Chetcuti v Cardamone - [2021] VSC 194

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2020 01980
S ECI 2020 01981
S ECI 2020 01982

JACK CHETCUTI KATE CHETCUTI TONY CHETCUTI	Applicants
v
MICHAEL CARDAMONE	Respondent

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2020
DATE OF JUDGMENT:	21 April 2021
CASE MAY BE CITED AS:	Chetcuti & Ors v Cardamone
MEDIUM NEUTRAL CITATION:	[2021] VSC 194

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CRIMINAL LAW — Applications for compensation orders — Application for extension of time — Applicants ex-husband and children of deceased — Application for extension of time granted — Applicants demonstrated they have suffered injuries as a direct result of offence — Compensation awarded — Sentencing Act 1991 (Vic) s 85B, s 85C, s 85D, s 85H and s 85I — Confiscation Act 1997 (Vic) s 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J Dounias	John Suta Legal
For the Respondent	Mr R O’Neill

HIS HONOUR:

In this matter, there are three applications for compensation orders pursuant to s 85B of the Sentencing Act 1991 (Vic) (the ‘Act’). The applicants are the ex-husband, son and daughter of Karen Chetcuti (the ‘deceased’) who was murdered by the respondent on 12 January 2016 near Wangaratta.

Each applicant has also filed a second application for an extension of time to file the applications for compensation.[1] I will deal with each application in turn.
[1]Sentencing Act 1991 (Vic) s 85D (‘Sentencing Act’).

Procedural history

On 19 January 2016, the respondent was charged with the murder of the deceased. Upon the application by the Director of Public Prosecutions (the ‘Director’) under the Confiscation Act 1997 (Vic) (‘Confiscation Act’), Incerti J granted a restraining order in relation to real property at Whorouly Road, Whorouly (the ‘Whorouly Road property’) that was jointly owned by the respondent and his mother.[2] The restraining order, made 5 February 2016, declared that the Whorouly Road property was restrained for the purpose of satisfying any future compensation claims.
[2]Confiscation Act 1997 (Vic) s 18 (‘Confiscation Act’).

On 24 May 2017, J Forrest J varied the restraining order to allow the Whorouly Road property to be sold and for the respondent’s 50 per cent interest in the proceeds of the sale to be paid into a trust held by the Asset Confiscation Operations (‘ACO’) until further order of this Court. The property was sold, and the respondent’s portion of the proceeds, being $149,000 plus interest, is now in that trust.

On 30 June 2017, the respondent pleaded guilty before this Court to the murder of deceased and to the offence of incitement to murder a prosecution witness, being Edward George. On 25 August 2017, I sentenced the respondent to imprisonment for life without parole.[3]
[3]R v Cardamone [2017] VSC 493 (‘Sentencing reasons’).

The respondent sought leave to appeal against that sentence on 11 September 2017. His application for leave to appeal was refused by the Court of Appeal on 27 August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chetcuti v Cardamone

Details

AGLC: Chetcuti v Cardamone [2021] VSC 194
Case: [2021] VSC 194
Decision Date: 21 April 2021

CaseChat Overview and Summary

The case of Chetcuti v Cardamone involved an application for compensation by the ex-husband and children of a deceased individual against the person convicted of the crime. The dispute centred around the applicants' claim for compensation under the Sentencing Act 1991 (Vic) and the Confiscation Act 1997 (Vic). The applicants sought an extension of time to file their compensation application, which they had initially missed due to procedural difficulties. The case was heard in a relevant court with jurisdiction over criminal matters in Victoria.

The central legal issues before the court were whether the applicants had demonstrated that they had suffered injuries as a direct result of the crime committed by the respondent and whether the applicants were entitled to an extension of time to file their compensation application. Additionally, the court had to consider whether the compensation sought was reasonable and appropriate under the relevant statutes.

The court held that the applicants had indeed suffered injuries as a direct result of the respondent's crime. The court accepted that the applicants' initial failure to file the compensation application within the required time frame was due to circumstances beyond their control, thus granting the extension of time. The court found that the compensation sought by the applicants was reasonable and proportionate to the injuries they had suffered. Consequently, the court ordered that compensation be paid to the applicants, ensuring that they received appropriate redress for their injuries.

Orders