Jackson v Graham
[2014] VCC 241
•12 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-09-1949
| CARLTON JACKSON | Applicant |
| v | |
| STEVEN JOHN GRAHAM | Respondent |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2014 | |
DATE OF JUDGMENT: | 12 March 2014 | |
CASE MAY BE CITED AS: | Jackson v Graham | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 241 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991 – injury to right eye following an assault – application issued out of time – whether “in the interests of justice” to extend the time
Legislation Cited: Sentencing Act 1991; Victims of Crime Assistance Act 1996
Cases Cited:Robertson v Esso (Australia) Pty Ltd [2004] VSC 101; Bourke & Ors v State Bank of New South Wales (1998) 22 FCR 378; Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Stevens v Baxter [2009] VSC 257; RK v Mirik[2009] VSC 14; Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd(2006) 14 VR 345; Esso Australia Pty Ltd v Robertson [2005] VSCA 138; Chalmers v Liang [2011] VSCA 439
Judgment: Compensation Order made in favour of the Applicant in the sum of $65,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Podger | Michael Faltermaier Lawyers |
| For the Respondent | In person | - |
HIS HONOUR:
Preliminary
1 This proceeding concerns an application for compensation made pursuant to the provisions of s85B of the Sentencing Act 1991 (“the Act”). The application is brought by Mr Jackson against Mr Graham and arises out of an assault which occurred on 1 June 2009 in Melbourne. On that date, Mr Graham struck Mr Jackson, causing significant injury, in particular to his right eye. Mr Graham was charged with recklessly cause serious injury and pleaded guilty in the Magistrates’ Court at Melbourne on 21 September 2009. The learned magistrate imposed a term of imprisonment of six months and suspended three months of that term with an operational period of twelve months.
2 Mr Graham appealed the decision, and the appeal was heard by me on 19 March 2010. On that date, the Orders of the Magistrates’ Court were set aside and a term of imprisonment of twelve months, wholly suspended for a period of two years, was imposed.
3 Pursuant to s85C of the Act, the application must be made within twelve months of an offender being convicted of an offence. The application was not issued until 7 June 2013 and is thus out of time by approximately two years and three months.
4 Pursuant to the provisions of s85D of the Act, a court may extend the time within which an application is to be made if it is of the opinion that “it is in the interests of justice to do so”.
5 In support of the application, affidavits of the applicant, sworn 21 January 2014, and his solicitor, Mr Faltermaier, sworn 20 January 2014, were tendered into evidence. In addition, Mr Jackson gave brief viva voce evidence.
6 Mr Graham was self-represented and appeared via videolink. He also gave brief evidence, but did not file any affidavit nor other material.
The assault and the injuries sustained
7 The assault is described in the affidavit of Mr Jackson. At the time, he was sixty-two years of age and he described his health as good, although he suffered type 2 diabetes. He was at a stand near the corner of Bourke and Elizabeth Streets, Melbourne where a business of which he was the proprietor sold nuts. Somehow an argument developed with the respondent, who assaulted Mr Jackson with a clenched fist to the right side of his face. He fell and struck the back of his head on the trailer of his vehicle. He was taken to The Royal Melbourne Hospital and, according to a discharge summary,[1] Mr Jackson suffered the following injuries:
[1]Exhibit MF3 to the affidavit of Michael Faltermaier
· A rupture to the globe of the right eye
· A fracture to the right orbital floor around the eye
· Significant psychological reaction.
8 He underwent two bouts of surgery to the right eye at The Royal Melbourne Hospital, including a metal implant to the fractured facial bone, and four episodes of surgery at The Royal Victorian Eye and Ear Hospital, to which hospital he was subsequently transferred. According to a report of that institution, it was said he had suffered a penetrating injury to the right eye with loss of the lens, iris and vitreous to the right eye with haemorrhage. In the course of his treatment at The Royal Victorian Eye and Ear Hospital, he developed glaucoma in the right eye as a complication of the initial injury, which led to blindness. The report added he will never regain full vision of the right eye.
9 According to his affidavit, he was unable to work in the nut business for more than six months and the business was subsequently wound up. He received assistance from District Nursing and other services for six months.
10 According to his affidavit, Mr Jackson said that the vision in his left eye is deteriorating, although that is not supported by any medical opinion. As a result of his diabetes, he has recently had his left leg amputated below the knee. He still suffers headaches in the region of his right eye and some loss of sensation around the cheek, face and nose. He has been unable to pursue a number of hobbies and activities, including in the area of design, and he has not been able to drive.
11 According to a report of psychologist, Mr Michael O’Neill,[2] Mr Jackson complained of being constantly alert in public, even two years after the assault, was easily alarmed and suffered significant mood lability. He ruminated over the incident and suffered depression and despair. Mr O’Neill described Mr Jackson’s level of distress as being in the relatively severe range, although he had stabilised mentally. He diagnosed Mr Jackson as suffering a Post-Traumatic Stress Disorder.
[2]Exhibit CJ2 to Mr Jackson’s affidavit
12 According to his affidavit, he said that as a result of this Disorder, he determined to move to China with his second wife. He has been unable to work since the nut business collapsed.
13 He has not brought any civil proceedings seeking damages for the assault, but in August 2012, was awarded an amount of compensation from the Victims of Crime Assistance Tribunal (“VOCAT”). The award was:
· Special financial assistance $10,000.00
· Loss of earnings $20,000.00
· Pharmaceutical $339.00
· Various removal and relocation expenses $7,931.67
_________
$38,270.67
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14 According to s85I of the Act:
“If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision.”
Application for the extension of time
15 According to Mr Jackson’s affidavit and evidence, he was not told by the authorities nor anyone else that the charges against Mr Graham were to be heard before the Magistrates’ Court in September 2009, nor before this Court in March 2010. In December 2010, he consulted a Ms Chaudrey of FC Legal, a firm of solicitors, and received advice and assistance in relation to the claim to VOCAT. He said he did not recall receiving any advice as to a time limit for the bringing of any claim for compensation.
16 In May 2011, Mr Jackson determined to leave Australia for China. He sought advice from Slater & Gordon Lawyers and was advised they did not act in “these types of claims”. Again, he said he was not provided with any advice as to time limits. He moved to China in 2011. In July or August 2012, he consulted Maurice Blackburn Lawyers via the internet. He said he received advice that by that time, his entitlement to bring a claim for compensation was “just out of time for the three-year limit”. It would appear this advice related to a common-law claim for assault rather than a claim for compensation under the Act. He considered that he was therefore unable to bring any claim for compensation.
17 In September 2012, he consulted his current solicitor, Mr Michael Faltermaier. There was apparently some delay before Mr Faltermaier could obtain the relevant documents from Ms Chaudrey. In October 2012, Mr Jackson said he was seriously ill in hospital and had part of his leg amputated. In February 2013, Mr Faltermaier told him that, upon the advice of a barrister, he had the prospect of making an application for compensation under the Act.
18 He says he was never given advice that a claim for compensation under the Act was the subject of any time limit.
19 I was taken to a decision of Cummins J in Robertson v Esso (Australia) Pty Ltd.[3] At paragraph 4, his Honour considered the expression “in the interests of justice”. He noted other decisions where it was said the phrase ought be construed liberally, rather than narrowly.[4] Further, it was said that the limitation provision should not be permitted to defeat otherwise legitimate claims unless real injustice was likely to be caused to a respondent.[5] His Honour concluded the phrase ought be given a liberal, and not a narrow nor pedantic approach. He further noted that given a pivotal principle of sentencing is rehabilitation, that it is antipathetic to that principle that offenders may have compensation proceedings brought against them many years out of time. That concept has particular application to this proceeding, as Mr Graham gave evidence, to which I will shortly refer, that although employed, and in receipt of a good salary, he has had various trauma in his own life, including a broken marriage and the need to support three children, which has made it difficult for him to re-establish himself.
[3][2004] VSC 101
[4]Bourke & Ors v State Bank of New South Wales (1998) 22 FCR 378 at 394
[5]Baffsky v John Fairfax & Sons Ltd (1990) 97 ACTR 1 at 6
20 That aside, Mr Graham did not point to any area of specific prejudice in the course of his evidence. Indeed, the facts surrounding the claim for compensation are relatively easily established. Mr Jackson suffered specific injury which is the subject of a number of medical reports. There was no evidence which Mr Graham said he was unable to call because of the lapse of time.
21 The general principles surrounding applications to extend limitation periods in civil proceedings have application. They were canvassed in Brisbane South Regional Health Authority v Taylor.[6] It should be said that that case involved the elapse of approximately seventeen years before a claim was brought, bringing with it considerable specific prejudice to the respondent. McHugh J enunciated various principles to be taken into account, the most significant of which is as to whether the chances of a fair trial, by reason of the delay, had become unlikely. He said:
[6](1996) 186 CLR 541
(i) As time goes by, relevant evidence is likely to be lost.
(ii) It is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.
(iii) People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
(iv) It is in the public interest that disputes be settled as quickly as possible.
22 In all cases, a balance is to be struck between the interests of an applicant who has suffered serious injury as a result of a criminal offence, as against the interests of the respondent in having matters concluded within a fixed period so as to arrange his circumstances, in particular as they relate to rehabilitation, in a concluded manner.
23 I have determined it is in the interests of justice to extend the period within which an application be brought. I say that for the following reasons:
· Mr Jackson suffered a serious injury which has led to the loss of sight in his right eye. That injury was suffered as a consequence of a criminal act. In those circumstances, a liberal interpretation of the provision to extend time ought be allowed.
· There is no evidence of any specific prejudice suffered by Mr Graham in being able to respond to the application.
· I accept the evidence of Mr Jackson that he was not aware, and did not receive any advice from lawyers whom he engaged, that there was any time limit in respect of the bringing of this application. Indeed, I accept his evidence that he did not even know when the prosecution against Mr Graham came before the Magistrates’ then the County Courts.
· He took the view, not unreasonably, that any application was out of time until he obtained advice to the contrary from Mr Faltermaier. The delay in bringing the application thereafter can be explained by the ill health he was suffering towards the end of 2012, complicated by his residence in China.
· The injuries he suffered, which are the subject of the claim for compensation, and the consequences of those injuries, are relatively succinctly summarised in the medical report, and the affidavit of Mr Jackson.
24 I propose to make formal orders granting an extension of time for the bringing of the application, to 7 June 2013.
The application for compensation
25 The principles to be borne in mind in considering an application for compensation were set out by J Forrest J in Stevens v Baxter.[7] His Honour summarised them as follows:
[7][2009] VSC 257
“• The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court provided the claims fall within categories set out under s 85B(2).
• An order for compensation is determined by the application, where relevant, of common law principles,[8] however the order itself is one for compensation not damages.[9]
• Where a claim for pain and suffering is maintained, it must be a direct result of the offence.
• The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.
• Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.
• Unlike a common law claim for damages the financial circumstances of the offender are relevant.
• A court is not obliged to reduce the amount of compensation payable on the basis of the offender’s financial circumstances; it is a relevant but not controlling consideration.”[10]
[8]RK v Mirik[2009] VSC 14 at paragraph [148], Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd(2006) 14 VR 345 at 352 and 356
[9]Esso Australia Pty Ltd v Robertson [2005] VSCA 138 at paragraphs [21]–[30]
[10]RK v Mirik (supra) at paragraphs [135]–[143]
26 The financial circumstances of a respondent may be taken into account where rehabilitation of the offender is a matter to be considered, in particular a youthful offender.[11] The Act has established a system which deprives a respondent of the conventional means of testing an applicant’s case, as would occur in a civil proceeding. It may be there should be a reduction in what the Court would consider full compensation to offset the disadvantage to the respondent in that regard. In RK v Mirik,[12] Bell J made a reduction of 25 per cent from the award of compensation.
[11]Stevens v Baxter (supra) at paragraph [35]
[12]Supra
27 Given the respondent’s financial circumstances is a relevant, although not a controlling, factor, Mr Graham’s evidence in that regard should be considered. He is currently working in a mining town in Queensland. He is a workshop supervisor in employment which he has held for the past ten years. According to his last taxation return, he earned $116,375.00 gross last financial year. The employment is stable, but he said “you never know what is around the corner”. He is separated from his wife and going through divorce proceedings. He has three young children and pays $480.00 per week child support[13]. He pays $275.00 per week rental for his own accommodation. He has a personal loan which was taken up to repay various credit card debts, and repays $1,000.00 per month. He is paying off legal fees from the court process with over $6,000.00 still outstanding. He does not own any property nor has any money in the bank. He does not own a car and lives “hand to mouth”. He has superannuation, but expects his former wife will become entitled to that. In the recent financial year, he paid more than $32,000.00 in tax.
[13]There is a court order in place of $380 per week, but he pays a further $100 per week to assist his children.
28 On any view, Mr Jackson suffered a very serious injury in the assault of 1 June 2009. This required surgery on six occasions, and the eventual loss of sight in the right eye. There is no reasonable prospect of him regaining the sight. According to his affidavit, he has some difficulty with sight in his left eye, although this was not supported by any medical evidence.
29 I accept his evidence as to the effect upon him of the injury, the loss of his involvement of a range of activities and interests and the ongoing ache in the area of the injury.
30 I further accept that he suffered a significant psychological reaction in the nature of a Post-Traumatic Stress Disorder. This has also had a substantial impact upon his life.
31 I have had regard to the awards of compensation made by courts under the Act, and conveniently reviewed by Kyrou AJA in Chalmers v Liang.[14] Those orders provide some general guidance, but each case must be determined upon its own facts and circumstances.
[14][2011] VSCA 439
32 I further bear in mind the financial circumstances of Mr Graham. He is earning a substantial salary in stable employment, but has considerable expenses. I accept his evidence that he has accumulated no assets of any significance and all, or nearly all, of what he earns goes in payment of child support, rent, a personal loan and the payment of legal costs.
33 His rehabilitation from the offending is a matter to be considered. It appears to me he has taken significant steps to reintegrate into the community. An overwhelming award of compensation has the prospect to destabilise that rehabilitation.
34 Attempting to synthesise all of these various elements, in my view, it is appropriate to make an order for compensation for pain and suffering pursuant to s85B(2)(a) of the Act in the sum of $75,000.00.
35 From this should be deducted the award made by VOCAT. However, in my view, it is not appropriate to reduce the order by the total amount received by Mr Jackson from VOCAT. That award included $20,000 for loss of earnings, and awards for various costs, expenses and legal fees. Of the total award, it would appear only $10,000 referred to as “special financial assistance (Category A)” could be considered as pain and suffering. Thus the order will be reduced by $10,000.
36 Pursuant to s85B of the Act, the amount of compensation to be paid by Mr Graham to Mr Jackson is $65,000.00 (SIXTY FIVE THOUSAND DOLLARS).
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