| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2019 03419
IN THE MATTER of an application under s 85B of the Sentencing Act 1991 (Vic)
| DANIEL PAULINO | Applicants |
| LUKE PAULINO | |
| PATRICK MANCUSO | |
| v | |
| FERNANDO PAULINO | Respondent |
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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…
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- AGLC
- Paulino v Paulino [2020] VSC 642
- Case
- [2020] VSC 642
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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