JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	15 December 2014
DATE OF JUDGMENT:	25 February 2015
CASE MAY BE CITED AS:	Moresco & Ors v Budimir
MEDIUM NEUTRAL CITATION:	[2015] VSC 51

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CRIMINAL LAW - Murder – Compensation – Application for leave to leave to apply out of time for compensation order pursuant to ss 85D and 85B of the Sentencing Act 1991 – Applicants mother, father and sister of deceased – Interests of justice favour short extension of time – Pain and suffering direct result of offending – Psychiatric injury direct result of offending – Quantum – Rehabilitation – Financial circumstances of offender.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D. J. Bracken	Schembri & Co Lawyers
The Respondent in person

HIS HONOUR:

Introduction

Mark Budimir murdered Dino Moresco (‘the deceased’) on 30 October 2011. On 5 April 2013 Nettle JA convicted and sentenced Mr Budimir, who is the defendant in these proceedings, for that offence. Madalena, Gabriel and Delia Moresco are the deceased’s mother, father and sister.

The Morescos apply for leave to apply out of time for an order for compensation for pain and suffering under s 85B of the Sentencing Act 1991 (‘the Act’). The leave application is brought pursuant to s 85D of the Act. I have heard and will determine the leave application and the substantive application instanter.

Factual Background

Mr Budimir was born on 15 November 1968. He was 23 when he married his wife, Jana Budimir. Together they have four children, aged 8, 11, 13 and 15.

Until roughly 2009 Mrs Budimir was a stay at home mother who from time to time was part-time employed. When the Budimirs’ fourth child was born, Mrs Budimir set up a small nursery which, eventually, she operated out of premises in Geelong. In 2010 she began to purchase concrete garden ornaments from the deceased, who manufactured and sold them for a living.

A detailed account of what transpired between Mr Budimir, Mrs Budimir and the deceased between 2010 and 30 October 2011 is unnecessary. In short compass, Mr Budimir suspected that his wife and the deceased were having an affair. Mr Budimir remonstrated with his wife and pleaded with her not to leave him. Although she initially denied any infidelity, she was clear and unwavering in her intention to leave her husband.

In the months leading up to October 2011 Mr Budimir surveilled Mrs Budimir and the deceased; he assaulted and falsely imprisoned her; he breached the terms of an intervention order she obtained against him, although at times with her tacit consent; he warned the deceased to stay away from Mrs Budimir; he told the deceased that if he did not do so he would be dealt with in such a way as ‘to…

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 Moresco v Budimir

Details

AGLC: Moresco v Budimir [2015] VSC 51
Case: [2015] VSC 51
Decision Date: 25 February 2015

CaseChat Overview and Summary

Moresco v Budimir involved a legal dispute regarding compensation for the murder of a person. The case was heard in a relevant Australian court. The applicants, the mother, father, and sister of the deceased, sought leave to apply out of time for a compensation order under sections 85D and 85B of the Sentencing Act 1991. They argued that the interests of justice favoured a short extension of time for their application.

The court was required to determine whether the applicants' interests in obtaining compensation were sufficiently compelling to warrant an extension of time. The court considered the direct consequences of the offending, including the pain and suffering endured by the deceased and the psychiatric injury suffered by the applicants as a result of the offence. The court also evaluated the quantum of compensation, the rehabilitation of the offender, and the financial circumstances of the offender.

In its reasoning, the court found that the applicants' interests in obtaining compensation were strong and warranted a short extension of time for their application. The court emphasised the direct and significant impact of the offending on the applicants, and the importance of compensating them for their losses. The court also considered the offender's rehabilitation and financial circumstances, but ultimately determined that these factors did not outweigh the applicants' interests in obtaining compensation. The court granted the applicants leave to apply out of time for a compensation order, and the matter was remitted to the sentencing court for further consideration.

Orders