ACT v Pellegrino
[2019] ACTMC 16
•30 April 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT v Pellegrino |
Citation: | [2019] ACTMC 16 |
Hearing Date(s): | 17 April 2019 |
DecisionDate: | 30 April 2019 |
Before: | Magistrate Theakston |
Decision: | The provisional order for restitution of 21 May 2018 is discharged. |
Catchwords: | RESTITUTION – VICTIMS OF CRIME – definition of criminal injury – whether government can seek restitution from complainant – where majority of convictions set aside – order discharged |
Legislation Cited: | Victims of Crime (Financial Assistance) Act 1983 (ACT) ss 4, 10(1)(f), 53, 57(4)(a), 59(1)(b) |
Cases Cited: | Australian Capital Territory v Shaor [2017] ACTMC 1 RK v Mirik and Mirik [2009] VSC 14; 21 VR 623 |
Parties: | Australian Capital Territory (Applicant) Aldo Pellegrino (Objector) |
Representation: | Counsel Ms E Sherman (Applicant) Mr M Bautz (Objector) |
| Solicitors ACT Government Solicitors (Applicant) Kamy Saeedi Law (Objector) | |
File Number(s): | AP 47 of 2018 |
MAGISTRATE THEAKSTON:
Background
Mr Pellegrino has objected to the Australian Capital Territory’s application for restitution from him of the amount the Territory had previously paid to a complainant by way of special assistance under the Victims of Crime (Financial Assistance) Act 1983 (ACT) (‘the Act’). The objection was made on three separate grounds. I will first describe the relevant facts, before addressing each ground separately.
Facts
The evidence and Court files describe the following facts in relation to the offences and the claim under the Act, and they are not in dispute:
(a)Mr Pellegrino and the complainant were in a relationship during the latter part of 2013 and the early part of 2014.
(b)In September 2015 Mr Pellegrino was convicted in this Court of seven charges relating to his conduct against the complainant. Mr Pellegrino filed an appeal against the convictions.
(c)In November 2015 the complainant made a claim for special assistance under the Act.
(d)In December 2016 the ACT Supreme Court set aside six of the eight convictions, and remitted those six matters back to this Court for further hearing. The prosecution subsequently withdrew those charges. Those withdrawn charges involved allegations of Mr Pellegrino committing acts of indecency in the following circumstances:
(i)lifting the complainant’s dress and exposing her underwear, followed by an act of simulated sexual intercourse from behind the complainant described as “dry humping”;
(ii)touching the complainant’s genital area on the outside of her clothing while she was seated on his motorcycle;
(iii)pulling down the complainant’s upper clothing to expose one of the complainant’s breasts;
(iv)taking a photograph of the complainant when she was masturbating Mr Pellegrino;
(v)forcefully putting his finger in the complainant’s anus on the outside of her leather leggings; and
(vi)forcefully putting his finger in the complainant’s anus on the outside of her shorts.
(e)The convictions that remain relate to Mr Pellegrino committing an act of indecency upon the complainant by taking a photograph of her while she was partially undressed, and using a carriage service in a way that a reasonable person would in all the circumstances regard as being menacing by:
(i)saying in a telephone call to the complainant, ‘If anything happens I will break your neck and every cunt’s neck that is with you’;
(ii)sending a text message to the complainant that read, ‘Another alternation [sic] what if I come around with a sledge hammer and finish it properly?’; and
(iii)sending a text message to the complainant that read, ‘I’m on the way mother fucker’.
(f)In February 2017 this Court made an order by consent awarding the complainant $50,000 for special assistance under s 10(1)(f) of the Act. Mr Pellegrino was not a party to those proceedings.
(g)On 21 May 2018 a provisional order for Mr Pellegrino to make restitution to the Territory was made by a deputy registrar.
(h)On 17 July 2018 Mr Pellegrino filed a notice of objection to the order.
Additionally, the evidence supports the following facts, which are also not in dispute, in relation to a common law claim associated with the complainant contracting an infection from Mr Pellegrino:
(a)Mr Pellegrino knew he was infected with the herpes type 2 virus.
(b)On New Year’s Eve 2013, Mr Pellegrino and the complainant had unprotected sexual intercourse.
(c)In January 2014, the complainant was diagnosed as having contracted the herpes type 2 virus.
(d)In July 2016, the complainant lodged a claim for damages in the ACT Supreme Court for damages arising out of Mr Pellegrino having unprotected sexual intercourse with the complainant, the complainant contracting an infection with the herpes virus, and the complainant suffering a psychological injury as a consequence.
(e)In November 2017, Mr Pellegrino and the complainant executed a deed of settlement in relation to that claim.
(f)In July 2018 and in accordance with the settlement Mr Pellegrino paid into Court, for payment out to the complainant, an amount in excess of $137,500.
There are two expert reports in evidence that describe the complainant’s injury as a result of interactions with Mr Pellegrino. Neither report was challenged.
Dr Jillian Fleming, a registered psychologist, opined in her report that the complainant suffered from post-traumatic stress disorder. She described a comprehensive range of symptoms consistent with that condition. She also narrated a global history of interactions between Mr Pellegrino and the complainant, which included the offences relating to both the convictions remaining and those which were set aside, and the contraction of the herpes virus. Not surprisingly, the report did not attribute the complainant’s condition to, or a portion of the complainant’s condition to, any separate incident reported by the complainant. Similarly, the report did not quantify what, if any, of the complainant’s condition was exacerbated by Mr Pellegrino committing the two offences for which he remains convicted, and upon which the provisional order for restitution must be based.
Dr William Knox, a consultant psychiatrist, opined in his report that the complainant suffers chronic and severe post-traumatic stress disorder, and major depressive disorder. He also described a range of symptoms and history consistent with those conditions. Dr Knox describes both the infection and the other allegations as the events giving rise to the complainant’s conditions.
First ground of objection – no criminal injury
It was submitted on behalf of Mr Pellegrino that the unprotected sexual intercourse occurred outside of the Territory. There was no clear evidence of this, although I note that this was described in an affidavit that was not relied upon. In any event, the submission suggested that because the infection was contracted outside of the Territory the injury was also sustained outside of the Territory. That would mean that the injury would not fall within the definition of ‘criminal injury’ provided in s 4 of the Act, the special assistance should not have been awarded under s 10(1)(f) of the Act and accordingly Mr Pellegrino should not be required to reimburse the Territory for the amount paid to the complainant.
I accept that if the amount should not have been awarded, then an order of restitution should not be confirmed: RK v Mirik and Mirik [2009] VSC 14; 21 VR 623 and Australian Capital Territory v Shaor [2017] ACTMC 1. However, the evidence is that the complainant received the special assistance due to her conditions arising out of a range of events involving Mr Pellegrino, including the offences for which he was convicted. Those offences occurred within the Territory and accordingly this ground must fail.
Second ground of objection – complainant should reimburse the Territory
It was submitted that as the complainant had recovered monies in a civil claim for the same injury, the appropriate course would be for the Territory to recover its payment from the complainant, rather than Mr Pellegrino, in accordance with s 53 of the Act.
I accept that where special assistance is paid to a complainant, and the complainant receives an additional payment, in particular from the offender in an amount in excess of the special assistance, and the complainant is liable to refund the special assistance in accordance with s 53, the offender should not be expected to pay an amount to reimburse the Territory. Rather the Territory should pursue its remedy against the complainant. This is because those circumstances would clearly be matters relevant to the exercise of the discretion to confirm or not confirm the order for restitution as contemplated by s 59(1)(b) of the Act. I also note that had the amount been reimbursed by the complainant, s 57(4)(a) would require the provisional order to be discharged.
In this case the deed of settlement describes the circumstances giving rise to the injury with much precision. Those circumstances are limited to the unprotected sexual intercourse, the complainant contracting the virus and all matters arising from that injury. They do not expressly include the conduct and any subsequent injury or exacerbation of an injury that was associated with the two convictions. I cannot therefore make a definitive finding that the payment made following the settlement of that claim was in relation to the criminal injury arising from the two convictions. Accordingly, this ground also must fail.
Third objection – six of the eight convictions set aside, injury also related to infection and civil damages already recovered
It was submitted by the Mr Pellegrino that the setting aside of the six convictions was significant; the resultant injuries were said to have been caused by both the infection and the various alleged offences; and that Mr Pellegrino has paid significant compensation to the complainant for her injuries. I accept those submissions.
I note the Territory’s submissions about the purpose of the Act, including the reason for obtaining restitution from an offender; and that the term ‘injury’ includes any aggravation of an existing injury. I accept those submissions as well as the submission that the proper measure of an award under the Act is what would be available as damages in a civil claim, but capped at the limit required by the Act. I also accept the submission that there is no evidence that the Territory placed inappropriate weight on any considerations when considering the application for special assistance.
The restitution order can only be made with respect to the two remaining convictions. This matter is complicated by the evidence indicating that the injuries experienced by the complainant arose from conduct of Mr Pellegrino that go beyond those two offences. For example the unprotected sexual intercourse and the six allegations that have not been established. It is not possible, within these proceedings, to make findings about what injuries were experienced by the complainant as a result solely of the two offences. Therefore it is not possible to quantify what the special assistance should have been.
Additionally, the complainant has already received from Mr Pellegrino significant compensation for her injuries. While I cannot make a definitive finding that that payment was also for the two offences, that possibility remains open on the evidence. It is also clear that notwithstanding the basis for the payment, the injuries experienced by the complainant arise due to the whole of Mr Pellegrino’s conduct.
In all the circumstances I am left with the view that it would not be reasonable or appropriate to require Mr Pellegrino to make a further payment in relation to the two convictions.
For the above reasons I exercise the discretion available to me and decline to confirm the provisional order for restitution.
Order
The provisional order for restitution of 21 May 2018 is discharged.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Priyanka Koci Date: 30 April 2019 |
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