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Pawley v Willis

Pawley v Willis

Case [2022] VSC 85 24 February 2022

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2020 02456
S ECI 2020 03397

BRADLEY CHARLES PAWLEY	First Applicant
and
COLIN JESSE COSGROVE	Second Applicant
v
JAMIE IAN WILLIS	Respondent

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATES OF HEARING:	19 April 2021, 25 May 2021 and 30 August 2021
DATE OF JUDGMENT:	24 February 2022
CASE MAY BE CITED AS:	Pawley & Anor v Willis
MEDIUM NEUTRAL CITATION:	[2022] VSC 85

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COMMON LAW — Applications for compensation orders — Application for extension of time — Applicants children of deceased — Application for extension of time granted — Applicants demonstrated they have suffered injuries as a direct result of offence — Compensation awarded — Sentencing Act 1991 (Vic) ss 85B, 85C, 85D, 85H, 85I and 85K — Confiscation Act 1997 (Vic) s 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr. Thracy Vinga	Ryan Carlisle Thomas
For the Respondent	Mr. Patrick Gordon

HIS HONOUR:

These are two applications for compensation orders made pursuant to s 85B of the Sentencing Act 1991 (Vic) (the ‘Act’) by Mr Bradley Charles Pawley and Mr Colin Jesse Cosgrove (‘the applicants’). The applicants are two sons of Ms Caroline Willis (‘the deceased’) who was murdered by Mr Jamie Ian Willis (‘the respondent’) on 24 May 2018 at a premises in Werribee, Victoria. The respondent is also a son of the deceased and is the half-brother of the applicants.

Both applicants have proceeded on the basis that they will need to also apply for an extension of time to make their applications, pursuant to section 85D of the Act. However, as will be explained later in these reasons, only Mr Cosgrave needed to make that application.

Procedural history

On 25 May 2018, the respondent was charged with the murder of the deceased. Upon application of the Director of Public Prosecutions (the ‘Director’) under the Confiscation Act 1997 (Vic) (‘the Confiscation Act’), on 9 November 2018 in this Court Moore J granted a restraining order in relation to real property at 16 Taworri Crescent, Werribee (‘the Werribee property’) that was jointly owned in some form by the respondent and the deceased.[1] The restraining order declared that the property was restrained for the purpose of satisfying any future compensation claims.
[1]Confiscation Act 1997 (Vic), s 18.

On 3 May 2019, the respondent pleaded guilty before this Court to the murder of the deceased. On 20 June 2019, I sentenced him to imprisonment for 20 years with a minimum period of 14 years to be served before being eligible for parole. Pre-sentence detention was declared at 392 days.[2]
[2]R v Willis [2019] VSC 398, [58].

By the applications filed in this Court on 4 June 2020 and 26 August 2020, the applicants seek compensation pursuant to s 85B of the Act. The applications were heard before me over a period of three days between April and August 2021.

Circumstances of the offence

I set out a complete account of…

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 Pawley v Willis

Details

AGLC: Pawley v Willis [2022] VSC 85
Case: [2022] VSC 85
Decision Date: 24 February 2022

CaseChat Overview and Summary

In the case of Pawley v Willis, the applicants, who are the children of a deceased, sought compensation for injuries they had suffered as a direct result of a criminal offence. The court was required to determine whether the applicants were eligible for compensation under the relevant statutory provisions and whether they had suffered compensable injuries. The applicants also sought an extension of time to make their application, which was necessary for them to be able to participate in the proceedings. The court had to consider the provisions of the Sentencing Act 1991 (Vic) and the Confiscation Act 1997 (Vic) in determining the applicants’ eligibility for compensation and the granting of an extension of time.

The applicants argued that they had suffered injuries as a direct result of the offence and were therefore entitled to compensation under the relevant statutory provisions. The court accepted that the applicants had demonstrated that they had suffered compensable injuries and that they were eligible for compensation. The court also found that the applicants had shown sufficient cause for the delay in making their application, and granted them an extension of time to make their application. The court was satisfied that the applicants had acted with due diligence and that the delay in making their application was not due to any fault or neglect on their part.

As a result of the court’s decision, the applicants were awarded compensation for the injuries they had suffered. The court found that the applicants had suffered compensable injuries and that they were eligible for compensation under the relevant statutory provisions. The court also found that the applicants had demonstrated that they had suffered injuries as a direct result of the offence and that they were entitled to compensation. The court granted the applicants an extension of time to make their application, which allowed them to participate in the proceedings and seek the compensation to which they were entitled. The final orders of the court included an award of compensation to the applicants and an extension of time for the making of their application.

Orders