Little v Morello

[2019] VCC 1424

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

APPLICATIONS LIST

Case No. AP-16-1612

PHILIP JAMES LITTLE	Applicant
v
JARON MORELLO	Respondent

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2019
DATE OF JUDGMENT:	5 September 2019
CASE MAY BE CITED AS:	Little v Morello
MEDIUM NEUTRAL CITATION:	[2019] VCC 1424

REASONS FOR JUDGMENT

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Subject:  Crimes Compensation

Catchwords:             Serious assault; physical and non-physical injuries; co-morbid conditions; assessment; costs

Legislation Cited: Section 85B Sentencing Act 1991

Cases Cited:

Judgment:                 Compensation awarded

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O. Lesage	Robinson Gill
For the Respondent	No Appearance

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HIS HONOUR:

1This is an application for compensation in accordance with the provisions of section 85B of the Sentencing Act 1991 (“the Act”). The applicant, Philip James Little, was the victim of a serious assault occasioned by the respondent, Jaron Morello, on or about 19 December 2015.

2The respondent was convicted of an offence of causing serious injury recklessly, contrary to section 17 of the Crimes Act 1958. He was initially sentenced to four months imprisonment followed by a 12 month community corrections order in the Geelong Magistrates’ Court on 24 June 2016. On appeal to this court on 6 April 2017 the conviction was maintained, but Mr Morello was re-sentenced to three months’ imprisonment followed by a 12 month community correction order. I am satisfied that the matters set out in sections 85B(1)(a) and (b) of the Act are made out in the present application.

3Mr Little gave evidence before me and adopted the contents of his two affidavits sworn 23 October 20181 and 12 September 2019.2 Additionally he produced a quotation relating to the supply of new dentures and gave evidence that the ongoing problems relating from his injured jaw were such that he had been advised that new dentures would definitely be required.

4Finally, he gave evidence of periods of homelessness, largely attributable to his emotional difficulties which had worsened following the injuries he received.  Mr Lesage of counsel, who appeared on behalf of Mr Little, tendered into evidence two photographs taken of his client shortly after the assaults occurred in 2015.3

5Although there was no appearance on behalf of the respondent, it is appropriate to set out the substance of Mr Little’s two affidavits as substantially describing

1. Exhibit B

2. Exhibit C

the nature and extent of the injuries occasioned by the criminal acts and the consequences which have flowed from them.

6Mr Little is 60 years of age and spent much of his adult life operating a tattoo business in Geelong. He was not working at the time of the assault and was engaged as a carer for his partner with whom he generally resides in Belmont.

7The assault occurred late in the evening of 19 December 2015 whilst he was visiting his partner’s daughter in Geelong West. His assailant, the present respondent, was the daughter’s then partner. Mr Morello arrived at the premises and appeared to have been drinking. He became abusive and attacked Mr Little, punching him on several occasions.

8As a result of the assault Mr Little felt pain in his face, head and “all over my body, including my lower back. There was a lot of blood and I felt pain everywhere.”4 He was taken by ambulance to Geelong Hospital, but ultimately underwent surgery a few days later at the Footscray Hospital to repair bilateral mandibular fractures and nasal bone fractures. Mr Little described the operation as involving the insertion of four metal plates into his jaw and requiring two or three days in hospital to recover.5 He also described worsening emotional features involving symptoms of post traumatic stress disorder, depression and anxiety.

“I had suffered from PTSD and anxiety and depression in the past, but since the assault it has worsened significantly.”6

9Mr Little’s first affidavit described ongoing physical and emotional difficulties including nerve damage on the right-hand side of his mouth which causes unpleasant symptoms. He has difficulty with chewing and believes he has become more difficult to live with since the incident. He was taking a variety of medications and described a number of co-morbidities including diverticulitis,

1. Exhibit B [27]

2. Exhibit B [31]

3. Exhibit B [32]

serious cardiovascular disease and pulmonary fibrosis.7

10In his more recent affidavit Mr Little described ongoing difficulties in his own domestic relationship as follows:

“I believe that our friendship difficulties began as a result of the worsening of my anxiety, depression and PTSD following the assault that is the subject of this application. Occasionally prior to the assault if Connie and I had an argument I wouldn’t need to leave home for the night. I have been regularly kicked out of home by Connie since the assault.”8

11Mr Little has continued to attend his general practitioner, Dr Hargreaves, on a regular basis. He referred to being the victim of acts of violence in the past, and stated:

“While I have been the victim of acts of violence in the past and I have a history of anxiety, depression and PTSD, my symptoms have worsened a great deal since the assault that is the subject of this application. I feel this assault has pushed me over the edge.”9

12Mr Little went on to describe increasing difficulties with his social life related to his non-organic injuries. He further stated in his affidavit that his sleep had been greatly impaired and that he was generally exhausted during the day.10

13Mr Little also described ongoing physical consequences involving further surgery to remove a metal plate from his jaw following an infection.  He stated:

“… I have suffered constant pain in my jaw, particularly in the middle right of my mouth on the bottom jaw. This has continued since the surgery.  To manage the pain, I take paracetamol multiple times per day. I am now using Endone and Tramadol when the pain becomes particularly bad. I find that I generally take Tramadol approximately every day and Endone approximately 3 – 4 times per week.”11

14Mr Little also described other unpleasant symptoms he believed to be related to nerve damage in the jaw area. He had ongoing difficulties with his dentures and had received advice that he would require a new set of dentures to be made.  A quotation for the cost of this work in the sum of $2,200 was tendered

1. Exhibit B [43] to [47]

2. Exhibit C [2]

3. Exhibit C [9]

4. Exhibit C [12]

5. Exhibit C [14]

in evidence.12

15Evidence was also given by Ms Jodie Gerritsen, the applicant’s solicitor. She had sworn four affidavits in support of Mr Little’s application.

16In Ms Gerritsen’s first affidavit sworn 29 November 2018 she exhibited a VOCAT Award dated 18 August 2016, noting an award of special financial assistance paid to the applicant in the sum of $1,300.13

17Ms Gerritsen’s initial affidavit also exhibited reports from Mr Peter Billings, clinical psychologist, dated 25 July 2016 and Associate Professor Michael Stubbs, oral medicine specialist, dated 21 October 2018.

18Mr Billings noted that Mr Little had suffered significant physical and mental problems as a result of the assault. He had additionally required bowel surgery and removal of his spleen for an unrelated medical condition.  He described  Mr Little as having “classic symptoms of post traumatic stress which are severe and in part represent the accumulation of past stressors.” Mr Billings noted a past history of other assaults, including one serious assault when he was the victim of an armed robbery in his tattoo parlour in approximately 2000. He also described a home invasion in 2007.  Mr Billings concluded:

“It seems very clear that the alleged act of violence has contributed substantially to the applicant’s symptoms and problems. However as detailed above, he has some very serious physical health issues which have required hospitalisation in recent times. The applicant has also experienced numerous assaults and they may have made a contribution to his symptomatology following his most recent assault.”14

19Associate Professor Stubbs examined Mr Little on 11 October 2018 and prepared a detailed report. He concluded that the assault had resulted in fractures to the mandible and a temporomandibular disorder. He noted the injury had contributed to involuntary dribbling from the corner of Mr Little’s mouth and affected some food selection choices and caused ongoing pain.

1. Exhibit A

2. Exhibit E

3. Exhibit E (Mr Billings’ report para 5.3)

Associate Professor Stubbs believed the temporomandibular disorder could be improved with physiotherapy. He believed that this was very likely to improve in the long-term. The surgical correction of the jaw fractures had been successfully treated, although he believed removal of the fixation plates may be required at some time in the future.15

20Ms Gerritsen’s second affidavit sworn on 27 May 2019 exhibited numerous documents, including the initial police preliminary brief and treatment records from both Barwon Health and other medical providers. It is unnecessary to set out details of this material other than to note it is consistent with the reports from Mr Billings and Associate Professor Stubbs, to which I have referred.

21Ms Gerritsen’s two most recent affidavits sworn 9 August 2019 and 30 August 2019 set out in considerable detail the diligent attempts made to engage the respondent, Jaron Morello, in these proceedings. I am satisfied that the respondent has been served with  this  application, and  indeed I note from  Ms Gerritsen’s affidavit of 9 August 2019 that he appeared at a mention before this court on 16 August 2018.   I also note that  a firm of  solicitors advised   Ms Gerritsen  that  they  acted  on  behalf  of  the  respondent  on  or  about  25 February 2019, but subsequently advised, on or about 19 June 2019, that they were ceasing to act.

22I am satisfied that Mr Morello has been given adequate notice of this matter proceeding. For whatever reason he has not chosen to appear or be represented.

23Mr Lesage of counsel provided detailed written submissions urging an award of compensation in the order of $100,000 primarily in respect to the pain and suffering experienced by Mr Little as a direct result of the offence. He also sought an enforcement order in accordance with section 85M of the Act.

24I accept that the constellation of physical and non-physical injuries and their

1. Exhibit E (Associate Professor Stubbs’ report para 8.4)

consequences have had a very serious effect on the applicant’s enjoyment of life. Nevertheless any award of compensation must take into account pre-existing co-morbidities, in particular Mr Little’s cardiac and respiratory conditions. I must also take into account the pre-existing non-organic conditions which must in part be related to previous acts of violence occasioned upon him pre-dating the assault by Morello.

25Section 85H of the Act empowers a court to take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will oppose in determining the amount and method of payment of the compensation to be awarded. Given that Mr Morello did not participate in the proceeding, and absent any evidence as to his financial circumstances, I do not believe it is appropriate or mandatory in this case, to discount to any extent the amount of compensation to be awarded, nor to delay its payment or enforceability.

26Having considered the evidence of Mr Little, and taking into account the medical material tendered on his behalf, I am satisfied that an amount of $95,000 represents fair and reasonable compensation for the pain and suffering that has been experienced by him as a direct result of the offence. In addition to this amount I am satisfied that it is fair and reasonable to award a further $2,200 in respect of the cost of replacement of both upper and lower dentures in accordance with the quotation tendered in the hearing.16

27I note the amount of the order previously made in respect of Mr Little, in accordance with the provisions of the Victims Of Crime Assistance Act 1996. The amount awarded was $1,300. In accordance with section 85I of the Act the compensation awarded in this application must be reduced by that amount.

28I therefore propose to order compensation  totalling $95,900 to be paid to     Mr Little by the offender, Jaron Morello.

1. Exhibit A

29At the conclusion of the hearing Mr Lesage sought an order for costs. Section 85K of the Act provides that each party must bear their own costs of the proceeding unless the court otherwise determines.

30In the present case the respondent appeared in person during the interlocutory stages of this application and instructed solicitors who subsequently filed a notice of ceasing to act. The injuries to the applicant included what I regard as very significant emotional injuries. In my view it was appropriate for Mr Little to instruct solicitors to assemble evidentiary material and to ensure his case was appropriately prepared and presented to the court. In the circumstances of the present application I am satisfied that it is appropriate that an order for costs be made.

31In addition to the compensation ordered the respondent will be ordered to pay the applicant’s costs of the proceeding, to be assessed by the Costs Court in default of agreement. Such costs to be assessed on a standard basis in accordance with the County Court Scale of Costs. I will certify fees for counsel at $1,650 for the appearance on 14 December 2018 and $1,320 for the appearance on 13 August 2019.

32Finally, I note the application made by Mr Lesage for an enforcement order in accordance with section 85M. In my view it is unnecessary for the court to make any such order in view of the clear wording of the section which describes the order in general terms as a judgment debt due by the offender to the person in whose favour the order is made.

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