Hunt v Akkus
[2017] VSC 79
•7 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2005 01508
| JULIE HUNT | Applicant |
| v | |
| ORHAN AKKUS | Respondent |
---
JUDGE: | JANE DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 November 2016 |
DATE OF JUDGMENT: | 7 March 2017 |
CASE MAY BE CITED AS: | Hunt v Akkus |
MEDIUM NEUTRAL CITATION: | [2017] VSC 79 |
---
CRIMINAL LAW – Murder – Compensation – Sister of deceased – Application for extension of time for making application – Delay – Whether in the interests of justice to extend time – Sentencing Act 1991 pt 4 div 2 – Moresco & Ors v Budimir [2015] VSC 51 and Marceta v Efandis [2016] VSC 265 considered
CRIMINAL LAW – Murder – Compensation – Application for compensation order – Whether prejudice to Respondent’s rehabilitation – Respondent’s financial circumstances
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Hill | Waller Legal |
| For the Respondent | Mr D Harrison (appearing under the Victorian Bar Duty Barrister Scheme) |
HER HONOUR:
Introduction
On 11 May 2006, the respondent was found guilty of the murder of Mark Russo at Moorabbin on 20 November 2004. (He was also found guilty of intentionally causing serious injury to Carl Russo, but that offence is not part of the present application.) On 21 July 2006, he was sentenced to 19 years’ imprisonment for the murder. The total effective sentence was 22 years’ imprisonment with a minimum non-parole period of 17 years and a declaration of 609 days of presentence detention.[1] On 11 December 2007, the Court of Appeal dismissed the respondent’s appeal against his convictions.[2]
[1]R v Akkus [2006] VSC 264.
[2]R v Akkus [2007] VSCA 287.
The applicant, Julie Hunt, is the sister of Mark Russo, the deceased. She seeks an order for compensation from the respondent pursuant to s 85B of the Sentencing Act 1991 (‘the Act’) for injuries suffered as a direct result of the murder of her brother by the respondent and other related expenses.
Section 85C requires that the application be made within 12 months of a finding of guilt or conviction. As will be described below, the applicant is outside the statutory time limit for bringing her application and seeks an extension of time for bringing the application. Section 85D confers a discretion on the Court to extend time if it is in the interests of justice to do so.
Circumstances of the extension of time application
It is necessary to first consider whether I should exercise my discretion to extend the time for bringing this application.
The following chronology assists in understanding the extension of time application.
DATE EVENT 20 November 2004 Respondent commits the subject crime. 10 November 2005 Applicant receives an award of assistance from the Victims of Crime Assistance Tribunal (‘VOCAT’) in the sum of $10,000 for ‘distress’. No award sought or made for counselling or other. 11 May 2006 Respondent is found guilty by a jury of the murder of Mark Russo (and of intentionally causing serious injury to Carl Russo) at Moorabbin on 20 November 2004. 21 July 2006 Respondent is sentenced to 19 years’ imprisonment for Mark Russo’s murder. (He is also sentenced to 8 years for intentionally causing serious injury to Carl Russo.) The total effective sentence imposed is 22 years’ imprisonment with a minimum non-parole period of 17 years and a declaration of 609 days presentence detention. 22 August 2008 Respondent is assaulted at Barwon Prison and suffers serious injury leading to a negligence claim against the State of Victoria. 13 August 2011 Herald Sun publishes an online news article about the respondent’s suit against the State of Victoria. The article notes that any monies awarded can be placed in the Prisoner Compensation Quarantine Fund (‘PCQF’), where they will be available for victims of the prisoner’s crime. In or around August 2011 The period in which the applicant claims she first became aware of the respondent’s suit against the State of Victoria through the Herald Sun news article. In or around September 2011 Applicant contacts present solicitors about pursuing a claim against the respondent. Solicitors advise her to return if the respondent is awarded compensation. In or around December 2013 Respondent receives settlement monies in compensation for personal injury caused by the negligence of the State of Victoria in the sum of $105,000 excluding legal and medical costs. February 2014 Applicant says she was telephoned by ‘Victims of Crime’ about the settlement monies paid to the respondent and placed into the PCQF. 17 March 2014 Applicant instructs solicitors to make application for compensation under s 85B of the Act. 26 March 2014 The application is filed with the Court, however, it is not served on the respondent. 3 September 2014 Magistrates’ Court enters default judgment against respondent in favour of his mother in the sum of $102,903.36. 9 October 2014 Letter from Department of Justice to applicant’s solicitors advising that the respondent was awarded $105,000 excluding legal and medical costs to be held in the PCQF for 12 months from 20 February 2014. The letter acknowledges that an extension of that period can be made if proceedings are commenced by the applicant. 19 June 2015 Applicant, through her solicitors, applies for reinstatement of the application and an extension of time to serve the application on the respondent. 27 July 2015 King J makes an order extending the time for service of the application to 6 August 2015 and that all materials in support of the application be served on the respondent on or before 26 September 2015. 24 September 2015 Applicant deposes first affidavit. 6 September 2016 Directions hearing before Lasry J. Applicant’s counsel (who was not the counsel at the hearing) informs the Court that all material has been filed. His Honour orders that the respondent file and serve any material on which he seeks to rely by 31 October 2016 and that the parties file and serve written outlines of submissions by 7 November 2016. 16 October 2016 Respondent deposes affidavit. 8 November 2016 Respondent files written outline of submissions. 10 November 2016 Applicant deposes second affidavit. 10 November 2016 Applicant’s solicitor deposes affidavit. 10 November 2016 Applicant files written outline of submissions. 14 November 2016 Hearing
The present application was filed on 26 March 2014. It was accepted by the applicant that her application should have been made on or before 21 July 2007. Putting to one side the 16-month delay between the filing of the application and its service on the respondent, the application is still six years and eight months out of time.
The applicant has deposed two affidavits in support of her application for compensation and in support of her extension of time application.[3] She also produces affidavits from her solicitors at Waller Legal in support of the extension of time application. The solicitors admit to failing to serve the respondent in a timely manner leading to the application lapsing and being struck out. It was later reinstated by King J in July 2015.
[3]Dated 24 September 2015 and 10 November 2016 (the applicant’s ‘first affidavit’ and ‘second affidavit’ respectively).
The applicant seeks to persuade the Court that it is in the interests of justice to extend time pursuant to s 85D(1). In her two affidavits,[4] the applicant sets out the sequence of events that led to her failure to pursue a compensation claim against the respondent within the statutory time limit and her subsequent decision to file the application when out of time.
[4]Counsel for the respondent opposed the admission of the applicant’s second affidavit on the grounds that it was filed out of time and without leave to do so from the Court. I allowed the admission of the affidavit and granted leave for the applicant to be cross-examined on its contents.
The applicant’s first affidavit contained scant information as to how and when she became aware of the respondent’s claim against the State of Victoria. She deposed that she believed that the respondent was awarded compensation ‘in or about 2014’, and therefore made an application pursuant to s 85B on or about 26 March 2014.
In her second affidavit,[5] the applicant was more expansive. She stated that she inquired of police or prosecutions in 2005 or 2006 as to whether she could sue the respondent for the death of her brother but was told that ‘Legal Aid would probably take everything that he had’ if he was found guilty. She was also told that suing him would be ‘an expensive process and not worth pursuing’.
[5]Prepared after the respondent’s counsel had already filed submissions with the court in response to her application.
It is difficult to accept that police or prosecuting agencies presented advice of this kind to the applicant before or after the successful prosecution of the respondent. Nothing was put before me by way of supporting evidence on the point and it defies logic that such assertions would be made by police or prosecuting agencies even in the unlikely event that they had access to detailed information regarding the respondent’s financial affairs and the funding arrangements for his defence.
There would not seem to be a good reason for any such agencies to have suggested that the process of making a claim against the respondent under the Act was expensive and time consuming. Any such advice would be contrary to the design and effect of the provisions in pt 4 div 2 of the Act for the making of compensation orders following a finding of guilt or conviction. These provisions are not new provisions and compensation orders under the Act are frequently made.
It is possible that the applicant is recalling and confusing her memory of past discussions about bringing a civil suit without recourse to the Act.
Of course, it was open to the applicant to have sought professional legal advice about her rights to compensation. Indeed, it appears that the applicant was represented by a solicitor at the time she made her application for a VOCAT award in mid-2005 and therefore had the opportunity to obtain professional legal advice at that time.
The applicant applied to VOCAT and received an award of assistance on 10 November 2005 in the sum of $10,000.[6] It appears from the copy of the award that she was represented by a solicitor, Michael Smith of Dandenong. The applicant’s affidavits are silent regarding any legal advice received from Mr Smith’s office as to her rights to seek compensation separate from the VOCAT claim. In her vive voce evidence, the applicant said that she could not recall why she sought Mr Smith’s services, nor could she recall any advice that she was given by Mr Smith about seeking compensation from the respondent. No affidavit material was obtained from Michael Smith.
[6]This sum must be deducted from any compensation made under s 85B: s 85I of the Act.
In her second affidavit, the applicant deposed that in or about August 2011 she was searching for the respondent’s name on the internet. She stated she did this from time to time as she felt she was not getting enough information about the criminal process or what was happening with the respondent in prison. She discovered the Herald Sun news article published on 13 August 2011. She made further inquiries of ‘Victims of Crime’ and stated that she was told for the first time about the potential to make a claim for compensation under the Act. She then contacted Waller Legal in September 2011 about making such a claim, but says that she did not institute her claim at that time since there were still no assets actually available.
The applicant deposed:
… I first spoke with someone from Waller Legal in or about September 2011. They provided me with general advice about bringing a case against an offender. I remember being told about the difficulties with bringing a common law claim or a sentencing act claim if there are no assets. I was advised that if the Respondent was awarded funds then I could get back in touch with Waller Legal. Waller Legal took no action at the time and were not then acting on my behalf.[7]
[7]Applicant’s second affidavit [8].
Mr Dylan Rae-White, a solicitor with Waller Legal, reviewed the applicant’s file and deposed:
The file indicates that the Applicant first contacted our office in about September 2011. At this time, general advice was provided about pursuing impecunious offenders.
The file indicates that it was suggested to the Applicant to contact the Department of Justice to ask that she be notified in the event that the Respondent receive any money.[8]
[8]Affidavit of Dylan Rae White deposed on 10 November 2016 [4]-[6].
In February 2014, the applicant was contacted by ‘Victims of Crime’ who informed her about the settlement monies received by the respondent and which had been placed in the PCQF. Thereafter, in March 2014, she instructed Waller Legal to file the s 85B application.
Mr White confirms that the applicant next made contact with Waller Legal on 17 February 2014 and informed Waller Legal that the respondent had received a sum of money from the State of Victoria, and instructed them to file a s 85B application on 17 March 2014.
Ms Jessica Saunders, also of Waller Legal, deposed that Waller Legal filed the 85B application on 26 March 2014.[9] However, because of an ‘administrative error’[10] by Ms Saunders, more than a year elapsed without the application being served on the respondent. In June 2015, Ms Saunders applied on the applicant’s behalf to the Court seeking an extension of time to serve the application on the respondent. The extension was granted by King J in July 2015.
[9]Affidavit of Jessica Louise Saunders deposed on 19 June 2015.
[10]Ibid [9].
It is starkly apparent that the present application has not proceeded in the prompt and efficacious manner intended by the design of pt 4 div 2 of the Act. Consideration of time limits for applications under s 85B of the Act should be foremost in the minds of legal practitioners given the relatively short statutory time limit set down in s 85C, notwithstanding the power of the Court to extend time when it is in the interests of justice to do so.
Whilst I am left in some doubt as to precisely what information was provided to the applicant about seeking compensation directly from the respondent in the period between 2006 and 2011, I accept that she considered during that period that there was no point in pursuing a compensation claim if he was impecunious. This view may well have been fortified by the legal advice provided by Waller Legal in 2011, because otherwise the prudent action would have been to file a s 85B application forthwith regardless of the respondent’s state of financial affairs. It would appear that she was not advised by Waller Legal at that time that the statutory time limit had already expired.
When the matter came up for directions before Lasry J on 29 August 2016 following the reinstatement of the application, the respondent was initially self-represented. His Honour adjourned the matter to allow the respondent to seek legal representation through the Victorian Bar Duty Barrister Scheme. When the matter was next called for mention on 7 September 2016, Mr Harrison appeared for the respondent and has continued to do so. This is commendable since in adversarial proceedings the Court is generally greatly assisted by experienced counsel presenting the opposing cases and legal argument.
The respondent opposes the extension of time application and the application for compensation. He has filed an affidavit setting out his present circumstances.
Relevant principles
The power reposed in the Court to order compensation ancillary to the sentencing process has as its foundation the desirability of providing a swift and low cost means of redress for the harm suffered by victims of crime.
It is generally desirable that the sentencing judge deals with such applications. This allows for the efficient use of court resources and timely management of all matters arising from the sentencing process.
The authorities referred to by the parties demonstrate that extensions of time under the Act have been granted for lengths of time which have varied from a short time to several years.[11] A review of these cases reveals a tendency towards leniency and flexibility in the consideration of applications to extend time and in the consideration of the ‘interests of justice’ test set out in section 85D.
[11]DPP v Esso Australia Pty Ltd [2003] VSC406 (Time extended for 11 month period); Robertson v Esso Australia Pty Ltd [2004] VSC 406 (Time extended for 18 month period); Shepherd v Kell & Day [2012] VSC 80 (Time extended for 1 year and 7 months period); Brown v Loveday [2012] VSCA 57 (Time extended for 8 year period); Jackson v Graham [2012] VCC 241 (Time extended for 2 years and 3 months period); Marceta v Efandis [2016] VSC 265 (Time extended for 7 years and 5 months period).
In Robertson v Esso (Australia) Pty Ltd,[12] Cummins J said that fairness to the respondent meant that:
the Court should not facilitate, let alone encourage, claims made long out of time. Any respondent is entitled to know its position with finality some reasonable time after an offence.[13]
[12][2004] VSC 101 (‘Esso’).
[13]Ibid [4].
His Honour went on to say in that same passage that the importance of the finality of proceedings and the offender’s rehabilitative needs must be balanced against the fact that compensation claims under the Act are based upon the offender having committed and been convicted of a crime. That the compensation claims are made by victims of a crime committed by the offender means that Courts should take a broad and flexible approach to out of time applications:
That circumstance - that an applicant is a victim of a crime committed by the respondent - of itself is a circumstance which should cause a Court to view out of time applications with a liberal and not narrow or pedantic approach. Victims should not be shut out readily. On the other hand, a pivotal principle of sentencing is rehabilitation, and it can be antipathetic to rehabilitation for offenders to have compensation proceedings brought against them long out of time. The interests of the victim are significant under s 85D in particular (and under Pt 4 Div 2) but those of the offender notably rehabilitation must be borne in mind (see, for example, the provisions of s 85H(1)). A proper balance needs to be achieved.[14]
[14]Ibid [4].
Similarly, in Moresco & Ors v Budimir[15] T Forrest J said:
Finality of litigation for defendants is a purpose of most limitation of actions provisions. Here, however, I am mindful of the fact that compensation orders are made under a criminal statute and for the purpose of compensating the victims of criminal offending. Mr Budimir has been convicted of a criminal offence and it is in the interests of justice that the applicants, who are victims of that offence, have the opportunity to draw a line under that offending. Finality, in that sense, cuts both ways.
A competing factor is that rehabilitation is important in any system of criminal justice and that late applications which may significantly prejudice the offender’s rehabilitation should not be permitted. Mr Budimir submitted, and I accept, that his rehabilitation is a live consideration in this case. In my view, however, the weight to be given this factor is different at this preliminary stage as compared to the substantive application. …[16]
[15][2015] VSC 51 (‘Moresco’).
[16]Ibid [14]-[15] (citations omitted).
His Honour crystallised a key issue to be considered in an extension of time application in the following way:
… On an application for leave to apply out of time the relevant question must be whether the delay [emphasis original] would significantly prejudice the offender’s rehabilitation and not whether, in an abstract sense, the order for compensation might do so.[17]
[17]Ibid [15].
In Moresco, the applicant was one month out of time. In granting the extension of time, his Honour described the delay as trivial compared to other successful leave applications. His Honour considered that the delay would not have caused any forensic prejudice to the respondent. His Honour also noted that the respondent still had 16 years to serve before becoming eligible for parole, and that his rehabilitation will not have been prejudiced by the delay.
It was conceded by Mr Harrison that in all the other cases cited by the parties, an extension of time was granted,[18] although each case must turn on its own facts.
[18]Ibid.
Mr Hill for the applicant submitted that the present case is analogous to Marceta v Efandis[19] where Beach JA granted an extension of time for an application that was in excess of seven years out of time. The applicant in that case had given evidence that she was living overseas, had never received legal advice about the time limit to make an application for compensation under the Act, and had, upon learning of funds held by Assets Confiscations Operations at the Department of Justice, promptly instructed her lawyers to make an application under the Act. Beach JA said:
[W]hile there is obviously presumptive prejudice caused by the applicant’s delay, the respondent was not able to point to any specific prejudice. Further, I am satisfied that the hearing of an application for a compensation order at the present time would not be materially different from any such hearing that might have been conducted shortly following the respondent’s conviction.
[19][2016] VSC 265.
In considering the extension of time application in this case, the following factors appear significant:
(a) The applicant must persuade the court that it is in the interests of justice to extend the time for bringing her claim for compensation.
(b) The applicant’s affidavit evidence and oral testimony were vague as to the information provided to her about the options for seeking compensation directly from the respondent when she was still within the limitation period. Nevertheless, she denies being made aware at that earlier stage of a right to apply for compensation under s 85B of the Act.
(c) The appropriate process is to make an application for compensation within the limitation period, or failing that, as soon as an applicant becomes aware of their rights under the Act. The applicant ought at the very least to have made her application in August 2011. Unfortunately, she was discouraged from doing so by the advice she received from Waller Legal.
(d) That the applicant perceived that the respondent was impecunious at the time shortly after sentencing is not a factor that ought be accorded much weight in determining where the interests of justice lie in an application to extend time. If any amount of compensation ordered under s 85B is unable to be met at that time of the order, the opportunity to enforce the award will persist for several years in accordance with the procedures for enforcement of judgment debts.[20]
[20]See Josefski v Donnelly [2007] VSCA 6 [12] (Nettle JA).
(e) Finality of litigation is an important consideration in applications of this kind. However, it must be balanced against the factors set out in Esso and Moresco.
(f) The remedial nature of compensation claims under the Act and the fact that costs are not normally awarded to either party on these applications are relevant factors. As discussed by Cummins J in Esso, because the provisions are aimed at providing redress to victims of crime, it is appropriate to adopt a somewhat liberal and flexible approach to applications brought out of time.
(g) The needs of the victim must be balanced against the importance of preserving the opportunities for the offender to rehabilitate after serving his sentence. However T Forrest J noted in Moresco that this aspect has less weight in assessing prejudice caused by a delayed claim compared to the weight it might have as factor to be balanced in considering the substantive application.[21]
(h) A lengthy delay such as has occurred in the present case means that there is the potential for some degree of forensic prejudice to the respondent if the Court is persuaded to grant an extension of time. The process of determining causation is complicated by supervening events that have occurred in the applicant’s life since the respondent’s crime.
(i) The delay in this case is close to the higher end of previous cases where applications for extensions of time under s 85D were granted.
[21][2015] VSC 51 [15].
Conclusion regarding the extension of time application
Having balanced all of the above matters and in light of the authorities referred to by counsel, I am ultimately persuaded that it is in the interests of justice to permit time to be extended. Accepting that I should adopt a somewhat liberal approach to the application,[22] I consider that the applicant’s claim for compensation, as a victim of the respondent’s crime, should not be shut out.
[22]Robertson v Esso [2004] VSC 101; See also Werden v Legal Services Board [2012] VSCA 278.
Although the applicant’s recollection of events was vague, on the balance of probabilities I accept that she was unaware of or failed to appreciate the availability of seeking compensation under the Act until 2011. After that time, it is clear that she was acting on the advice of her solicitors to only make an application after the respondent had come into funds.
A key consideration in this case is the lack of significant prejudice occasioned on the respondent. The respondent principally relies on a lack of finality leading to a sense of disappointment that his case has not been concluded and a concern that access to his settlement monies might be imperilled. Bearing in mind that the respondent is still undergoing his sentence of imprisonment, the respondent has not shown that significant prejudice is likely to flow to him if an extension of time is granted.
Furthermore, given the default judgment in favour of the respondent’s mother for legal fees and other debts, it is difficult for the respondent to argue that but for the applicant’s late claim he would otherwise be free to use his entire settlement monies directly for the benefit of his rehabilitation upon release.
There is some force in the respondent’s argument that the delay in bringing the claim means that the task of assessing the extent of pain and suffering and need for treatment experienced by the applicant as a direct result of the respondent’s crime is more difficult than if the hearing had been conducted shortly after the respondent’s conviction.[23] In this regard, this case differs from Moresco and Marceta. I accept that the delay goes against the prompt and efficient disposition of matters ancillary to the sentencing process. However, in determining matters of causation, courts are commonly required to disentangle extraneous factors.
[23]Moresco & Ors v Budimir [2015] VSC 51 [16]; Marceta v Efandis [2016] VSC 265 [15].
Each case must ultimately turn on its own facts and will involve close consideration of the kind of matters referred to above, including whether the particular applicant was equipped with the wherewithal to appreciate the importance of making their application for compensation promptly and whether the applicant consciously delayed bringing the application once armed with that proper appreciation.
Background to the substantive application
I turn now to the substantive application for compensation.
On 20 November 2004, the deceased was attacked by the respondent whilst attending the Wax nightclub. The respondent wielded a large knife and fatally stabbed the deceased. The incident was described by the learned sentencing judge, Habersberger J, as a senseless stabbing. Details of the offending are set out in his Honour’s sentencing remarks.[24] It was accepted by the parties that the Court could rely on the sentencing remarks as the factual basis for the crime upon which the compensation claim is founded.
[24]R v Akkus [2006] VSC 264 [3]-[9].
It was conceded by the respondent that the applicant qualifies to be regarded as a ‘victim’ within the definition contained in s 3 of the Act.
Background of the applicant
The applicant is a 41-year-old executive officer employed full time by a government department. The deceased was the younger brother of the applicant. The applicant had two older half-siblings from her mother’s first marriage. After divorcing her first husband, the applicant’s mother re-married and gave birth to the applicant, the deceased and another brother. The applicant’s parents divorced when she was 11 years old.
Tragically, the applicant’s half-brother from her mother’s first marriage was murdered one year after the murder of the deceased. There have been other stressors in the applicant’s life before and after the murder of the deceased; however, the applicant says that the murder of the deceased caused her to suffer great distress and sadness and psychological injury.
As discussed above, the applicant filed two affidavits in support of her application and gave sworn evidence at the hearing.
She also provided a psychological report by her treating psychologist, Mr Antonenko, dated 31 March 2015 and a medico-legal report from a psychiatrist, Dr Wendy Triggs, dated 23 September 2015. Dr Triggs was called and cross-examined about the contents of her report. The report of Mr Antonenko was tendered by consent of both parties.
I have also had regard to the applicant’s victim impact statement filed prior to sentence[25] as relevant to the proceeding before me.[26]
[25]Dated 14 May 2006.
[26]Section 85F(2)(d) of the Act allows for this.
Naturally, the applicant also relied on the sentencing remarks of Habersberger J on 21 July 2006.
Background of the respondent
The respondent was a married man with a three-month-old daughter at the time he was charged with murder. His wife divorced him and moved interstate with his daughter after his trial.
During the period of his imprisonment, the respondent became the victim of a serious physical assault. On 22 August 2008, another prisoner approached him from behind and doused him in boiling water. He suffered burns and scarring to his face, left neck, back, thighs, left chest and shoulder. He was found to have burns to 35 percent of his body and scarring to 40 percent of his body.[27]
[27]Skin grafts account for the extensive scarring in addition to the burns.
He sued the State of Victoria in August 2011 in the County Court and the matter was settled in December 2013. He received $105,000 for pain and suffering, as well as $20,000 for future medical expenses and $21,500 for legal costs. The $105,000 that he received for pain and suffering was placed in the PCQF.
The respondent deposed in his affidavit that his only financial resource is the $105,000 paid into the PCQF.
As set out in the chronology and mentioned above, the respondent also deposed that his mother has a judgment debt against him in the sum of $102,903.36 relating to debts incurred for payment of legal expenses on the respondent’s behalf from his trial and a debt related to a pre-existing food business. The particulars of the debts were detailed in the material supporting her claim filed on 1 August 2014 in the Melbourne Magistrates’ Court. A default judgment for $100,000 plus interest was entered in favour of the respondent’s mother on 3 September 2014.
In light of the outstanding judgment debt, his counsel submitted that the respondent will possibly face bankruptcy proceedings if a significant order for compensation is made and sought to be enforced.
The respondent deposed that the injuries inflicted on him in prison will impact on his capacity to return to his usual occupation as a cabinetmaker when he is finally released.[28] This is in part due to ongoing pain and discomfort when he engages in lifting activities.
[28]The Medical Panel which assessed him accepted a degree of permanent impairment.
Issues and relevant principles in the substantive application
The civil standard of proof applies to the applicant’s evidence put forward in support of the claim.[29]
[29]RK v Mirik and Mirik [2009] VSC 14, [14].
In this application, it is not disputed that the applicant did suffer injury as a direct result of the offence for which the respondent was found guilty. The nub of the contest is the degree of injury directly attributable to the respondent’s crime.
The next issue is the determination of the quantum of any compensation for pain and suffering and the amount of compensation that should be awarded for past and future counselling result of the offence and like expenses pursuant to s 85B(2).
In Moresco,[30] T Forrest J emphasised that compensation orders under the Act are intended to be a quick and cheap mechanism available for victims of crime, in contrast to the more complicated rules governing civil applications for damages at common law.
[30][2015] VSC 51.
His Honour set out the approach to be taken once the claim for compensation is made out:
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. 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.[31]
[31]Ibid [25] (citations omitted). See also similar factors listed by Neave JA in DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116 [50] and principles discussed in Cheng v Zhuang [2016] VSC 24 (Kaye JA).
The Court is entitled to rely on the material drawn from the prosecution of the respondent, along with relevant admissions, victim impact statements and like material as set out in s 85F.
Section 85G makes provision for the adducing of evidence on the application and preserves the respondent’s right to be heard on the application.
Section 85H permits the court to take into account as far as practicable the financial circumstances of the respondent and the nature of the burden that payment will impose in determining the amount and method of payment of compensation, once the court has determined to make a compensation order.
The determination of quantum is made in the exercise of discretion based on the material placed before the Court in consideration of the matters referred to above, including the nature of the crime and the effect on the applicant of that crime, the quantum of awards made in like cases, and, if warranted, the financial circumstances of the offender.[32]
[32]As to the last point, see Stevens v Baxter [2009] VSC 257 [35] (Forrest J).
The Court is also obliged to consider whether the order or its amount might impede the respondent’s ultimate rehabilitation.
The evidence on the substantive application
The applicant testified that she has a very busy and high powered role as an executive assistant. She said that she has no desire or wish to see a psychiatrist and was not willing to take medication such as antidepressants. She said that her general practitioner had prescribed some medication but that she chose not to take it. She stated that she used to see Mr Antonenko more often but her visits became sporadic. She would sometimes exceed the ten Medicare-funded visits per year by between two and five extra sessions, which she would pay for herself. She stated that she had last seen Mr Antonenko two to three months earlier.
In his report dated 31 March 2015, Mr Antonenko stated that he commenced treating the applicant on 10 October 2012. He applied a number of psychological tests during the first few sessions with the applicant, leading to an initial finding of moderate depression and severe anxiety. Over the course of treating the applicant, Mr Antonenko’s clinical judgment, said to have been confirmed by subsequent tests, was that the applicant was not suffering from depression but had been profoundly affected by the murder of the deceased. That factor, in combination with an overload of other factors outside of her control, led to an anxiety-related condition, low mood and confidence and self-esteem issues.
Mr Antonenko listed multiple factors which he indicated were causative of the applicant’s psychological distress, including:
(a) the grief and loss of the deceased;
(b) the grief and loss of her other brother who was murdered in 2005;
(c) the breakup of her parent’s marriage in 1986;
(d) fatigue and sleep deprivation;
(e) issues with a number of failed relationships;
(f) wedding called off a month prior by her fiancé;
(g) health issues relating to a motor vehicle accident when she was knocked off her bike;
(h) general poor health;
(i) work demands and pressures;
(j) purchase of a house with a former partner and subsequent relationship breakdown;
(k) lack of holidays or time out in several years; and
(l) social isolation.
Mr Antonenko considered that the applicant’s multiple losses had had a compounding effect on her state of mind, making it difficult for the applicant to experience any joy in her life.
Under cross-examination, the applicant conceded the compounding effect of these other losses on her, but she also conveyed the genuine impression that the murder of her younger brother, the deceased, was a grievous loss the sadness of which still haunted her. I accept that that is so.
Dr Triggs went much further in her diagnoses of the applicant and listed a range of diagnostic labels that were firmly contested by the respondent. She was cross-examined as to the extent to which her findings of an abnormal grief reaction unresolved, major depression, post-traumatic stress disorder in partial remission and probable alcohol abuse disorder were based on the diagnostic criteria in the latest edition of the DSM[33] or other professional reference guides. She was also asked to consider the listed DSM characteristics for these diagnoses and account for the lack of concurrence with symptoms presented by the applicant.
[33]Diagnostic and Statistical Manual of Mental Disorders (2013, 5th ed) (‘DSM’).
Dr Triggs testified that she did not limit herself to the DSM classifications of disorders in forming her diagnostic opinions but had based her conclusions on her clinical experience and as consultant psychiatrist. She agreed with Mr Harrison that she did not conduct any tests during her interview with the applicant, and said that as a consultant psychiatrist it was unnecessary to administer tests.
I accept Dr Triggs’s complaint that that the diagnostic criteria listed in the DSM to which she was taken to by Mr Harrison are not the only benchmarks for the diagnosis of mental disorders. However, there was a lack of evidence from Dr Triggs as to the methods or techniques that she used to reach her diagnoses beyond a simple assertion that they were reached from her clinical experience as a consultant psychiatrist. This deficiency in her evidence was compounded by her unwillingness to accept the limitations of her diagnoses.
Mr Harrison submitted that the Court was left with little information as to what specific criteria she based each of her diagnoses on. I agree.
Mr Hill conceded, in recognition of the deficiencies in Dr Triggs’s evidence, that the Court would be entitled to disregard the preponderance of her evidence but could have recourse to Mr Antonenko’s unchallenged evidence in order to make an appropriate award in the applicant’s favour. I accept that this is so. It is also significant that the applicant only saw Dr Triggs on one occasion in 2015 for only an hour and a half, whereas Mr Antonenko had been the applicant’s treating psychologist since 2012.
The applicant’s entitlement to compensation
It is clear from the report of Mr Antonenko that the applicant is still suffering ongoing psychological sequelae as a result of Mark Russo’s murder. There are also extraneous factors impacting her presentation. Even after the date of the report prepared by Mr Antonenko, it seems that the applicant experienced further grief over the unlawful killing of a cousin. She has therefore lost two brothers and one cousin to homicides. This is tragic indeed.
However, the focus of this application is on the effects of the respondent’s crime. The exact extent to which her brother Mark Russo’s murder has contributed to her psychological state is difficult to quantify, when regard is also had to the interaction of other negative life experiences suffered by the applicant both before and after the murder of the deceased.
I have taken into account the fact that the damages awarded to the respondent may be important to his rehabilitation, even if only indirectly. If the settlement monies awarded to him reduce his financial indebtedness to his mother, his prospects of rehabilitation may be more favourable when he is released. It should also be borne in mind that the settlement monies awarded to the respondent were intended to compensate for serious physical injures which may continue to impact on the respondent’s work capacity after his release.
Having balanced all of the foregoing matters I am satisfied to the civil standard that the respondent’s offending has caused the applicant ongoing grief and distress and psychological sequelae. I make this finding notwithstanding the contribution of other extraneous factors past and present which have added to the applicant’s unhappy circumstances. I do accept that the applicant felt closer to Mark Russo than she did to her older brother who was murdered in 2005.
Consideration of quantum
The applicant’s counsel suggested that the Court should take a ‘nutshell’ approach to the allocation of an award for pain and suffering by synthesising all of the competing factors which might also include the financial circumstances of the respondent. This accords with the approach of T Forrest J in Moresco.
I must also take into consideration those extraneous factors which have revealed themselves over the years that have passed since the murder of Mark Russo, and which have contributed to the applicant’s condition.
In assessing the impact of her brother’s death, I also take into consideration the fact that the applicant has been able to maintain a demanding position in a government department and has decided against seeking psychiatric treatment and medication. She does not regard herself as psychiatrically unwell, and admits to being somewhat sporadic in her attendances for psychological treatment.
In the immediate period after the murder of Mark Russo, the applicant did avail herself of the assistance offered through VOCAT scheme and, as referred to above, received a lump sum award of assistance of $10,000 for distress. She also testified that she attended a psychologist for about three sessions closer to the time of the murder and those sessions were paid for by VOCAT. She could not recall the name of the psychologist she attended or provide more exact details. It is also of some significance that the referral to Mr Antonenko by her doctor did not happen until 2012, although the murder of the Mark Russo occurred in 2004.
The respondent was seen by a medical panel[34] and a plastic surgeon[35] for the purposes of assessing the injuries inflicted by another prisoner in 2008. He told the medical panel about the ongoing pain and suffering effects of the burns he suffered. His ability to resume civilian life after his eventual release from prison is likely to be impaired by the effects of his injuries. His mother and grandmother visit him in prison and he may well rely on his mother to support his rehabilitation. At the time of the proceeding before me, the respondent was imprisoned at Marngoneet Correctional Centre and working as a prison billet.
[34]Medical Panel Certificate of Determination and Reasons for Determination, 8 July 2013: Exhibit ‘OA2’ to the respondent’s affidavit.
[35]Assessment of Dr Murray Stapleton, 31 March 2011: Exhibit ‘OA1’ to the respondent’s affidavit.
The parties referred me to the quantum of awards given in a wide-ranging array of other cases.[36] Whilst it is helpful to consider the range of compensation awarded to family members after a murder, each case necessarily throws up a discrete concatenation of factors for consideration. In that sense there is only limited guidance that can be obtained from comparing the amounts awarded in other s 85B applications. As I have observed, there are a range of elements which must be part of the intuitive synthesis referred to by T Forrest J in Moresco.
[36]The cases are set out in the Appendix to Chalmers v Liang & Zhu [2011] VSCA 439.
Conclusion
In light of all the above mentioned factors, I consider that I should award the applicant $40,000 compensation for pain and suffering. In light of her evidence that she has exceeded her Medicare-funded visits to some degree since commencing her treatment with Mr Antonenko and taking into account that this may occur in the future, I will allow $5,000 towards the out-of-pocket costs of psychological treatment.[37]
[37]Although I note that the applicant did not provide detailed and specific evidence as to past and proposed out-of-pocket expenditure on psychological treatment.
Pursuant to s 85I of the Act, the amount of the compensation I have ordered must be reduced by the $10,000 awarded to the victim under the Victims of Crime Assistance Act 1996 in 2005.
3
12
0