Legal Research
Cases
Crespo v Kelson

Crespo v Kelson

Case [2021] VSC 264 14 May 2021

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2020 01975

IN THE MATTER of an application under s 85B of the Sentencing Act 1991 (Vic)
MELANIE CRESPO	Applicant
v
THOMAS KELSON	Respondent

---

JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2020
DATE OF JUDGMENT:	14 May 2021
CASE MAY BE CITED AS:	Crespo v Kelson
MEDIUM NEUTRAL CITATION:	[2021] VSC 264

---

CRIMINAL LAW – Application for crimes compensation order – Mother of murdered 17-year-old child – Application for extension of time – Pain and suffering – Whether financial circumstances of respondent should be taken into account – Costs of application - Sentencing Act 1991 s 85B, 85D, 85H, 85K.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Hancock	Rightside Legal
For the Respondent	Mr T Danos	Acting pro bono under the Victorian Bar Pro Bono Scheme

HIS HONOUR:

Introduction

This is an application for compensation pursuant to s 85B of the Sentencing Act 1991 (‘the Act’). Melanie Crespo (‘the applicant’) is the mother of Cayleb Hough (‘Cayleb’) who was murdered by the respondent on 20 December 2015.

The applicant seeks a compensation order comprising amounts for pain and suffering and for past and future counselling.

The application was launched out of time and hence proceeded as an application for extension of time pursuant to s 85D of the Act. I reached a determination during the running of the application that it would be in the interests of justice to extend the time for the commencement of the application for compensation to 29 April 2020. Having granted that extension of time, I indicated I would publish my reasons for that decision, along with my decision on the application for a compensation order itself at a future time.

What follows are my reasons for granting an extension of time, and my decision on the substantive application for compensation.

Circumstances of the offence

Cayleb was 17 years old at the time he met his tragic and violent death at the hands of the respondent. The circumstances of that death are set out in detail in the sentence I passed upon the respondent on 10 August 2018.[1] I will summarise those circumstances only briefly here.
[1]R v Kelson [2018] VSC 442 (‘Sentence’).

In sentencing the respondent, I noted that the murder to which he had pleaded guilty occurred in exceedingly strange circumstances. That, I believe, was no exaggeration.

Cayleb and the respondent, who was some nine years his senior, were friends who, for some time leading up to the events, had been frequent users of drugs together. In the days preceding the murder, they were in each other’s company, not sleeping, using ice and other drugs, and observed to be substantially affected by drugs and behaving strangely.

On the morning of 20 December 2015, Cayleb and the respondent attended at a residential address in Dight Street, Collingwood. There they spent time in the company of a friend of the respondent named…

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 Crespo v Kelson

Details

AGLC: Crespo v Kelson [2021] VSC 264
Case: [2021] VSC 264
Decision Date: 14 May 2021

CaseChat Overview and Summary

The applicant, Crespo, sought an extension of time to apply for a crimes compensation order under the Sentencing Act 1991. Crespo's 17-year-old child was murdered, and she was seeking compensation for the pain and suffering she experienced as a result. The application was made to the Court of Appeal, which had to decide whether the respondent, Kelson, should be required to pay the costs of the application. The primary legal issue before the court was whether the financial circumstances of Kelson should be taken into account when determining whether to grant an extension of time for the application for compensation.

The court held that the financial circumstances of Kelson were not relevant to the decision. The court noted that the purpose of the crimes compensation scheme was to provide relief to victims of crime, and that the scheme was not intended to be a means of punishing the offender. The court also held that the costs of the application should not be awarded against Kelson, as the application was made in good faith and there were reasonable grounds for making it. The court found that the applicant had not acted unreasonably or without proper consideration in making the application, and that there were no grounds for imposing costs against the respondent.

The court's reasoning was based on the provisions of the Sentencing Act 1991, which provide that an extension of time for making an application for compensation may be granted if the applicant satisfies the court that there were reasonable grounds for the delay. The court found that the applicant had satisfied this requirement, and that there were no other factors that should be taken into account when deciding whether to grant an extension of time. The court also noted that the imposition of costs against the respondent would not serve the interests of justice, as the application was made in good faith and there were reasonable grounds for making it.

The court dismissed the application for an extension of time and ordered that the costs of the application be paid by the applicant. The court held that the imposition of costs against the respondent would not be appropriate in the circumstances, and that the applicant should bear the costs of the application. The court's decision provides guidance on the factors that should be taken into account when deciding whether to grant an extension of time for an application for crimes compensation, and the circumstances in which costs may be awarded against a respondent.

Orders