Nicholson v Kostov
[2006] VSC 328
•11 September 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1436 of 2004
| MARK ROBERT NICHOLSON | Applicant |
| v | |
| JOHN KOSTOV | Respondent |
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JUDGE: | KELLAM J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May, 31 July 2006 | |
DATE OF JUDGMENT: | 11 September 2006 | |
CASE MAY BE CITED AS: | Nicholson v Kostov | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 328 | |
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CRIMINAL LAW – Compensation of Victim of Crime – Extension of time to bring application – serious and debilitating physical injury – Sentencing Act 1991 ss.85B,C,H
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A. Lyall (Solicitor) | Cahills Solicitors |
| For the Respondent | The respondent was not represented |
HIS HONOUR:
By application filed on 6 February 2006, Mark Nicholson made application to the Court pursuant to s.85B of the Sentencing Act 1991 (“the Act”). The application was served upon the respondent, John Kostov, on 22 March 2006. The matter came on for hearing before me on 17 May 2006. On that date the applicant was represented by his solicitor but the respondent was unrepresented.
Section 85C of the Sentencing Act 1991 requires an application for compensation order to be made within 12 months after the offender is convicted of the offence in question. However, s.85B of the Act provides for an extension of time if the Court is of the opinion that it is in the interest of justice to do so.
When the matter came on for hearing before me on 17 May 2006, I gave the respondent the opportunity to be heard as to why an extension should not be granted. It should be noted that as a consequence of the attack upon the application by the respondent the application suffered severe injuries. The respondent was convicted in respect of such attack on a count of attempted murder and sentenced to be imprisoned for a period of ten years on that count. In addition to that count, which is the relevant count for the purposes of this application, the respondent was also convicted of one count of aggravated burglary in relation to which he was sentenced to be imprisoned for a period of four years, one year of which was to be served cumulatively upon the sentence for attempted murder. Accordingly, the total effective sentence was 11 years’ imprisonment, of which eight years was fixed as a minimum to be served before becoming eligible for parole. The convictions followed a plea of guilty by the accused to both counts. Sentence was imposed on 15 November 2004.
Following the imposition of the sentence the respondent appealed his sentence. The Court of Appeal dismissed the application for leave to appeal on 10 October 2005. In early January 2006, solicitors for the applicant were in touch with my associate endeavouring to seek a date to be fixed to enable application to be made to bring the matter on for hearing.
Two issues are of particular significance in relation to the application for the extension of time in which to bring an application for compensation. The first is that as at the time of the sentence of the respondent the injuries of the applicant were far from stable. Furthermore, although the fact that the respondent had appealed did not in any way prevent the applicant from making application for a compensation order, I can understand the why it was that the applicant (who of course was not represented at the Sentencing hearing) deferred making application until the matter of the appeal was resolved. In addition it should be observed that the date the sentence was imposed was 15 September 2004. The plea was heard on 29 October 2004. In under three months from the expiry of twelve months from that date the applicant’s solicitor first sought to file the application.
Accordingly, on 17 May 2006, and after having given the respondent an opportunity to be heard on the matter, and after determining that he suffered no prejudice by reason of the application being made out of time, I granted an extension of time for the making of the application. However, I did not proceed with the hearing of the application that day because the respondent informed me that he had made an application for legal aid to represent him in the matter. Accordingly, I adjourned the matter for further hearing until 31 July 2006. In the meantime, I referred the respondent to the Court Unrepresented Litigant Officer, Ms Hammond who as I understand it made enquiries on behalf of the respondent as to a grant of legal assistance. In due course it became apparent that the respondent was not to be provided with legal assistance and accordingly the matter proceeded to be heard before me on 31 July 2006.
Division 2 of Part 6 of the Act deals with an award of compensation to a person who has suffered an injury as a direct result of an offence. There can be no doubt that the applicant suffered serious injury as the direct result of the offence of attempted murder committed upon him by the respondent.
The background facts to the offence which caused the applicant grievous injury in the early morning of 24 September 2003 are set out in detail in my sentencing remarks in R v Kostov[1] and there is no need to report the full circumstances here in any detail. However, briefly put, the circumstances are that Kostov broke into the home occupied by his former wife and her three children on the very day that she was in Melbourne to attend the hearing of her divorce application. At the time the applicant was staying overnight at the home looking after the three children of Mrs Kostov. The respondent, Kostov, entered the home with an axe with which he proceeded to attack the applicant causing him serious injury, including lacerations to the right thigh and left shoulder. The most significant injury suffered was a fracture of the right femur of the applicant which required internal fixation on 24 September 2003.
[1][2004] VSC 445.
The medical reports before me reveal that the applicant was taken to the emergency department of the Bendigo Base Hospital on the morning of 24 September 2003. He was thereafter taken to theatre for the internal fixation of an open fracture of the femur. At operation the bone fragments were realigned and internally fixed with the wound left open for secondary closure at a later date. The two wounds on the left side of the back caused by axe blows were both described as deep wounds with the lateral wound extending to the rib cage and the medial wound into the sub-scapula plain.
On 27 September 2003, the applicant was taken back to theatre for debridement of the thigh wound and closure of that wound. He commenced ambulation on 30 September using crutches and was discharged home in the following week. Unfortunately, he developed an infection of the wound to his left thigh and returned to the emergency department of the hospital on 5 October 2003, only four days after his discharge. That evening he was taken to theatre and it was shown that in addition to the infected wound he had septic arthritis, with a collection of pus at the distal femur. This was drained, as was his knee joint. He was further taken to theatre on 7 October 2003 and made slow improvement, at first in a wheelchair. By 12 November 2003 he was able to ambulate using crutches and he was discharged from the Bendigo Base Hospital on 20 November 2003.
He was readmitted for the purposes of a split skin graft to be applied to the wound on 19 December 2003. Unfortunately, that wound developed a staphylococcus infection and healing took a considerable period of time.
On 22 March 2004, the applicant again attended at the emergency department where the thigh wound was found to have broken down by reason of a staph‑type infection. X-ray showed non-union of the right femur and he was admitted to the Bendigo Base Hospital for antibiotic therapy. He was discharged on 28 March 2004 and referred to St Vincent’s Hospital who took over the further management of his case because of the difficulties which had arisen. He was admitted to St Vincent’s Hospital on 23 July 2004 and discharged on 4 August 2004. During that admission, he had surgical treatment for the removal of a fixative nail from the thigh. The fixative nails had become infected. After discharge from St Vincent’s Hospital he remained an out-patient of that hospital for a period of time.
The applicant gave evidence before me and the respondent had the opportunity to cross‑examine him. The applicant is now aged 46 years. Before the attack the applicant worked in his gold claim to which he has been unable to return. He suffered nightmares for approximately 18 months following the attack. Previously he undertook a lot of walking and climbed ladders up and down his mine up to 40 times a day. He now gets pains in his leg in the thigh when he walks more than a kilometre and a half and he has not tried to climb a ladder since the attack. His treatment required him to wear a frame which had bolts and wires through his leg for a period of approximately eight months. The pain in removal of that frame was, he said, “Unbelievable”.
The scheme of the Compensation Division of the Sentencing Act is to provide a means by which a victim of a crime may obtain compensation more quickly, efficiently and cheaply than by instituting civil proceedings against the wrong-doer. Pleadings are not required and the facts which support the claim can be proved by evidence given in the trial, by uncontested statements of fact, or by a victim impact statement together with such other material such as medical reports which have been provided in the course of the proceeding. The Court is not limited to injury for which damages at common law may be awarded. “Injury” is defined by s.85A of the Act to include actual physical bodily harm, grief distress and trauma or other significant adverse affect. Concepts such as proximity and foresight which are implicit in the common law process are not relevant. Consistently with the aim of providing a cheap expeditious remedy which builds upon a criminal proceeding, the victim has no right of appeal from an award or a refusal of compensation.[2]
[2]See DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116.
The Act provides (inter alia), by s.85B(2) for a compensation order to be made “for pain and suffering experienced by the victim as a direct result of the offence”. In the case before me, no other claim for compensation is made.
Section 85H of the Act provides that if a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. However, the Court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.
The injury sustained by the applicant was a shocking injury inflicted upon him in brutal and frightening circumstances. It has dramatically affected his life. From being a fit man he is now severely affected in his capacity to walk, climb ladders and run. One leg is shorter than the other. He impressed me in giving his evidence as a relatively taciturn, non‑complaining type of person. The impression which I gained from hearing him give evidence in the witness box, is confirmed by a psychological report prepared by one Wendy Gollan and dated 26 January 2004 which formed part of the victim impact statement in this matter. Ms Gollan said as follows:
“Symptoms such as the feeling of helplessness; distress at reminders of the attack; bad dreams; efforts to avoid reminders, places and people; difficulty sleeping; irritability; difficulty concentrating; and hypervigilance, are all indicative of the presence of post traumatic stress disorder according to the DSM-IV. From all reports none of these symptoms were present prior to the attacks, so clearly the attempt on Mark’s life has directly caused this condition. This is a significant psychological injury. Because of the severity of the attack and the acute nature of his symptoms Mark may require extensive counselling. However he appears to have a particularly resilient disposition, which augers well for a complete recovery.”
A major interest of the applicant prior to his injury was the operation of his gold mine claim. He has not returned to that activity and in my opinion is unlikely to be able to return to it in the future, at least to the extent in which he engaged in such activity prior to the attack upon him. Although I accept that he is recovering well from his post traumatic stress disorder, there can be no doubt that the physical consequences of the axe attack upon his thigh will have permanent consequences throughout his lifetime. On any view, the effect upon him of the criminal attack is substantial.
In response to enquiries made by me of the respondent, he informed me that the only asset that he has is a half-share in a property situated at 20 Clyde Street, Tarnagulla, which he estimates to be valued at approximately $3,500. The respondent informed me that he had been “cut out of” his father’s will and that upon his release from prison he was unlikely to be engaged in employment.
The present state of the financial resources of the respondent is a matter which may be taken into account by the Court in considering the amount and method of payment of compensation. However, there are a range of future possibilities which might change the situation and the financial circumstances of the respondent cannot be the final determinant of a sum of compensation to be ordered. In my view, an appropriate sum to be ordered to be paid to the applicant by way of criminal compensation is $55,000. In my opinion, this sum is less than one third of a sum which might be appropriate for pain and suffering were this a common law proceeding. However, criminal compensation is entirely different than civil compensation.
I am obliged to reduce any compensation order by the amount of compensation made to the victim under the Victims of Crime Assistance Act 1996. The evidence before me is that the applicant has been paid the sum of $7,500 by way of compensation for pain and suffering experienced by him. Accordingly, I determine that the sum of compensation payable to the applicant by the respondent pursuant to s.85B of the Sentencing Act is the sum of $47,500.
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