Castelluzzo v State of SA & Ors No. Cicd-96-957 Judgment No. D16

CASTELLUZZO v STATE OF S A & ORS
[1999] SADC D16

Judge Kitchen
Civil

On 20th December, 1994 the second and third defendants, as I find, were convicted of the murder of Cosimo Castelluzzo (“the deceased”) on about 31st December 1992.
This is an application for compensation under the Criminal Injuries Compensation Act 1978 (“the Act”) made on behalf of an infant child, Luke Jory Finnie, who I find was born on 13th January 1991 and, as the deceased acknowledged (Exhibit P1), is the child of the deceased and Rhonda-Lee Finnie.
The defendant Mark Raymond Smith did not appear on the hearing of the application. The defendants the State of South Australia and Colin Frederick Turner, did appear and each was represented by counsel. Both personal defendants are serving terms of imprisonment imposed for their crime.
Section 7(2) and 7(7) of the Act provides in effect that where the victim of an offence dies as a result of injuries arising from an offence, and no previous order for compensation has been made under the Act in respect of that injury, a suitable person may within twelve months of the date of death apply to the Court on behalf of the dependents of the victim for an order for compensation in respect of the financial loss suffered by the dependents.
The summons initiating this application was filed on 20th December 1996 by Nicola Castelluzzo, the father of the deceased. On 9th February 1997 an order was made extending to 20th December 1996 the time for the making of the application. Nicola Castelluzzo died after the filing of the application and the application has been continued by Maria Castelluzzo, the mother of the deceased.
Neither of the parents of the deceased claim to have suffered any financial loss as a result of his death and Ms Finnie does not claim that she was a dependent, as defined, of the deceased. The application therefore is limited to a claim for compensation for the financial loss suffered by Luke.
The sum to be awarded pursuant to the Act should be assessed as that payable according to the principles applicable to an award of damages in a civil suit; In re Poore (1973) 6 SASR 308; Boyle v Morshead (1983) 33 SASR 1. However pursuant to section 7(8) of the Act where the financial loss exceeds $2,000 the award is to be $2,000 plus three quarters of the excess but not exceeding $50,000.
Ms Finnie, the deceased’s brother Antonio Castelluzzo, Maria Castelluzzo and the deceased’s uncle, Peter Castelluzzo, gave evidence in the applicant’s case.
The deceased was the second of Mrs. Castelluzzo’s three male children. He was born on 21st July 1961. Theodore was the eldest of the children, Antonio was the youngest. The deceased left school at about 16 years of age and went to work in a Pizza Bar for about two years following which he was employed as a spray painter, also for about two years, and then as a market hand. He had other jobs of a labouring kind until in about 1985 he was employed by his Uncle, Peter Castelluzzo who owned the business PBC Demolitions. Approximately a year after obtaining that job, the deceased was injured in a motor vehicle accident as a consequence of which he was incapacitated for work for about one year before returning to his employment at PBC Demolitions which continued until in about December 1988.
In the financial year ending 30th June 1988, the deceased’s earnings were $21,193 less $4,743 for tax and medicare levy; that is about $316 per week net. In the period lst July 1988 to 27th December 1988 the deceased’s earnings were $13,577 less deductions of $3,769 for tax; extrapolating that for twelve months is about $377 per week net. The evidence of those earnings is contained in Exhibit P8. Except for some work for part of the period August to December 1992, and as to that it is not clear whether the deceased was paid or not, it appears that the deceased did not have paid work between December 1988 and his death in December 1992, or any income although it is possible he received the unemployment benefit.
There was some difference between the witnesses who gave evidence on the topic as to when it was the deceased’s brother Theodore died by drowning, but I accept the evidence of Peter Castelluzzo that after it occurred the deceased did not return to work at PBC Demolitions; Peter Castelluzzo, as I understand his evidence, identified the pay slips in Exhibit P8 to be those to the date, 27th December 1988, after which the deceased did not return to work at PBC Demolitions. Antonio Castelluzzo said that the deceased worked at PBC Demolitions in the year 1989 and Maria Castelluzzo said that the deceased returned to that work after Theodore’s death. After admitting some confusion Antonio Castelluzzo agreed that Theodore died in January 1989; I accept that to be the approximate date of Theodore’s death and I find that the deceased did not work for PBC Demolitions in 1989 and there is no evidence that he had any paid employment after Theodore died.
The death of Theodore, it is said by Peter and Antonio Castelluzzo, had an impact upon the deceased. Before that event and although, as his antecedents (Exhibit 1D6) reveal he had not led an unblemished life, he had, Peter Castelluzzo said, an ambition to own his own demolition business and was of happy disposition, but thereafter he became moody, went off the rails a bit, ended a relationship of many years standing with a young woman, took up with a group of bikies and incurred further convictions for, initially, regulatory type offences but culminating in July 1990 with a sentence to six years imprisonment for rape, attempted rape and robbery with violence; a non-parole period of two and a half years was fixed which was subsequently extended by nine months when the deceased was sentenced to further terms of imprisonment for assault, receiving and shopbreaking and larceny. Prior to those incarcerations Ms Finnie, in 1989, then aged 18 years had met the deceased and after a short time they began living together in a de facto relationship some time in 1990, an arrangement which lasted for about four months until the deceased was imprisoned. Ms Finnie said the deceased was a member of a bikie group, the War Lords, and in the period of eight or nine months she knew him before he was imprisoned he was not employed. Ms Finnie was working as an entertainer.
Ms Finnie said that the relationship of boyfriend and girlfriend between her and the deceased continued while he was in prison, where she visited him, until, about eight weeks before Luke was born, they argued and the relationship came to an end although they continued to be friends.
Ms Finnie deposed that after Luke’s birth she took him to the prison to see the deceased and the deceased evinced great affection for and interest in the child - he wrote to Ms Finnie, penned a poem about the child, enquired after its needs and health, particularly following a hernia operation Luke had when nine weeks old, and during the period after Luke was born until the deceased was released from prison in August 1992 Antonio Castelluzzo on five or six occasions gave her $50 and sometimes $100 and she received like amounts when she visited the deceased’s parents every two or three weeks. Ms Finnie could not say what was the source of those payments. Antonio Castelluzzo did not give evidence of paying any money to Ms Finnie and Maria Castelluzzo spoke only of visiting Ms Finnie in hospital once and giving her money and then subsequently giving her “a substantial sum and we also bought some items for the child”. Ms Finnie spoke of a belief that the deceased had moneys in the trust account of a solicitor. I am prepared to accept Ms Finnie’s evidence that while the deceased was in prison she did receive from either Antonio Castelluzzo or from the deceased’s parents moneys of the order of those she spoke of and that if they did not come from the resources of the deceased then at least they were paid at his request and they are evidence of his voluntary assumption of a responsibility for Luke.
Ms Finnie said that when the deceased was released from prison in August 1992 he resided with his parents until his death in December 1992. I accept her evidence, and that of Antonio and Maria Castelluzzo which is to the same effect, that the deceased showed a great interest in Luke taking care of him, either at Ms Finnie’s home or at his parents’ house, when Ms Finnie was working as a waitress serving lunches and dinners at an establishment in the city and also working in a review all of which involved shiftwork on each day of the week except Monday. Except that for some months in that period the deceased was engaged in assisting a friend of his to dismantle and shift a building and he was also using his parents’ garage to fix motor cars for friends it appears the deceased had no employment. Ms Finnie said that although she did not see any payslip relating to the deceased’s work to dismantle the building she believed he was getting paid because the deceased brought her “bags of food and things like that”. Her evidence was :
“Q.... From the time of his release until the time that he disappeared, to your knowledge was Cosimo working for money.
A.Yes.
Q...... Where was he working.
A.He was helping a friend of his pull down a pizza bar.
Q...... In that time did he contribute anything to your household.
A.Yes, he did.
Q...... What did he do.
A.He bought nappies and food, toys for Luc, clothes.
Q...... Did he buy any furniture.
A.A coffee table, a phone table.
Q...... Any drinking utensils.
A.He bought me all the champagne flutes, all the glassware I never had. I got crockery and stuff.
Q...... Can you say of your own knowledge how much he spent on Luc at that time.
A.Off the top of my head a couldn’t.
Q...... Can you estimate that.
A.In all the time?
Q...... No, from his release until his disappearance.
A.I really don’t know.
Q...... You spoke about a talking dinosaur and a bicycle and some lamps, I think.
A.Yes.
Q...... Were there gifts for Luc after Cosimo’s release from gaol.
A.Yes, that talking dinosaur was about $60 and I think one of the kid’s push bikes; I’m not really sure on how much the little ones are worth. About $60 I think. We never had a coffee table or phone table. What we didn’t have Cosimo made sure we had.”
This topic was pursued in cross-examination.

“Q.... During this period after his release and prior to his disappearance, how much do you say he was contributing per week to the household.
A.As in money?
Q...... Yes.
A.I made a lot more money than he did, a lot more money.
Q...... How much was he contributing.
A.Financially?
Q...... Yes.
A.He would buy food, would save me a fortune in baby-sitting.
Q...... How much money per week was he contributing to the household during this period after his release prior to his disappearance when he was around your house.
A.About $50 a week.”

but she accepted that there were some weeks when the deceased would not have contributed as much as $50 per week. Her evidence, as I infer, is that the deceased provided for Luke not money but food and other items and took care of Luke while Ms Finnie worked.

Ms Finnie said that she and the deceased spoke about Luke’s education and they agreed that they would wish to see him educated at a private school, Blackfriars, the present fees for which are shown in Exhibit P5.
Following Luke’s birth Ms Finnie applied for and was granted a supporting parent’s pension. She said that it was an incident of that application that she sought maintenance for Luke from the deceased. The Child Support (Assessment) Act 1989 imposes an obligation upon a parent of a child to support that child according to the terms of that Act. In summary the obligation so imposed from time to time upon a liable parent with no other dependent children has been a sum equal to 18 percent of the liable parent’s taxable income in the relevant income year in excess of the “exempted” income: the exempted income is the single rate of Social Security pension applying in the relevant year; in the income year 1991-92 it was $7,584 and in 1998-99 it is $9,043. So, were the deceased to have earned in 1991-92 a taxable income of about that he was earning at the time he ceased working for PBC Demolitions, approximately $27,000, his obligation for child support under the Act would have been 18 percent of $27,000 - $7,584, that is $3,530 or about $67 per week.
The same taxable income in 1997-98 (the obligation being the taxable income in the financial year immediately preceding the date of assessment) would have yielded 18 percent of $27,000 - $9,006, that is $3238 or $62 per week.
These statutory obligations are not decisive of the quantum of Luke’s loss of support by reason of the deceased’s death but they are of some assistance on the question.
Ms Finnie said that the deceased told her that he intended to pay the “arrears”; she implied that the Child Support Agency had made some assessment against the deceased for a child support payment. This evidence is also somewhat vague and except that it indicates the deceased’s attitude to contributing toward Luke’s support it does not really assist me in deciding the issue of Luke’s financial loss.
After his release from prison the deceased it seems disassociated himself from his former connections with the bikie group, he is said to have lived quietly, rarely going out to socialise, and he was sober in his habits. He spoke with Peter Castelluzzo looking for work with him but that business had contracted and no work was available although Peter Castelluzzo told the Court that he offered work to the deceased were his business to obtain further contracts. This evidence, which I accept, indicates that the deceased was looking to lead a productive life but his former associations put him in fear for his safety and he spoke of quitting the State to go to Queensland which I infer was an intention he expressed after he was the victim of an assault following his release from prison.
In my opinion the approach of the Court to assessing the financial loss suffered by Luke by reason of his father’s death should be on the basis of the amount which the deceased, but for his death, would have been likely to contribute for Luke’s support: compare: Oakes v Herrawaine (1980) 91 LSJS 50.
Ms Finnie’s evidence concerning the support for Luke which she received from the deceased in the period between the deceased being released from prison and his death in December 1992 was a broad and somewhat imprecise estimate, as the passages from her evidence show, but I accept the evidence she gave and find on the balance of probabilities that not only did the deceased have a genuine fatherly affection for Luke but he also recognised and assumed an obligation to contribute toward Luke’s support. I am also satisfied that the deceased, but for his death and subject to his means, would have continued to provide such support at least until the child finished school, and perhaps beyond that time.
It was submitted that the deceased’s criminal record would have been an impediment to him obtaining employment and that the deceased may have re‑offended, both of which should bring the Court to have regard to the real contingency that the deceased’s employment may have been discontinuous and thereby disrupted the flow of financial support for Luke. Counsel for the plaintiff submitted that until the death of Theodore, the deceased had demonstrated the capacity to be fully employed, that his infractions of the law were relatively minor, he had plans for a productive life, made an investment in real estate and it was the deceased’s reaction to Theodore’s death which precipitated him into an unproductive and criminal lifestyle. It was urged, that either alone or in combination with more mature reflection upon the consequences of his recent past, the birth of Luke brought about a change in the deceased evidenced by his intent to avoid his former associations and his responsible concern for Luke and therefore not only should the fact of his prior convictions upon the deceased’s prospect of securing manual-labouring type work that he had previously done be seen to be of little or no effect, but also the Court should not readily judge the deceased to have been likely to re‑offend and consequently be imprisoned.
Although there is force in the submission by counsel for the plaintiff that a criminal record like that of the deceased would not present the same impediment to a man seeking work as a labourer as it would to one seeking work in some other occupations, in my view convictions and imprisonment for the offences of robbery, receiving and larceny (all of which involve dishonesty) recorded against the deceased cannot be set at nought in considering the deceased’s employment prospects. Too much weight should not be given to his criminal record but it is a factor to be taken into account on the question of the deceased’s prospects of obtaining and continuing in regular employment.
The matters canvassed in the two immediately preceding paragraphs are of course particular to the deceased’s history before his death and are to be weighed together with the other future contingencies at the time of his felonious death - periods of unemployment because of labour-market factors, sickness or ill-health or the deceased having further children which would reduce his financial capacity to contribute to Luke’s support. Other factors are the death of the deceased or of Luke before Luke attained the age, say 16, at which he became self supporting. These are adverse contingencies. There are favourable contingencies; the deceased’s earning capacity may have exceeded that which his employment with PBC Demolitions indicates and whether it did or not the deceased may have also been able and willing to voluntarily contribute to the cost of Luke being privately schooled and financially support him beyond his attaining 16 years to further his education.
Ms Finnie estimated that it presently costs her $70 per week for Luke’s food and each year she purchases clothing for him to the value of $500 to $1,000 - she was not seriously challenged upon those estimates and making allowance for the general nature of her evidence on the topic, in my view they are not unreasonable.
I am satisfied that as a consequence of the deceased’s felonious death at the hands of the defendants, Luke has suffered financial loss and is entitled to compensation under the Act, both for the period prior to the hearing and for the future.
I accept that from the date of his release from prison to the date of his death the deceased contributed in the order of up to $50 per week to Luke’s support. Athough the source of that contribution is not entirely clear it is likely it came from the deceased’s own assets or income and it was voluntarily made. I note there was no evidence as to the quantum of the deceased’s estate.
It is more likely than not in my view that but for his death the deceased, if he had the means, would have continued to financially contribute for the assistance of his child for whom he appears to have had a genuine affection and concern. I accept the evidence of Ms Finnie that the deceased would have also contributed to the cost of Luke’s education at a private school, were the deceased able to afford to do that. Exhibit P5 is a schedule of the tuition fees and other amounts charged by Blackfriars Priory School in 1998 for pupils in the various grades specified. The tuition fees alone were $1,990 per year in Year 3 and $2,630 per year in Year 12. Ms Finnie said that she has been financially unable to educate Luke at Blackfriars - he attends a State school.
The deceased on the evidence was clearly unsettled (he did not have full-time permanent work and he was contemplating moving to another State) and therefore immediately before his death his future was uncertain.

I have mentioned contingencies, favourable and unfavourable, which both to date and in the future may have impacted upon the level of the deceased’s financial support of Luke and the duration of it. There can be no award based upon arithmetical precision. It appears that even when the deceased did not have full-time, or indeed any, regular work he contributed more often than not $50 per week for Luke’s support. It is unlikely he would have remained essentially unemployed and more likely that but for his death he would have soon obtained full-time work; in that event in my view the deceased would have contributed more for Luke’s support. How much more it is impossible to say, but the obligation imposed by the Child Support (Assessment) Act 1989 is some measure of what it would likely have been even if one were to ignore the evidence, which I accept, that the deceased willingly contributed what he could. On the other hand, in my view some allowance must be made for the adverse contingencies I have mentioned. Balancing the various competing factors, in my view the loss of financial support for Luke is closer to $50 per week than any much higher on lower figure but the period of dependancy would likely have ceased before Luke attained the age of 18 years having regard to the background of each of the deceased and Ms Finnie.
$50 per week from the date of the deceased’s death to the date of judgment is approximately $15,800. The same weekly sum for the future based on the table (in Luntz: Assessment of Damages, Third Edition) of the present value of $1 per week to Luke’s 17th birthday on 3 percent compound interest with no allowance for mortality is $20,600. I assess the past and future loss of financial support in the sum of $35,000. No interest can be awarded upon any part of the compensation.
The quantum exceeds $2,000. Applying the provisions of section 8 of the Act the award of the Court is $26,750. Pursuant to section 7(7) of the Act there will be an order that that amount be paid by the Crown.
Pursuant to section 7(11)(d) of the Act I shall endorse on the order:-
1...... That the claimant has not received and is not likely to receive any payment other than the compensation pursuant to this order.
2.That the means of the defendant Turner so far as ascertainable by the Court is the land and premises comprised in Certificate of Title Register Book Volume 5315 Folio 972 and Certificate of Title Register Book Volume 5258 Folio 844.
3...... That the Court has no information as to the means of the defendant Smith.
For completeness I record there was no evidence before the Court of any conduct on the part of the deceased which contributed to the commission of the offence by the defendants.
I will hear counsel for the plaintiff upon the precise form of the order for payment of the assessed compensation. Luke is a minor and in those circumstances my present view is that the quantum of the compensation should be paid to Public Trustee and administered by that authority as trustee for Luke.
I will also hear counsel on the question of costs.

[1999] SADC 16

18 February 1999