RK v Mirik

[2009] VSC 14

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL LAW DIVISION

No. 1579 of 2005

RK	Applicant
v
CETIN MIRIK	First respondent
and
METIN MIRIK	Second respondent

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 4 April and 29 May 2008
DATE OF JUDGMENT:	2 February 2009
CASE MAY BE CITED AS:	RK v Mirik and Mirik
MEDIUM NEUTRAL CITATION:	[2009] VSC 14

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CRIMES COMPENSATION – application by victim of intentionally causing serious injury and rape – victim experienced very serious pain and  suffering – two imprisoned offenders having no capacity to pay compensation – discretion to take financial circumstances of offenders into account – discretion relevant both to making of order and amount -  when victim’s interests can be given greater weight - order for compensation reduced but still substantial – principle that crimes compensation is kept for straightforward cases – whether modified by modern scheme for victims’ compensation – ordering less than full compensation – avoiding over-compensation where victim’s claims not fully tested – distinguishing against crimes committed by co-offenders – victim’s common law right of personal inviolability – victim’s human right of personal integrity – Sentencing Act 1991, ss 85B(1)-(4), 85C, 85F, 85G, 85H(1)-(2).

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APPEARANCES:	Counsel	Solicitors
For the applicant	Dr I Freckelton SC with Mr M Schulze	Kenyons Lawyers
For the first respondent	Mr W Alstergren with Mr D Pollak	Victoria Legal Aid
For the second respondent	Mr D Turner	Victoria Legal Aid

HIS HONOUR:

INTRODUCTION

1. Mr K was viciously beaten by the twin brothers Cetin Mirik and Metin Mirik using bricks and an old metal bicycle frame.   He was subjected to a depraved anal rape by Cetin Mirik using geranium sticks.  For their crimes, the two offenders were convicted and sentenced to substantial periods of imprisonment.  Mr K was left with shocking internal injuries, fractured vertebrae and permanent physical disabilities.  He has to use a colostomy bag, probably for the rest of his life.

1. The Sentencing Act 1991 confers on the criminal courts a discretion to order offenders to pay civil compensation for pain and suffering experienced by victims as a direct result of crimes.  This saves the victim the time, trouble and expense – and the further trauma – of having to commence separate proceedings in a civil court.  Mr K asks me, as the sentencing judge, to make an order for compensation against the Mirik brothers in a six figure sum.

1. Cetin Mirik and Metin Mirik are aged 55 years.  They will be aged about 59 and 57 years if the authorities release them from prison on parole when they become eligible.  They have no assets to speak of and will be living on disability support pensions.  Their English is poor.  They will probably never do any significant paid work again.  They may be deported.  These matters were taken into account when they were sentenced, as were their prospects of rehabilitation, which an order for compensation would not assist. 

1. The Act allows the criminal courts…