Applicant v Barker (a pseudonym) (Ruling)

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL LAW DIVISION	Revised Not Restricted Suitable for Publication
APPLICANT	Applicant
v
BRENDAN BARKER (A PSEUDONYM)	Respondent

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JUDGE:	HER HONOUR JUDGE TSIKARIS
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2025
DATE OF JUDGMENT:	16 June 2025
CASE MAY BE CITED AS:	Applicant v Barker (a pseudonym) (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 770

RULING
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Subject:Section 85D Sentencing Act Application
Catchwords:              Application to extend the time within which an application for a compensation order may be made – whether it is in the interests of justice to extend the time – delay – prejudice
Legislation Cited:      Sentencing Act 1991; Confiscation Act1997
Cases Cited:              Moresco v Budimur [2015] VSC 51; Paulino v Paulino [2020] VSC 642; Pawley v Willis [2022] VSC 85; Sullivan v Gibson [2018] VSC 785; Marceta v Efandis [2016] VSC 265; Brown v Loveday [2012] VSCA 57; St Clair v Jamieson [2019] VSC 57; Hunt v Akkus [2017] VSC 79

Ruling: Application granted
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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Moloney	Frid & Associates Lawyers
For the Respondent	Mr D Dober	Dribbin & Brown Criminal Lawyers

HER HONOUR:

Introduction

The plaintiff makes application for an extension of time pursuant to section 85D of the Sentencing Act 1991 (“the Act”).
Background Information

The applicant was born in May 2001 and is currently 24 years of age. The respondent, Mr Brendan Barker,[1] was born in June 1931 and is almost 94 years old. He is the applicant’s paternal grandfather.
[1]A pseudonym
On 23 November 2020, the respondent pleaded to and was found guilty of offences against the applicant being a representative charge of an indecent act with a child under 16. He also plead to and was found guilty of offences against his adopted daughter Ms Angelique Preston.[2]
[2]A pseudonym
He received a total effective sentence of 34 months and 16 months of that term was suspended for a period of two and a half years. He has served his sentence.
On 27 October 2020, His Honour Judge Dyer made a Restraining Order under the Confiscation Act1997 in relation to 3 bank accounts held by the respondent. The amounts of $121,177.88, $16,219.75 and $35,159.05 were restrained and held by the relevant entity within the Office of Public Prosecutions (‘the OPP’) in Victoria.
Ms Preston, the other victim of sexual abuse perpetrated by the respondent, made application under s85B of the Act for compensation against the respondent within the time permitted under the Act. Her application was resolved at mediation on 20 March 2023, at which time a deed of settlement was entered into by the parties.
The deed of settlement provided that:
(a)The respondent agreed to compensate Ms Preston in the sum of $135,000;
(b)The s85D application proceeding is settled; and
(c)The remainder of the restrained funds, being approximately $40,944.44 at the time, be released to the respondent.
On 7 July 2023, upon receiving the deed from Ms Preston’s legal representatives, the OPP was of the view that the settlement discussions may have been in breach of the restraining order, it would not consent to any release of the restrained funds until a resolution had been reached with respect to the applicant and her potential application, and that there were serious concerns about whether the respondent understood the deed.
The respondent sought to disavow the deed and Ms Preston made further application to the Court under s26 of the Confiscation Act for orders that the deed was valid and enforceable, and that the $135,000 settlement sum be paid to her solicitors, with the balance remaining under the restraining order be retained by the OPP until further order.
On 26 March 2024, the respondent’s application under s143 of the Confiscation Act was granted to provide him with funding with respect of s85B matters only.
On 26 October 2024, Ms Preston’s s26 application was heard before Her Honour Judge Hinchey without the respondent having legal representation. The application was referred to the compensation list as Her Honour considered there was no jurisdiction to vary the deed in circumstances where there was an ongoing dispute as to the deed’s enforceability. Her Honour also took the view that the applicant’s application should be listed alongside Ms Preston’s s85B application and resolution between all parties should be explored.
The applicant was unaware of Ms Preston’s application and that her application had been resolved. She first became aware of it when the OPP contacted her in June 2023 enquiring whether she had engaged a lawyer.
On 2 September 2024, the applicant made an application pursuant to s85B of the Act for compensation against the respondent.
The 12-month period within which to bring such an application expired on 23 November 2021.
On 31 October 2024, Judicial Registrar Lynch ordered as follows:
(a)   The deed of release dated 20 March 2023 is enforceable, with the settlement sum of $135,000 to be paid to the solicitors of Ms Preston by 21 November 2024, and the balance of the restraining funds be paid to the Asset Confiscation Office;
(b)   The issue of variation of the restraining order to be referred to Her Honour Judge Hinchey for consideration on 19 November 2024; and
(c)   No order as to costs.
On 31 October 2024, Judicial Registrar Lynch ordered amongst other things that:
(a) By 21 November 2024, the applicant file and serve submissions in support of her application for an extension of time; and
(b) Any affidavit material in relation thereto.
The applicant’s solicitor filed:
(a) An affidavit affirmed by Sharona Frid on 21 November 2024;
(b) Submissions in relation to the s85D extension of time application dated 21 November 2024; and
(c) Revised submissions in relation to the s85D extension of time application dated 21 March 2025.
The applicant also relied on the affidavit of Ms Frid affirmed on 30 October 2024 which was filed in respect of the s85B application.
The respondent filed submissions in response to the extension of time application on 12 December 2024.
The parties’ written submissions were supplemented by oral submissions at the hearing of the application.
The Applicant’s Submissions

The applicant submitted that it was always her intention to make an application for compensation. This is reflected in the affidavit in support of the restraining order sworn by Detective Leading Senior Constable Dean Rocco on 23 October 2020.[3] He deposed that the father of the applicant had informed him that he intended to instruct lawyers to make application for compensation orders under the Act if the respondent was convicted of the offences with which he was charged.
[3]Affidaivit of Sharona Frid affirmed 30 October 2024, Exhibit SC-1
The applicant was and remains traumatised by the respondent’s offending. She has received psychological counselling to assist her to cope with the trauma.
The applicant was not emotionally capable of making application against the respondent until sometime after the respondent’s conviction.
Following the conviction at a time that she could not recall, the applicant had asked her father to make a compensation application on her behalf as she did not consider herself capable of doing so in light of the trauma. The applicant’s father recalled a telephone conversation he had with someone at Waller Legal regarding making a s85B application against the respondent sometime after the finding of guilt. He cannot remember the timing of this call. The applicant’s father believed the application was proceeding. He was subsequently incarcerated for other matters and he thought that his then partner was progressing the application.
The applicant subsequently discovered in late 2023 that no application had ever been made on her behalf. In August 2023, the applicant fell pregnant but miscarried. This was a traumatic event for her. She fell pregnant again in December 2023 and she gave birth to a baby boy in September 2024. Due to the continued trauma because of the offending, as well as her miscarriage and pregnancy, she was unable to act in relation to the sentencing application.
The applicant had initially made a Victims of Crime Assistance Tribunal application with the encouragement of her psychologist. She then engaged solicitors on 15 July 2024 to make an application for compensation under the Act as by then she felt emotionally equipped to bring the application. She has since withdrawn the Victims of Crime Assistance Tribunal application.
The applicant submitted that the purpose of the compensation scheme under the Act is to provide a convenient mechanism for redress to victims of crime. The Court must be satisfied that it is “in the interests of justice” to extend time and that the phrase should be construed liberally.[4] The discretion to extend may be refused if the application significantly prejudices the respondent’s rehabilitation. A necessary consideration as to whether or not to grant the extension is the reasons for the delay in making the application.[5]
[4]Moresco v Budimur [2015] VSC 51 at [14]; Paulino v Paulino [2020] VSC 642 at [10]; Pawley v Willis [2022] VSC 85 at [14] (‘Pawley’)
[5] Pawley
It is further submitted that this application will not significantly prejudice the respondent’s rehabilitation. There is no dispute that the offending occurred and the reasons for the delay include:
(a)   The applicant’s fragile psychological wellbeing;
(b)   The fact that both the applicant and her father thought, although incorrectly, that an application had been made on her behalf;
(c)   The applicant’s father was not in a position to follow up on the application status as he was incarcerated for unrelated matters;
(d)   The plaintiff’s pregnancy and miscarriage in 2023 and 2024 diminished her capacity to pursue her rights to compensation.
Further, no real prejudice to the respondent would occur if the application were permitted to proceed. The crimes committed against the applicant by the respondent are most serious in nature and the impact on her childhood and extending into her adult life were and remain profound.
The amount of $37,556.68 is available to be paid to the applicant after payment is made to Ms Preston. In determining whether to grant the extension it should not be a factor that this sum will be entirely inadequate to properly compensate the applicant for the wrongs done by the respondent.
The Respondent’s Submissions
The respondent submitted that the application was made almost 3 years after the date upon which it could be made.
The deed of settlement entered into by the respondent with Ms Preston on 20 March 2023 provided that after the compensation amount was paid to Ms Preston, the remainder of the restrained funds, being approximately $40,944.44 at the time, would be released to him.
The respondent has maintained that he would not have signed the deed if he had full and complete understanding that the remainder of the restrained funds could not be released as per the agreed terms of the deed. Alternatively, the respondent would not have agreed in any circumstances to a compensation order in the sum of $135,000 in favour of Ms Preston if he had known this application would be brought.
The respondent maintained he did not consent to the enforceability of the deed and continues to be legally unrepresented with respect to Ms Preston’s s26 application.
The respondent submitted that when considering an extension of time application, the Court is to consider the circumstances of the application, such as whether the application would have succeeded if brought within time, the length of the delay, and whether the delay would significantly prejudice the offender.[6] The matter of delay, which is significant, should be given weight accordingly. It should be distinguished from the decision in Sullivan v Gibson where it was found that a delay of three months was not too long but may be too long in other circumstances.[7]
[6] [2018] VSC 785
[7] Ibid
The respondent submitted that if the application had been brought within time or otherwise dealt with in conjunction with Ms Preston’s application, any funds would have been shared between both complainants. There is now a material difference in the remaining pool of restrained funds having regard to the earlier application. At no fault of the respondent, the bulk of the funds that would have been available if this application had made within time, have now been paid to of Ms Preston.
Section 85H of the Act allows the Court when determining compensation to consider the financial circumstances of the offender and the nature of the burden that the payment will impose.
In relation to the respondent’s financial circumstances;
(a)   He has no partner;
(b)   He does not have any vehicles registered in his name;
(c)   His only source of income is the age pension which is deposited into a Commonwealth Bank account which had a balance of $17,278.17 as of 28 February 2024;
(d)   He pays $700 per fortnight for board;
(e)   From his remaining limited income and savings, he has additional expenses including but not limited to food, utilities, mobile phone, medical expenses and transportation; and
(f)    He has no other assets other than the restrained property.
A further compensation order would substantially impact on the respondent so as to leave him destitute, and although that is not a controlling factor as to whether the extension of time application should be granted, the bringing of the application would significantly prejudice the respondent.
The legal framework
Section 85B, 85C and 85D of the Act provides:
85B Compensation order
(1) 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).
(2) A compensation order may be made up of amounts—
(a) for pain and suffering experienced by the victim as a direct result of the offence;
(b) 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;
(c) 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;
(d) 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.
(3) In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.
(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.
85C Application for compensation order
(1) An application for a compensation order—
(a) must be made within 12 months after the offender is found guilty, or convicted, of the offence; and
(b) may be made—
(i) by the victim; or
(ii) on the victim's behalf by any person other than the offender if the victim is a child or is incapable of making the application by reason of injury, disease, senility, illness or physical or mental impairment; or
(iii) on the victim's behalf—
(A) if the sentencing court was a court other than the Magistrates' Court, by the Director of Public Prosecutions; or
(B) if the sentencing court was the Magistrates' Court, by the Director of Public Prosecutions, the informant or police prosecutor.
(2) Nothing in subsection (1)(b)(iii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a victim.
85D Extension of time for making application
(1) A court may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so.
(2) A court may extend time under subsection (1) before or after the time expires and whether or not an application for an extension is made before the time expires.
(3) A court must not extend time under subsection (1) without giving the offender a reasonable opportunity to be heard on the matter.
In Marceta v Efandis, Beach JA considered whether it was in the interests of justice to extend the time in which an application for a compensation order be made.[8] The application was made 7 ½ years after the offender was found guilty and sentenced to a term of imprisonment. His Honour referred to the Court of Appeal decision of Brown v Loveday as an instructive example of the proper operation of s85D.[9] In that case some eight years after the time limit for making an application had expired, the victims of the offending sought an extension of the time limit. The Court of Appeal referred to the balance required to be struck between competing considerations, including the forensic difficulty that the offender might suffer in contesting the victims’ claimed injury and the effects that an award or compensation might have on the offender’s prospects of rehabilitation if an extension was to be granted. Noting the similarities between Brown and the present case, Beach JA, having considered all the facts of the offending with which the respondent was found guilty, the applicant’s explanation for her failure to bring an application for compensation with time, the need for finality, the issue of prejudice and all of the surrounding circumstances of the case, was satisfied it was in the interests of justice to extend the time within which an application for a compensation order be made. Whilst he noted that there was obviously presumptive prejudice caused by the delay, the respondent was not able to point to any specific prejudice.
[8] [2016] VSC 265
[9][2012] VSCA 57 (‘Brown’)
In Pawley, Lazry J noted that the purpose of the scheme under the Act was to provide a convenient mechanism for redress to victims of crime and the Court has found that the term “interests of justice” within s85D should be construed liberally. To do otherwise would render legitimate claims for compensation dismissed in favour of the objective of finality of litigation.
In St Clair v Jamieson, Bell J noted that the established test is whether it is in the interests of justice to extend time, and it is to be interpreted and applied liberally and flexibly.[10] Crimes compensation plays an important role in bringing finality and closure for victims and although prejudice to the offender is a potentially highly relevant consideration, legitimate claims of compensation should not be defeated unless real and not just presumptive injustice is likely to be experienced by the offender. The discretion to grant an extension of time may be refused where the application might significantly diminish the offender’s prospects of rehabilitation. Where that is not so, time may be extended even when that delay has been long, especially where it has been adequately explained.
[10][2019] VSC 57
In Hunt v Akkus, Dixon J noted that the authorities demonstrate that extensions of time under the Act have been granted in which the length of time has varied from a short time to several years.[11]
[11] [2017] VSC 79
Findings

A review of the cases reveals a tendency towards leniency and flexibility in consideration of applications to extend time and in the consideration of the interests of justice test. Having balanced all the matters and in light of the authorities referred to, I am ultimately persuaded that it is in the interests of justice for time to be extended. I accept that I should adopt a somewhat liberal approach to the application, and I consider that the applicant’s claim for compensation as a victim of the respondent’s crime should not be shut out. A key consideration is the lack of significant prejudice occasioned on the respondent.
Having regard to the governing principles for extension of time for the commencement of compensation applications, and having considered all of the facts of the offending to which the respondent pleaded guilty, the applicant’s explanation for her failure to bring an application for compensation within time, the need for finality, the issue of prejudice and all of the surrounding circumstances of the case, I am satisfied that it is in the interests of justice to extend the time within which an application for compensation order may be made.
While there is a presumption of prejudice caused by the applicant’s delay, the respondent could not point to any specific prejudice. Real, not just presumptive prejudice is required to be demonstrated.
The respondent relies on the earlier settlement of Ms Preston’s claim and the notion that he would not have entertained resolution for that amount had he known that the applicant’s claim would materialise in the future. He entered into negotiations in the belief that of the funds restrained, once his claim by Ms Preston was satisfied, the remainder would be returned to him. It is not for him to determine the allocation of the restrained funds amongst the victims of his offending. That most of the funds restrained have been allotted to the settlement of Ms Preston’s application is not reason to deny the applicant’s extension application.
The OPP rightly pointed out that Ms Preston and the respondent could not consent to the release of the retrained funds after the proceeding between them was resolved. The DPP then contacted the applicant to alert her of the settlement and to ensure that she brought an application if it was her intention to do so. The applicant’s mental health has been negatively affected by the offending and every aspect of her life has been impacted. I am satisfied in respect of the reasons for the delay and why she did not pursue the application earlier.
The financial impact of any subsequent compensation order is not a controlling factor as to whether the extension of time application should be granted.
Orders
I order that the time within which the applicant is permitted to make an application for a compensation order against the respondent be extended.

[2025] VCC 770

16 June 2025