Athian v Pang
[2019] VCC 477
•11 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01119
| BOL ATHIAN | Applicant |
| v | |
| JOHN PANG | Respondent |
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October and 14 December 2018 | |
DATE OF JUDGEMENT: | 11 April 2019 | |
CASE MAY BE CITED AS: | Athian v Pang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 477 | |
REASONS FOR JUDGEMENT
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Subject: CRIMINAL LAW
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991
Legislation Cited: Sentencing Act 1991; Victims of Crime Assistance Act 1996
Cases Cited: DPP v Pang (unrep. County Court, 20 February 2017); Pang v DPP [2018] VSCA 5; RK v Mirik and Mirik (2009) 21 VR 623; Stevens v Baxter [2009] VSC 257; Jackson v Graham [2014] VCC 241; Chalmers v Liang &Anor [2013] HCASL 17; DPP v EssoPty Ltd [2001] VSC 513; DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, [36]; Moresco v Budimir [2015] VSC 51; Tanner & Ors v Smart [2010] VSC 463.
Judgement: Judgement for the applicant in the sum of $115,000 pursuant to the provisions of s85B of the Sentencing Act 1991. Respondent ordered to pay the applicant’s costs in the sum of $7,500.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C. Willshire | Robinson Gill |
| For the Respondent | Mr C. Thompson | Furstenberg Law |
HIS HONOUR:
1 The applicant, Bol Athian, seeks an order for compensation from the respondent, John Pang, pursuant to s85B of the Sentencing Act 1991 (“the Act”).
2 The application arises from the conviction of the respondent for having, on 2 May 2013, recklessly caused serious injury to the applicant. The matter ultimately resolved on 26 February 2016. When the applicant was arraigned on 4 March 2016, he pleaded guilty to a single charge of recklessly causing serious injury. The plea hearing commenced on 11 November 2016 and concluded on 8 February 2017. On 20 February 2017, I sentenced the respondent for that offence to a term of 4 years’ imprisonment with a non-parole period of 2 years. He had served no period in custody by way of pre-sentence detention prior to being sentenced. His appeal against that sentence was dismissed by the Court of Appeal on 2 February 2018.[1]
[1] [2018] VSCA 5.
3 The current application was filed in this Court on 19 February 2018 and served on the respondent on 6 March 2018. On 21 May 2018, I made procedural Orders and listed the substantive application for hearing on 17 September 2018. At the request of the parties, that date was administratively vacated on 11 September and the matter was relisted for hearing on 1 October 2018.
4 The hearing took place over 2 days, commencing on 1 October 2018 and concluding on 14 December 2018. Ms Willshire appeared for the applicant while Mr Thompson appeared for the respondent. The respondent appeared via video link from Beechworth Prison.
5 On 1 October 2018, the applicant gave viva voce evidence in which he confirmed that the contents of his affidavit dated 3 July 2018 were true and correct.
6 The applicant relies on his viva voce evidence, together with the affidavit and attached documents, which were as follows.[2]
[2] The affidavit and attachments were tendered together as exhibit A on the application.
(i) Police statement of Bol Athian dated 28 May 2013;
(ii) Victim impact statement of Bol Athian dated 18 May 2016;
(iii) Summary of Prosecution Opening dated 11 November 2016;
(iv) Revised Sentencing Reasons dated 20 February 2017;
(v) Forensic Medical Report from VIFM dated 14 January 2014;
(vi) Bundle of Hospital Records relating to the applicant;
(vii) Report from Professor Stephen Davis, consultant neurologist, dated 1 May 2018;
(viii) Bundle of expense receipts; and
(ix) Further bundle of expense receipts
7 At the hearing on 14 December, the applicant also tendered the award of assistance which he received from the Victims of Crime Assistance Tribunal (“VOCAT”) on 15 July 2015.[3]
[3] Pursuant to the Victims of Crime Assistance Act 1996.
8 The respondent gave no viva voce evidence on the hearing, being content to rely on his affidavit dated 26 July 2018 and the attached documents relating to his financial situation, including a family trust transaction report, various bank statements, legal fees incurred for his criminal matter, taxation returns, betting statements, HECS payments, superannuation statement, Centrelink Payment, and share trading history. To some extent, the respondent also seeks to rely on the evidence given by the applicant in this hearing.
9 The applicant brings this proceeding pursuant to s85B of the Sentencing Act 1991. Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from the offender where injury has been suffered as a direct result of the offence. There is no dispute here that the applicant, Mr Athian, is a “victim” within the meaning of the Act nor that Mr Pang is an “offender”. The respondent was convicted and sentenced as such on 20 February 2017. Relevantly, the definition of “injury” in s85A of the Act includes “grief, distress or trauma or other significant adverse effect”. Section 85H of the Act states that the Court may take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
10 This Division and Part of the Act were considered by Bell J in RK v Mirik and Mirik,[4] and by J Forrest J in Stevens v Baxter.[5] As noted by J Forrest J,[6] the relevant principles to an application of that kind were comprehensively and helpfully set out by Bell J in Mirik[7] and could be described in a nutshell as follows:
[4] (2009) 21 VR 623.
[5] [2009[ VSC 257
[6] At [5].
[7] At [15]-[20], [50]-[67], [135]-[142], [144]-[154].
· “The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court provided the claim falls within categories set out under s85B(2).
· An order for compensation is determined by the application, where relevant, of common law principles, however the order itself is one for compensation not damages.
· Where a claim for pain and suffering is maintained, it must be a direct result of the offence.
· The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.
· Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.
· Unlike a common law claim for damages the financial circumstances of the offender are relevant.
· 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.”[8]
[8] Stevens v Baxter [2009] VSC 257, 1-2 [5] (cases and citations omitted).
11 As already noted, I sentenced the respondent on 20 February 2017 for his offending against the respondent. I refer to and adopt the circumstances of that offending as comprehensively set out in my Reasons for Sentence dated 20 February 2017. A short summary at this stage will suffice.
12 In the early hours of 2 May 2013, in the ground floor foyer/lift area of a Housing Commission complex, an argument broke out between a group of females known to the applicant and the applicant’s girlfriend and her mother. The applicant was present and made some attempts to calm the situation down, to no avail. The respondent, who had been upstairs, attended the ground floor a short time later after being called by his girlfriend. He did so armed with a hammer. On exiting the lifts, he ran into the applicant’s group while brandishing the hammer. After getting to where his girlfriend and her mother were situated, the respondent argued with the applicant who remained intent on trying to calm the whole situation down. At one point, the applicant’s girlfriend’s mother kicked one of the females from the other group. There was no retaliation by that female. Instead, the crowd dispersed, allowing anyone who wished to leave, to do so. After going outside for a short period, the respondent returned inside and continued to argue with the applicant while adopting an aggressive stance.
13 Then, moments after turning his back on the respondent, the applicant turned back and forcefully struck the unarmed and unsuspecting applicant to the left side of his head with the hammer. The applicant immediately fell to the ground, where he remained, while the respondent fled the scene. When the police arrived a very short time later, they found the applicant bleeding and unconscious. Paramedics, arrived there some minutes later and provided some initial treatment to the semi-conscious applicant before rushing him by ambulance to the Alfred Hospital.
14 When sentencing the respondent on 20 February 2017, I noted the following at [24]-[34] of my sentencing reasons.
“The relevant injuries and medical treatment relating to the victim, Mr Athian, are outlined in some detail in the prosecution opening and in the relevant medical notes. The victim’s head injuries were considered by the forensic physician, Dr Parkin, to be very serious and life threatening.
Mr Athian sustained a laceration to the head and a depressed skull fracture through the left frontal bone which was broken into three pieces. There was cerebral contusion and small but deep subarachnoid and subdural haemorrhaging.
At hospital he was placed in an induced coma and transferred to the Intensive Care Unit. He underwent an emergency craniotomy and removal of the depressed comminuted open skull fracture, debridement of the brain contusion, evacuation of the haematoma and repair of the dura and scalp. On 5 May, he was transferred from ICU to the Department of Neurosurgery.
On 9 May, he was discharged from the Alfred Hospital and admitted as an inpatient to the Neurological Rehabilitation Unit at Caulfield Hospital, where he remained until being discharged on 24 May 2013.
As the skull fragments could not be replaced, he was required to wear a protective helmet for several months. On 22 May 2014 he underwent further surgery in order to replace the missing part of the skull with an acrylic implant.
Mr Athian continues to endure the effects of his injuries, including random convulsive seizures in which he loses consciousness. On a number of occasions, he has required hospitalisation. They can occur at any time. Examples have included while he was asleep in bed, while he was on an aeroplane and while he was driving a vehicle. In the bed episode, he fractured and dislocated his shoulder for which he required surgery and orthopaedic and physiotherapy follow up. In the driving episode, he crashed into a tree.
As a result of the neurological damage that Mr Athian suffered, he is no longer able to drive or work. Control of his post-traumatic epilepsy is unsatisfactory as he is non-compliant with medication at times due to his impaired memory. His treating doctor, Dr Wu, is of the opinion that the victim's functional impairment is permanent.
With the assistance of an interpreter, Mr Athian has made a Victim Impact Statement. It was sworn on 18 May 2016 and tendered as Exhibit B on the plea.
Mr Athian’s English is limited as he was born in South Sudan and only travelled to Australia, seeking asylum, in 2006. He worked at a food processing plant and was married with two children. He was 34 at the time he was seriously injured by Mr Pang.
In his Victim Impact Statement, Mr Athian describes in very simple language, how this offending has impacted him. His personal relationships have suffered as a result of his disabilities. He feels frustrated at no longer being able to provide support for his family back in South Sudan. He worries about the seizures and their random nature. His ability to think and remember have been adversely affected. He has trouble sleeping. He has become depressed for which he requires medication and counselling. He has a fear of dying. He considers his life to have been changed forever. His quality of life has been severely impacted in many areas, including work, education, sport and leisure. The impact of this crime has caused him to worry about his own future and that of his two children.”
15 The respondent’s appeal against sentence was dismissed by the Court of Appeal on 2 February 2018. In the course of their joint judgement, Priest and Santamaria JJA noted the impact of the respondent’s offending on the applicant.[9] For example, they observed that Mr Athian was “severely injured” and “continues to suffer the effects of the injuries inflicted by [Mr Pang], including a complete lack of use of his right hand. Due to frequent, unpredictable convulsive seizures associated with post-traumatic epilepsy resulting from his injuries, Mr Athian is no longer able to work. He subsists on a disability support pension”.[10] Later, the Court succinctly observed “[Mr Pang] inflicted devastating, life-changing injuries on Bol Athian, who will forever continue to suffer their disabling effects…”
[9] At [10]-[15], [17].
[10] At [15] and [14], respectively.
16 It would appear that the neuropsychologist, Professor Stephen Davis, examined the applicant with the assistance of a Dinka interpreter, in around late April 2018, given that his report is dated 1 May 2018.[11] Professor Davis took a history from the applicant and reviewed various hospital records, neuropsychological findings and other assessments, including those undertaken by the forensic physician and Dr Wu. The history of seizures and changes in medication were also noted.
[11] The date of the examination is not referred to in the report.
17 Among the ongoing issues noted by Professor Davis were the applicant’s ongoing seizures, memory impairment and poor sleeping pattern due to flashbacks about the assault and its consequences.
18 Professor Davis makes a number of observations and expresses a number of opinions about the applicant in the latter part of his report.[12] They included, but were not limited to, the following.
[12] At pp 6-7.
· “He suffered a severe head injury in the assault.
· The major consequence in his case is post-traumatic epilepsy. This is a common scenario in this type of pathology.
· Despite two anticonvulsant drugs…he continues to have ongoing tonic-clone seizures, namely a poorly controlled seizure disorder. This may in part be due to poor compliance and his memory may be an issue in that regard. However, it is well-recognised that this type of brain pathology is not infrequently associated by a medically refractory seizure disorder.
· He describes around two seizures per months and I have reviewed many ambulance reports when he has been taken to emergency departments at the Alfred and St Vincent’s Hospital with tonic-clone seizures.
· It is a concern that he lives alone and he does require some form of monitoring. He certainly requires a caseworker to keep an eye on him and ensure that he is compliant with medication.
· In addition to the epilepsy, he has mild to moderate cognitive impairment which was demonstrated in the neuropsychological report but the biggest problem is clearly the epileptic disorder.
· As a consequence of the epilepsy, he would be unable to work and certainly unable to drive at the present time. It would be best if he desisted from alcohol given the fact that the epilepsy is not fully controlled.
· It is difficult not to envisage a bleak future as I think the chance of the seizure disorder coming under control and him being employable, even with further medication changes, is fairly minimal and he will remain disabled in terms of pension requirements.
· The major concern is his safety and that ideally someone should be living with him or certainly closely monitoring him with an appropriate alarm system, given the frequency of his seizures. He is at risk of the complications of epilepsy including “SUDEP”, sudden death in epilepsy.
· His condition appears to have stabilised.
· I do not think he has a realistic possibility of employment given the poorly controlled seizure disorder, also to some degree his cognitive impairment, but the epilepsy is the biggest problem.
19 In his affidavit, the applicant attempted to describe the consequences of the respondent’s offending on him. For example, he referred to the following.
· He has experienced painful headaches for which he has required medication, as well as some dizziness and weakness in his legs.
· Since being discharged, he has suffered multiple and regular seizures. They are unpredictable as there are no warning signs.
· He suffers from memory loss. He lives on his own but is not that good at taking care of himself because he sometimes forget to take his medication. He tries to keep it in the same place where he will look at it every day but he sometimes forgets. He forgets things if he doesn’t write them down. His concentration is not good…he doesn’t remember details or important things. People have to tell him things more than once and remind him.
· He has become depressed and worried about his future.
· He continues to experience symptoms of post-traumatic stress disorder, including nightmares and flashbacks of the assault. He does not sleep well.
· He is unable to work due to his medical condition and is in receipt of Centrelink payments.
· He can no longer drive and therefore has to catch taxis in order to attend the ongoing medical appointments.
· His children can no longer stay with him as he is unable to look after them.[13]
[13] They were aged 8 and 9 as at May 2018 according to the history obtained by Professor Davis.
20 In his viva voce evidence, the applicant was asked about his circumstances leading up to the date of being injured. He was married with two young children. For cultural reasons, he and his wife could not live together as he had not yet paid the required dowry in full. Instead, he was living in a flat with a friend. He was working part-time as a process worker and had been doing so since 2008. He could not remember how much he was earning due to his memory problems but believed it was 20-something dollars an hour. He confirmed the fact that he had regular seizures during which he passes out. They have occurred even without alcohol and even while in hospital. He agreed that he had been told not to drink alcohol because of the need to take medication. He sometimes drinks beer but does not take drugs. He explained that when he did drink alcohol it was in order to try and feel ‘happier’ and to get a better night’s sleep.
21 When questioned about why he hadn’t sought the support services that may be available from his local Council, he explained that he did not want to deal with strangers. He wanted help from relatives who speak his language and understand his culture, all of whom live in Africa save for a cousin who lives in Sydney.
22 In brief compass, the applicant’s general personal circumstances are as follows. He was born in Southern Sudan in early 1978. He was 35 at the time of being injured by the respondent. He turned 41 earlier this year. He travelled to this country as a refugee in 2006. He married and had two children. He engaged in various unskilled work, including as a housekeeper in a hotel, a trolley collector, and a warehouse worker. Prior to being assaulted by the respondent, the applicant was working and in good health with no history of epilepsy, head injury or medication. He had a car and was able to drive, including for the purpose of visiting his children who lived with their mother. He is no longer in a relationship with his wife and is single. He provides what limited financial support that he can to his children who he now sees less frequently.
23 As for the personal circumstances of the respondent, they were described in some detail by me when sentencing him on 20 February 2017. I refer to and adopt what I then said. He was born in mid-1989. He was aged 23 when he injured the respondent and 27 when sentenced for it. He is now 29 and will soon turn 30. He was approximately two thirds of the way through a university degree in psychology when sentenced. As I then noted, he was well supported by his family and many others in the community. He had been academically and work-motivated from an early age. He had worked in his family’s art business and had also shown himself to be somewhat of an entrepreneur. I concluded that he was very unlikely to reoffend and had excellent prospects for rehabilitation.[14]
[14] The Court of Appeal agreed with this assessment: see Pang v The Queen [2018] VSCA 5, [42].
24 In his affidavit, the respondent refers to his more recent personal circumstances. Whilst undergoing sentence, he has been undertaking a Bachelor of Business and Management through Griffith University. It is in the field of business rather than psychology that he wishes to work when released from custody. At the time of being sentenced, his earliest eligibility date for release on parole was 20 February 2019. By means of an email from his lawyers dated 10 April 2019, the Court was informed that the respondent was still in custody at the Beechworth Correctional Centre but due for release on parole on 17 April 2019.
25 The respondent’s financial circumstances were addressed in his affidavit dated 31 July 2018 and in the attachments to that affidavit, as well as by his counsel in submissions. The respondent was loaned a considerable sum of money by his parents in order to pay for his legal expenses.[15] Whilst he is the beneficiary of a family trust, any payments are entirely discretionary. He has not received any payments since 2014. His declared income in recent years has varied from $3214 in 2013-14 to $17,401 in 2016-17. He has already repaid a HECS debt totalling just over $26,500. His current bank balance is $4,877.79. His superannuation balance as at March 2018 was $1,838.47.
[15] Approximately $200,000.
26 In his submissions, the respondent’s counsel acknowledged that the respondent’s parents are seemingly wealthy but emphasised that they have no legal obligation or liability to pay any money to the respondent, be it out of the family trust or otherwise. The respondent has never had a full time job. The fact that the applicant had made a $30,000 profit from gambling in the past is hardly evidence of a secure income stream in the future. As his counsel submitted, the respondent still has a bright future and it is readily foreseeable that he will run his own business one day or work in his family’s art business, just as he has in the past. However, his prospects are diminished somewhat by the fact that he has been convicted of a serious criminal offence for which he was imprisoned.
27 The respondent’s counsel cautioned the Court against making a large award which would, in effect, lumber the respondent with a significant debt and thereby hamper his prospects of rehabilitation, and perhaps even to the point where bankruptcy was a possibility.
28 As I have already noted by reference to authority, I am bound to take into account the financial circumstances of the respondent and I do so to the extent that they are known.
29 Counsel for each party referred the Court to a number of other cases involving awards of compensation for pain and suffering under the Act.
30 Whilst acknowledging that each case turns on its own facts and circumstances, the applicant’s counsel referred to a small number of cases said to be broadly similar and informative. Reference was made in the written submissions to Jackson v Graham [2014] VCC 241; Chalmers v Liang & Anor [2013] HCASL 17; Asha v Grima [2015] VCC 655; RK v Mirik & Mirik [2009] VSC 14 and DPP v Esso Australia Pty Ltd [2001] VSC 513. Awards in those cases varied from $65,000 up to $200,000. In oral submissions, counsel referred to some of those cases and contrasted the applicant’s situation to that of the other applicants, suggesting that the applicant could not be in a worse situation. The applicant’s case was one at the upper scale according to his counsel.
31 In the course of his written and oral submissions, counsel for the respondent contrasted the circumstances of the cases to which the applicant’s counsel had referred, in particular by reference to the age and financial circumstances of the offenders or, in the case of Esso, the offending company. In each of the other cases, as compared to this case, there was either significant income or assets or both. Accordingly, counsel for the respondent submitted that a fair and appropriate award for pain and suffering in this case should be less than it was in the other cases, around $50,000 after the full VOCAT award to the applicant had been deducted.
32 It was appropriate for counsel to have acknowledged that none of those other cases were very similar or on all fours with the present as both the circumstances of the applicant and of the offender were different in those cases as compared to the present. Whatever assistance may be provided is, it seems to me, very limited. I must concentrate on the particular facts and circumstances which arise in this case and I will do so.
33 As has been acknowledged by counsel appearing for the respondent, the respondent’s actions in striking the applicant to the head with a hammer are the direct cause of his head injury, post-traumatic epilepsy, memory problems and PTSD condition. He concedes in effect, or at least does not dispute, that the respondent’s actions are the direct cause of the applicant’s pain and suffering.
34 Whilst there is no dispute as to liability generally, there is in relation to some aspects of that pain and suffering as well as in relation to the quantum of any award for pain and suffering. Also in dispute is the issue of costs and the extent to which the VOCAT award should be deducted from the amount of compensation awarded to the respondent pursuant to s85B of the Sentencing Act 1991.
35 In his written submissions, counsel for the respondent submitted that the respondent should not be held liable for the further pain and suffering that results from the applicant not taking his medication as prescribed and from the applicant’s consumption of alcohol which exacerbates his epilepsy.
36 At the hearing on 1 October 2018, counsel effectively abandoned the first of those arguments. In doing so, he acknowledged that there was a basis for finding that any failure by the applicant to take his medication on occasion, could be explained by his memory problems which were resultant from the head injury which the respondent caused. In light of the available evidence, in particular that from the applicant and Professor Davis, I consider that change in approach to have been entirely justified. To the extent that counsel referred to the applicant not having taken up the support services of his local Council, I simply note that there is no evidence as to what those services are and how they could assist the applicant. It is not without significance that the applicant would need to be provided with the assistance of a Dinka interpreter and they are very few in number. It is not even clear whether that is possible.
37 As to the second point, whilst it is true that the applicant has, on occasion, drunk beer despite advice from his treating medical practitioners not to drink alcohol on account of the risk that it could exacerbate his epilepsy, the situation is nuanced and far from clear. Nuanced because the very reason that the applicant gives for drinking alcohol is in order to try and cope with some of the adverse effects that the respondent’s offending has caused him. And far from clear because there appears to be no direct evidence that any episode of drinking by the applicant has caused an epileptic episode that would not otherwise have occurred. In this context, it is relevant to note the existing problems with medication control due to the applicant’s memory problems as well as the opinion of Professor Davis that ‘it is well-recognised that this type of brain pathology is not infrequently associated by a medically refractory seizure disorder’.
38 Any assessment of the compensation to be awarded in a given case involves an “instinctive synthesis” and must balance the need to compensate the applicant with the respondent’s rehabilitation.[16] However, the “victim’s interests should have greater priority” even if the award will potentially impair the offender’s prospects of rehabilitation.[17]
[16] DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, [36] (Vincent JA).
[17] RK v Mirik & Mirik [2009] VSC 14, [141]-[143] (Bell J).
39 In this application, I accept the evidence and accounts given by the applicant as well as the medical material that has been placed before the Court, in particular the opinions and observations expressed by the forensic medical officer and by the neuropsychologist Professor Davis.
40 I am well satisfied that the applicant’s head injury and the associated post-traumatic epilepsy, memory deficits and PTSD are a direct result of the respondent’s offending against him. The effects of that offending on the applicant are wide-ranging, very serious and, for the most part, likely to be permanent. His quality of life has been deeply impacted. Without purporting to list all of the consequences of the applicant’s offending, I note the following. The applicant can no longer work or drive a vehicle. He can no longer provide for his family to the extent that he did before being injured. He has to deal with the stark reality of ongoing epileptic seizures which arise without warning and have the capacity to kill him. Indeed, he fears that very result. He continues to suffer from flashbacks and nightmares about the offending. He sleeps poorly and remains depressed.
41 In the end, after synthesising all of the relevant considerations, I am satisfied, for the reasons I have already outlined, that the appropriate award for compensation for pain and suffering for the applicant is $125,000.
42 That brings me to the two remaining matters in dispute, namely the extent to which that amount should be reduced by reference to the VOCAT award and the question of whether it is appropriate to make a costs order against the respondent. I will now deal with each of those matters in turn.
43 Before turning to the award received by the applicant from VOCAT, I should refer to some of the provisions of the Victims of Crime Assistance Act 1996 and the Sentencing Act 1991.
44 Section 8A of the Victims of Crime Assistance Act 1996 allows for an award of up to a maximum of $10,000 for special financial assistance if a primary victim has suffered a ‘significant adverse effect’ as a direct result of an act of violence. That phrase is defined in s3 as including ‘any grief, distress, trauma or injury experienced by the victim as a direct result of the act of violence’ and as not including ‘any loss of, or damage to, property’.
45 Section 85I of the Sentencing Act 1991 is in mandatory terms and states that “if a Court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision”.
46 A copy of the VOCAT award which was made in favour of the applicant on 15 July 2015 was tendered as exhibit D on this application. The total sum awarded was $31,325. Of that amount, $30,335 was paid to the applicant while $990 was paid by way of expenses directly to Ambulance Victoria. The details of the component parts of the award were as follows.
· $335 for expenses actually incurred.
· $20,000 for loss of wages.
· $10,000 for special financial assistance.
· $990 for expenses paid directly to other agents, namely Ambulance Victoria.
47 In her written submissions dated 13 September 2018, the applicant’s counsel indicated that the Court would be required to reduce any amount awarded to the applicant by way of compensation by the amount he had received from VOCAT. By the end of the compensation application hearing on 1 October 2018, the applicant’s position on that matter had changed to one where it was being submitted that only the amount of $10,000 awarded by VOCAT for special financial assistance should be deducted from the amount that this Court awarded by way of compensation.
48 As the respondent’s counsel was taken by surprise by that change in position, I adjourned the discussion of that issue to 14 December and awarded costs against the applicant. As the disputed issue was one that does not appear to have been the subject of any considered ruling by the Court of Appeal, I ordered the parties to provide written submissions. In due course, they were provided and then relied on when the Court reconvened on 14 December.
49 The applicant’s ultimate position, as articulated by his counsel, was as follows.
50 Although there is no award for “pain and suffering” under the Victims of Crime Assistance Act 1996, there is provision for “special financial assistance” for a primary victim and “distress” for a related victim. Such awards are, in reality, effectively equivalent to an award for “pain and suffering”. By contrast, the relevant provisions of the Victims of Crime Assistance Act 1996 permit an award for loss of earnings or loss of earning capacity, whereas s85B(2) of the Sentencing Act 1991 does not.
51 According to the applicant therefore, it is only to the extent that there is any overlap between the two awards that there should be any discounting of the VOCAT award from the compensation award under s85B(2). In this case, that means that to the extent that VOCAT awarded the applicant an amount for what was in effect pain and suffering pursuant to the provisions of the Victims of Crime Assistance Act 1996, namely $10,000, there should be an equivalent reduction to any award I make for compensation for pain and suffering pursuant to s85B of the Sentencing Act 1991.
52 The applicant argues that those same conclusions were in effect reached by Judge O’Neill in Jackson v Graham,[18] by Justice T Forrest in Moresco v Budimir,[19] and by Justice Lasry in Tanner & Ors v Smart.[20]
[18] [2014] VCC 241, [34]-[36]
[19] [2015] VSC 51, [55].
[20] [2010] VSC 463, (9).
53 By contrast, the respondent’s position remained as it had been when the applicant’s final position was first ventilated on 1 October 2018. As his counsel submitted, the amount of compensation awarded to the applicant for pain and suffering should be reduced by the entire amount VOCAT awarded to him, namely $30,335. In support of that submission, he pointed to what he claimed was the unclear meaning of the words used in s85I and invited the court to therefore afford the benefit of any doubt to the respondent given the punitive financial nature of any award. He also relied on the fact that there appears to be no settled line of authority on the extent to which any VOCAT award should be deducted from any compensation order, including the lack of any decision on point from the Court of Appeal. Finally, he also sought to gain some support for his argument from the fact that there have been many previous cases in which judges have ordered compensation for pain and suffering but deducted from that amount the entire award made by VOCAT not just the part referable to special financial circumstances.
54 I am grateful for the submissions advanced by the parties on this issue and have given them careful consideration. Ultimately, I have concluded that the argument made on behalf of the applicant should be accepted.
55 In my view, the legislative award scheme brought about by the relevant provisions of the two Acts is clearly designed to avoid double dipping; that is, the obtaining of two separate awards by the applicant victim for the very same type of consequence of the offending on that victim. As s85I states, the deduction in respect of the VOCAT award is to be ‘for the expense or other matter for which compensation is being sought under this Subdivision’.[21]
[21] Emphasis by italics and underlining added.
56 In my view, the reasoning and conclusions in the three cases to which the applicant referred on this point, should be accepted and followed in this case. Not only is that conclusion warranted from the relevant legislative provisions themselves, but it seems to me to accord with logic and common sense. And, there is no good reason to justify any different finding.
57 Accordingly, I find that the extent to which s85I mandates any deduction from the compensation order of $125,000 that I have made under s85B, it is limited to that part of the VOCAT award relating to special financial assistance (i.e. pain and suffering), namely $10,0000.
58 That means that the net amount of compensation awarded by me is $115,000.
59 I turn now to consider the applicant’s application for costs. I commence by noting that a decision as to costs is one made in the exercise of the Court’s discretion.
60 I also note the effect of s.85K of the Act which relevantly states as follows.
“Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this subdivision must bear their own costs of the proceeding unless the court otherwise determines”.
61 In her written submissions on the issue of costs, the applicant’s counsel made the following points. The applicant does not speak adequate English and suffers from the ongoing effects of a significant head injury. He has required the assistance of an interpreter and lawyers to be able to make an application for compensation. The time that has been required to take instructions from him has been extensive given those complicating factors. If costs were not awarded, then any legal costs owed would be deducted from any compensation award, thereby denying the applicant the full benefit of the compensation award.
62 In her oral submissions made on 1 October, the applicant’s counsel catalogued the various costs incurred by the applicant in the proceeding, in particular, those relating to the need for Dinka interpreters to assist with the preparation of the case and attend court, the legal fees, and the necessity for an up to date neuropsychological assessment of the applicant together with the provision of a medico-legal report. The total amount of costs being sought was $13,000. That amount was made up of $8,000 in legal costs and $5,000 in out of pocket expenses. I note that the latter figure did not include the cost of having an interpreter attend court on 1 October.
63 The respondent’s counsel submits that no order for costs should be made against the respondent; each party should bear their own costs. In support of that submission, he relied on the general rule against awarding costs to be found in s.85K and the observations of T Forrest J in Moresco & Ors v Budimir.[22] In essence, counsel submitted that where, as here, the matter is not unduly complicated and the area of contest is confined to quantum, an award of costs would be inappropriate.
[22] [2015] VSC 1, [57]-[60].
64 I have taken those submissions and the matters upon which they relied into account.
65 Clearly, as was noted by T Forrest J in Moresco, the purpose evinced by s.85K is that, prima facie, a successful applicant ought to bear their own costs. His Honour went on to observe, however, that there may be a number of potentially relevant considerations in the exercise of any discretion as to an award of costs. They included the following. The level of complication involved in the application. Any assessment of that will, in part, be informed by the seriousness of the offence and its consequences for the victim. Where it is essential for the applicant to obtain psychiatric evidence, that fact will weigh in favour of an award of costs. And, whether the convicted offender unreasonably contested the application as opposed to fairly directing attention just to the question of quantum.
66 Against that background, I now turn to this application. In my view, the offence committed by the respondent was a very serious one and it had grave and wide-ranging consequences for the applicant. I consider it to have been essential to the bringing of this application for there to have been a recent assessment and medico-legal report from a suitably qualified neuropsychologist. After all, the respondent caused an injury to the applicant’s brain and that injury resulted in post-traumatic epilepsy, memory problems and PTSD. I also consider, in light of the language difficulties faced by the applicant, that it has been essential for the applicant to have engaged the services of a Dinka interpreter for the purposes of preparing and presenting his application for compensation. For example, he could not have given evidence and been cross-examined without the benefit of such an interpreter. I accept that the need for such assistance has added to the cost and complexity of the application. But, I am also mindful that the respondent has concentrated on quantum rather than liability.
67 In the end, all things considered, I have concluded that it is appropriate, in the exercise of my discretion, to make an order for costs, but not for the full amount sought by the applicant. I consider it fair and just to order that the respondent pay the applicant’s costs in the amount of $7,500, and I do so.
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