NT of A v Sambono - [2003] NTSC 96

NT of A v Sambono & Anor [2003] NTSC 96
PARTIES:NORTHERN TERRITORY OF AUSTRALIA

v
VINCENT JOHN SAMBONO
AND:
GONZALES MUNGATOPI

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:LA 3/03 (20205293)
DELIVERED:  5 September 2003
HEARING DATES:  15 August 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

REPRESENTATION:
Counsel:
Appellant:V Farmer
1^st Respondent:  D Alderman
2^nd Respondent:  No Appearance
Solicitors:
Appellant:Withnall Maley & Co
1^st Respondent:  Halfpennys
2^nd Respondent:  No Appearance
Judgment category classification:        C
Judgment ID Number:  tho200329
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
NT of A v Sambono & Anor [2003] NTSC 96
No. LA 3/03 (20205293)

BETWEEN:
NORTHERN TERRITORY OF AUSTRALIA

Appellant
AND:
VINCENT JOHN SAMBONO

First Respondent
AND:
GONZALES MUNGATOPI

Second Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 5 September 2003)

This is an appeal pursuant to s 19 of the Local Court Act from a decision of a stipendiary magistrate sitting in the Local Court at Darwin to award compensation to Maggie Tipungwuti and Charlena Tipungwuti who are children of the second respondent Gonzales Mungatopi.
On 24 January 2003, the learned stipendiary magistrate ordered a certificate of compensation to the abovenamed persons pursuant to s 5(1) and s 5(2) of the Crimes Compensation Act.
On that date his Worship ordered the issue of a compensation certificate under s 5(1) of the Act in the sum of $15000 each in favour of Charlena Tipungwuti and Maggie Tipungwuti in respect of an injury suffered on 1 November 1989.
There is no appeal from this order.
The appeal is solely in respect of orders made by the learned stipendiary magistrate pursuant to s 5(2) of the Crimes Compensation Act.
Under this provision his Worship issued a certificate in favour of Charlena Tipungwuti in the sum of $6750 being 45 per cent of $15000, the statutory maximum. This certificate was issued to compensate Charlena Tipungwuti in respect of the financial loss suffered as a consequence of the murder of her mother, Thecla Tipungwuti, on 1 November 1989.
A further certificate was issued pursuant to s 5(2) of the Crimes Compensation Act in favour of Maggie Tipungwuti in the sum of $8250 as a dependent of Thecla Tipungwuti in respect of the financial loss suffered as a consequence of the murder of her mother, Thecla Tipungwuti, on 1 November 1989.
The learned stipendiary magistrate made further orders that these amounts be paid to the Public Trustee to be held on trust and released to each of the recipients upon attaining 18 years of age. He further ordered the Northern Territory pay the applicant’s costs to be taxed or agreed.
The grounds of appeal are as follows:
“1.The learned Magistrate erred in awarding a compensation certificate when there was no evidence before the learned Magistrate as to the quantum of actual financial loss suffered by the Dependents of the victim;
2.The learned Magistrate erred in awarding a compensation certificate when there was no evidence at all of the financial position of the Dependents as at the date of the offence;
3.The learned Magistrate applied the wrong test in finding that the Dependants had a combined income of $278.00 per week being $14,000.00 per year taking only one year to reach the statutory maximum of the Crimes Compensation Act to determine a quantum of certificate of compensation issue;
4.The learned Magistrate erred in finding that financial loss suffered by the Dependents includes loss of family home, rent, electricity, clothing, bedding, food, shoes, attendances at medical clinics and toys when there was no evidence of such loss;
5.The learned Magistrate erred in finding that there was no evidence of any insurance policy or income from any other source for the Dependents which finding could not reasonably be drawn from the primary facts or evidence of the Applicant’s case;
6.The learned Magistrate erred in law in not limiting the term financial loss in Section 5(2) of the Crimes Compensation Act to circumstances where the Dependent actually incurred or substantiated a loss.
7.The learned Magistrate erred in law in finding that the Dependent Maggie Tipungwuti suffered any financial loss as there was no evidence to support that finding.
8.The learned Magistrate erred in law in finding that the Dependent Charlena Tipungwuti suffered any financial loss as there was no evidence to support that finding.”
The essential issue in the appeal is whether there was sufficient evidence the dependents suffered financial loss.
The application for compensation was brought by Vincent John Sambono as litigation guardian for Charlena Tipungwuti and Maggie Tipungwuti as dependents of their mother Thecla Tipungwuti who was murdered by their father Gonzales Mungatopi on 1 November 1989. He was convicted of murder by the Supreme Court of the Northern Territory on 24 August 1990. Gonzales Mungatopi is currently serving a sentence of imprisonment for the murder of Thecla Tipungwuti.
At the date of the death of Thecla Tipungwuti she had two daughters, Charlena Tipungwuti aged four years and Maggie Tipungwuti aged 18 months.
I will deal with each of the grounds of appeal.
Ground 1: The learned magistrate erred in awarding a compensation certificate when there was no evidence before the learned magistrate as to the quantum of actual financial loss suffered by the dependents of the victim.
Ground 2: The learned magistrate erred in awarding a compensation certificate when there was no evidence at all of the financial position of the Dependents as at the date of the offence.
The submission made by Ms Vanessa Farmer on behalf of the appellant is that “financial loss suffered by the dependents” pursuant to s 5(2) of the Crimes Compensation Act must be actual financial loss or incurred financial loss. Section 5(2) of the Crimes Compensation Act provides as follows:
“(2)Where a victim has died, as a result of the injury suffered by the victim prior to the issue to him or her of an assistance certificate, a person who, in the opinion of the Court, is a suitable person to represent the interests of the dependants of the deceased victim may, within 12 months after the death of the victim, apply to the Court, on behalf of the dependants of the deceased victim, for an assistance certificate in respect of the financial loss suffered by the dependants.
(2A)Where a victim has died as a result of the injury suffered by the victim –
(a)the widow or widower, or the de facto partner; or
(b)where the victim at the date of death had not attained the age of 18 years, a parent,
of the victim may, within 12 months after the death of the victim, apply to the Court for an assistance certificate in respect of the grief suffered by that person as a result of the death of the victim.”
The Act does not define the term financial loss.
Dependant is defined in s 4 as:
“‘dependant’, in relation to a deceased victim, means a relative of the victim who –
(a)at the time of the death of the victim was wholly or substantially dependent upon the victim financially; or
(b)would have been so dependent but for the injury suffered by the deceased victim;”
Section 9(c) of the Crimes Compensation Act refers to “pecuniary loss”. It is the submission on behalf of the appellant that “pecuniary loss” differs from “financial loss”.
On the appellant’s submission there was no evidence of financial loss, in that there was no evidence as to the financial situation of any of the families that the dependents lived with and no evidence from the applicants that there was any financial detriment.
The learned stipendiary magistrate found that Charlena and Maggie Tipungwuti were totally dependent upon their mother Thecla Tipungwuti and their father the second respondent for all their financial needs. He found that as from 1 November 1989 Charlena and Maggie became dependent upon the generosity of other extended family members. His Worship referred to the difficulties of obtaining an accounting of the financial situation from each of the families the children had lived with.
The learned stipendiary magistrate made the following finding (tp 85):
“I’m satisfied that Charlena and Maggie have both suffered a financial loss as a result of the death of their mother. As a sequelae to that death, and the fact that the death was brought about by the second respondent, is a natural consequence that they have lost the financial support of the second respondent also.”
His Worship noted that the second respondent had not contributed to the support of his two children since the death of their mother as he had been in gaol.
The learned stipendiary magistrate made findings that at the time of the murder the second respondent was earning $139 per week on the CDEP Program and that the deceased Thecla Tipungwuti was earning the same amount. This resulted in a combined income of $278 per week.
Counsel for the appellant submits that the learned stipendiary magistrate was not entitled to make such a finding because of the ambiguity and inconsistency of the evidence given by Gonzales Mungatopi, the second respondent, on this aspect. Mr Mungatopi did state in examination in chief (tp 50) that his wife did not work in the four year period following the birth of Charlena and prior to his wife’s death. Further in examination in chief, Mr Mungatopi gave evidence (tp 51):
“Was your wife getting money from anybody, government or anybody else?---No, no.
So the $139 a week you got had to look after you, your wife, Charlena and Maggie?---I get CDEP only, before that CDEP I used to get - she used to get $100 and something too - $139 yes - she get the same thing, $139, yeah.
She got the same?---Yeah, same.
And she got hers for what, CDEP?---CDEP she was doing.
So she was doing some work for the dole?---For the dole, yeah.
And that CDEP was in place back in late 1980’s?---Yeah, late 80s yeah.”
The learned stipendiary magistrate also made reference to evidence of Mr Sambono as to Thecla Tipungwuti and Gonzales Mungatopi working back in 1989. Mr Sambono gave the following evidence in chief (tp 8):
“Did you ever live with Mr Mungatopi and Theckla (sic) before the girls came into your care?---Yes I did.
Can you recall when that was?---When I was about 10 - 14 years old.
And when you were living there can you recall who provided for Charlena and Maggie’s needs?---I think it was their parents at that time.
Can you recall at all how they did that - did you see them work at all?---Yeah I think at that time they would have been working under the community council.”
There was evidence on which the learned stipendiary magistrate could find that Thecla Tipungwuti and Gonzales Mungatopi both earned $139 a week on the CDEP Program making a combined income of $278. This finding of fact which is available on the evidence should not be disturbed by this Court on appeal.
The evidence from Mr Sambono is that following the death of their mother, the two children lived with various families. There was a paucity of evidence as to how these families provided for both children. As at the date of giving evidence on 6 November 2002, Mr Sambono had been the guardian for Charlena and Maggie for about a year. His evidence is they had been living with him during the last eight to nine months. Mr Sambono gave evidence that in this time he provided for both girls. He gave evidence he was on an orphan pension and also received a family allowance. Following the death of Thecla Tipungwuti, Vincent Sambono’s mother had taken care of both girls. When his mother died in 1994 a lady named Delsie cared for the two girls. On the evidence of Mr Sambono, Delsie claimed the pension for Charlena and Maggie. Mr Sambono gave evidence as to the expenses of caring for Charlena and Maggie whilst they were in his care and the Social Security payments he received.
The learned stipendiary magistrate was entitled to make the finding that he did, that the people who had cared for Charlena and Maggie had gone onto some form of additional social security payments. His Worship noted there was no evidence as to the quantum of the extra income and how it was applied.
Ground 3: The learned magistrate applied the wrong test in finding that the dependants had a combined income of $278.00 per week being $14,000.00 per year taking only one year to reach the statutory maximum of the Crimes Compensation Act to determine a quantum of certificate of compensation issue.
Counsel for the appellant argues that it was not applicable to combine the income of the second respondent with the “victim” to calculate a combined loss of income of $278 as s 5(2) details the financial loss for the dependants suffered as a result of the victim injuries/death. I do not accept this argument. The financial loss suffered by the dependents as a result of the death of the victim includes the income of their father which was also lost consequent upon his conviction and imprisonment for the murder of the victim, their mother.
On behalf of the appellant it was also argued that the evidence did not permit a positive finding of $278 combined income, in view of the ambiguities in the second respondent’s evidence as to whether or not the victim was working and earning an income at the time of her death. I have already dealt with this issue under the previous two grounds. There was evidence on which the magistrate could base a finding that the combined loss of income was $278 and I do not consider that is a finding which should be disturbed on appeal.
Ground 4: The learned magistrate erred in finding that financial loss suffered by the dependents includes loss of family home, rent, electricity, clothing, bedding, food, shoes, attendances at medical clinics and toys when there was no evidence of such loss.
The submission on behalf of the appellant is there was no evidence that from 1989 until Charlena and Maggie commenced living with Mr Sambono, some months before the date of hearing, that there was any payment of rent, electricity, costs to keep the house running, paying for food, bedding, medical clinics and alike. That any such loss must be under the principles of assistance under s 5(1) pursuant to s 9(g) - loss of amenities of life by the victim.
I do not accept that the paucity of evidence on this issue debars the findings made by the learned stipendiary magistrate that there was a component of rent, electricity, clothing, bedding, food, medical expenses and the buying of toys included in the expenses of caring for two children.
I accept the submission made by Mr Alderman, counsel for the respondent, that the learned stipendiary magistrate was entitled to use his own common sense about these matters and without making exact calculations as to cost, make a general finding to the effect that children cost money to rear and to make an assessment on this basis (Re Joyce and Another (1988) 89 FLR 247, In Re Caine (1999) 150 FLR 277.
There was evidence before the learned stipendiary magistrate from Mr Sambono as to the present day cost of caring for the two girls including rent, clothes, food, power and water.
Ground 5: The learned magistrate erred in finding that there was no evidence of any insurance policy or income from any other source for the dependents which finding could not reasonably be drawn from the primary facts or evidence of the applicant’s case.
I accept the applicant’s bear the onus of proof of establishing the financial losses.
Pursuant to s 10 of the Crimes Compensation Act the Court must take into account amounts received by the applicants otherwise than under this Act.
Mr Sambono gave evidence as follows (tp 9):
“And like wise with the imprisonment of their father, are you aware at all if Charlena or Maggie received any money or monies from a trust or fund at all?---No nothing.
Do you receive any money from Charlena and Maggie’s father at all?---No.”
The second respondent, Gonzales Mungatopi, gave evidence before the learned stipendiary magistrate that it had been hard for him to save money in prison. From the evidence of Mr Sambono relatives caring for the girls have received social security but not the girls themselves. The payments received by the relatives are not payments received in respect of the death of the victim (Nguyen v Nguyen (1989) 169 CLR 245 at 266). Any social security benefits were paid to those caring for the two girls and not to the children themselves. Such payments should not be taken into account as a gain to the children (Turner v Owen (1984) Australia Torts Reports 80 - 667. See also Luntz Assessment of Damages for Death and Personal Injury, 4^th Edition p 497 - 498).
The learned stipendiary magistrate made the following findings (tp 86):
“On the evidence of Vincent, there was - he’s not aware of any money coming to the children as a result of the death of Thekla. There’s no evidence of any insurance policy, or anything of that nature, that has brought any income to them, and so they’ve had no income from any other source, and have had to, therefore, rely upon the generosity of family members.”
This finding was open to the learned stipendiary magistrate on the evidence.
Ground 6: The learned magistrate erred in law in not limiting the term financial loss in s 5(2) of the Crimes Compensation Act to circumstances where the dependent actually incurred or substantiated a loss.
Counsel for the appellant Ms Farmer, argues that losing the benefits of parent income does not equate to financial loss compensable pursuant to s 5(2). I do not accept this submission. I consider the loss of income by both parents was as a direct result of the death of Thecla Tipungwuti and meant the two girls suffered the financial loss of at least part of that income. The Social Security payment that may have been made to relatives who cared for the girls is not a matter to be taken into account in an award under s 5(2) of the Act.
Ground 7: The learned magistrate erred in law in finding that the dependent Maggie Tipungwuti suffered any financial loss as there was no evidence to support that finding.
There was evidence that Maggie Tipungwuti suffered financial losses. I have under other grounds held that the learned stipendiary magistrate was entitled to find that the death of Thecla Tipungwuti resulted in the combined loss of income of herself and Gonzales Mungatopi which amounted to $278 a week. The fact that relatives including Vincent Sambono received Social Security benefits does not affect the applicants’ claim for financial loss as a consequence of the death of their mother.
Ground 8: The learned magistrate erred in law in finding that the dependent Charlena Tipungwuti suffered any financial loss as there was no evidence to support that finding.
I consider the learned stipendiary magistrate was entitled to draw the inference that the applicants’ lost the benefit of the income received by their parents as at the date of their mother’s death.
The learned stipendiary magistrate made the following finding (tp 84 - 85):
“It’s somewhat problematical as to what section 5(2) is aimed at. It is clear that people who suffer a loss of someone who is financially supporting them, are often entitled to money from other sources, such that, when Charlena and Maggie went to live with other family members, those family members were entitled to increased entitlements, purely because of the presence of Charlena and Maggie. To the extent that we’re talking effectively the equivalent income to Social Security benefits, the loss on paper may not be much different.
Is it intended that there must be some full auditing and accounting, such that you must estimate exactly how much was spent on each child before the loss, and then what was spent on them afterwards, to see if there’s any difference, either negative or positive? I don’t think that could have been what was intended.
The fact is that a financial loss covers a number of things, it’s also the loss of the family home, the home that they’re used to living in, the money that they - Thekla and the second respondent have earned, to help pay the rent to that, pay the electricity, and keep the house running, to pay for clothing, bedding, food, shoes, (inaudible) medical clinics, all sorts of things. Buying toys, all sorts of things which they had the benefit of.
In terms of dependent’s claims, it’s generally where somebody is financially dependant on another person, then it’s a question of calculating the loss of that income and carrying it forward. The fact that someone is able to earn income from another source, that still doesn’t mean that that automatically cancels out the other, to the extent that a person is dependant, then the fact that they have to look to other sources. So it doesn’t mean they haven’t lost the benefit and compensate for the financial loss of those suffered.
In terms of Charlena and Maggie, they were both clearly, totally, dependant upon their mother Thekla and the second respondent for all their financial needs. They had no ability, at their age, to obtain income from any other source. Thereafter, from 1 November 1989, they became dependant upon the generosity of other extended family members. It is impossible to do an accounting, it would be impossible to - but it seems that they’ve gone through a number of different houses.
Vincent’s mother, who looked after them for the next four to five years is deceased, so she can’t give evidence as to what happened in her household, and they appear to have stayed with a number of different families in the Darwin region, so to track them down and to get an accounting from each of them would be difficult, if not impossible.
I’m satisfied that Charlena and Maggie have both suffered a financial loss as a result of the death of their mother. As a sequelae to that death, and the fact that the death was brought about by the second respondent, is a natural consequence that they have lost the financial support of the second respondent, also.”

Counsel for the appellant submits that there was no evidence to support a finding that the dependent Charlena Tipungwuti suffered any financial losses.
I have concluded that there was evidence both direct and by inference that the dependents who included Charlena Tipungwuti did suffer a financial loss pursuant to s 5(2) of the Crimes Compensation Act.
The learned stipendiary magistrate did take into account the fact that Charlena Tipungwuti received a Social Security benefit in her own right once she turned 16 years of age. This was based on evidence given by Mr Sambono.
For these reasons I would dismiss the appeal.

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