.
[33]See Victims of Crime Assistance (Special Financial Assistance) Regulations 2011 (Vic) reg 6 (‘Regulations’); and VOCA Act (n 6) Schedule 1.
[34]Regulations (n 33)rr 7-9.
Divisions 2 and 3 of Part 2 concern the provision of financial assistance to, respectively, secondary victims and related victims of an act of violence. There is no dispute that the applicant was neither a secondary victim nor a related victim for the purposes of the Act.[35]
[35]And in any event, a person is eligible to apply for, or receive, assistance in respect of a single act of violence in one capacity only: see VOCA Act (n 6) s 18.
Section 50 of the VOCA Act provides that the VOCAT may make an award of financial assistance if three criteria are satisfied:
(a)an act of violence has occurred;
(b)the applicant is, relevantly, a primary victim; and
(c)the applicant is eligible to receive assistance.
Section 54 requires the VOCAT to have regard to a number of matters in determining whether or not to make an award and the amount of any award.
Crimes Act
The offence of aggravated burglary appears in s 77(1) of the Crimes Act which provides:
77Aggravated burglary
(1)A person is guilty of aggravated burglary if he or she commits a burglary and—
(a)at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; or
(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.
Section 77(2) provides that a person guilty of aggravated burglary is guilty of an indictable offence and is liable to level 2 imprisonment (25 years maximum).
The offence of burglary appears in section 76(1) of the Crimes Act and provides:
76 Burglary
(1)A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent—
(a)to steal anything in the building or part in question; or
(b)to commit an offence—
(i)involving an assault to a person in the building or part in question; or
(ii)involving any damage to the building or to property in the building or part in question—
which is punishable with imprisonment for a term of five years.
The Eligibility Construction
The question referred to the Court requires the construction of the words “act of violence” in s 3(1) of the VOCA Act, to ascertain whether the applicant was a “primary victim of an act of violence” for the purpose of s 7(1). The task of construction must begin with a consideration of the text, having regard to context and purpose.[36]
[36] See, eg, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Talacko v Bennett (2017) 260 CLR 124, 145 [65] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)); Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 473 [10] (French CJ, Kiefel, Nettle and Gordon JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ).
The plaintiff submits that she is a primary victim of an act of violence, for the purposes of s 7(1), on a literal application of the text of the VOCA Act, read in its context, and having regard to the purpose of the VOCA Act, referred to above.
In the circumstances of this case, the fact that the applicant was asleep and not immediately conscious of the incident at the time the incident occurred is the critical element or characteristic in issue in the construction of eligibility under the scheme. Can a victim of a relevant offence be a primary victim of an act of violence if she was unaware of the incident at the time it occurred?
‘Act of violence’
To be eligible for assistance as a primary victim, s 7(1) requires that a person must have suffered injury or death as a direct result of an ‘act of violence’ committed against him or her. In the facts before the Court, it was agreed and I accept that the applicant has suffered an “injury” in the form of a “mental illness or disorder” (para (b) of the definition of ”injury”), which has been diagnosed as an Adjustment Disorder with Anxiety.
Additionally, there was no dispute that the applicant’s injury was “a direct result” of the aggravated burglary that was committed against her.[37] The question of whether there was a causal connection between the incident of aggravated burglary and her injury was not in dispute. There is a question of whether in construing the term ‘an act of violence’ there is a requirement to establish direct violence to the person.
[37]Order of Justice Quigley in ABC v Victims of Crime Assistance Tribunal (Supreme Court of Victoria, S ECI 2021 02564 , 15 July 2021) 3, 2[j].
The question was cast by counsel for the applicant as a narrow issue as to whether the offence of aggravated burglary under s 77 of the Crimes Act was ‘an act of violence’ committed against the applicant within the meaning of s 3(1) of the VOCA Act.
The alternative interpretation is said to be exemplified by the VOCAT’s reasoning which was that the relevant offence which caused the injury must be a violent one.VOCAT reasoned that by including in the definition of “relevant offence” that the offence must involve ‘an assault on, or injury or a threat of injury to, a person’, Parliament was saying there needed to be an immediate threat of injury rather than a hypothetical or speculative “threat of injury”.
Counsel for the applicant argued that the VOCAT member appeared to have given the words “act of violence” free-standing content by reference to the extrinsic materials. That is, the member considered whether the crime in question was in fact “violent”,[38] ultimately answering that question in the negative.[39]
[38]Reasons for Decision (n 2) 18.
[39]Ibid 20–21.
I agree that the phrase “act of violence” might suggest that “violence” against a person is a part of the meaning of the term, however, that implication is misplaced. The concept of an “act of violence” is a defined term in the VOCA Act (as set out above at [40]). It is given meaning by a comprehensive and exhaustive definition in s 3(1). That the definition is exhaustive is apparent from the commonplace use of the drafting device “act of violence means…”. Relevantly for present purposes, for there to be an “act of violence”, there must be:
(a)a criminal act;
(b)which occurred in Victoria; and
(c)which directly resulted in injury or death to one or more persons.
To read into the term “act of violence” a requirement that there be an immediate and direct act of physical violence against the victim, in the face of its precise content as set out in s 3(1), would be contrary to the plain requirements of the definition.
To adopt what the High Court said in Owners of Ship “Shin Kobe Maru” v Empire Shipping Co Inc,[40] ”[t]he use of the word … in the term to be defined does not colour the meaning to be given to the definition which follows it. It would be quite circular to construe the words of a definition by reference to the term defined”.
[40](1994) 181 CLR 404, 419 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron And McHugh JJ). See also Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610, 628 [48] (French CJ, Kiefel, Bell and Keane JJ).
In considering the term “act of violence” it is necessary to refer to and consider the defined terms “criminal act”, and in turn the term “relevant offence”.
“Relevant offence” includes various alternatives which are discussed below. These definitions do not require that there be a direct physical, violent act against the victim to qualify as “relevant offences”. For example, para (c) of the definition of “relevant offence” refers to stalking, which is an offence against s 21A(1) of the Crimes Act. The ways in which a person can “stalk” another, within the meaning of the Crimes Act, are extensive. Stalking can involve a person following the victim or any other person, or contacting the victim or another person, or publishing statements online relating to the victim or another person, among other circumstances.[41] Such conduct might not involve any violent act. Indeed, it may involve no physical contact between perpetrator or victim whatsoever. But if the words “act of violence” were to be given the content ascribed by the reasoning in the VOCAT decision in relation to this applicant, then stalking, where the stalking did not involve a violent act, could not constitute an “act of violence” within the meaning of the VOCA Act. I do not accept that this is the intention of the legislative scheme.
[41]Crimes Act 1958 (Vic) s 21A(2)–(3).
Further, the above is not affected by the use of the word “violent” in the extrinsic material, to which the VOCAT referred. The use of that word in the extrinsic material superficially corresponded to the words “acts of violence” in s 7(1). But it cannot displace or confine the carefully defined meaning of “act of violence”. Limitations not found in the definition should not be read into it.[42]
[42]See, eg, PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 198 CLR 301, 310 (Brennan CJ, Gaudron and McHugh JJ).
The second and third elements are not in issue in this case: there is no doubt that the applicant was the victim of an act which occurred in Victoria and which directly resulted in her injury. Accordingly, one needs to turn to the meaning of “criminal act”, which is relevantly defined to mean act or omission constituting a “relevant offence”.
“Relevant offence”
What then, is a “relevant offence”?
The term is defined at s 3(1) (see above at [42]) of the VOCA Act. Paragraphs (b) and (c) of that definition refer to particular identified offences under the Crimes Act. Paragraph (a) takes a different approach. It is one that makes legislative sense in circumstances where it would be cumbersome to identify all offences sought to be captured. It looks instead to the circumstances of an offence. It provides that an offence is a “relevant offence” if it -
· is punishable on conviction by imprisonment; and
· involves an assault on, or injury or a threat of injury to, a person.
This leads to the next question which is whether an aggravated burglary a “relevant offence”.
The first aspect of the paragraph (a) definition is clearly satisfied: aggravated burglary contrary to s 77(1) of the Crimes Act is an offence punishable on conviction by imprisonment for up to 25 years.
The second aspect of paragraph (a) is more complicated. Is an aggravated burglary one that “that involves an assault on, or injury or a threat of injury to, a person”? There is a question of the level of particularity at which this question must be answered. There are two possible approaches to this aspect.
One approach is that it be answered at the level of the statutory meaning of the offence in question — that is, must the offence be one that, in the abstract, necessarily “involves an assault on, or injury or a threat of injury to, a person” (for example, by reference to its elements)?
The alternative approach is that it ought be answered at the level of the particular offence that was, in fact, committed? In other words, does paragraph (a) of the definition of “relevant offence” direct attention to a class of offences, or the factual circumstances of particular offending?
The applicant argued that it ought be the latter, and I agree.
Paragraph (a) tends to invite an assessment of particular circumstances of offending. If Parliament had intended to capture particular categories of offences, it could have done so in a similar way as it did in para (b) and (c). It could also have described the relevant offences by reference to their elements, not by reference to what they “involve”. The word “involves” implies a degree of flexibility — i.e. a common sense consideration of all the circumstances of the case.
This approach is supported by authority in slightly different statutory contexts. In Rimanic v Business Licensing Authority,[43] Habersberger J was considering the meaning of “serious offence” in the Motor Car Traders Act 1986 (Vic), which was defined as “an offence involving violence”. His Honour rejected a fixation upon the elements of an offence to determine what it involves. Of the word “involving”, his Honour said ”it is something less than an offence of violence … or an offence one of the essential ingredients of which is violence”, adding that “one of the relevant meanings of ‘involving’ is ‘implying’…”.
[43] [2001] VSC 400, [48] (“Rimanic”). The result was overturned on appeal for reasons unrelated to this question of construction, and it was unnecessary for the appeal Court to consider the meaning of “involving”: see (2002) 129 A Crim R 356.
In Wotton v Queensland (No 5),[44] Mortimer J referred to Rimanic in construing the phrase “act involving a distinction” in s 9(1) of the Racial Discrimination Act 1975 (Cth). Her Honour said that:
when used in the phrase ‘act involving a distinction’ the use of the word ‘involving’ requires the examination of more than just the impugned act, or conduct. The use of the word ‘involving’ requires there to be an examination of what is bound up with or included in the impugned conduct, what are the consequences of the conduct, what is associated with the conduct.[45]
[44](2016) 352 ALR 146, 289-291 [556]-[561]; [2016] FCA 1457.
[45] (2016) 352 ALR 146, 290 [559]. See also Australian Securities Commission v Lord (1991) 33 FCR 144, 149 (Davies J). But cf Director of Public Prosecutions v Verigos [2004] VSC 97, [26]-[27] (Nettle J), where it was held that the word “involves”, when used in conjunction with the expression “the subject matter of the offence” in s 102A of the Justices Act 1962 (now repealed), in a context relating to the jurisdiction of the Magistrates’ Court to deal with the offence of burglary summarily, was used in the sense of “an element of the offence”.
To the extent that paragraph (a) is ambiguous or could be read another way, this construction ought to be preferred. This construction is plainly open on the natural meaning of the word “involves” and, importantly, would better serve the beneficial legislative objectives. The legislative objective of assisting victims ‘to recover’ would be better served if the particular circumstances of the offending were taken into account. Recovery is directed to what in fact happened to a person; not the abstract terms or elements of an offence.
This approach would cover a broader range of offending but it would not arbitrarily exclude a victim of a crime that included (in fact) an assault, injury or threat of injury, where such acts were not a necessary element of the offence. To the extent a constructional choice is available with respect to a beneficial provision such as this, a more liberal approach ought be taken.
When this approach is taken, the Court’s task is to consider whether, in the particular factual circumstances of the case, the crime committed against the plaintiff involved, in the sense of implied, included or entailed assault, injury or a threat of injury.
In a particular case, an aggravated burglary may, or may not, involve an assault, injury or threat of injury. It is to be recalled that a person is guilty of an aggravated burglary where they commit a burglary and either:
(a)at the time has with them any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive (subs (1)(a)); or
(b)at the time of entering the building or the part of the building a person was then present in the building or part of the building and they knew that a person was then so present or was reckless as to whether or not a person was then so present (subsection (1)(b)).
It may be noted that the offence of aggravated burglary is completed when an offender enters a building as a trespasser with the requisite intent and is either in possession of an offensive weapon or has the requisite state of knowledge of the presence of a person in the building, but the offence continues for the entire period that the offender remains in the building as a trespasser.[46] Accordingly, in determining what the offence “involves”, the Court must look to the offender’s activities during the whole of the time in which they were in the building.
[46] Dirbass v The Queen [2018] VSCA 272, [65] fn 46, citing Salapura v The Queen [2018] VSCA 255, [57].
A person may commit an aggravated burglary if they enter a building, with intent to steal, and is carrying a firearm but no person is in the building. That would fall within sub-s (1)(a) of the offence, but would not, as a matter of fact, “involve” an assault, injury or threat of injury to any person.
On the facts in this case, the aggravated burglary committed against the applicant in fact involved injury. It is not in dispute that the offence caused her injury. She suffered an Adjustment Disorder with Anxiety — which, as noted, falls squarely within the statutory definition of “injury”. As is apparent from paragraph (b) of the definition of “injury”, to constitute an injury a mental illness or disorder need not flow from physical harm to a person’s body. The injury in this case did not arise from loss or damage to property; it arose directly from the act of the invasion.[47]
[47] The fact that the offence caused the plaintiff’s injury, and thereby involved injury does not conflate the requirements of: (i) the term “involves an assault, or injury, or a threat of injury” with (ii) para (b) of the definition of “act of violence” which requires that the act “directly resulted in injury…”. That is because an act might indirectly result in injury (i.e. there might be a supervening event) and therefore involve injury, but fail to be an “act of violence” because the injury was not the “direct” result of the criminal act.
The fact that the injury was not suffered contemporaneously with the commission of the offence (because the victim was asleep) is of no moment. There is nothing in the statutory text that requires an “immediate” injury. There is a direct causal connection between the (psychological) injury she suffered and the aggravated burglary. The requirement is that the injury is a direct result of an act of violence, not that there be direct violence or violence caused directly in a temporal sense. Whether eligibility arising from a particular set of facts is affected by a temporal element will need to be judged according to the actual causal connection between the injury and the act of violence. Insofar as any time delay between the act of violence and the injury may be relevant, it is in this question of causal connection. However, in the facts relating to this applicant, there is no debate about the causal connection between the incident and the injury.
A ”relevant offence” is one that involves an assault on, or injury or a threat of injury to, a person. As succinctly put in oral argument by counsel for the applicant, the type of aggravated burglary as defined in s 77(1)(b) of the Crimes Act inherently embodies the threat of physical harm by reason of the entry into the building where someone (the victim of the crime) is present.
The aggravated burglary committed against the applicant in this case did involve a threat of injury. The word “threat” is not defined in the VOCA Act. According to the Macquarie English Dictionary,[48] it has two meanings:
(a)‘a declaration of an intention or determination to inflict punishment, pain, or loss on someone in retaliation for, or conditionally upon, some action or course; menace’; and
(b)‘an indication of probable evil to come; something that gives indication of causing evil or harm’.
[48] Fourth edition.
The second meaning is broader than the first — it does not require any verbal declaration or confrontation. It connotes the risk of something happening. A verbal threat (i.e. the first meaning) is likely to be subsumed within the second meaning, but the second meaning cannot be included within the first. There is nothing in the VOCA Act that suggests the narrower meaning is to be preferred.
The Court was referred to the legislative history to s 77 of the Crimes Act. The current s 77(1) was substituted by s 54 of the Sentencing and Other Acts (Amendment) Act 1997 (Vic). Previously, it was a necessary element of the offence of aggravated burglary that, at the time the person entered the building, he or she had with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive. The substantial change from the pre-existing offence was the addition of sub-s (1)(b).
The purpose of the amendment was explained in the Second Reading Speech as follows (emphasis added):[49]
The prevalence of burglary and home-invasion-style offences has caused great disquiet in the community. These crimes undermine the sense of security that people feel in their homes and workplaces. The government wishes to send a message to offenders that these crimes will not be tolerated.
Under the bill, where a burglary is committed on premises when someone is inside and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.
[49] Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997, 873-874 (Jan Wade, Attorney General).
The emphasised words express the intention of Parliament that an act of aggravated burglary in the terms provided in sub-s (1)(b) is an act that undermines the sense of safety and security that people feel, and are entitled to feel, in their homes;[50] that the offence is one that “threatens” “the safety and liberty” of victims. That passage from the Second Reading Speech was quoted by the Court of Appeal in Director of Public Prosecutions v El Hajje,[51] an appeal against sentence in respect of two aggravated burglaries, including one in which it appears that the victims were unaware of the burglary at the time. The Court went on to say:[52]
The community views offending of this kind as extremely serious and expects the courts to impose sentence accordingly. The victim impact statements demonstrate just how frightening offending of this kind is to ordinary members of the community. It requires little imagination to appreciate the acute sense of vulnerability of the victim who awoke to find that an intruder had been by her bed during the night.
[50] See also R v Mai [2000] VSCA 184, [16] (Charles JA, with whom Phillips CJ and Callaway JA agreed); Hogarth v The Queen (2012) 37 VR 658, 659 [1].
[51][2009] VSCA 160 [34].
[52]Ibid [35].
I accept the analysis set out by the applicant that from the point of view of a victim who is in their home when a burglary occurs, there is a very real threat of injury to them and this is despite a lack of direct physical confrontation with the intruder.
This was illustrated by the following scenario. A person may be awake when an intruder enters their home, they may be terrified, but stay in their bedroom until the intruders leave. There is very much a “threat” of injury to them — in the sense of an “indication of probable evil to come”, even if there is no confrontation with the intruder, and even if no injury (physical or psychological) ultimately results.[53] That “threat” is no less real if not perceived by the victim at the time it occurs (because, as here, they are asleep). There is a latent, but very real, threat of injury that is inherent in the very act of an intruder, a trespasser, entering a person’s home while the victim is present.
[53] Of course, if no injury results, then they will not quality for assistance because of para (b) of the definition of “act of violence”.
In Dirbass v The Queen,[54] which involved an aggravated burglary in circumstances where the victim was asleep, the Court of Appeal held that the case was a serious example of the offence, taking into account the fact that “[t]he applicant brazenly roamed through the house as if it were his own looking for things to steal without any sense of urgency or apparently any concern that the risk of confrontation with an occupant … increased proportionately with the length of his trespass” (emphasis added).[55]
[54] [2018] VSCA 272 (‘Dirbass’).
[55]Ibid 65(b).
For the purposes of the analysis, there is no difference between those two scenarios (where the victim is awake but there is no confrontation and where the victim is asleep) in terms of the conduct of the intruder, and it is the conduct of the intruder which constitutes the offence. I accept that whatever the victim’s state of knowledge or awareness at the time of offending, as Parliament acknowledged, an aggravated burglary of this type of its very nature threatens the safety and liberty of victims. The inherent “risk of confrontation” to which the Court of Appeal referred in Dirbass is sufficient to give rise to a “threat of injury” for the purposes of the definition of “relevant offence”.
Conclusion
On the basis of the analysis set out above, it is clear that the interpretation as to eligibility as primary victim of an act of violence is not limited only to offences of a direct physical violent nature and that an interpretation which inserts a requirement of an “immediate” threat of injury[56] is not the correct approach.
[56]Mahdi (n 11); Lowe (n 9); Reasons for Decision (n 2) 21.
Whilst there were some cases identified by the parties which would support an interpretation against eligibility where a victim was asleep when the incident occurred, a careful analysis of the legislation must lead to a conclusion that the referred question is answered in the affirmative.
In summary, it is apparent that an objective of the VOCA Act is to provide certain victims financial assistance as an expression in recognition of the significant adverse effects, including non-physical but nevertheless significant effects such as grief, distress, and trauma which is suffered or experienced as victims of crime.
The legislation is beneficial legislation and an interpretation which favours a more generous outcome consistent with the legislative purpose is to be preferred.
The interrelationship of the definitions set out in the VOCA Act requires identification of a victim who suffers an injury as a result of an act of violence. The act of violence must be a relevant offence. The injury need not be caused by direct physical violence but it may be so. The injury must not be one arising from loss or damage to property.
Aggravated burglary as defined in s 77(1)(b) of the Crimes Act is a crime which involves an act of violence and is not for the purposes of the VOCA Act properly considered a property crime.
Direct physical violence is not required for eligibility for the purposes of the definition of aggravated burglary in s 77(1)(b), as there is an implied threat of injury or assault embodied in that form of aggravated burglary. This is not a hypothetical or speculative treat of injury but an inherent element of the nature of the offence.
It will be a question of fact as to whether there is an ‘act of violence’ in any particular case but an act of violence does not always involve direct physical violence to fall within the definition e.g. stalking, some types of aggravated burglary such as the circumstances involving this applicant.
There must be a causal connection between the crime or offence and the injury suffered. As defined in s 3 of the VOCA Act the injury can be a psychological injury alone.
There need not always be an immediate temporal element to the connection between the offence and the injury. This will depend on the facts. However, realistically this will depend of the nature of the injury e.g. psychological, pregnancy.
The referred question:
Whether the offence of aggravated burglary under section 77 of the Crimes Act 1958 (Vic) constitutes an act of violence for the purpose of section 3 of the Victims of Crime Assistance Act 1996 (Vic) in circumstances where the victim was unaware of the offending at the time the offence occurred but subsequently became aware of the offending,
is answered in the affirmative.
3
15
0