Chetcuti v Cardamone
[2021] VSC 194
•21 April 2021
| 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 2019.[4]
[4]Cardamone v The Queen [2019] VSCA 493 (‘Appeal reasons’).
In 2018 and 2020, Jack and Kate Checuti, respectively, were awarded financial assistance by the Victims of Crime Assistance Tribunal (‘VOCAT’) pursuant to the Victims of Crime Assistance Act 1996 (Vic) (‘VCA Act’). I will return to the relevance of these awards later.
The applicants are also applicants in a civil matter pursuant to the Wrongs Act1958 (Vic), claiming damages against the State of Victoria for the wrongful death of the deceased.
Circumstances of the offence
A complete account of the circumstances of the offence were set out by me at the time the sentence was imposed.[5] It is unnecessary to repeat them here beyond a brief summary.
[5]Sentencing reasons.
At the time of the offence, the respondent was living at the Whorouly Road property, and the deceased was his neighbour. Sometime in the evening of 12 January 2016, the respondent physically attacked the deceased at her residence. He restrained her and then drove off in her vehicle with her inside.
She was still alive when he later transferred her into his own vehicle and left for the Lake Buffalo area in the early hours of 13 January 2016. The respondent injected her with drugs, including xylazine and methylamphetamine, and with battery acid. He inflicted severe injuries to her head and torso. He then doused her with petrol and set her alight. He also drove over the deceased’s body in his four-wheel drive vehicle, causing various fractures. This was done in the presence of the witness, Mr George. He then abandoned her body at that location.
After the respondent was charged with the murder of the deceased, he was held in custody at the Metropolitan Remand Centre. In a conversation with another prisoner, the respondent indicated he wanted Mr George killed as he had made a statement to police. The respondent was put in touch with a “hitman” who was, in fact, a covert police operative. The respondent promised to pay $25,000 for the killing of Mr George that would be paid in two instalments by the respondent’s mother.
The sentence
After considering the nature and circumstances of the deceased’s murder, and the significance of community protection, denunciation and general deterrence as sentencing factors, I imposed a head sentence of life imprisonment.
I declined to fix a minimum term of imprisonment for several reasons, including:
1. [The respondent’s] offending was thoroughly unprovoked, extraordinarily violent and horrifyingly callous with a variety of means being employed to create terror and suffering in the deceased woman before her extremely painful death. [The deceased] must have gone through an extended period of suffering before her death and, in all likelihood, spent the hours she was conscious expecting to be murdered. Every conscious choice [the respondent] made between the hours of 9:00 pm on 12 January and about 6:00 am on 13 January was at the very high end of criminal culpability.
2. [The respondent’s] conduct in the days after the offence, in which [he] began an elaborate attempt to escape responsibility by a variety of lies to police, demonstrated a complete absence of any form of regret or remorse for what [he had] done and complete disdain for the family and friends of the woman [he] murdered.
3. [The respondent’s] attempt to arrange for the murder of [Mr George] not only gives an insight into [the respondent’s] lack of regret or remorse for the murder of [the deceased] but is a crime which warrants significant punishment as an offence not only toward an individual but threatening the system of criminal justice. This offending is a particular distinguishing feature of this case.[6]
[6]Sentencing reasons [97].
I also expressed the view that, based on the evidence before the Court, the prospect of the respondent’s rehabilitation was ‘non-existent’.[7]
[7]Ibid [81].
I concluded — and the Court of Appeal later confirmed — that ‘dreadful crimes… may require a dreadful punishment’.[8]
[8]Ibid [93] quoting R v Coulston [1997] 2 VR 446, 463; Appeal reasons [129].
Representation for the respondent
In the period leading up to the hearing of these applications, the respondent was not represented by legal counsel. I considered that it was in the interests of justice to refer the respondent for pro bono legal assistance to ensure that he understood the nature of these applications, and his entitlement to challenge the evidence and debate any relevant issues. Counsel was then appointed to the respondent through the direct referral scheme offered by the Supreme Court of Victoria and Victorian Bar.
On 17 September 2020, counsel appeared on behalf of the respondent and informed the Court that the respondent did not oppose the ss 85C or 85D applications, and that he would not be filing any materials or making any submissions on the substantive application.
Counsel for the respondent advised that the respondent was content for the Court to accept the materials filed on behalf of the applicants and that ‘the applicants should receive appropriate compensation from the resources that are available’.
Application for extension of time
Section 85C of the Act requires that applications for compensation be made within 12 months after the offender is found guilty, or convicted, of the offence. These compensation applications were filed 30 April 2020, which is some 34 months after the respondent pleaded guilty to this offence. They are substantially out of time.
However, s 85D gives the Court the discretion to grant an extension of time to make a compensation application if it is in the interests of justice to do so. That discretion remains even if the application for the extension is made after the 12-month limitation period has already expired.[9] Leave for an extension must not be given without giving the respondent a reasonable opportunity to respond to the application.[10]
[9]Sentencing Act s 85D(2).
[10]Ibid s 85D(3).
To determine whether to discharge this discretion under s 85D, it is necessary to consider the reason for the delay.
It appears that the cause of this significant delay was the applicants’ solicitor, John Suta, who was operating under the mistaken assumption that the Director would make s 85B applications on the applicants’ behalf. As a result, the applicants were not made aware of their right to make compensation applications until April 2020. It was then that Mr Suta was contacted by a solicitor from the Office of Public Prosecutions, enquiring whether any such applications were on foot. It was only after this solicitor corrected Mr Suta’s misunderstanding, that he advised the applicants about their claims pursuant to the Act. That was on 27 April 2020.
Counsel for the applicants, Mr Dounias, submitted to the Court that, after being so advised, the applicants were prompt in instructing Mr Suta file the compensation applications on their behalf.
In my opinion, the applicants should not be punished for the conduct of their solicitor, which was product of error. I accept that the applicants themselves did nothing to contribute to the delay in making the applications.
I will therefore grant an extension of time for the filing of the compensation applications on the basis that it is in the interests of justice to do so for the following reasons.
First, the purpose of the compensation scheme under the Act is to provide a convenient mechanism for redress to the victims of crime, and this Court has found that the term ‘interests of justice’ within s 85D should be construed liberally.[11] To do otherwise would render legitimate claims for compensation dismissed in favour of the objective of finality of litigation.[12]
[11]See eg Moresco v Budimir [2015] VSC 51; Paulino v Paulino [2020] VSC 642.
[12]See eg Robertson v Esso (Australia) Pty Ltd [2004] VSC 101.
Second, the applicants have genuine and well-founded claims for compensation under this regime.
Third, the respondent, as indicated previously, has had the opportunity to be heard on the matter and does not oppose the extension application nor has the respondent suggested that he has suffered any real and significant prejudice as a result of the delay.
The compensation applications
Relevant considerations
Applications for compensation are governed by s 85B of the Act, which provides that the Court may make a compensation order against an offender in favour of a person who suffered injury as a direct result of the offence. It is not required that the compensable injury arose solely due to the offence, but only that the offence had a significant role in causing the injury.[13]
[13]Kaplan v Lee-Archer (2007) 15 VR 405.
Accordingly, all three of the applicants are ‘victims’ within the meaning of s 3 of the Act and for the purpose of these applications.
Injury as defined in s 85A of the Act allows compensation orders to 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 likely to be incurred, by the victim as a direct result of the offence;
d) for some or all of any other expenses actually or reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence not included any expense arising from loss of or damage to property.[14]
[14]Sentencing Act s 85B(2).
Although personal grief or trauma cannot be measured in any ledger, it has been accepted that factors relevant to assessing compensation in relation to grief or trauma include:
·the circumstances in which the death occurred;
·the effect on the person of hearing of the event causing loss;
·the closeness of the relationship between the person and the victim;
·the age of the person; and
·the extent of grief and psychological suffering experienced as a result of the loss.[15]
[15]See DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116 [50] (‘Energy Brix’). See also Liang v Chalmers [2011] VSCA 439; Shepherd v Kell & Day [2013] VSC 24.
The amount of compensation to be paid to an applicant is entirely within the discretion of the Court, provided that the claims fall within the categories set out under s 85B(2).[16]
[16]RK v Mirik [2009] VSC 14.
In determining this amount, the Court may have regard to the financial circumstances of the respondent and any burden that could result from payment of the compensation order.[17] However, these considerations have limited relevance in the circumstances of the present applications where the respondent has been sentenced to life imprisonment without parole.
[17]Sentencing Act s 85H.
Finally, the compensation must also be reduced by any amount awarded to the applicants under the VCA Act.[18]
[18]Sentencing Act s 85I.
Evidence on the application
All three applicants seek a compensation order for pain and suffering. Jack and Kate Checuti also seek compensation for expenses for reasonable counselling services be included in those orders.
The materials filed in support of the applications include affidavits from each of the applicants, the original victim impact statements from the sentencing proceedings, and medical documentation.
Tony Chetcuti
Tony Chetcuti was 57 years of age at the time of the death of his former wife. In his affidavit, sworn 25 June 2020, Tony Chetcuti described the relationship he had with the deceased as one of friends and equals. They began to live together in 1985 and they were married in 1999. They had two children. After their separation in 2010 and divorce in 2014, they remained amicable and shared parenting responsibilities for their two children until the time of her murder.
Tony Chetcuti recounted the events leading up to and after the discovery of the deceased’s body. He stated that when police informed him of her death, he ‘broke down’. He was also responsible for telling their children about their mother’s death.
Learning of the exact circumstances of her death caused him significant distress. He experienced difficulty sleeping and nightmares about the details of her murder. He reportedly began consuming alcohol in an effort to help him with nightmares and intrusive thoughts.
He admitted to considering taking his own life after her death but was unable to do so because of their children. He also became withdrawn from people and lost interest in activities he formerly enjoyed, such as jogging, riding a bicycle and cooking. He has been treated with various medications and has been prescribed the antidepressant Lexapro as well as temazepam for his insomnia.
Tony Chetcuti was referred to clinical psychologist Dr Debra Monk under a Mental Health Treatment Plan (‘MHTP’) in August 2017. In a letter to his general practitioner, dated 13 December 2017, she confirms that he attended six sessions with her in relation to anxiety and complex grief. On her recommendation, the MHTP plan was reviewed, and he was referred for additional sessions.
Dr Monk also prepared a psychological report for Tony Chetcuti in relation to an application for Disability Support Pension on 26 September 2017. In her report, she concluded that he developed post-traumatic stress disorder (‘PTSD’) and major depressive disorder (‘MDD’) following the death of the deceased and is unable to work. Dr Monk indicated that his prognosis is poor, and he will need to continue antidepressant medication and psychological therapy to manage his depression and PTSD.
Specialist psychiatrist Professor Lorraine Dennerstein provided two medico-legal reports in relation to Tony Chetcuti following assessments on 9 November 2017 and 23 July 2020. Professor Dennerstein concluded that he met the criteria for Persistent Complex Bereavement Disorder (‘PCBD’) with Traumatic Features and Alcohol Use Disorder. She observes that his PCBD is in partial remission due to treatment, which included antidepressant medication and counselling, and has shown further improvement in the time between her assessments.
Her most recent report indicated that his Alcohol Use Disorder has been in partial remission over the last six months after having to reduce his alcohol due to a diabetes diagnosis. Professor Dennerstein noted that, although his depression has improved, he continues to experience low motivation, insomnia and lowered moods associated with thoughts about the deceased’s death.
A Certificate of Determination, dated 7 September 2018, was issued pursuant to s 28LZG(2)(a) of the Wrongs Act 1958 (Vic) in relation to Tony Chetcuti. The Medical Panel determined that the degree of psychiatric impairment caused by his psychiatric injuries, being PCBD and Alcohol Use Disorder, meets the threshold of ‘significant injury’.
Jack Chetcuti
Jack Chetcuti was 15 years of age at the time of his mother’s murder and stated that they had a very close relationship. He detailed the ongoing impact of his mother’s death in his affidavit sworn 9 July 2020. It appears that, following his mother’s death, he withdrew socially and continues to find it difficult to engage with his peers. Rather than socialising, he immersed himself in movies and videogames. Although he experienced a lack of motivation and struggled with the demands of school, he completed his VCE and has now commenced studies in film and television.
His original victim impact statement also described his difficulties dealing with the loss of his mother as thoughts about her are too painful, and it scares him. He stated that he no longer has motivation to do things and did not have hope for the future.
Jack Chetcuti commenced counselling with psychologist Nicole Royal in September 2017 for depression and Generalised Anxiety Disorder. Their therapeutic relationship appears to have lasted approximately two and a half years, with the last reported session being in February 2020.
Dr Robert Adler, a child and adolescent psychiatrist, provided two reports in relation to Jack Chetcuti following interviews on 15 June 2018 and 14 July 2020. In his first report, Dr Adler diagnosed Jack Chetcuti with Adjustment Disorder with anxiety and depression, and Major Depression. Dr Adler noted that, although he experienced anxiety and depression before, the symptoms had worsened after his mother’s death. He was unable to provide a prognosis at that time because he did not have the notes from his treating psychologist, Ms Royal, but Dr Adler did conclude it was likely Jack Checuti would be vulnerable to anxiety and depression, specifically in response to significant losses or bereavements.
In his second report, dated 12 July 2020, Dr Adler indicated that Jack Chetcuti continues to show symptoms consistent with Chronic Adjustment Disorder with anxiety and depression. Dr Adler opined that Jack Chetcuti continues to be pessimistic about his future and reports experiencing symptoms suggestive of panic attacks.
In Dr Adler’s opinion, Jack Chetcuti may benefit from continued treatment with a psychologist and recommended an allocation for a further 50 sessions. He also recommended that he be assessed by a psychiatrist to assess the suitability of medication for his anxiety and provide ongoing monitoring. In concluding his report, Dr Adler stated:
It is now more than four years since Ms Chetcuti was murdered. Jack is still a young man and the implications of his mother’s death may not become full apparent until later in his adult life. However, I think one must consider that the impairment has stabilised at this time.
Kate Chetcuti
In her affidavit, Kate Chetcuti stated that her mother’s death had a profound effect on her. She states that, as her mother’s body was found on her 14th birthday, her birthday now serves as an annual reminder of her murder. She has also withdrawn from others and describes suffering a ‘lot of bad days’ with low mood, tearfulness and suicidal thoughts.
Dr Adler also conducted two assessments of Kate Chetcuti on 15 June 2018 and 14 July 2020. His most recent report, dated 21 July 2020, confirmed the diagnosis of PCBD from his first report and goes on to state that Kate Chetcuti also experiences symptoms of Generalised Anxiety Disorder and mild Obsessive Compulsive Disorder, although he did not undertake any formal testing. Dr Adler notes that Kate Chetcuti reported hating school and misusing substances after her mother’s death, particular alcohol and marijuana. Although she has reduced her intake of both, she still relies on marijuana as a sleep aid.
Her general practitioner prescribed her an antidepressant in 2018, but she ceased its use in 2019 after her mood improved. When she attempted to resume the medication in early 2020, she experienced significant side effects and decided to stop. Dr Alder indicated that she reported feeling more anxious this year and has experienced acute panic attacks. She also described being ‘different’ to her peers as she feels she does not have a close, loving families they do, and she only has two close friends. Dr Adler noted that her marked issues with self-esteem appeared to have led her to recently quit her job and TAFE course.
In his report, Dr Adler observed that Kate Chetcuti appears to be less reluctant to speak with a mental health professional about the impact of her mother’s death. Recently, she began speaking to a counsellor and had three telehealth sessions. However, she sought a referral to a different psychologist after meeting face-to-face.
In Dr Alder’s opinion, Kate Chetcuti would continue to benefit from further treatment with a psychologist who has experience treating young people with severe traumatic experiences. If her symptoms of anxiety and OCD persist, he also recommended she be assessed by a psychiatrist to determine whether medication would be appropriate.
Dr Adler asserted that ‘the impact of a traumatic death of one’s mother may take some years to manifest in a young person and may only become evidence following key life events, such as having children of her own’.
Submissions of the applicants
On behalf of all three applicants, Mr Dounias, of counsel, submitted that the applicants suffered injury as a direct result of the respondent having murdered of the deceased and that the circumstances of her death are so aggravating that they bear significantly on the assessment of damages for grief and trauma.
Counsel further submitted that the circumstances in which the deceased was murdered were so horrific as to bear significantly on the assessment of the quantum of compensation.
Conclusion
Having regard to s 85A of the Act, I am satisfied that each of the three applicants has demonstrated they have suffered injuries as a direct result of Karen Chetcuti’s murder and are entitled to compensation. The compensation ordered must reflect the genuine effect of the offence on those entitled to be compensated.[19]
[19]Energy Brix [31].
Each of the three applicants has suffered significantly as a result of the death of Karen Chetcuti as I have described. Each of them will carry the effect of that event with them for the rest of their lives. The two children have a particularly long road ahead so far as that is concerned.
The maximum amount of compensation is not limited by statute nor the financial resources of the respondent. No evidence of the respondent’s financial position was submitted to the court, although I note that there is at least $149,000 currently held by the ACO.
Taking into account the considerations I have referred to in para [33] above, in my opinion and pursuant to s 85B of the Act, the appropriate orders for compensation that should be made against Michael Cardamone are as follows:
(a) $288,986.00 to Jack Chetcuti, being compensation in the sum of $320,00.00 less the amount of $31,014 ordered by VOCAT;
(b) $288,165.00 to Kate Chetcuti, being compensation in the sum of $320,00.00 less the amount of $31,835 ordered by VOCAT; and
(c) $240,000 to Tony Chetcuti. Mr Chetcuti was not the subject of any order by VOCAT.
The Court will make orders accordingly.
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