Marceta v Efandis (No 2)
[2016] VSC 332
•15 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 01599
| ATHANASIA MARCETA | Applicant |
| v | |
| VASILIKI EFANDIS (NO 2) | Respondent |
---
JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2016 |
DATE OF JUDGMENT: | 15 June 2016 |
CASE MAY BE CITED AS: | Marceta v Efandis (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 332 |
---
CRIMINAL LAW – Murder – Compensation – Application for compensation order – Sentencing Act 1991, ss 85B, 85F, 85G, 85H, 85I and 85J.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr E Rallis (Sol) | Stonnington & Zervas |
| For the Respondent | In Person |
HIS HONOUR:
Introduction and background
On 10 September 2008, the respondent was found guilty of the murder of George Marceta in September 2004. On 28 November 2008, the trial judge sentenced the respondent to a term of imprisonment of 24 years with a non-parole period of 20 years.[1] On 20 August 2013, the respondent applied for an extension of time within which to file a notice of application for leave to appeal to the Court of Appeal against her conviction. That application was ultimately refused by the Court of Appeal[2] on 19 March 2014.[3] On 15 August 2014, the High Court refused the respondent’s application for special leave to appeal against the decision of the Court of Appeal.[4]
[1]R v Efandis [2008] VSC 508.
[2]Initially, the application was refused by the Deputy Registrar of the Court of Appeal. However, the respondent subsequently renewed her application before a bench of two judges of appeal.
[3]Efandis v The Queen (2014) 41 VR 456.
[4]Efandis v The Queen [2014] HCA Trans 182.
Section 85B of the Sentencing Act 1991 (‘the Act’) permits a person who has suffered any injury as a direct result of an offence to apply for a compensation order as described therein. Section 85C provides that an application for a compensation order must be made within 12 months after the offender is found guilty or convicted of the offence. Section 85D provides that a court may extend the time within which an application for a compensation order may be made ‘if it is of the opinion that it is in the interests of justice to do so’.
The applicant is the adult daughter of the respondent’s deceased victim. On 20 May 2016, this Court extended the time within which the applicant could make a claim for compensation under s 85B to 3 June 2016.[5] On 24 May 2016, the applicant filed an application under s 85B seeking a compensation order against the respondent. This is the hearing of the applicant’s application for a compensation order. Section 85J of the Act requires this Court to state in writing the reasons for its decision on this application. These are the written reasons required by s 85J of the Act.[6]
[5]Marceta v Efandis [2016] VSC 265.
[6]Section 85J also requires the Court to cause these reasons to be entered in the records of the Court, and I will in due course so direct.
The applicant’s evidence
In support of her application, the applicant has sworn an affidavit setting out the relevant background of the matter. By way of background, the applicant has deposed that since 1997 she has been living permanently in Greece. She is married with two children, and currently employed as a technology services manager.
As to the effects of her father’s murder, the applicant deposed:
Following the murder of my father I have been suffering from depression, anxiety and emotional ordeal. My grief has periodically overtaken my life and has affected my relationship with my husband and children. My father’s murder had overwhelmed me and affected my ability to cope with life and my professional responsibilities. It has been a struggle to deal with my depression and to keep up with my work responsibilities. It has been hard to face the future. I constantly find myself dwelling on the past and the present is so painful, knowing that I will never see my father again.
In addition to deposing to the effects of her father’s murder, the applicant has deposed to receiving correspondence through email from the Office of Public Prosecutions in February 2016 in relation to an amount of approximately $21,000 currently under the control of Asset Confiscation Operations, Department of Justice.[7]
[7]As at 7 April 2016, the precise amount held was said to be $21,260.40.
At the hearing this morning, the respondent opposed the applicant’s application, saying that she had ‘not killed anyone’ and that she would seek to overturn her conviction. In such circumstances, the respondent submitted that no order should be made in the applicant’s favour at this stage and the amount currently held by Asset Confiscation Operations should be preserved.
Analysis
As was said by T Forrest J in Moresco v Budimir,[8] in an application under s 85B of the Sentencing Act, a court must ask itself three questions:
1. Was the respondent found guilty or convicted of an offence?
2. Has the applicant suffered injury?
3. Was the injury a direct result of the offence?
If the answer to each of these questions is ‘Yes’, and the respondent has been given a reasonable opportunity to be heard on the application,[9] the court may order the respondent to pay compensation in such amount as it thinks fit. This amount may represent one or more of the amounts described in s 85B(2), including an amount for pain and suffering experienced by the applicant victim as a direct result of the offence.[10] Further, orders for compensation are not limited to injuries that would be compensable at common law. ‘Injury’ is defined in s 85A of the Act to include ‘grief, distress or trauma or other significant adverse effect’.
[8][2015] VSC 51 (‘Moresco’).
[9]Cf s 85G(2) of the Act.
[10]Moresco [2015] VSC 51 [19]–[20].
It is not necessary to set out the facts of the respondent’s crime. Those facts are more than adequately described for present purposes in the trial judge’s reasons for sentence.[11] The evidence discloses that the respondent has been convicted of the murder of the applicant’s father. Moreover, the respondent has long exhausted her rights of appeal.[12] In my view there is no real prospect that the respondent’s conviction will now be overturned. Further, I am satisfied that the applicant has suffered injury within the meaning of s 85A of the Act and that that injury is a direct result of the offence committed by the respondent. So much is amply demonstrated by the evidence admissible on this application.[13]
[11]R v Efandis [2008] VSC 508.
[12]See paragraph [1] above.
[13]See ss 85F and 85G of the Act.
The only amount sought by the applicant for compensation in this application is the amount currently held under the control of Asset Confiscation Operations, Department of Justice — approximately $21,000. It appears that the respondent is otherwise impecunious and has no assets which might be capable of satisfying a more substantial order for compensation.[14]
[14]Cf s 85H of the Act.
In determining whether to make a compensation order, and in determining the amount of any such order, it is appropriate to give consideration to the question of whether the order or its amount might prejudice or impede the respondent’s rehabilitation.[15] Having considered that matter, I am not persuaded that an order (or more particularly an order of the magnitude sought by the applicant in this case) would prejudice the respondent’s rehabilitation in any relevant way.
[15]Cf RK v Mirik (2009) 21 VR 623, 660 [177]. But note also Kelley v R1 [2016] VSCA 90 [22].
The material in this case[16] persuades me that the injury sustained by the applicant is a substantial one for which an award of compensation of the magnitude that she seeks is extremely modest. It is in my view entirely appropriate to grant the application and order the payment of the amount currently under the control of Asset Confiscation Operations, Department of Justice, to which I have already referred, to be paid to the applicant as compensation pursuant to s 85B of the Act.
[16]Cf ss 85F and 85G of the Act.
Finally, I should say for the sake of completeness, that as the applicant has not received any award under the Victims of Crime Assistance Act 1996, there is no occasion to reduce the amount of her compensation as would otherwise be required by s 85I of the Act.
Conclusion
The applicant’s application for compensation pursuant to s 85B of the Sentencing Act 1991 will be granted in the amount currently held under the control of Asset Confiscation Operations, Department of Justice.
- - -
0
6
0