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Josefski v Donnelly

Josefski v Donnelly

Case [2007] VSCA 6 31 January 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 211 of 2006

PHILLIP JOSEFSKI
	Applicant
v
KEVIN DONNELLY and ORS	Respondents

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JUDGES:	BUCHANAN, VINCENT and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2007
DATE OF JUDGMENT:	31 January 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 6

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Criminal Law – Compensation Orders – Claim for pain and suffering by parents following death of only son from motor vehicle accident – Offender leaving scene of accident and failing to render assistance – Application by offender for leave to appeal against compensation order – Application dismissed.
Sentencing Act 1991 ss 85A(1) (2), 85B, 85H(1), 85H(2), 85M.
Bankruptcy Act 1966 (C’th) s 40(1)(g).
Victims of Crime Assistance Act 1996 s 13(1)(c).
Judgment Debt Recovery Act 1984 s 6.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M W S Duckett	Counsel appeared pro bono
For the Respondents	Ms F L Dalziel	Counsel appeared pro bono

BUCHANAN JA:

I will ask Nettle JA to deliver the first judgment.

NETTLE JA:

On 30 March 2005 the applicant, Phillip Josefski, pleaded guilty before the County Court at Melbourne to one count that on 14 July 2002 he did fail to stop his motor vehicle after it was involved in an accident that resulted in the death of James Donnelly (count 1), one count that after the accident he did fail to render assistance to the said James Donnelly (count 2) and one count that between 14 July 2002 and 22 October 2002 he did with his parents agree to provide false information to the police in an attempt to pervert the course of justice (count 3).

Following a plea in mitigation of penalty, on 11 April 2005 the judge sentenced the applicant on each of counts 1 and 2 to terms of imprisonment of 12 months and on count 3 to a term of imprisonment of 15 months; ordered that the sentences imposed on counts 1 and 2 be served concurrently and that the sentence imposed on count 3 be served cumulatively on the sentences imposed on the other counts, thereby making for a total effective sentence of two years and three months' imprisonment; and directed that the applicant serve a minimum of 10 months' imprisonment before becoming eligible for parole, and that his driver's licence be cancelled and he be disqualified from obtaining a licence for three years. On appeal to this Court, the non-parole period was increased to 18 months.

Following the applicant's conviction, the respondents applied, pursuant to s 85B of the Sentencing Act 1991, for an order for compensation for the pain and suffering experienced by them as a direct result of the offences, and on 19 June 2006 that application came on for hearing before another judge of the County Court.

On 30 June 2006 the judge handed down a decision that the applicant should pay to each of Kevin Donnelly and Julia Donnelly compensation in the amount of $50,000 and should pay to Amelia Donnelly compensation in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Josefski v Donnelly

Details

AGLC: Josefski v Donnelly [2007] VSCA 6
Case: [2007] VSCA 6
Decision Date: 31 January 2007

CaseChat Overview and Summary

In the matter of Josefski v Donnelly, the respondent was convicted for causing the death of the appellant’s son through a motor vehicle accident. The respondent fled the scene without providing assistance, and the appellants sought compensation for the pain and suffering endured by the parents in the aftermath of their son's death. The matter was heard in the Supreme Court of Victoria, where the respondent subsequently applied for leave to appeal against the compensation order awarded to the appellants.

The central legal issues pertained to the statutory authority for compensation under the Sentencing Act 1991, and the potential overlap with the provisions of the Bankruptcy Act 1966 (C’th), the Victims of Crime Assistance Act 1996, and the Judgment Debt Recovery Act 1984. Specifically, the court needed to determine the extent of the compensation that could be awarded under the Sentencing Act and whether such compensation conflicted with or was supplementary to the provisions of the other Acts.

The court dismissed the respondent's application for leave to appeal, affirming that the compensation order was valid and appropriate under the Sentencing Act 1991. The court held that the statutory compensation did not contravene the other legislative provisions and that it was within the court's jurisdiction to award such compensation. The court underscored the importance of providing adequate compensation to the victims' families, given the egregious nature of the respondent's actions, including fleeing the scene and failing to provide assistance.

The final orders were that the application for leave to appeal was dismissed, and the compensation order remained in effect, thereby allowing the appellants to recover the awarded compensation from the respondent.

Orders