RK v Mirik

Case [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…

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RK v Mirik [2009] VSC 14
Case
[2009] VSC 14
Decision Date

CaseChat Overview and Summary

The applicants, victims of serious crime, sought compensation under the Sentencing Act 1991. The crimes involved intentional infliction of serious injury and rape, resulting in severe pain and suffering. The court considered the offenders' lack of financial means and the statutory discretion to account for offenders' circumstances in determining both the making of the order and its amount. The applicants' interests were considered, but not at the expense of the statutory scheme's intent to keep crimes compensation straightforward.

The court had to decide whether it was appropriate to reduce the compensation order based on the offenders' inability to pay and if the statutory scheme had altered the principle of keeping crimes compensation for simpler cases. The court examined the balance between awarding substantial compensation and avoiding over-compensation, especially since the victims' claims had not been fully tested in a criminal trial. The court also considered the principle of not distinguishing between crimes committed by co-offenders and the victims' rights to personal inviolability and integrity.

The court exercised its discretion to order less than full compensation, acknowledging the severity of the crimes and the applicants' suffering, but also taking into account the offenders' financial circumstances and the statutory scheme's intent. The court determined that a substantial but reduced compensation order was appropriate, balancing the victims' rights and the statutory provisions. The court ordered that the applicants receive a reduced but significant compensation sum, recognising the statutory scheme's principles while addressing the victims' needs.

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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