Parrish (a pseudonym) v Miles (a pseudonym)
[2024] VCC 2050
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL LAW | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
IN THE MATTER OF an application under s85B and s86 of the Sentencing Act 1991 (Vic)
| RAYMOND PARRISH (a pseudonym) | First Applicant |
| and | |
| MEL SELLERS (a pseudonym) | Second Applicant |
| v | |
| RANDALL MILES (a pseudonym) | Respondent/Offender |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2024 | |
DATE OF JUDGMENT: | 20 December 2024 | |
CASE MAY BE CITED AS: | Parrish (a pseudonym) and Anor v Miles (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2050 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW – CRIMES COMPENSATION
Catchwords: Crimes compensation – application by victims of arson in respect of financial and property loss – entitlement to compensation – costs
Legislation Cited: Sentencing Act1991, s85B and s86
Cases Cited:RK v Mirik and Mirik (2009) 21 VR 623; Moresco & Ors v Budimir [2015] VSC 51; Paulino v Paulino [2020] VSC 642; Wyong Shire Council v Shirt (1980) 146 CLR 40
Judgment: Compensation awarded to the first applicant in the sum of $31,368.00
Compensation awarded to the second applicant in the sum of $176,487.56.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr J Woods | E C Legal |
| For the Respondent/Offender | The respondent/offender appeared in person | - |
HER HONOUR:
Introduction
1The proceeding before the Court is an application for compensation orders pursuant to s85B and s86 of the Sentencing Act 1991 (“the Act”).
2The issue to be resolved in this proceeding is the amount of compensation to be awarded to each applicant. Although the respondent did not accede to the applications, there is no real dispute that an award should be made. I note that cross examination in this matter was limited to exploring whether the amounts claimed were justified.
3The making of a compensation order arises from the commission of various offences by the respondent against the applicants at their place of residence. The result of the commission of those offences was the partial destruction of the first applicant’s 1970 Datsun 2000 Sports vehicle, which was a classic car (“the vehicle”) and substantial damage to the house owned by the second applicant (“the property”) and occupied by her, together with the first applicant. The fire at the property ultimately resulted in the second applicant forming the view that it was no longer safe for her to reside at the property.
4As a result of the commission of the offences, the first applicant seeks compensation for the loss of the vehicle. The second applicant seeks the costs of selling the property and relocating to a new property (“the relocation costs”). The claim in respect of the vehicle is $32,946.50. The claim in respect of the relocation costs is $176,487.56.
Background
5At about 2.00am on 4 February 2022, the respondent went to the property owned by second applicant, who is his former wife. The vehicle was parked in the driveway. The respondent poured petrol over the vehicle, and using toilet paper as a wick, set fire to it. It was extensively damaged. The respondent then poured petrol over the front door of the property and attempted to pour petrol under the door. He set the petrol alight and then left.
6Both applicants were present in the property when this occurred. The first applicant heard the sound of the vehicle and the front door on fire. He saw the fire and yelled to the second applicant that the property was on fire. The second applicant ran downstairs where there was smoke. She called triple zero and the first applicant called the fire brigade. After walking through the flames, the first applicant used the garden hose to put out the fire. The front porch and doorway of the property were damaged. The vehicle was extensively damaged.
Preliminary issues
Respondent’s application for an adjournment at the commencement of the hearing
7At the commencement of the hearing, the respondent applied for the matter to be adjourned into the new year. He said that since the last directions hearing on 11 September 2024, he had decided to apply for Legal Aid but had not yet received a response to that request.[1]
[1]Transcript (“T”) 1, Lines (“L”) 13-19 and T4, L7-11
8It was pointed out to the respondent that the matter was before his Honour Judge Pillay for a directions hearing on 1 May 2024, at which time the issue of whether or not he wished to obtain Legal Aid and legal representation for the purposes of cross-examination, were specifically raised with him. On that occasion, he said he did not wish to obtain legal representation. It was also pointed out to the respondent that when he appeared before me on 11 September 2024, the issue of legal representation and his ability to cross-examine the second applicant was again raised with him. It was pointed out to him that on both occasions he indicated that he had no intention of getting Legal Aid or arranging for representation for the purposes of cross-examination.[2]
[2]T5, L4-16
9The respondent submitted to the Court that he had only just received the Court Book and relevant material and had no time to digest the information in those materials and respond. He submitted that the case was a complex one and that all the lawyers he had consulted had told him that the case was complicated and “too hard”. He said that he had briefed over fifty solicitors about the various matters and that in every instance, that had been the advice he had received.[3]
[3]TT2-5
10The respondent was informed that information before the Court indicated that on 13 February 2024, he was served by post with all of the documents that were part of the Court Book. Similarly, the Amended Court Book had been served upon him by post on 11 September 2024. Lastly, the Amended Court Book had been personally served upon him on 8 October 2024.[4] The respondent acknowledged that he was in possession of the Amended Court Book. He did not respond to the information about previous service which was put to him in Court.
[4]T6, L3-27
11Having considered the submissions made by both the respondent and Mr Woods, on behalf of the applicants, I refused the application for an adjournment of the hearing. My decision was based on the following matters:
(a) I am satisfied that the respondent has been in possession of all of the relevant documentation since in or around February 2024. He has therefore been aware of the issues in this case, and the matters which he would be required to meet should he resist the applications, for many months;
(b) at a directions hearing on 1 May 2024, the issue of whether or not the respondent wished to obtain legal representation for the purposes of cross-examination of the second applicant was specifically raised by Judge Pillay with him. On that occasion, the respondent indicated that he did not intend to apply for Legal Aid or to obtain legal representation;
(c) on 11 September 2024, the matter was first listed for hearing. On that occasion, it was discovered that the respondent had not formally been served with the Court Book in the matter. The applicants also raised with the Court the fact that the application for compensation would need to be amended, to make it clear that the applications were based both on s85B and s86 of the Sentencing Act 1991. On this basis, the substantive hearing was adjourned to 23 October 2024. During the hearing on 11 September 2024, I specifically raised the issue of the respondent applying for Legal Aid, or otherwise arranging for representation at the hearing and, in particular, so that the second applicant could be cross-examined as part of the hearing. On that occasion, the respondent once again reiterated that he did not intend to obtain Legal Aid, or otherwise to arrange to have legal representation at the hearing;
(d) I am satisfied that a copy of the Amended Court Book was sent by post to the respondent on 11 September 2024;
(e) I am satisfied that a copy of the Amended Court Book was personally served upon the respondent on 8 October 2024;
(f) the respondent confirmed to the Court that he had received all of the documents which were contained within the Amended Court Book and was aware of their content;[5] and
(g) the respondent offered no satisfactory explanation for his failure to arrange for legal representation upon initially becoming aware of the substance of the application in or around February 2024, or at any time since then, when the issue of obtaining legal representation has been specifically raised with him by two Judges of this Court.
[5]TT7-8
Application to amend the Application for Compensation
12As referred to above, on 11 September 2024, the applicants applied to amend the Application for Compensation to include a reference to s86 in that document. An amended Application for Compensation was served on the respondent as part of the Amended Court Book. The respondent confirmed that he had received that document.[6]
[6]TT7-8
13At this hearing, the applicants formally renewed their application to amend the Application for Compensation. When asked whether or not he had any objection to the application to amend or whether he wished to make any submission in relation to that application, the respondent replied “I’m going to say, no, your Honour, but you know my intentions”.[7] I took this response to be a reference to the fact that the respondent had earlier indicated to the Court that he intended to appeal whatever decision was made in relation to this matter.[8]
[7]T8, L2-6
[8]T7, L1-2
14It was submitted that the application to amend the Application for Compensation was made by reason of the discovery that a reference to s86 had not been included that document. I accept that this was in circumstances where all other relevant documentation made it clear that the application was in relation both to s85B and also to s86. Given this, I do not consider there to be any prejudice to the respondent in allowing the amendment to be made as proposed.
15In those circumstances, at the hearing, leave was granted to the applicants to amend the Application for Compensation in the form of the amended document which was filed with the Court and served upon the respondent as part of the Amended Court Book.[9]
[9]T93, L20-29
The relevant legislation
16Section 85B of the Sentencing Act 1991 provides as follows:
“85B Compensation Order
(1)If a court—
(a)finds a person guilty of an offence; or
(b)convicts a person of an offence—
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).
(2)A compensation order may be made up of amounts—
(a)for pain and suffering experienced by the victim as a direct result of the offence;
(b)for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;
(c)for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.
(3)In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.
(4)In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.”
17Section 86 of the Sentencing Act 1981 provides as follows:
“86 Compensation order
(1)If a court finds a person guilty of, or convicts a person of, an offence it may order the offender to pay to a person who has suffered loss or destruction of, or damage to, property as a result of the offence any compensation (not exceeding the value of the property lost, destroyed or damaged) that the court thinks fit.
(1A)An order under subsection (1) may be made—
(a)on the application of a person suffering loss or destruction of, or damage to, property as a result of the offence; or
(b)subject to subsection (1B)—on the court’s own motion.
(1B)A court may only make an order under subsection (1) on its own motion if—
(a)the person in whose favour the order is to be made does not oppose the order being made; and
(b)the court has given the offender the opportunity to be heard in respect of the order.
(2)If a court decides to make an order under subsection (1) 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.
(3)A court is not prevented from making an order under subsection (1) only because it has been unable to find out the financial circumstances of the offender.
(4)In making an order under subsection (1) the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.
(5)An application under subsection (1A)(a)—
(a)must be made as soon as practicable after the offender is found guilty, or convicted, of the offence; and
(b)may be made—
(i)by the person seeking compensation; or
(ii)on that person’s behalf by the Director of Public Prosecutions or (if the sentencing court was the Magistrates’ Court) the informant or police prosecutor.
(6)Nothing in subsection (5)(b)(ii) requires the Director of Public Prosecutions or the informant or police prosecutor (as the case requires) to make an application on behalf of a person.
** * * *
(7)In determining whether or not an order under subsection (1) should be made and, if so, the amount payable under the order—
(a)a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and
(b)the finding may be proved by production of a document under the seal of the court from which the finding appears.
(8)A court must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.
(9)In subsection (8) the available documents means—
(a)any written statements or admissions which were made for use, and would have been admissible, as evidence on the hearing of the charge; or
(b)the depositions in the committal proceeding; or
** * * *
(d)any victim impact statement made to the court for the purpose of assisting it in determining sentence; or
(e)any other documentary evidence acceptable to the court of—
(i)loss or destruction of, or damage to, property suffered by a person as a result of the offence; or
(ii)the amount of the loss suffered or the expense incurred as a result of that destruction or damage.
** * * *
(9D)Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this section must bear their own costs of the proceeding unless the court otherwise determines.
(10)Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.
(11)References in this section to property include references to a motor vehicle.”
The evidence called on behalf of the Applicants
18During the hearing, the Court heard evidence from each of the applicants and also two experts. The substance of the relevant evidence is set out below.
The evidence of the First Applicant
19The first applicant affirmed an affidavit dated 11 December 2022.[10] In that affidavit, he deposed to the following relevant matters:
(a)he is the owner of the vehicle. He originally purchased the vehicle in or around March 2002. The vehicle has not been registered since 2008. The restoration of the vehicle has been a project of his, undertaken both for enjoyment and to increase the value of the vehicle;[11]
(b)the vehicle was destroyed in the fire which took place on 4 February 2022;[12]
(c)on or about 13 June 2022, the damage to the vehicle was assessed by Mr Andrew Gale of Ace Motor Loss Assessing. The value of the damage to the vehicle was determined by Mr Gale to be $32,946.50;[13]
(d)he has paid the tax invoice for the amount of $440, which was for preparation of the assessment report for the loss of the vehicle.[14]
[10] Ex A1
[11]Ex A1, paragraph 4
[12]Ex A1, paragraph 5
[13]Ex A1, paragraph 6
[14]T14, L6-16; The Tax Invoice for preparation of the assessment report was referred to in evidence. After the hearing, the document was marked as Ex A6
20The first applicant was cross-examined by the respondent including, by reference to a bundle of 44 photographs which the respondent produced:[15]
[15]Ex D1
(a) the respondent questioned whether or not the mileage which was shown on the odometer of the vehicle at the time it was destroyed, namely 28,000 kilometres, was accurate. The first applicant confirmed that it was;[16]
[16]T19, L24-27
(b) the respondent questioned whether or not the vehicle had the original seats in it. The first applicant confirmed that all aspects of the car were original;[17]
[17]TT27-28
(c) the respondent suggested to the first applicant that he was perjuring himself in giving his evidence. The first applicant denied that this was true;[18]
[18]T29, L14-23
(d) the respondent challenged the first applicant about whether or not the interior of the vehicle was original. The first applicant confirmed that it was;[19]
[19]T30, L14-23
(e) it was suggested to the first applicant that his car was not actually extensively damaged by fire, but was already in a very poor condition. The first applicant denied that this was the case. He gave the following evidence in relation to this: “I think the photos showing the fire damage [are] self-explanatory … if you look at the engine bay, the wiring has burnt out. The extended damage on the panel behind the engine and before the windscreen is where most [of] the petrol was poured and it went through the ventilation and burnt in behind the dash and the wiring behind the dashboard and it had extensive damage there. … the fire brigade spent an hour with a fire hose on the car … [that] exacerbated the damage to it. There was smoke damage all throughout the interior of the car caused by the fire and sum total of all of that damage and what [it] would take to replace is why the vehicle was written off”;[20]
(f) the first applicant was extensively questioned about what renovations he had done to the vehicle. He said that he had replaced the soft top, he had done replacement work on wiring and on the engine itself including putting in a new hose and new batteries. He said that new wheels had been purchased and put on the vehicle. There were minor repairs to the original seats, and other things had also been done to the vehicle;[21]
(g) the respondent asked the first applicant what work still needed to be done. In response to this, the first applicant said that the vehicle would have required a respray, but he pointed out that the assessor’s report had discounted the value of the vehicle on the basis that the work was not yet complete;[22]
(h) the respondent suggested to the first applicant that a respray would cost at least $8,000. The first applicant said that the assessor had valued that work at $5,000 and because he was an expert, the first applicant did not take issue with this figure;[23]
(i) the respondent questioned the first applicant about why a transfer and duty amount of $1,578 had been included in the valuation of the vehicle. In response to this, the first applicant said that the assessor had included that amount in the assessment and that it was the assessor’s documentation that was being referred to;[24]
(j) the respondent enquired of the first applicant why the windscreen was in such poor condition after only four years. In response to this, the first applicant replied: “Ah, someone put some petrol on the car and … set it on fire”;[25]
(k) the respondent asked the first applicant why there was a hole in the soft top of the vehicle. In response, the first applicant said: “That hole was caused by fire damage, you can clearly see on that window the charring from where the petrol had run down the window from the top of the roof …”;[26]
(l) the first applicant was asked whether or not the vehicle was able to be driven prior to the fire. He confirmed that it was;[27]
(m) the first applicant was challenged about why, if the vehicle was in a driveable condition, it was not registered. In response to this, he replied “… because a lot of people with classic cars don’t necessarily drive them all the time. … there’s … an expense in … having the car registered, and owning them isn’t purely about driving them. It’s a bit like … a piece of art”;[28] and
(n) the respondent requested that the first applicant produce evidence of what he paid for the vehicle. In response to this, he replied “… I looked for the original receipts when I bought the car. When I bought the car it was not registered, so there wasn’t a stamp duty statement at the time … the handwritten purchase receipt for the car was … in the glovebox with other documents, after having the fire brigade fire hose the car for 45 minutes. That was reduced to pulp.”[29]
[20]T31, L2-16
[21]TT31-32
[22]T32, L3-7
[23]TT32-33
[24]T34, L4-9
[25]T35, L1-5
[26]TT36-37
[27]T38, L9-12
[28]T38, L20-31
[29]T39, L1-13
The evidence of the Second Applicant
21The second applicant affirmed an affidavit dated 11 December 2022.[30] In that affidavit, she deposed to the following relevant matters:
[30] Ex A4
(a) she was married to the respondent in May 1992. She and the respondent separated in January 1996. The settlement of their finances and custody of their son occurred on 28 March 1996. They have one son, who was born in May 1994;[31]
[31]Ex A4, paragraph 4
(b) since their separation in January 1996, the respondent has made clear his intention to cause her harm, both physically and financially. The last twenty-seven years has seen a series of:
(i)threats on her relationships with friends and business colleagues/partners;
(ii)threats on her life and safety and that of her son and her partner; and
(iii)threats and acts of violence towards herself and her property;[32]
[32]Ex A4, paragraph 5
(c) she and her son have been granted several Intervention Orders over the past twenty-six years, and on 13 December 2018, coinciding with the respondent’s trial and sentence for breaches of previous Orders, she was granted a Lifetime No Contact Intervention Order in the Moorabbin Magistrates’ Court, with the concession that the respondent be allowed to contact her through a lawyer;[33]
[33]Ex A4, paragraph 6
(d) at or about 2.00am on 4 February 2022, the respondent attended the property. He poured petrol over the front door and set fire to the house. The first applicant extinguished the flames. The respondent also poured petrol over the vehicle and set it alight. The vehicle was completely destroyed;[34]
[34]Ex A4, paragraph 8
(e) the property was purchased by her in May 2000. The first applicant moved into the property on a full-time basis around February 2016, after significant extensions and modifications were completed, with the view that this would be their home forever. Over the twenty-two or so years that she lived in the property, she developed strong relationships with neighbours and with the local community generally. The first applicant also became deeply involved in these relationships;[35]
[35]Ex A4, paragraph 9
(f) she was severely shaken by the arson attack on the property by the respondent. It was a significant escalation from his previous conduct;[36]
[36]Ex A4, paragraph 10
(g) she was unable to remove the association between the arson attack and her property. She no longer felt safe in the property. She was regularly experiencing severe stomach cramps, nausea and nightmares that the respondent was present in the property, standing over her and she was unable to get away. She often screamed out in her sleep and needed to be calmed by the first applicant;[37]
[37]Ex A4, paragraph 11
(h) the property is quite exposed to the street and she constantly felt that the respondent could be lurking nearby, watching her, and could attack again at any time. She not only felt unsafe in her own home, but felt unsafe when she visited her regular locations such as the gym or the local supermarket;[38]
[38]Ex A4, paragraph 12
(i) she found herself exhausted, weary and withdrawn and sometimes almost paralysed by fear. She was unable to focus on work, and sometimes fearful of going outside. She was fearful for her safety and for the safety of her son and the first applicant. She was always looking over her shoulder, behind doors, checking the back seat of her car and scoping any room before entering;[39]
[39]Ex A4, paragraph 13
(j) she felt self-conscious and judged by her neighbours who had heard rumours and seen police in attendance. She also felt deeply embarrassed by how withdrawn and anxious she had become and subsequently, how this was affecting her friendships;[40]
[40]Ex A4, paragraph 14
(k) she felt dread when her son called her and he also expressed dread to her about visiting the property which was the home he had grown up in. She and the first applicant and her son all live in fear of the respondent and have needed to remove themselves from the property where they have experienced threats to their safety;[41]
[41]Ex A4, paragraphs 15-16
(l) she sought counselling from Mr Andrew Coutts, psychologist. Despite the counselling, she could not avoid the feelings set out above. Every time she entered the property, the sense of unease increased. Had the arson attack not occurred, she would have been able to remain at the property. She does not believe that she would ever have overcome the ill feelings that are attached to that property;[42]
[42]Ex A4, paragraph 17
(m) she also received support and counselling from Ms Roseanne Murphy, senior practitioner, Bayside Peninsula Family Violence Services. Ms Murphy advised her that moving her home and ensuring her new address was not on the electoral roll, would be the best thing for her personal safety;[43]
[43]Ex A4, paragraph 18
(n) she talked about this with the first applicant and they decided that the only way to minimise the psychological effects of the arson attack and the risk of a future attack, was to move their home. Having made this decision, they looked at options to move out of the Melbourne metropolitan area. The first applicant made enquiries as to where he might find work and was offered a job, albeit with a lesser salary. As partners, she and the first applicant decided that they could manage on a lesser salary. They do not seek compensation for that loss;[44]
[44]Ex A4, paragraphs 19-20
(o) the costs involved in the sale of the property and the purchase of the new home totalled the sum of $176,487.56, comprised as follows:
(i)$40,797.28 for advertising and agent’s commission for the sale of the property, being:
·$27,780.00 – real estate agency fees[45]
[45] Ex A4, page 43 of Exhibit JT-1
·$550.00 – auctioneer[46]
[46] Ex A4, page 43 of Exhibit JT-1
·$9,222.28 – advertising[47]
[47] Ex A4, page 46 of Exhibit JT-1
·$3,245.00 – property styling;[48]
[48] Ex A4, page 47 of Exhibit JT-1
(ii)$124,715.40 stamp duty and fees on purchase of the new property, being:
·$121,000 – stamp duty[49]
[49] Ex A4, page 48 of Exhibit JT-1
·$3,601.00 – land transfer fees[50]
[50] Ex A4, page 48 of Exhibit JT-1
·$114.40 – registration of mortgage fee;[51]
[51] Ex A4, page 48 of Exhibit JT-1
(iii)$3,247.94 for conveyancing fees, broken down as follows:
·$1,373.97 – legal fees for the sale of the property[52]
·$1,873.97 – legal fees for purchase of the new property;[53]
(iv)$7,726.94 for bridging finance fees broken down as follows:
·$7,376.94 – bridging finance required for one month[54]
·$350.00 – loan fee.[55]
[52] Ex A4, page 49 of Exhibit JT-1
[53] Ex A4, page 48 of Exhibit JT-1
[54] Ex A4, page 51 of Exhibit JT-1
[55] Ex A4, page 51 of Exhibit JT-1
22The second applicant was not cross-examined, since the respondent (who is her former husband and a perpetrator of family violence against her), was not legally represented.
The evidence of Mr Andrew Gale
23The first applicant relied upon an expert report from Mr Andrew Gale, loss assessor, dated 13 June 2022.[56] That report provided an opinion that, by reason of the fire, there was a total loss of the vehicle.
[56]Ex A2
24In that report, Mr Gale assessed the value of the vehicle to be $32,946.50. This was based on a valuation of the vehicle of $41,418.00, minus an amount of $5,000 because the vehicle was in a partially unrestored condition. He had added a sum of $1,578.50 to the valuation for transfer and duty. He then deducted the sum of $5,050 which was the salvage value of the damaged vehicle. That gave the figure of $32,946.50.[57]
[57] The calculations were set out in a handwritten document which was page 4 of Ex A2
25The respondent cross-examined Mr Gale. The relevant evidence given by Mr Gale under cross-examination was as follows:
(a) the amount of $5,000 that he allowed was a figure to be deducted from the market value of a concours condition vehicle. That amount was mostly to do with giving the vehicle new paintwork, doing some trim work and what he referred to as “a general tidy-up”. He confirmed that this last item would be what others might call “detailing the car”;[58]
[58]TT43-44
(b) he said the $5,000 was what he estimated a panel shop would charge him to do that work;[59]
[59]TT44-45
(c) he conceded that if the vehicle was not registered at the time of the fire and therefore was not able to have its registration transferred to a new purchaser, then the expense that had been allowed for transfer and stamp duty should not be included in his valuation. That amount was $1,578.50;[60]
[60]TT45-46
(d) it was suggested to Mr Gale that prior to the fire, the vehicle was only in “salvage condition” anyway. Mr Gale strongly disagreed with that proposition;[61]
[61]T47, L14-20
(e) when challenged about his valuation, Mr Gale said that he believed that prior to the fire, the vehicle was worth $36,418.00. He said that this is because it is a classic car, a desirable model, and that is what they are worth, which is why he had provided examples as part of his valuation;[62]
[62]T48, L2-11
(f) it was suggested to Mr Gale that the vehicle was not damaged under the bonnet by the fire. He did not agree with this proposition and confirmed that the vehicle had been damaged under the bonnet;[63]
[63]TT48-49
(g) Mr Gale confirmed, by references to numerous photographs, that he could see fire damage in all of the areas that the respondent was questioning him about. In that respect, he referred to photograph number 288 in the bundle of photographs which the respondent had produced.[64] Mr Gale went on to describe in detail what he observed to be the damage to the vehicle under the bonnet and in the engine bay caused by the fire;[65]
[64]Ex D1
[65]TT49-53
(h) Mr Gale agreed that prior to the fire, the rear bumper bar of the vehicle would have needed to be rechromed;[66]
[66]T54, L16-19
(i) Mr Gale said that the chrome of the headlight surrounds at the front of the vehicle had been damaged by the fire. On that basis, he was unable to say whether, prior to the fire, they would also have needed to be rechromed;[67]
[67]T55, L3-7
(j) Mr Gale was asked whether or not he accepted that 28,000 kilometres was a real odometer reading for a vehicle of this age. In response to this, Mr Gale replied “… as far as I’m aware that’s well within reason for the vehicle of that type. … it’s a small convertible sports car. They’re generally not daily driven vehicles, they’re weekenders or special occasions. So no, I’m not surprised that it has done so little”;[68]
(k) it was put to Mr Gale by the respondent that in order to accurately assess the vehicle, he would need to have had it pressure and compression tested. It was suggested to him that this would be the easiest way to determine the health or otherwise of an engine. Mr Gale disagreed with this proposition;[69]
(l) it was suggested to Mr Gale by the respondent that the odometer could have done a full 999,000 and then ticked over to zero and started again. In response to this, Mr Gale replied: “With the old … odometers, once it hits the top number it does stop, that’s it. [It] stops working. So it’s frozen on that top number. And that was a legal requirement”;[70]
(m) Mr Gale confirmed that the amount of $5,000 which he had allowed as a deduction of the concours condition of the vehicle would have covered the cost associated with rechroming the rear bumper bar;[71]
(n) the respondent pressed Mr Gale about whether or not certain features of the vehicle were original. He confirmed that they were;[72]
(o) it was suggested to Mr Gale that taking the examples that he had from the internet and averaging the values of such different models of the car, artificially led to a higher valuation for the vehicle. He disagreed with this proposition and explained “… these vehicles are now rare and there wasn’t [sic] many variants. Absolutely when they were brand new and … [manufactured] there was a price difference. Now, because they are such a collector’s item, the values are all very similar”;[73]
(p) when asked about the condition of the vehicle after the fire and what he could tell the Court about how the fire itself may have affected the general condition of the vehicle prior to the fire, Mr Gale responded: “Well, obviously it’s damaged … all the paint work. … the metal underneath of the panels is then … damaged as well. … the roof had been burnt and destroyed … it’s basically been completely damaged”;
(q) when asked about how the heat of the fire would have affected the brightness of the paintwork where there does not appear in the photographs to be direct fire damage, Mr Gale replied “… it does dull the paint work down because of … the heat and the smoke … so that brightness is taken away and has damaged … the top coat of the paint and makes it cloudy”;
(r) when asked how he would have expected the vehicle to present immediately prior to the fire, Mr Gale said he would have expected the overall finish of the vehicle to be a lot brighter and shinier;[74]
(s) it was suggested to Mr Gale that the dullness that was observable in the photographs was, in fact, sun damage on the vehicle, caused by having been left out in the weather. In response to this, Mr Gale replied “there is dirt, soot, smoke … debris all over the top of the vehicle. That’s what we’re looking at there, not sun damage.”[75]
[68]T55, L24-31
[69]T56, L1-20
[70]T57, L11-22
[71]T60, L2-3
[72]TT61-62
[73]TT64-65
[74]TT66-67
[75]T68, L1-16
26At the conclusion of his evidence, Mr Gale confirmed that he was seeking a standard witness payment of $170 per hour. In addition, Mr Gale claimed one hour for having attended at Court on 11 September 2024, when the hearing did not previously proceed.
The evidence of Mr Andrew Coutts
27The second applicant relied upon an expert witness report from Mr Coutts, psychologist, dated 7 December 2022.[76] In that report, Mr Coutts set out the following relevant evidence:
(a) he took a client history which included the second applicant relating her experience of interacting with her ex-husband. He noted that the long list of incidents over decades culminated with the traumatic arson attack on her home, occupied at the time by both the second applicant and the first applicant. The second applicant told Mr Coutts that the only time she felt safe was when she knew that the respondent was in custody;[77]
(b) these circumstances persisted intermittently for over twenty-five years. The unprovoked, unpredictable and terrorising nature of the respondent’s violence toward the second applicant and her son, left her in a state of hypervigilance and anxiety;[78]
(c) based on personal observation, the second applicant exhibited symptoms which were at times severe and debilitating, as is typically associated with long-term exposure to stress. These are collectively referred to as: “General Anxiety Disorder”;[79]
(d) the second applicant’s complex history with respect to the respondent, involving domestic violence, repeated threats to her and her son’s life and property, destruction of property (cars and computers) and conviction for arson, has impacted heavily on her sense of personal safety. The respondent has a record for repeatedly breaching court orders, and harassing, intimidating and assaulting both the second applicant and her son. The respondent has been obsessed with what he sees as the need for retribution against the second applicant. His behaviour has not been mitigated by detention or threats of further prosecution;[80]
(e) based on past experience, the respondent is rightly seen as a real threat by the second applicant. She has expressed concerns that her life is in danger whenever the respondent is released from detention. Given those circumstances and despite the upheaval, the only practical solution has been to relocate – to re-establish her life to a place where she can reduce the likelihood of unintentionally encountering the respondent and make it difficult for him to locate her. The impact of all of this on both the first and second applicants cannot be overstated, as the circumstances reflect on every aspect of their lives – from family, to social and professional.[81]
[76]Ex A3
[77]Ex A3, p2
[78]Ex A3, p2
[79]Ex A3, p4
[80]Ex A3, p4
[81]Ex A3, p5
28Mr Coutts was not cross-examined.
29During his evidence, Mr Coutts said that his usual hourly rate is $200. He said that the total time he spent at Court that day was four hours. On the last occasion when the hearing did not proceed, he had been present at Court and had also prepared for giving evidence for approximately one hour on that occasion.[82]
[82] TT75.76
30Having considered the matters set out in his report, together with the relevant additional evidence including the evidence of the second applicant, I accept Mr Coutts’ evidence in its entirety.
Legal principles
31The legal principles relevant to this type of proceeding are well known.
32The Act provides that a victim may obtain a compensation order from an offender. Section 85B(1) of the Act provides that the Court may make such an order in favour of a person who has suffered “injury” as a direct result of an offence.
33The relevant principles in respect of a claim under s85B of the Act are as follows:
(a) the determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court;
(b) an order for compensation is determined by reference to the application or, where relevant, by general common law principles;[83] however, the order itself is for compensation and not for damages;
(c) unlike a common law claim for damages, the financial circumstances of the respondent are a relevant, but not controlling, consideration.[84]
[83] Moresco & Ors v Budimir [2015] VSC 51, per T Forrest J
[84] As an example of the relevant principles, see RK v Mirik and Mirik (2009) 21 VR 623
34Section 86 of the Act provides that the Court may make an order for compensation in favour of a person who has suffered loss of, destruction of or damage to property, as a result of the commission of an offence.
35The amount of compensation payable pursuant to s86 of the Act is in the discretion of the Court, but must not exceed the value of the property lost, destroyed or damaged.
The Applicants’ submissions
36In closing, the applicants’ counsel relied upon written submissions that had been filed prior to the commencement of the hearing. The substance of those submissions was as follows:
“Finding of Guilt or Conviction
For both … Applications, the requirement that there is a finding of guilt or a conviction for an offence is clearly met by the plea of guilty by the … [Respondent].
[The First Applicant’s] Application – sec 86 of the Act
[The first applicant’s] claim is under section 86 of the Act which requires that the Applicant be a person who has suffered loss or destruction of, or damage to, property as a result of the offence.
This requirement is clearly met.
[The Second Applicant’s] Application – sec 85B of the Act
[The second applicant’s] claim under section 85B(1) of the Act requires that the Applicant be a person who has suffered any injury as a direct result of the offence.
The injury suffered by … [the second applicant] is a mental illness including post-traumatic stress disorder.
Any injury for the purpose of section 85B of the Sentencing Act 1991 (Vic) includes psychological injury and mental illness.
In Paulino v Paulino [2020] VSC 642, Elliot[t] J said:
‘injury includes mental illness or disorder (or exacerbation of a mental illness of (sic) disorder), grief, distress, trauma or other significant adverse effect, or any combination of these matters.’[85]
[85]See Paulino v Paulino [2020] VSC 642 at para 24
Elliot[t] J explains that it is not necessary that the crime in question solely caused the injury, it is sufficient if the crime played a significant role.[86]
[86]See Paulino v Paulino [2020] VSC 642 at para 27
‘the application is in the nature of a summary proceeding in which, ordinarily, applicants do not recover their costs. Applicants under this regime should not be required to run up substantial costs if they can be properly avoided.’[87]
[87]See Paulino v Paulino [2020] VSC 642 at para 80
Elliot[t] J concluded that it was appropriate for the victim to present psychological reports rather than evidence from a forensic psychiatrist.
The claim by … [the second applicant] is substantially similar to the facts in Paulino.
The evidence adduced on behalf of … [the second applicant] being affidavits, a victim impact statement and psychologist reports were sufficient for the court to make a compensation order in Paulino.
In Moresco & Ors v Budimir [2015] VSC 51, Forrest J said:
‘Orders for compensation are not limited to injuries that would be compensable at common law. The Act’s definition of ‘injury’ is broad and includes grief and distress.’
The standard of proof for this submission is that of a civil proceeding, being weighed on the balance of probabilities.
Evidence and the Standard of Proof
The standard of proof for both … applications is the test for tortious claims being whether the loss and damage caused was reasonably foreseeable with the evidence being judged on the balance of probabilities.
In Moresco & Ors v Budimir [2015] VSC 51, Forrest J said:
‘I have said that convenience and expediency are purposes of compensation order applications. A positive expression of those purposes is the evidentiary provision of the Act, s 85G. Subsection 85GI [scil 85G(c)], in particular, provides that on an application for a compensation order a finding of fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact. A finding may also be proved by production of a document under the seal of the court from which the finding appears.’
‘Other facts may be proved by more conventional methods. A victim or the offender may give evidence, or call another person to give evidence, and may be cross-examined and re-examined. Although the application is ancillary to the criminal proceeding, it is itself a civil proceeding, to which the civil standard of proof applies.’
In Wyong Shire Council v Shirt (1980) 146 CLR 40 At paragraph 15, Mason J said:
‘A risk which is not far-fetched or fanciful is real and therefore foreseeable.’
CONCLUSION
In the … [first applicant’s] application, by the evidence adduced, … [the first applicant] has proved that he is the owner of the vehicle which was damaged by the … [respondent].
The quantum of loss is established by reliable expert evidence attached to the … [first applicant’s] affidavit.
… [The first applicant] seeks compensation only for the loss and damage suffered as a result of the loss of his vehicle.
In the .. [second applicant’s] application, the court should find that … [the second applicant’s] need to move residence is a compensable loss. It is not far-fetched or fanciful that a victim of stalking and assault would find it necessary to move residence. Thus, her relocating costs should be considered by the court to be ‘any other expenses actually and reasonably incurred’ for the purpose of section 85B(2(d)) of the Act.”
The Respondent’s submissions
37Other than reiterating that he had wished to have legal representation at the hearing and that he intended to appeal any order made by the Court, the respondent did not make any submission.
What is an appropriate compensation award?
The First Applicant
38On the basis of the evidence given by and on behalf of the first applicant in this case, pursuant to s86 of the Act, I am satisfied that an amount of compensation representing the value of the loss caused to the first applicant by reason of the destruction of the vehicle in the fire, ought be awarded to the first applicant.
39In relation to this matter, having considered all of the evidence in this case, I am satisfied that both the first applicant and Mr Gale were honest and credible witnesses, who did their best to give accurate evidence to the Court about relevant matters. Nothing which was raised by the respondent in his cross-examination of either witness, satisfied me that the substance of the evidence given by them, should be rejected.
40On this basis, and for the purposes of the first applicant’s application under s86 of the Act, I make the following findings about the vehicle, just prior to the fire:
(a)the vehicle was in the condition as described by the first applicant and Mr Gale in their evidence;
(b)key features of the vehicle, such as the seats, were original;
(c)the vehicle was generally in excellent condition, being most of the way through a project of restoration being undertaken by the first applicant;
(d)the odometer reading of 28,000 kilometres, was accurate;
(e)the vehicle was unregistered;
(e)the vehicle is considered to be a highly desirable, classic car, worth approximately $41,418.00 once restored; and
(f)the value of the restoration work yet to be performed on the vehicle was $5,000.00.
41In addition, on the basis of the evidence given by Mr Gale, I find that:
(a)the damage that is evident in the photographs which were referred to during the hearing, was caused by the fire; and
(b)the salvage value of the vehicle following the fire, was $5,050.00.
42Given the findings I have made above, I accept the appropriate amount of compensation which should be awarded to the first applicant, is the sum of $32,946.50 (being the value of the vehicle as assessed by Mr Gale), minus the amount allowed for transfer and duty (which, during his evidence, Mr Gale agreed would not be applicable if the vehicle was unregistered at the time of the fire). The amount to be deducted is $1,578.50.
The Second Applicant
43On the basis of the evidence given by and on behalf of the second applicant in this case, which was unchallenged, I am satisfied, pursuant to s85B(2)(d) of the Act, that the full amount of the relocation costs, properly fall within the definition of “other expenses actually and reasonably incurred, … by the victim as a direct result of the offence” and do not include “any expense arising from loss of or damage to property”.[88]
[88] See s85B(2)(d) of the Act
44That is because I am satisfied that the relocation costs arose specifically by reason of the psychological response which the second applicant had to the arson attack on the property, and the pervasive (and reasonable) feelings which arose in her following that attack, that she would not be safe if she continued to reside at the property.
45Given this, I am also satisfied that the relocation costs were reasonably incurred by the second applicant. As such, I find that the relocation costs amount to “other expenses actually and reasonably incurred … as a direct result of the offence”.
Conclusion and Orders
46For the reasons set out above:
(a)I grant the application made by the first applicant, and pursuant to s86 of the Act, award compensation to him in the sum of $31,368.00;
(b)I grant the application made by the second applicant, and pursuant to s85B of the Act, award compensation to her in the sum of $176,487.56, being the full amount which she claimed, the breakdown of which has been set out in detail above.
47I will hear the parties in relation to the question of costs. For this purpose, I grant leave to the parties to file and serve on each other within thirty (30) days of the date of this judgment, any further documentation or written submission upon which they wish to rely in relation to the issue of costs.
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