Nicholson v Kostov - [2006] VSC 328

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…

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 Nicholson v Kostov

Details

AGLC: Nicholson v Kostov [2006] VSC 328
Case: [2006] VSC 328
Decision Date: 11 September 2006

CaseChat Overview and Summary

The case of Nicholson v Kostov involved an application by the victim, Nicholson, for compensation under the Sentencing Act 1991, following a serious and debilitating physical injury caused by Kostov. The application was brought to the Supreme Court of Victoria, which was tasked with determining whether Nicholson's application, lodged outside the statutory time limit, could be considered on its merits. The court had to weigh the statutory provisions against the principles of fairness and justice, particularly given the victim's circumstances.

The primary legal issue before the court was whether Nicholson's application for an extension of time to bring his claim for compensation could be considered under section 85C of the Sentencing Act 1991. This required an interpretation of the statutory language and consideration of the broader context of justice and equity. The court needed to assess if the victim's physical condition and the delay in filing the application warranted an extension under section 85H, which allows the court to extend the time if satisfied that justice requires it.

The court found that Nicholson's physical injuries were indeed serious and debilitating, significantly impacting his ability to comply with the statutory time limits. The justices considered that the statutory provisions should be interpreted in light of the overarching aim of justice and fairness. They determined that the delay in filing the application was due to Nicholson's circumstances and not due to any fault on his part. Consequently, the court granted the application for an extension of time, allowing Nicholson to proceed with his claim for compensation under section 85B of the Act.

The final orders of the court permitted Nicholson to file his application for compensation outside the statutory time limit, recognising the seriousness of his injuries and the fairness of his situation. The court's decision highlighted the importance of considering individual circumstances when applying statutory provisions designed to ensure justice for victims of crime.

Orders