Kelley (a pseudonym) v R1 (a pseudonym) & Ors - [2016] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0244

RODNEY KELLEY (A PSEUDONYM)	Applicant
v
R1 (A PSEUDONYM)[1] & ORS	Respondents

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the applicant’s and the respondents’ names. The respondents will be known by the pseudonyms R1, R2, R3 and R4.

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JUDGES:	BEACH AND FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2016
DATE OF JUDGMENT:	6 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 90
JUDGMENT APPEALED FROM:	Kelley (a pseudonym) v R1 & Ors (a pseudonym) (Ex Tempore Ruling, County Court of Victoria, Judge Stuart, 2 November 2015)

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CRIMINAL LAW – Application for leave to appeal against compensation order – Child sexual abuse over sustained period in family situation – Multiple victims – Discount of 25 per cent applied to compensation that would otherwise have been ordered – Total compensation ordered approximately $376,000 leaving applicant with residual assets of approximately $300,000 – Amount ordered in excess of amounts claimed by two claimants – Whether sufficient regard had to applicant’s circumstances including his age (over 60), prospect of future employment and financial circumstances – Amount of compensation ordered not excessive – Any practice of routinely applying discount of 25 per cent (or any other figure) should cease – Each case to be considered on its own facts – Application for leave dismissed – RK v Mirik and Mirik (2009) 21 VR 623 considered,
Sentencing Act 1991 s 85B.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George
For the Respondents	Mr J P Gorton QC with Mr A E Hill	Slater and Gordon

BEACH JA
FERGUSON JA:

The applicant was convicted of sexual offences committed against two of his nieces and two of his great nieces. Each of the victims (who are the respondents to this application) sought a compensation order under s 85B of the Sentencing Act for pain and suffering. The judge made a compensation order in favour of each respondent. The individual amounts that he awarded were $95,000, $135,872, $64,408 and $80,000. The applicant seeks leave to appeal.[2] He submits that the compensation orders were disproportionate and excessive and were outside the range of compensation orders reasonably open in the circumstances of this offence and this offender and these victims.
[2]Criminal Procedure Act 2009 s 278.

The offences

The offences were committed over 18 years between 1975 and 1993 when the applicant was aged between 22 and 40. The respondents were aged between four and 14 when the offences were committed against them. The abuse took place in family homes. In sentencing the applicant, the judge described the offending in the following terms:

Typically, your offending involved touching on the breast area followed by asking them to come to your bedroom or not and then engaged in the sexual activity that involved you rubbing yourself against your victim’s bottom, your penis becoming erect and…

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.

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Details

Case: [2016] VSCA 90
Decision Date: 6 May 2016

CaseChat Overview and Summary

The case of Kelley (a pseudonym) v R1 (a pseudonym) & Ors was heard in the relevant Australian court where the applicant sought leave to appeal a compensation order following a conviction for child sexual abuse. The abuse occurred over an extended period within a familial context, affecting multiple victims. The compensation awarded was approximately $376,000, leaving the applicant with residual assets of about $300,000. This amount exceeded what had been claimed by two other claimants. The applicant argued that insufficient consideration had been given to his personal circumstances, including his age, prospects for future employment, and financial situation. The primary legal issue before the court was whether the compensation ordered was excessive, and if so, whether a discount of 25 per cent was appropriate in such cases.

The court considered whether the compensation awarded was excessive, taking into account the severity and duration of the crimes, the number of victims, and the applicant's personal circumstances. It noted that the discount applied was not arbitrary and had been applied in similar cases. The court also emphasised that each case should be evaluated on its own merits, rather than adhering to a set percentage discount. The court rejected the notion of a routine application of a specific discount rate and held that the amount ordered was not excessive given the unique facts of this case. The court further opined that the applicant’s financial position, including his age and residual assets, was adequately considered in arriving at the compensation figure.

The court dismissed the application for leave to appeal, affirming that the compensation order was appropriate in the context of the applicant's circumstances and the nature of the crimes committed. It also highlighted the need for each case to be assessed individually, discouraging the practice of applying a fixed discount rate to all cases. The decision underscored the importance of considering the unique facts and circumstances of each case when determining compensation orders in such contexts.

Orders