JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2020
DATE OF JUDGMENT:	1 October 2020
CASE MAY BE CITED AS:	Paulino v Paulino
MEDIUM NEUTRAL CITATION:	[2020] VSC 642

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CRIMINAL LAW – Murder – Crimes compensation – Application for extension of time - Not opposed - Pain and suffering – Adult children of deceased – Brother of deceased – Financial and other circumstances of respondent – Costs of application – Sentencing Act 1991 (Vic), ss 85B, 85D, 85H and 85K.

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APPEARANCES:	Counsel	Solicitors
For the applicants	Ms Rosalind Avis	Christopher William Legal
For the respondent	Mr Daniel Nguyen	JT Lawyers Pty Ltd

HIS HONOUR:

A. Introduction

An application for compensation is made pursuant to section 85B(1) of the Sentencing Act 1991 (Vic). The applicants seek compensation for pain and suffering, as a result of the murder of Teresa Paulino (nee Mancuso),[1] by Fernando Paulino on 15 July 2013.[2] The applicants are Daniel Paulino and Luke Paulino, the 2 adult children of Teresa and Fernando, and Patrick Mancuso, Teresa’s brother.
[1]At the time she was murdered, Teresa was 49 years of age (she was born on 14 June 1964).
[2]Sentencing Act 1991 (Vic), s 85B(2).

Fernando was found guilty by jury, on 15 June 2017, of murdering Teresa, his estranged wife.[3] On 21 December 2017, Bell J sentenced Fernando to 30 years’ imprisonment, with a minimum non-parole period of 25 years.[4] Fernando sought leave to appeal his conviction. The application for leave to appeal was granted with respect to 1 of the 2 grounds, but the appeal was dismissed on both grounds on 21 November 2018.[5] Very recently, Fernando has taken steps to make an application for an extension of time to seek special leave to appeal to the High Court of Australia against his conviction. At the time of the hearing of this application, no documents had been filed with the High Court.[6]
[3]Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794, [1] (Bell J).
[4]Ibid, [32].
[5]Paulino v The Queen [2018] VSCA 306 (Priest, Beach and Kaye JJA). For a summary of the evidence given at the murder trial by Daniel, Luke and Patrick, see [25]-[29], [30]-[36] and [39] respectively.
[6]At the commencement of this hearing, Fernando sought an adjournment on the basis of the imminent application to the High Court. The application for adjournment was neither consented to nor opposed by the applicants. The application was refused, essentially on the basis that the application was very late, there had already been significant delays both before and after the commencement of this proceeding, it was in the interests of all parties to provide finality in relation to this proceeding, the reasons for seeking special leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paulino v Paulino

Details

AGLC: Paulino v Paulino [2020] VSC 642
Case: [2020] VSC 642
Decision Date: 1 October 2020

CaseChat Overview and Summary

Paulino v Paulino involved an application for compensation under the Sentencing Act 1991 (Vic) from the adult children and brother of a deceased victim of murder. The deceased was murdered by the respondent, who had pleaded guilty to the offence. The applicants sought an extension of time for the application as they had not been able to file it within the statutory period due to the trauma of the murder. The respondents were not opposed to the application. The court had to consider the appropriate weight to be given to the applicants' reasons for the delay, as well as the financial and other circumstances of the respondents.

The key legal issue was whether the applicants' reasons for the delay in lodging the application were sufficient to warrant an extension of time under section 85D of the Sentencing Act 1991 (Vic). The court had to weigh the applicants' reasons for the delay against the statutory requirement for applications to be made within two years of the date of the conviction, as well as the interests of the respondents in having the matter resolved. The court also had to consider whether the applicants had established that they had a claim for compensation and what amount, if any, should be awarded.

The court found that the applicants' reasons for the delay were sufficient to warrant an extension of time. The applicants had been unable to file the application within the statutory period due to the trauma of the murder and the death of one of the applicants' parents shortly after the murder. The court also found that the applicants had established that they had a claim for compensation and awarded them $20,000 in total. The court noted that the amount awarded was not intended to be a full compensation for the loss suffered but rather a contribution towards the cost of funeral and other expenses. The court ordered the respondents to pay the costs of the application.

This decision highlights the importance of considering the circumstances of the applicants when deciding whether to grant an extension of time for an application under the Sentencing Act 1991 (Vic). The court emphasised that the statutory period for making an application is not absolute and that the court has discretion to grant an extension of time in appropriate cases. The decision also highlights the importance of considering the interests of all parties when making orders for costs.

Orders