Duncan (a pseudonym) v Hale (a pseudonym)
[2023] VCC 1504
•31 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| CHARLIE DUNCAN (a pseudonym) | Applicant |
| v | |
| BRYAN HALE (a pseudonym) | Respondent |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2023 | |
DATE OF JUDGMENT: | 31 August 2023 | |
CASE MAY BE CITED AS: | Duncan (a pseudonym) v Hale (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1504 | |
REASONS FOR DECISION
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Subject:CRIMES COMPENSATION
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991– physical injuries – psychological injuries – award of costs
Legislation Cited: Sentencing Act 1991 (Vic), s85B;
Cases Cited:Moresco & Ors v Budimir [2015] VSC 51; RK v Mirik and Mirik [2009] VSC 14; Little v Morello [2019] VCC 1424; Athian v Pang [2019] VCC 477; Kori Asana (a pseudonym) v Grima [2015] VCC 655; V1 & Ors v Xydias [2009] VSC 616; Stevens v Baxter [2009] VSC 257; Sullivan v Gibson [2018] VSC 785; DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233
Judgment: Judgment for the applicant in the sum of $75,000 pursuant to the provisions of s85B of the Sentencing Act 1991 (Vic). Respondent ordered to pay the applicant’s costs and disbursements in the sum of $10,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Harry Lewis | Schembri & McClusky’s Lawyers |
| For the Respondent | No appearance | |
HER HONOUR:
Introduction
1Charlie Duncan,[1] makes an application for compensation from the respondent, Bryan Hale,[2] pursuant to s85B of the Sentencing Act 1991 (“the Act”) for injuries suffered as a direct result of offences for which the respondent was convicted on 22 July 2022. The application dated 28 November 2022, was listed for directions on 24 February 2023, 20 April 2023 and 1 August 2023.
[1]A pseudonym.
[2]A pseudonym.
2The application was heard on 24 August 2023.[3] Mr Harry Lewis of counsel appeared on behalf of the applicant. There was no appearance by the respondent. I note the respondent, who is currently in custody, has not engaged in the proceeding since the service of the application.[4] In addition to the application being served on the respondent, the court has also advised the respondent of the hearing dates, organised the prison van to bring him to court and provided zoom links for him to participate in the proceeding remotely.[5] On 16 August 2023 the respondent’s wife, Maxine Hale,[6] co-owner with the respondent of the property located in Warrnambool was served with notice of this application.[7] At the hearing on 24 August 2023, Mr George Koromilas appeared from the body of the court seeking to advocate on the respondent’s behalf stating the respondent had not been served in respect of the application or hearing. I am satisfied the respondent has been served and given a reasonable opportunity to be heard on this application.
[3] The application was originally listed for hearing on 15 August 2023 but was adjourned until 24 August[4] Affidavit of Service dated 30 November 2023 (Exhibit A-3), Affidavit of Service dated 8 February 2023
(Exhibit A-4)
[5] See Orders of Judge Robertson dated 1 August 2023.
[6]A pseudonym.
[7] Affidavit of Service affirmed on 17 August 2023 (Exhibit A-8)
Circumstances
3Her Honour Judge Hassan sentenced the respondent on 22 July 2022 for the charges of affray, intentionally causing injury, assault on an emergency worker on duty, and two counts of resisting an emergency worker on duty. The respondent pleaded guilty to the charges.
4The respondent was sentenced to a total effective sentence of 3 years and 2 months imprisonment with a non-parole period of 1 year and 10 months.
5With minor alterations, I use her Honour’s description of the circumstances in her reasons for sentence:
6On 9 October 2021 Senior Constable Charlie Duncan and Constable Henderson,[8] encountered the respondent’s teenage son Phillip Hale,[9] who was out walking with his mother, the respondent’s wife Maxine.
[8] A pseudonym.
[9] A pseudonym.
7Upon being approached by officers, Phillip refused to co-operate. He told police he was not required to wear a mask and would not give his name.
8Phillip contacted his father, the respondent, via a walkie talkie telling him “coppers” were trying to intimidate him.
9The respondent then arrived on the scene in his car. He got out of the driver’s seat and retrieved a metal baseball bat from the back seat before approaching the police members with the bat covered in a nylon sheath. Police did not realise that the item carried by him was a bat at that point.
10The respondent gave instructions for his son to go home. Anticipating a confrontation, Senior Constable Duncan drew his taser and aimed it at the respondent, telling him to back off several times. He also had hold of Phillip. The respondent then rushed forward and Senior Constable Duncan again told him he would be tasered if he did not back off. He was pointing the device directly at the respondent. A fight broke out (charge 1 – affray).
11Phillip then reached for the firearm within Constable Henderson’s holster. He managed to grab it with both hands before Constable Henderson yelled “gun grab” and placed his hand on his firearm trying to secure it. Senior Constable Duncan managed to wrestle Phillip off the gun and the respondent then took the opportunity to swing the baseball bat at Senior Constable Duncan.
12He swung the baseball bat and struck Senior Constable Duncan with sufficient force to cause him to fall to the ground. Whilst in the foetal position and clenching the back of his head in extreme pain, the respondent struck Senior Constable Duncan directly to the head with immense force multiple times. Senior Constable Duncan described his vision going blurry, his head shaking, the extreme pain, and not knowing whether he was standing or on the ground. He felt as though he was going to die if the attack continued (charge 2 – intentionally causing injury).
13Witnessing what he considered might be a deadly attack, Constable Henderson charged at the respondent to save his partner. The respondent struck him with the bat to the upper torso and neck (part of charge 3). He managed to pry the bat from the respondent whilst Phillip kept punching him to the back of his head.
14Senior Constable Duncan was able to get to his feet before Phillip attacked him and dragged him over to the road by latching onto his vest.
15One of the officer’s taser devices was on the ground about one metre behind the respondent. Whilst Constable Henderson brandished the baseball bat in defence, the respondent tried to kick him. The respondent then moved down and picked up the taser device. Constable Henderson then rushed at the respondent, as he was aiming the taser device at him. The respondent then pulled the trigger (part of charge 3) and hit Constable Henderson’s vest with a single prong from the device. The officer managed to strike the respondent at the same time which caused him to go to the ground still clutching the taser.
16Whilst the respondent held the taser device with his finger on the trigger, he ignored Constable Henderson’s demands to “put it down”. Constable Henderson then deployed OC foam to his face. It had no effect.
17Senior Constable Duncan managed to assist by deploying his OC spray to the respondent’s face. This caused a change of behaviour and the respondent lay on the ground. He refused to listen to police directions and repeatedly tried to stand up. OC spray was again deployed. He said words to the effect of “I am the King”. The respondent stated, “in the name of Lord Jesus Christ, I command you to get off me” (summary charges).
18Two police officers arrived on the scene shortly afterwards to assist in the arrest of the respondent and Phillip. The entire incident was captured on body worn camera, which was played at the plea hearing.
Relevant legal principles
19Section 85B of the Act provides that if a court finds a person guilty or convicts a person of an offence, and on the application of a person who has suffered an injury as a direct result of an offence, it may order the offender to pay compensation of such amount as it thinks fit.
20This application is a civil proceeding and the civil standard of proof, on the balance of probabilities, applies.
21A compensation order may include an amount for pain and suffering as a direct result of the offence and for expenses incurred or reasonably likely to be incurred by the victim for reasonable counselling services as a direct result of the offence.
22As well as actual physical bodily harm, ‘Injury’ is defined to include mental illness or disorder, or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock. It also includes grief, distress or trauma or other significant adverse effects, or any combination of those matters.[10]
[10] s 85A Sentencing Act 1991 (Vic)
23In the case of Moresco & Ors v Budimir,[11] His Honour T Forrest J set out the legal principles as follows:
“A compensation order provides a convenient mechanism for the recovery of compensation by victims. An application for such an order is intended to be quick, cheap and built upon the criminal proceeding. It is designed to avoid the ‘complex or technical rules of procedure as may properly apply’ on a civil application for damages at common law.
If a court convicts or finds a person guilty of an offence it may order the offender to pay compensation to a person who has suffered injury as a direct result of that offence. It follows that on an application such as this a court must ask itself:
1) Was the offender found guilty or convicted of an offence?
2) Has the applicant suffered injury?
3) Was that injury a direct result of the offence?
[11] [2015] VSC 51
If the answer to each of these questions is, ‘Yes’, and the offender has been given a reasonable opportunity to be heard on the application, the Court may order the offender pay compensation in such amount as it sees fit. This amount may represent one or more of the heads of injury countenanced by s 85B(2) of the Act, including pain and suffering, medical expenses, expenses relating to counselling services and other, related, expenses that do not concern damage to property.”[12]
[12] Moresco & Ors v Budimir [2015] VSC 51 at paragraphs [18] – [20]
24Relevant to this application, his Honour went on to say,
“Orders for compensation are not limited to injuries that would be compensable at common law. The Act’s definition of ‘injury’ is broad and includes grief and distress.”[13]
[13] Moresco & Ors v Budimir [2015] VSC 51 at paragraph [21]
25Further, he stated,
“The expression ‘direct result of’, which means ‘an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence.”[14]
[14] Moresco & Ors v Budimir [2015] VSC 51 at paragraph [22]
26His Honour noted,
“If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification.”[15]
[15]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [25]
27In assessing quantum of the entitlement to compensation, His Honour stated:
“The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender’s financial circumstances and the effect of an order on the offender’s prospects for rehabilitation.”[16]
[16] Moresco & Ors v Budimir [2015] VSC 51 at paragraph [25]
28Section 85H of the Act provides that if a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. Justice Bell in RK v Mirik and Mirik[17] observed that the discretionary power permits a court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to a term of imprisonment.[18] Justice Bell noted an adult offender’s means are a relevant, but not a controlling consideration.[19]
[17] [2009] VSC 14
[18] RK v Mirik and Mirik [2009] VSC 14 at paragraph [137]
[19] RK v Mirik and Mirik [2009] VSC 14 at paragraph [135]
29Further, if a court is unable to find out the financial circumstances of the offender, it is not prevented from making a compensation order.[20]
[20] s 85H(2) Sentencing Act 1991 (Vic)
30Pursuant to section 85I of the Act, if an award has been made to the victim under the Victims of Crime Assistance Act 1996, the Court must reduce the amount of compensation for the expense or other matter for which compensation is sought in the application.
Relevant materials
31The applicant relies on the two affidavits of Anita Plesa, who is the applicant’s solicitor. The first, affirmed on 28 November 2022 exhibited the following documents:[21]
[21]Exhibit A-1
(a) Statement to police dated 7 January 2022;
(b) Summary of Prosecution Opening for Plea dated 16 July 2022;
(c) Record of Orders made by Her Honour Judge Hassan on 22 July 2022;
(d) Her Honour Judge Hassan’s Reasons for Sentence;
(e) The statement dated 22 October 2021 by Dr Megan Cooney from the Emergency Department at Southwest Healthcare Warrnambool;
(f) Medical Report dated 18 October 2021 by Plastic Surgery Registrar Dr Toby Vinycomb;
(g) Victim Impact Statement by the applicant dated 20 June 2022; and
(h) The Restraining Order made by his Honour Judge Dyer on 14 December 2021 enclosing the Appraisal of the Restrained Real Estate dated 14 November 2022.
32The second affidavit of Anita Plesa affirmed on 9 May 2023 exhibited the report of Dr Leon Turnbull, Occupational and Forensic Psychiatrist, dated 9 May 2023.[22]
[22]Exhibit A-2
33At the hearing, Ms Plesa affirmed the contents of her affidavits were true and correct.
34Written submissions by the applicant’s solicitors dated 15 June 2023 were filed on the applicant’s behalf.
35At the hearing the applicant Mr Duncan, also gave sworn evidence in addition to confirming the contents of his Victim Impact Statement dated 20 June 2022 were true and correct.
Evidence about injuries
Physical injuries
Thumb
36An exhibited statement by Dr Megan Cooney, Consultant Emergency Physician at the Emergency Department of Southwest Healthcare Warrnambool stated the applicant presented by ambulance to the Emergency Department with the following injuries:[23]
a) Fracture of his first distal phalanx of his left hand;
b) Superficial laceration on right temporal area;
c) Swelling over occipital area;
d) Superficial laceration on the base of the nail of the left thumb.
[23]Exhibit A-1, Court Book (“CB”) 58
37Further investigations comprised of an X-ray showing a comminuted fracture through the first distal phalanx of his left hand and a CT scan of the brain showing no acute injury. He was managed by observation, antibiotics and was referred to a plastic surgery service for further management of his first phalanx fracture.
38In an exhibited medical report dated 18 October 2021 by Dr Toby Vinycomb, Plastic Surgery Registrar at Warrnambool Plastics Reconstructive Surgery, noted the applicant was reviewed on 12 October 2021 and a clinical examination identified suspicion of left thumb nailbed injury with partially avulsed nail and subungal (nailbed) haematoma. On 13 October 2021 the applicant underwent “an uncomplicated nailbed repair and percutaneous k-wire of his left thumb distal phalanx fracture at St John of God Hospital…as a day procedure.”[24] At the time of the operation the following findings were noted:
“5mm laceration to the proximo-radial nailbed of the left thumb
Unstable fracture of the distal phalanx of the left thumb.”[25]
[24]Exhibit A-1, CB 61
[25] Exhibit A-1, CB 61
39In his police statement dated 7 January 2022, the applicant stated after police assistance had arrived and the respondent had been placed in hand cuffs, he walked away from the scene and sat in the roadside gutter awaiting ambulance arrival. He also stated:
“My head was sore, and I could feel there was a lot of blood. I also realised at this time that my left thumb was extremely sore and was also bloody. I concluded at this time that it must have been injured by being crushed between the bat and my head, as I didn’t believe there was anything else that could have inflicted that damage.”[26]
[26] Exhibit A-1, CB 27-28
40In his Victim Impact Statement regarding his thumb, he stated:
“Treatment for my left thumb involved an X-ray at the Warrnambool Base hospital to determine it was fractured, before it was placed in a splint, and I was referred to a specialist surgeon. I underwent a surgery to hold the bone in place which involved the insertion of two wires, one running all the way from my fingertip through my thumb joint and to the base of my thumb. My thumb nail was also removed due to the trauma of the impact damaging the existing nail in the nail bed.
After the surgery I was in a lot a pain again. I was put in a back slab cast up to my elbow for approximately 5 days, before being fitted for a plastic splint. The metal wire was removed from my thumb by the surgeon at approximately four weeks. This was another painful procedure. I was in significant pain during the four weeks while I had the wires in my thumb. After the wire was removed my thumb was very weak and painful to use at all. I saw a hand therapist several times over the coming months and with continuous exercises and therapy I have regained the use of my thumb. Now I can use my thumb for most tasks, however it is not painless. Sometimes I wake up in the morning and it aches and it often hurts when I try to use my left hand to do basic tasks like open a door with a stiff handle, turn on a tap or pick up something heavy. My sore thumb serves as a constant physical reminder of the day I was attacked and can impact my mood and bring the vivid memory of being assaulted when it hurts. I am not sure if my thumb will ever be completely pain free.”[27]
[27]Exhibit A-1, CB 66-67
41In his sworn evidence at the hearing the applicant stated his left thumb still aches and it hurts when he uses it, for example, gripping a door handle. This residual issue is a constant reminder of when he received the injury, which is distressing. Despite Mr Vinycomb’s opinion he will regain full use of the thumb and recover within 8 weeks of the injury, the applicant continues to suffer pain in his thumb.
Head
42In his police statement dated 7 January 2022, the applicant stated his head wound was stitched by a hospital doctor and he was required to stay in hospital overnight “due to having a significant head impact and injury.”[28]
[28] Exhibit A-1, CB 28
43The applicant stated:
“The blows to my head caused instant and extreme pain. My vision went blurry with each impact and I felt my head shake violently…As I was being hit, I thought I was going to die. I then thought that if the hits to my skull didn’t stop, I was definitely going to die. I was terrified and I felt that I could do nothing to stop the attack on me because I was totally overwhelmed by the impacts to my head.”[29]
[29] Exhibit A-1, CB 26
44In his Victim Impact Statement, the applicant described the physical impact of the assaults:
“As a result of being hit on the back of the head with a baseball bat I experienced extreme pain to the back of my head, causing my head to shake violently and my vision to be blurred. The attack caused a laceration and bruising to my head and for my thumb to be fractured. I believe my thumb was fractured as a result of me placing my hand on my head to protect myself and it being crushed between the bat and my skull.
Directly afterwards I remember sitting in the gutter with my head in my hands and feeling the volume of blood that was flowing down my face and neck. I could only deduce that it was likely he had cracked open the back of my skull. I still wondered if this injury would be survivable or if I would have permanent brain injury. I was very concerned I could lose consciousness at any time and I might not wake up.
I was transported to the Warrnambool Hospital via ambulance for my injuries to be assessed and treated.”[30]
[30] Exhibit A-1, CB 66
45With respect of his head, he stated:
“I underwent an MRI scan to check my skull was intact and that I did not have a brain bleed. I was told that considering the manner of my injury, I was very lucky not to have a fractured skull or brain bleed. The wound on my head was stitched with approximately 7 stitches at the Warrnambool Base Hospital that were removed about a week later. I experienced soreness for many days on the site of my wound and across the back of my head where I was bruised from the numerous impacts. I now have a permanent scar, often visible through my hair.”[31]
[31] Exhibit A-1, CB 66
Mental injury
46In his police statement the applicant stated:
“Being assaulted has profoundly affected me mentally. Since being assaulted I have found my sleep is still often disturbed and I still wake in the night thinking about what has happened to me and I am unable to get back to sleep. I also feel extremely sad at times and still occasionally find myself crying uncontrollably. My emotions are difficult to manage and I find myself feeling very sad or angry in ways that I never was before I was assaulted.”[32]
[32] Exhibit A-1, CB 30
47In his Victim Impact Statement the applicant stated:
“After being assaulted I had such intrusive thoughts of the event that I did not sleep at all when I stayed overnight in hospital. For weeks my sleep was very poor and I would frequently wake up thinking about the event, or have dreams where I am taken back to the feeling of believing I am going to die. I would often begin to cry uncontrollably at the thought of what happened. My sleep practices and dreams have improved over the months since we were assaulted, but I still suffer from this occasionally.
Before being assaulted in September last year I enjoyed a reputation amongst my colleagues as an enthusiastic, knowledgeable and hardworking senior member who was a positive influence on morale and a respected mentor. Now I am most well-known, not for my achievements as a Police member, but as the member who was the victim of an assault and used to be a lot of things, but not so much anymore. I had always imagined I would be a police officer for the remainder of my working life and I thoroughly enjoyed my job. Now I mostly find it joyless, and I spend more time than I had ever imagined looking for a way out, or another job.
I often feel anger and frustration in relation to being assaulted and have found I am quick to anger at issues in my private life and at work. Perhaps the most harmful and invasive feelings I have are that of self-blame. No matter how many people remind me that the only person to blame is [the respondent] for the harm he inflicted on me…I can’t help but consider that if only I had been more alert or made better choices somehow, I could have reacted better and protected us. That is my job after all. Making these thoughts go away is easier said than done.
With how unprovoked and absurd this attack is, I’ve found myself wondering how personally [the respondent] and his family have taken this whole situation and if they believe I am responsible for it. I even wonder if they will try and locate me and I’ve sometimes had a strong reaction to noises I’ve heard outside my own home, believing it might be someone coming to attack me again. I think this fear will only be exacerbated when [the respondent] is eventually released from custody. I’ve never before felt unsafe in my own home.
The fact that this attack came from such a routine part of police work makes it almost impossible to avoid a similar situation again or change something that will make me feel like the risk is reduced. Its something I often think about at work. How can I ever really feel safe doing something routine when it feels as if at any moment it could result in me being nearly killed?
This event has altered my behaviour in public spaces, particularly on duty. I was once proud to wear my uniform in public, but I now feel like a high visibility target when standing in public places. I feel like anybody who is intent on doing me harm, can easily locate me and overwhelm me with the element of surprise. I am extremely conscious of people getting behind my back and am often looking over my shoulder and turning around in circles to watch my back. This kind of hypervigilance and anxiety is exhausting.
Relationships with my partner and family have been strained by this incident. I required a lot of physical assistance when leaving hospital that burdened my partner, but she was even more emotionally burdened by trauma of the event itself. When my partner was informed of what happened she initially wasn’t sure of my condition and believed I could possibly be dead. This profoundly affected her, causing significant distress lasting weeks. This was particularly challenging because I wanted to help her with her feelings, but was experiencing such a strong emotional reaction myself, that I was really unable to. This only added to my distress as I had to see my partners pain, feeling powerless to make a difference.
Now that I have returned to work and I am trying to regain my interest in policing and the enjoyment I used to get from work. I am finding this challenging, and it is only complicated by my partner and other family members that would prefer to see me leave the job for my safety. I am constantly having to convince them that I am safe at work, even if I don’t believe it myself. Turning up to work is sometimes very difficult when I don’t want to be there and nobody at home wants me to go either.
I have found my involvement in the investigation and prosecution process exhausting and emotional. Writing my witness statement took me weeks as I could only tolerate working on it for brief periods. It required [me] to relive the events which was highly emotional. Preparing this statement has been similarly painful. I also watched the Body Worn Camera footage as part of my statement preparation which was very confronting. Hearing the sound I make when being hit is the worst bit for me. I didn’t know I was capable of such a sound which I would describe as somewhere between a groan, and a yell. I think it is just a reflection of the agony I felt in the moment."[33]
[33] Exhibit A-1, CB 67-68
48In his sworn evidence at the hearing, the applicant stated following the assault he had 12 weeks off work. He returned to work and then stopped working in January 2023. He stated he was involved in a couple of minor assaults which he found very difficult and triggering about his assault. He is unsure about his future employment. He has always wanted to be a police officer but is not sure if he can return to the role in the future. He stated his symptoms of post-traumatic stress disorder are ongoing.
Psychiatric report
49The applicant relied on a psychiatric report by Dr Leon Turnbull dated 9 May 2023.[34]
[34] Exhibit A-2
50The report notes he is currently seeing a psychologist who has diagnosed him with post-traumatic stress disorder.[35] He is cautious off duty, his policing future is uncertain, and he is hypervigilant, having bolstered security of his own home.
[35] Exhibit A-2, CB 81-82
51Dr Turnbull confirmed the applicant’s diagnosis of post-traumatic stress disorder.
52Dr Turnbull noted:
“…spite of him being a young and motivated man, and being otherwise free of psychiatric illness, it seems to me on balance that he is going to have to reconsider his police career…Unless there’s a major improvement through psychological and psychiatric therapy over the next few months, I think its likely that [he] is to become incapacitated for policing or any similar type of work.”[36]
[36] Exhibit A-2, CB 83-84
53Dr Turnbull opined the applicant needed three years of weekly or fortnightly psychological therapy at a minimum, as well as anti-depressants such as citalopram (if he agreed) and at least 12 sessions with a psychiatrist to oversee his medications. Further, the applicant may need to consider relocating from the Warrnambool area.[37]
[37]Exhibit A-2, CB 84
Financial circumstances
54As noted, the respondent did not participate in this proceeding. In her sentencing remarks, Judge Hassan held it was agreed at the time of the commission of the offence the respondent had “impaired mental functioning which was causally linked to your offending and which substantially and material (sic) reduces your culpability…”.[38]
[38] Exhibit A-1, CB 45
55Her Honour referred briefly to the respondent’s personal circumstances namely at the time of sentencing he was aged 50. Owing to a back injury he has been on a disability support pension since 1997. He has been married to Maxine for 30 years, she suffers from multiple sclerosis. He is estranged from his eldest son and lives with his wife and two other sons in a house they own in Warrnambool.
56Her Honour referred to the diagnosis of consultant forensic psychiatrist, Associate Professor Andrew Carroll dated 24 March 2022 that the respondent had longstanding and significant psychopathology, a delusional belief he is the “legitimate sovereign” or King of Australia and conspiratorial beliefs. He diagnosed the respondent as having a schizotypal disorder and meets the criteria for a delusional disorder. He describes the extent of impaired mental functioning as “severe” and that the respondent is “significantly and persistently disabled” as a result of his psychiatric conditions and refusal to accept pharmacological treatment.[39]
[39] Exhibit A-1, CB 48
57Although the respondent has been served with this application, he has indicated from prison he does not wish to participate in the proceeding and has refused to get on the prison bus or access the link to attend the hearing remotely.
58Given his history of physical disability and psychiatric diagnosis, I expect his earning capacity would be negligible.
59On 14 December 2021 Judge Dyer granted a restraining order preventing disposal or dealing with the respondent’s interest in real estate located in Warrnambool to satisfy any order for restitution or compensation that may be made under the Act.[40]
[40] Exhibit A-1, CB 73
60The affidavit of Anita Plesa dated 28 November 2022 at paragraph 16 refers to the affidavit in support of a restraining order sworn by Jessica Mercovich dated 8 December 2021. Ms Mercovich stated the restrained real estate is held in the joint names of the respondent and his wife, Maxine. There is a current mortgage to South West Credit of $147,993.00.[41]
[41]Exhibit A-1, CB 18-19
61Ms Plesa further deposed that on 14 November 2022 Fergus Topey, a real estate agent with Ray White Warrnambool, conducted a kerbside evaluation of the restrained real estate and estimated its current market value is $650,000 to $700,000. Ms Plesa deposed based on the appraisal and mortgage balance, the equity in the property is approximately $502,007 to $552,007.[42]
[42]Exhibit A-1, CB 19
62On 15 August 2023 this application was listed for hearing. The application was adjourned until 24 August 2023 for Maxine who is the joint registered proprietor with the respondent of the property to be notified of this application.
63In the applicant’s submissions, the applicant stated the respondent “has on the materials a significant financial reserve within the equity of the Restrained Real Estate and as such the impact on the Offender of the award to be made is of little if any relevance to determining the proper quantum.”[43]
[43] Outline of Written Submissions dated 15 June 2023, CB 92
Assessment
64The applicant’s physical injuries to his left thumb and his head have been detailed in the evidence detailed above. His evidence has been supported by medical evidence from Southwest Healthcare Warrnambool and Warrnambool Plastic and Reconstructive Surgery.
65The applicant’s psychological injury of post-traumatic stress disorder is diagnosed in the report of Dr Turnbull. Dr Turnbull opined the applicant may have to consider leaving the police force as well as relocating away from Warrnambool. The distress, trauma and other significant adverse effects felt by the applicant have been set out in detail in the applicant’s victim impact statement and police statement.
66Dr Turnbull’s recommendation for future treatment is for three years at a minimum of regular counselling from a psychologist and at least 12 sessions with a psychiatrist. I note from the applicant’s submissions his medical, counselling expenses and loss of earnings have been covered by the Victorian Workcover Authority under the Workplace Injury Rehabilitation and Compensation Act 2013.
67In evidence, the applicant stated he returned to work after 12 weeks. In his Victim Impact Statement dated 20 June 2022 he stated he found the work joyless and spends time looking for a way out or another job. Prior to the assault he always imagined he would be a police officer for the remainder of his working life.[44] In his evidence at the hearing he stated he has stopped work since January 2023 and is not sure if he will continue working with Victoria Police in the future.
[44] Exhibit A-1, CB 67
68The applicant stated he found the criminal investigation and prosecution “exhausting and emotional.”[45] He found preparing his police statement and Victim Impact Statement for the criminal prosecution painful as he watched the body worn camera footage as part of his statement preparation which he found confronting.
[45] Exhibit A-1, CB 68
69Section 85B(2) of the Act provides a compensation order may be made up of amounts for pain and suffering, expenses for reasonable counselling services, medical expenses and other expenses actually and reasonably incurred or reasonably likely to be incurred, all of which must be as a direct result of the offence.
70Counsel for the applicant submitted the applicant is eligible to receive compensation for pain and suffering he has and continues to experience.
71In written submissions, a number of cases were cited. In Little v Morello [2019] VCC 1424 the offender was convicted of recklessly cause serious injury and the victim was awarded compensation of $97,200. In Athian v Pang [2019] VCC 477 the offender pleaded guilty to a charge of recklessly cause serious injury and the victim was awarded compensation of $125,000. In Kori Asana (a pseudonym) v Grima [2015] VCC 655 the offender pleaded guilty to intentionally causing serious injury and breaching a family violence intervention order and the victim was awarded compensation of $80,000.[46] I have read these cases and note the injuries sustained to each of the applicants differ to this applicant’s injuries.
[46] I note the figures cited for these cases are the amount awarded prior to the deduction of the VOCAT72Each case must be determined on its own facts and circumstances, and I take into account the comment of Her Honour Warren CJ:
“…comparisons between compensation awards under the Act and other legislation, or damages at common law, may not be useful due to the difficulty identifying with any precision the various considerations and weight attributed to them, and the differing awards and factual circumstances between cases. In addition, the number of offences is not of itself pertinent, rather it is their effect on the victim that is relevant. This reflects the principle that the compensation is not intended to reflect the respondent’s criminal liability, rather it is directed to compensating the victim for the effects of the offences.”[47]
[47] V1 & Ors v Xydias [2009] VSC 616 at paragraph [9]
73Section 85H of the Act states if a court decides to make a compensation order, it may, in determining the amount and method of payment, take into account, as far as practicable, the financial circumstances of the respondent and the nature of the burden that its payment will impose. The information about the respondent’s financial circumstances is gleaned from Judge Hassan’s sentencing remarks and Ms Plesa’s affidavit dated 28 November 2022. The information is that the respondent has been on a Disability Support Pension since 1997, and he jointly owns a house with his wife who has multiple sclerosis, and she lives in that property with their two sons. Further the house has a mortgage of $147,993 owing and has been valued by Ray White Warrnambool as having a current market value of $650,000 to $700,000.
74I take into account the respondent’s financial circumstances to the extent possible given the respondent’s non-participation in the proceeding.
75In Stevens v Baxter [2009] VSC 257 J Forrest J summarised some relevant principles derived from Bell J in RK v Mirikand Mirik [2009] VSC 14. I note some of those principles are as follows:
(a) In general, the principles that relate to an assessment of damages at common law are applicable to the assessment of compensation. However, the order is for compensation, not for damages. In Stevensv Baxter,[48] the applicants claimed compensation for grief and trauma which are compensable under s85B but not at common law. Another example of the difference between damages at common law and compensation under s85B of the Act is that an order cannot include the equivalent of aggravated or exemplary damages;
(b) Section 85H of the Act reflects a concern by Parliament as to the potential adverse effect on an offender’s rehabilitation of an award of compensation against him or her. It is relevant to consider the prospects for the offender’s rehabilitation, and the extent to which, if any, an award of compensation might adversely impact on the offender’s rehabilitation;
(c) Consideration does not necessarily require that the Court to moderate the amount of compensation awarded to cater for the offender’s rehabilitation. It has been described as a “relevant but not controlling consideration”;[49]
(d) There are cases where the Court could exercise its discretion to order compensation despite the offender’s lack of means and the burden that payment of compensation would impose. In such cases, the interests of giving the victim just civil compensation will have priority over the interests of the offender in avoiding that result in criminal proceedings.[50]
[48] [2009] VSC 257
[49] Stevens v Baxter [2009] VSC 257 at paragraph [5]
[50] RK v Mirik and Mirik [2009] VSC 14 at paragraph [138]
76In Sullivan v Gibson,[51] Croucher J considered the burden that compensation will impose. He referred to Bell J in RK v Mirikand Mirik [2009] VSC 14 who stated considering the financial circumstances of the offender and the nature of the burden that payment of compensation will impose, permits a court to consider the impact of an order on the rehabilitation of the offender, including an offender who has been sentenced to a term of imprisonment.
[51] [2018] VSC 785 at paragraph [101]
77In considering the burden that payment may impose, I do not find the respondent has wilfully elected not to engage in these proceedings as his election may be due to his unmedicated mental illness. Secondly, the respondent has no income stream, and his sole asset is jointly owned with his wife who has multiple sclerosis. Two of his three sons reside with her in that property. In those circumstances, the nature of the burden the payment of any compensation ordered will necessarily be a high one.
78I also note the burden of a compensation order will likely have a negative effect on the respondent’s prospects for rehabilitation, particularly as he has an untreated mental illness. If the order for compensation results in the sale of the family house this is unlikely to assist the respondent’s rehabilitation.
79In taking into account his financial circumstances, I also take into account the nature of the burden the payment will impose.
80Although I have not been able to get a completely accurate picture of the respondent’s financial circumstances, this does not preclude me from making an award of compensation in favour of the applicant.
Conclusions
81On the balance of probabilities, I am satisfied the applicant has suffered an injury as a direct result of the respondent’s offences. I accept the evidence in Ms Plesa’s affidavit and exhibits.[52] There are physical injuries, as well as a psychological injury which falls within the definition of injury in section 85A of the Act as a mental disorder, as well as grief, distress, trauma and significant adverse effects.
[52]Exhibits A-1 to A-3
82The applicant has been diagnosed by a psychiatrist with post-traumatic stress disorder, and he had testing which showed symptoms consistent with severe depression, severe anxiety and severe stress. He has not worked since January 2023 and his future in the police force is in doubt.
83Further, the applicant had an injury to his left thumb which continues to cause him pain and is a reminder of the assault. He also has a head injury which required seven stitches and has left a scar visible through his hairline.
84I accept the respondent’s offending directly caused the applicant’s injuries.
85Whilst the offending perpetrated by the respondent was serious and its effect on the applicant is significant, I note at the time of the offending he had a lowered moral culpability reflected by the sentencing judge’s acceptance of all six limbs of Verdins. Counsel for the applicant submitted in the absence of any reference in the case law or legislation to the offender’s moral culpability, this is not a relevant consideration. I accept that submission. However, I take into account the respondent’s mental illness and his prospects for rehabilitation in relation to the nature of the burden the payment will impose.
86I take into account the respondent’s financial circumstances to the extent I am able. Common law principles apply to the assessment of damages and the objective is to compensate the applicant for damage and not penalise the respondent.
87In assessing quantum of the entitlement to compensation, I intuitively synthesise all of the material circumstances of the case. I take into account the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, and the injuries suffered, all of which have been outlined above. I take into account the respondent’s financial circumstances and the nature of the burden of payment as best as I am able. I make an award of compensation for pain and suffering for the applicant in the sum of $75,000.
88Pursuant to section 85B(1) of the Act, I order the respondent pay compensation in the sum of $75,000.
Costs
89Section 85K of the Act states the parties shall bear their own costs unless directed by the court.
90The applicant seeks his legal costs, notwithstanding the default position of the legislation.
91In written submissions the applicant referred to Vi v Xydias [2009] VSC 616 (unreported) and the factors considered by Chief Justice Warren when the court may consider the exercise of the discretion to award costs. The applicant’s counsel made a submission for costs on the following basis:
(a) The impact of the offence on the victim. In this case the applicant has post-traumatic stress disorder as a result of the offending which inhibited his ability to prepare his own application. The applicant has difficulties thinking and talking about the assault and needed assistance to prepare his application.
(b) The complexity of the matter required obtaining a psychiatric report from Dr Turnbull as well as a statement from Megan Cooney from the Emergency Department at Southwest Healthcare Warrnambool and a medical report from the plastic surgery registrar Dr Vinycomb. Further the restrained real estate required an appraisal which required the proper assistance of a solicitor.
(c) There was a need for expert psychiatric or medical evidence to be provided.
(d) There was a need for the proper presentation and representation through the preparation of legal submissions. The respondent’s non-engagement with proceedings required lawyers to deal with service on the respondent and his wife.
92In the case of AA (a pseudonym) v Cooper (Ruling),[53] Judge O’Neill considered section 85K of the Act and canvassed the various authorities.
[53][2015] VCC 233
93In summary, Judge O’Neill identified the following factors (which I adopt in this case):[54]
“(a)The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category.
(b) Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded.
(c)Circumstances which may justify the award of costs include the following:
(i) the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;
(ii)the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;
(iii)the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;
(iv)the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.”[55]
[54] AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233 at paragraph [17]
[55]AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233 at paragraph [17]
94In this case, the respondent did not engage with the court process. He is entitled to do that. There were three directions hearings, none of which he attended. The respondent did not get on the prison van or appear remotely.
95Section 85K of the Act states in clear terms each party ‘must’ bear their own costs of the proceeding ‘unless the Court otherwise determines.’
96I accept the applicant’s post-traumatic stress disorder would have impacted his ability to represent himself and the case required the obtaining of medical reports. However, this case was not complex. There was no cross-examination of witnesses. In those circumstances I intend to order some, but not all, of the costs sought. The applicant’s solicitor seeks $16,785.38. Although a tax invoice was produced, it is not calculated according to a scale. Counsel’s fees of $3,750 were sought for appearances on 15 August 2023 and 24 August 2023, as was the cost of Dr Turnbull’s report of $2,970.
97I make an order for $10,000 for costs and disbursements.
Orders
98In summary, I award the applicant the following:
(a) $75,000 for pain and suffering; and
(b) $10,000 for legal costs and disbursements.
2023 so that the respondent’s wife could be served with notice of the application.
award.
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9
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