RK v Mirik
[2009] VSC 14
•2 February 2009
| 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 | Kenyons Lawyers |
| For the first respondent | Mr W Alstergren with | Victoria Legal Aid |
| For the second respondent | Mr D Turner | Victoria Legal Aid |
HIS HONOUR:
INTRODUCTION
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.
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.
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.
The Act allows the criminal courts to refuse to hear and determine applications for compensation where the facts are not sufficiently clear. It also permits the court to take into account the financial circumstances of the offender and the burden that payment of compensation would impose. Cetin Mirik and Metin Mirik say this is not a straightforward case and that, short of some unexpected windfall, they will not be able to pay any order for compensation. On these two grounds they submit that, despite what they did to Mr K, I should exercise my discretion to refuse to order compensation, leaving him to start again in a civil court.
COMPENSATION FOR VICTIMS OF CRIME
Taking greater account of the interests of victims of crime
The bedrock value is that every person without exception has a unique dignity which is the common concern of humanity and the general function of the law to respect and protect. As Brennan J said in Marion’s Case,[1] “[h]uman dignity is a value common to our municipal law and to international instruments relating to human rights”, to which I would add certain pertinent legislation. It finds common law expression in the “fundamental right to personal inviolability … which underscores the principles of assault, both criminal and civil”.[2] It finds international law expression in the International Covenant on Civil and Political Rights[3] which (among other things) protects “the right to … security of the person”.[4] It finds legislative expression in (for example) the Crimes Act 1958 and now also in the Charter of Human Rights and Responsibilities Act 2006, which gives several recognition to the human right to personal integrity.[5] More and more it has found expression in legislation allowing criminal courts to order offenders to pay civil compensation to victims of crime.
[1]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1991-1992) 175 CLR 218, 266 per Brennan J.
[2]Ibid, 253 per Mason CJ, Dawson, Toohey and Gaudron JJ; see also Collins v Wilcock [1984] 1 WLR 1172, 1177 per Robert Goff LJ: “The fundamental principle, plain and incontestable, is that every person’s body is inviolate”.
[3]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[4]Article 9.
[5]See, eg, the right not to be treated in a degrading way (s 10(b)), the right not to be subjected to medical treatment without full, free and informed consent (s 19(c)), the right not to have your privacy unlawfully or arbitrarily interfered with (s 13(a)) and the right of every person to security (s 21(1)).
Thus, in Victoria, the modern legislation – which is in Part 4 of the Sentencing Act - is more beneficial to victims, in procedure and content, than its historical antecedents.[6] The scheme in Part 4 is part of a set of enactments that assists and supports victims of crime. It reflects developments in legislative policy and social attitudes about how the courts should take greater account of the interests of the victims of crime. Doing so is now embedded more deeply in law and public administration than it once was.
[6]See generally Ian Freckelton, Criminal Injuries Compensation: Law, Practice and Policy (2001) 299 ff.
These developments may be tracked by reference to the legislation (see below) and the plethora of official reports prepared on the subject in Victoria over the past 20 or so years.[7] An important milestone was the adoption by the General Assembly of the United Nations, on 29 November 1985, of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. [8] The annex of the Declaration states the basic principles to be applicable to the treatment of victims of crime. The principles are access to justice and fair treatment, restitution (which includes offender-paid compensation), compensation (meaning state-paid compensation) and assistance. Clauses 4 and 5 (as part of the principle of access to justice and fair treatment) provide this:
[7]See eg Victoria, Working Party to Review the Criminal Injuries Compensation Act 1972 (April 1983); Parliament of Victoria, Legal and Constitutional Committee, Report upon Support Services for Victims of Crime (November 1987); Victorian Attorney-General’s Department, Victorian Sentencing Committee, Sentencing (April 1988); and Parliament of Victoria, Law Reform Committee, Restitution for Victims of Crime (November 1993).
[8]Resolution A/RES/40/34 adopted at the 96th plenary meeting on 29 November 1985.
4 Victims should be treated with compassion and respect for their dignity. They are entitled access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5 Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.
Clause 8 (as part of the principle of restitution) provides offenders should, where appropriate, make fair restitution to victims, including by paying payment for the harm or loss they have suffered. A declaration is not domestic law. But a declaration can assist the courts to appreciate the significance of fundamental values,[9] especially the unique dignity of every individual inherent in the human rights of victims of crime.
[9]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1991-1992) 175 CLR 218, 266 per Brennan J.
The set of enactments comprises the Victims of Crime Assistance Act 1996 as amended by the Victims of Crime Assistance (Amendment) Act 2000, the Confiscation Act 1997, the Sentencing Act 1991 as amended by the Victims of Crime Assistance (Amendment) Act 2000, the Victims’ Charter Act 2006 and the Corrections Amendment Act 2008.
The Victims of Crime Assistance Act 1996 established the Victims of Crime Assistance Tribunal.[10] The purpose of that Act,[11] as amended by the Victims of Crime Assistance (Amendment) Act 2000,[12] is to provide assistance to victims of crime and to assist them to recover from the crime by paying them certain amounts, including amounts as “a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime”. One object of the Confiscation Act 1997 is to preserve assets for the purpose of satisfying orders for victims of crime.[13] The Act creates powers enabling the seizure and forfeiture of assets that represent the proceeds of criminal activity.[14] I will deal with the Sentencing Act below. The Victims’ Charter Act 2006 recognises principles that govern the response to persons adversely affected by crime by investigatory, prosecuting and victims’ service agencies.[15] One of the principles is that a victim may apply to a court for an order that an offender pay compensation.[16] One of the objects of the Act is “to recognise the impact of crime on the victims of that crime, including the impact on members of victims’ families”.[17] Part 9C of the Corrections Amendment Act 2008 makes provision for the creation of a prisoner compensation quarantine fund.[18] Certain damages awarded to prisoners must be paid into the fund to ensure victims can enforce awards of damages (including compensation).[19] The Act sets up a victims’ notification[20] and payment[21] scheme in respect of quarantined monies.
[10]Section 19.
[11]Section 1.
[12]Section 4.
[13]Section 1(h).
[14]See eg s 32(1).
[15]See s 1(a) and Part 2.
[16]Section 16(1). The example given in the sub-section is a reference to Div 2 of Part 4 of the Sentencing Act 1991.
[17]Section 4(1)(a).
[18]Section 104W.
[19]Section 104O defines “damages” to include, “any form of monetary compensation”.
[20]Division 4 of Part 9C.
[21]Division 5 of Part 9C.
That brings me to the Sentencing Act.
Easy access to civil justice for victims in criminal proceedings
The fundamental purpose of conferring power on the criminal courts to order offenders to pay compensation is giving victims easy access to civil justice.[22] When an offender has been dealt with by the courts, the judge can be in a good position to consider the issue of compensating the victim. The factual circumstances relevant to compensation may have been fully or at least sufficiently established by the evidence led or the admissions made by the offender. It can be clear that the offender’s crime has caused loss or damage to the victim. Once the court receives evidence of the extent and value of such loss or damage, it can then expeditiously determine whether and what compensation to order. This saves the victim the time, expense, inconvenience and possible additional trauma of having to institute a civil proceeding. Not doing so may deprive the victim of ready access to just compensation, leaving them with an understandable sense of grievance. As the Supreme Court of Canada said in R v Fitzgibbon:[23]
Why should a victim of crime in a situation where the amount involved is readily ascertained and acknowledged by the accused be forced to undertake the often slow, tedious and expensive civil proceedings against the very person who has stolen from or defrauded the victim?
[22]R v Oddy [1974] 2 All ER 666, 670 per Lawton LJ, Mais and Phillips JJ; R v Inwood (1974) 60 Cr App R 70, 73 per Lawton and Scarman LJJ, Dunn J; R v Braham [1977] VR 104, 108 per Young CJ, Gowans and Harris JJ; DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 346 per Buchanan JA; Kaplan v Lee-Archer (2007) 15 VR 405, 406-407 and 410-411 per Buchanan JA, Vincent and Nettle JJA concurring; Australian Associated Motor Insurers v Galvin (2005) 15 Tas R 104, 107 per Slicer J.
[23][1990] 1 SCR 1005, 1018.
The provisions of Part 4 of the Sentencing Act give effect to that purpose. They deal with the related subjects of restitution (s 84), compensation for pain and suffering (ss 85A-85M) and compensation for property loss (s 86). Mr K’s application is for compensation for pain and suffering under s 85B(1).
Section 85B(1) gives the court a discretion to make an order for compensation, including for pain and suffering, against a person found guilty of or convicted of an offence for any injury suffered by the victim as a direct result of the offence. Section 85C(1)(a) requires the application to be made within 12 months of the finding or conviction. The time can be extended under s 85D(1). Under s 85C(1)(b), the application can be made by the victim or, in some situations, on their behalf. The beneficial purpose of the provisions is indicated by one of those situations, which is that the victim is unable to make the application by reason of the injury (s 85B(1)(b)(ii)).
It has been said that proceedings under s 85B are “incidents of criminal proceedings.”[24] It has also been said a proceeding under s 86 of the Sentencing Act is “a summary procedure ancillary to criminal process.”[25] Though compensation is thus ordered as part of the criminal justice process, it is civil compensation, not additional punishment.[26] Therefore the civil standard of proof on the balance of probabilities and not the criminal standard of proof beyond reasonable doubt is applicable.
[24]DPP v Esso Australia Pty Ltd (No 2) (2001) 126 A Crim R 13, 16 per Cummins J.
[25]DPP v Gardner and Coates [2004] VSCA 119, [29] per Winneke P.
[26]See R v Lovett (1870) 11 Cox CC 602, 603; R v Aitken [1981] VR 241, 243.
The provisions of the Act do not specify how applications for compensation are to be made. I think this was left deliberately open. As Cummins J said in DPP v Esso Australia Pty Ltd (No 2),[27] “it is undesirable that s 85B proceedings be burdened down by substantial complex or technical rules of procedure as may properly apply” to civil applications. The legislature intended the procedures to be flexible and fair – to have a “degree of procedural flexibility and informality”.[28] There is no requirement for an application to be made in writing. Therefore it can be made orally or in writing.
[27](2001) 126 A Crim R 13, 18.
[28]R v Bowen (1969) 90 WN (Pt 1) (NSW) 82, 83 per Reynolds J, approved R v McDonald [1979] 1 NSWLR 451, 462 per Street CJ.
Once an application is made, s 85G(2) prevents the court from making an order for compensation without first giving the offender a reasonable opportunity to be heard. Therefore the offender must be given notice of the application. That is inherent in the common law rules applying to proceedings of this kind[29] and in the offender’s right to a reasonable opportunity to be heard (s 85G(2)), to appear (s 85E(1)) and to give evidence and examine witnesses (s 85G(1)).
[29]R v McDonald [1979] 1 NSWLR 451, 462 per Street CJ; R v Babic [1980] 2 NSWLR 743, 744 per Hunt J; R v C [1982] 2 NSWLR 674, 695 per O’Brien CJ of Cr D.
Many offenders and some victims will be self-represented. The court has a general duty to ensure a fair hearing by giving self-represented parties due assistance.[30] This has been described as a “special responsibility”.[31] That general duty and special responsibility will apply to self-represented offenders and victims in applications for criminal compensation.[32] The offenders in the present case were initially self-represented, but ultimately they obtained legal representation.
[30]Tomasevic v Travaglini (2007) 17 VR 100, 118-119, 129-130 per Bell J.
[31]Macdiggers Pty Ltd v Dickinson [2008] VSC 576, [55] per Warren CJ.
[32]A similar obligation may also arise by reason of the application of s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 to courts hearing and determining applications for criminal compensation.
The court can deal with an application for compensation at or soon after the sentencing hearing. Depending on the nature of the issues, that will be the desirable course. But, giving the offender a reasonable opportunity to be heard may often require the court to deal with the application for compensation at a later hearing. To ensure the offender would not be “unfairly oppressed”, that is what Cummins J did in Gregory and Stawenga v Gregory.[33] Appropriately, this course was followed in the present case. Mr K waited until the offenders were convicted and sentenced before making his application.
[33](1999) 112 A Crim R 19, 20.
The court has not made rules about or prescribed forms for making written applications under s 85B. Mr K’s solicitors used a simple form they designed for the purpose. It gave notice to the offenders and the Director of Public Prosecutions of Mr K’s application for a compensation order. It specified a date for a directions hearing before the court. It named the offenders as respondents and included the prosecutor – in this case, the Director - as someone who would be notified. It specified the number of the proceeding in the criminal list of the court in which the offenders had been convicted and sentenced. The application was filed with and stamped by the prothonotary on 18 February 2008. For the purposes of the 12 months time limit specified in s 85C(1) of the Act, that meant the application was made on that day. The offenders having been convicted and sentenced on 21 February 2007, the application was made within time. The date of the directions hearing was chosen in consultation with the chambers of the sentencing judge (in this case, me). As the sentencing judge will be familiar with the matter, it is obviously sensible and desirable that they hear and determine the application.[34] However, under the Act, that is not actually requisite. Any judge of the court can do so. Mr K’s solicitors then served the application so made on the offenders and the Director.
[34]DPP v Parsons [2000] VSC 327, [24] per Cummins J.
Criminal compensation proceedings do not have to be conducted with pleadings.[35] Nor is it intended the issues will be such as to require the kind of examination expected in a fully contested civil trial. For example, if there are substantial questions of contribution, the court might determine it would not be appropriate to hear and determine the application.[36] However, in some cases there will be significant factual and legal issues to consider. That does not necessarily mean the court can’t hear and determine it. Sections 85F and G give the court additional powers to receive evidence, statements and documents, which may enable a proper consideration of serious legal and factual issues.[37] The court will need to adopt a fair and convenient procedure for dealing with them.
[35]DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 346 per Buchanan JA.
[36]Kaplan v Lee-Archer (2007) 15 VR 405, 417-418 per Nettle JA.
[37]See Bakic v Yamasa Seafood Australia Pty Ltd [2003] VSC 309, [23]-[24] per Smith J.
It was obvious at the first directions hearing there were significant issues to consider in the present case. Therefore I gave directions for the victim and then the offenders to file and serve, within three weeks, any affidavits on which they sought to rely. Section 85H(1) allows the court to take the financial circumstances of the offender into account. As s 85H(2) allows the court to make an order for compensation in the absence of such evidence, it is the responsibility of offenders to provide it. I told the offenders that, if they wanted their financial circumstances to be taken into account under s 85H(1), they should include details of these in their affidavits, which they did. I also gave directions for the victim and then the offenders to file and serve, again within three weeks, short contentions of fact and law. This ensured all parties had due notice of the issues. It was understood the court would have the file of the sentencing hearing, which contained various material, such as Mr K’s victim impact statement, which s 85F allows to be taken into account. The parties accepted each others’ affidavits. No party required any witnesses to be cross-examined.
Now to the offences committed against Mr K.
OFFENCES COMMITTED AGAINST THE VICTIM
Convictions and sentences of the offenders
Cetin Mirik pleaded guilty to the offences of intentionally causing serious injury to and raping Mr K at North Fitzroy on 13 April 2005. He was convicted of these offences by me on 21 February 2007. On that day he was sentenced to imprisonment for seven years on the first charge and four years on the second, making a total of 11 years. It was ordered that two years of the sentence of imprisonment for the crime of rape be served cumulatively with the sentence of imprisonment for the crime of intentionally causing serious injury, making a total effective sentence of imprisonment for nine years. A non-parole period was set of imprisonment for six years and six months.
The Director’s appeal against the sentence imposed on Cetin Mirik for the offence of intentionally causing serious injury was dismissed.[38] The Director’s appeal against the sentence imposed for the offence of rape was upheld. That sentence was increased to imprisonment for eight years. It was ordered that three years of the term of imprisonment imposed for the offence of intentionally causing serious injury be served cumulatively with the sentence of imprisonment imposed for the offence of rape. The Court of Appeal specified a total effective sentence of 11 years. A non-parole period was set of imprisonment for eight years.[39]
[38]DPP v Mirik and Mirik [2007] VSCA 150, [35].
[39]Ibid, [58].
Metin Mirik pleaded guilty to the offence of intentionally causing serious injury to Mr K at North Fitzroy on 13 April 2005. He was convicted of this offence by me on 21 February 2007. On that day he was sentenced to imprisonment for six years and six months. A non-parole period was set of imprisonment for four years and six months. The Director’s appeal against that sentence was dismissed.[40]
[40]Ibid, [35].
What the offenders did to the victim
The Mirik brothers subjected Mr K to a vicious bashing using bricks and a metal bicycle frame. Cetin Mirik subjected Mr K to a depraved anal rape with geranium sticks. The three men had previously been friends. The offences were committed while the offenders were in an alcoholic stupor.
The drinking started on 12 April 2005 and continued throughout the night at Cetin Mirik’s flat. At about 7.30am on 13 April neighbours in nearby flats heard them arguing and fighting inside and then outside the flat.
The neighbours later looked out to see Mr K lying naked on the concrete in the courtyard. They saw Metin Mirik repeatedly bashing Mr K with a brick to his head and body. Mr K was not fighting back and was barely moving. He was defenceless in the face of what was being done to him. The two brothers rolled Mr K over onto his stomach. Cetin Mirik dropped a bicycle frame onto Mr K’s stomach and struck him repeatedly with a brick. Both of them stomped on Mr K several times. At some point not seen by the neighbours, Cetin Mirik inserted six geranium branches into Mr K’s anus. Metin Mirik was not involved in that rape.
After attacking Mr K, Cetin Mirik and Metin Mirik attempted to conceal Mr K under the veranda of the flats. Mr K was in a shocking state and, as we shall see, very seriously injured. The Mirik brothers went to a nearby laundry and washed themselves before returning to the flat. As for Mr K, they left him outside naked, unconscious, covered in dirt and blood and for dead.
The neighbours called the police. They arrived to find Mr K unconscious in the courtyard. He had six geranium branches protruding from his anus. He was taken to hospital where he received the treatment I will later describe. I will also later describe his injuries, which are ongoing. The Mirik brothers were arrested shortly afterwards and convicted and sentenced as set out above.
SHOULD THE VICTIM BE LEFT TO HIS CIVIL REMEDIES?
Offenders’ submissions
There has been a general discretionary principle that crimes compensation orders should only be made in straightforward cases. The offenders submit Mr K’s application for compensation should be dismissed because it involves complex questions requiring in-depth consideration. It will be necessary to identify the relative contributions of the offenders to the victim’s injuries in a context where the two offenders committed one crime but only one offender committed the other. The two offenders have different capacities to pay, which is a further complicating factor.
On those grounds, the offenders submit this case is not one suitable for determination in the crimes compensation jurisdiction of the court. The right of the victim to compensation is more appropriately dealt with in the court’s civil jurisdiction. Therefore the court should exercise its discretion to refuse to hear and determine Mr K’s application. He should be left to pursue his civil remedies.
These submissions require me to consider the scope and application of the principle in the context of the changes to the Victorian legislation and the modern approach of taking greater account of the interests of victims. I will start with the cases in the United Kingdom where the principle was established.
Crimes compensation in straightforward cases: the United Kingdom
However just and convenient for victims crimes compensation orders may be, the traditional function of the criminal courts is to determine the criminal guilt of and impose a just sentence on the offender, not to order compensation for victims. Speaking generally, the criminal courts work within a criminal justice paradigm, which is focussed on the public function of trying and punishing offenders, whose means and rehabilitation are important considerations, while the civil courts work within a civil justice paradigm, which is focussed (relevantly) on the private function of awarding damages for actionable injuries, where the means and rehabilitation of the wrong-doer are irrelevant.[41] These two functions are not the same and can involve competing considerations, as when a criminal court is asked to award compensation against an offender of limited means whose rehabilitation is a sentencing consideration.[42] Moreover, the criminal courts are acutely aware that crimes compensation proceedings are not conducted with the full rigour of a civil trial.[43] Nor do the criminal courts always have the time and experience ideally required to conduct a fully contested civil trial of a victim’s application, and then make a principled assessment of what the compensation should be.
[41] Bakic v Yamasa Seafood Australia Pty Ltd [2003] VSC 309, [23]-[24] per Smith J; Bentley v Furlan [1999] 3 VR 63, 67 per Ashley J; R v Ross (2007) 17 VR 80, 83 per Vincent JA.
[42]See Gregory and Stawenga v Gregory [2000] VSC 190, [29] per Cummins J: “How can one both fulfil the rights of the victim and not financially crush the offender?”
[43]DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 346; Bakic v Yamasa Seafood Australia Pty Ltd [2003] VSC 309, [26]; R v Braham [1977] VR 104, 108.
Thus, from the earliest days of the conferment on the criminal courts by statue of the power to award crimes compensation, the judges have been wary of exercising it. Our legislation was copied from s 4 of the Forfeiture for Felony Act 1870 (UK).[44] The first reported case on s 4 was, it appears, R v Lovett.[45] The court held the power was “to be exercised with the utmost caution”.[46] That put a gloss on the operation of the legislation which has proved, in the United Kingdom, to be very enduring. As we will see, the courts here have historically adopted a similar approach. The question I will need to consider later is how applicable that approach is under our current legislation.
[44]Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd edition, 1999) 435.
[45](1870) 11 Cox CC 602.
[46]Ibid, 603.
The courts have sought to reconcile the conflicting demands of their traditional criminal jurisdiction with the power to award civil compensation by adopting the principle that criminal compensation should be kept for clear and straightforward cases, and cases where the victim’s claim is clearly proved. This is the principle on which the offenders in this case rely.
The principle has been frequently stated in the United Kingdom. Two well-known examples will suffice. In R v Inwood,[47] Scarman LJ said this approach should be adopted:[48]
[47](1974) 60 Cr App R 70.
[48]Ibid, 73.
Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation… One has to bear in mind that there is always the possibility of a victim taking civil proceedings, if he be so advised. Compensation orders should certainly not be used when there is any doubt as to the liability to compensate…
The point was expanded in R v Kneeshaw:[49]
It has been stressed in this court more than once recently that the machinery of a compensation order under the Act of 1972 is intended for clear and simple cases. It must always be remembered that the civil rights of the victim remain. In a great majority of cases the appropriate court to deal with the issues raised by matters of this kind is in the appropriate civil proceedings. A compensation order made by the court of trial can be extremely beneficial as long as it is confined to simple, straightforward cases and generally cases where no great amount is at stake.
[49][1975] 1 QB 57, 60.
The need for clear proof of the claim was taken up in R v Vivian[50] in 1978. The Court of Appeal[51] held: “no order for compensation should be made unless the sum claimed… is either agreed or has been proved… [I]n the absence of agreement or evidence as to the correct amount which could be claimed… no order should have been made.”[52]
[50](1979) 68 Cr App R 53; [1979] 1 All ER 48; [1979] 1 WLR 291.
[51]Browne LJ, Talbot and Michael Davies JJ.
[52]Ibid, 55.
Some saw this principle as restricting the access of victims to criminal compensation and as contributing to the low incidence of compensation orders.[53] By s 67 of the Criminal Justice Act 1982 (UK), this new s 35(1A) of the Powers of Criminal Courts Act 1973 was introduced:
Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor.
[53]David Miers, Compensation for Criminal Injuries (1990) 220-226.
Clearly the legislature wanted to ensure victims would get some compensation when the court could order it, even if the state of the evidence did not permit an order to be made in the fullest amount that might be possible. Thus the court was empowered to order compensation in an “appropriate amount” having regard to the evidence and representations.
But the amendment was not interpreted as bringing about a substantial change in the law. Again the courts acted quickly. In apparently the first reported case after s 35(1A) was introduced, the Court of Appeal said its effect was “simply to ameliorate the strict requirements”[54] stipulated in R v Vivian[55] that there must be evidence or agreement as to the “correct amount” of the compensation. There the matter rests. In the United Kingdom, where applications are now made under s 130 of the Powers of Criminal Courts (Sentencing) Act 2000 (UK), the current position is that the power to order criminal compensation is reserved for clear and straightforward applications in which the victim’s loss is well established.[56]
[54]R v Swann (1984) 6 Cr App R (S) 22, 24; see also R v Danvers [1984] Crim LR 182.
[55](1979) 68 Cr App R 53.
[56]DA Thomas, Current Sentencing Practice (Sweet and Maxwell), vol 2 (at 90201-90222/2).
I will compare the position in New Zealand, which is very different.
Crimes compensation as a statutory presumption: New Zealand
New Zealand is interesting because, in the light of changes to its legislation, the courts have modified their approach to the application of the principle. I think we have to do the same here.
Initially, the New Zealand courts followed the traditional approach. For examples, in R v Rollo[57] the offender had been convicted of theft. She was fined $300 and ordered to pay compensation of $2600, although she was wholly dependant on invalidity benefits and had no significant assets. The Court of Appeal[58] quashed the fine and order, and adjourned the case for 12 months. Following the authorities in the United Kingdom,[59] the court held the general statutory power[60] to order compensation “should not be used where there is a doubt as to the liability to compensate... It is to be borne in mind that the civil liability of the convicted person is not extinguished.”[61]
[57][1981] 2 NZLR 667.
[58]Davison CJ, Somers and Mahon JJ.
[59]Ibid, 671 where the court referred to R v Inwood (1974) 60 Cr App R 70, and said it was useful on other aspects of compensation orders.
[60]Section 403(1) of the Crimes Act 1961 (NZ) provided the courts could order “the offender to pay any person such sum as its thinks fit… for any loss of or damage to property suffered by that person through or by means of the offence.”
[61][1981] 2 NZLR 667, 671.
The provisions[62] were replaced by the sentence of reparation[63] introduced by the Criminal Justice Act 1985 (NZ). Section 11 required reparation to be ordered unless the court was satisfied it would be “clearly inappropriate” to do so. Section 22(1) empowered the court to “sentence the offender to make reparation” for either or both of emotional harm or loss or damage to property. Under s 23, reports could be obtained on the nature of the emotional harm, or the value of property lost or damaged.
[62]The provisions were later described by the Law Commission of New Zealand as “little-used”: New Zealand, Law Commission, Compensating Crime Victims, Issue Paper No 11 (2008) 4.
[63]In Victoria, a compensation order under s 85B of the Sentencing Act 1991 is not a sentence and is not a mitigating factor relevant to a sentence: R v Ross (2007) 17 VR 80.
The amendments were interpreted as bringing about a substantial change in the law, as the decision in R v O’Rourke[64] indicates. An insurer obtained a compensation order of $8,350 against the receiver of a stolen motor vehicle which he was stripping down for parts. The sum ordered was the full value of the insurer’s loss. The offender argued that, as he was the receiver and not the thief, full compensation should not be his single responsibility. The Court of Appeal[65] upheld the order as the insurer’s loss was the result of the offender’s criminal conduct. It also said the offender had “ample means to pay”.[66] The court went on to explain how the new provisions required a different approach:[67]
The provisions are obviously meant to be used. We deprecate any approach which tends to relegate them to the sidelines, as an inferior alternative to civil remedies, or which confines their application to only clear and simple cases. That was the view taken under the former s 403 of the Crimes Act 1961, which enabled the Court to award compensation. However, that section has been replaced by the far more detailed provisions of the present ss 22 and 23, and under their regime there can be no justification for continuing to support the former view. On the contrary, we think the Court is now obliged, as part of the sentencing process, to consider reparation and to go into the questions of the amount and the offender’s ability to pay as fully as it can, in terms of ss 22 and 23.
[64][1990] 1 NZLR 155.
[65]Cook P, Casey and Doogue JJ.
[66]Ibid, 158.
[67]Ibid.
The 1985 provisions were replaced when the Sentencing Act 2002 (NZ) was enacted. The new provisions were designed to enhance the sentence of reparation by ensuring it would be used more frequently than previously.[68] A purpose of the Act was “to provide for the interests of victims of crime.”[69] One of the defined purposes of sentencing was “to provide reparation for harm done by the offending”.[70] As the Court of Appeal stated in R v Donaldson and Chapman,[71] s 12 contains a “presumption in favour of reparation”. As the Court of Appeal[72] later stated in R v Pender and Roberts,[73] the presumption was expressed in stronger terms than under s 11 of the Criminal Justice Act 1985.
[68]The Law Commission later said it achieved that objective: New Zealand, Law Commission, Compensating Crime Victims, Issue Paper No 11 (2008) 4.
[69]Section 3(d).
[70]Section 7(1)(d).
[71][2006] NZCA 279, [31].
[72]O’Regan, Chisholm and Potter JJ.
[73][2007] NZCA 465, [12].
By s 12, if the court is lawfully entitled to impose a sentence of reparation, “it must impose it”, the only exception being that the court “is satisfied that the sentence would result in undue hardship for the offender or the dependents of the offender, or that any other special circumstances would make it inappropriate.” Under s 35(1), the court can consider whether the offender has “insufficient means to pay the total value of the loss, damage, or harm”. If so, it may sentence the offender to make reparation in an amount less than that total value, and by instalments. Section 33(1) gives the court a discretionary power to seek a reparation report on the offender’s financial capacity and the maximum amount they are likely to be able to pay.
There is now not much reference in New Zealand to the old principle that crimes compensation is kept for straightforward cases.
That brings me to Victoria.
Crimes compensation where practicable: Victoria
I will first state the principle by reference to the Victorian authorities and then see whether its application has been affected by the legislative amendments.
In R v Braham[74] the Full Court considered the power in s 546(1) of the Crimes Act 1958 to order an offender to pay compensation for loss and damage caused by the crime to the victim’s property. Citing R v Kneeshaw[75], it said “it would be a proper exercise of the discretion to refuse to make an order where there was involved a complicated or extensive investigation into the conditions of its exercise…”[76] R v Braham was followed by the Full Court in R v Aitken[77] in reference to the same powers, by the Court of Criminal Appeal in Landolt[78] in reference to the analogous power in s 92 of the Penalties and Sentences Act 1985, by the Court of Appeal in DPP v Gardner and Coates[79] in reference to s 86 of the Sentencing Act 1991 and by the Court of Appeal in Kaplan v Lee-Archer[80] in reference to s 85B of the Sentencing Act 1991. Numerous single judges have applied the principle.[81]
[74][1977] VR 104.
[75][1975] 1 QB 57.
[76][1977) VR 104, 110 per Young CJ, Gowans and Harris JJ.
[77][1981] VR 241, 245 per Young CJ, Starke and Brooking JJ concurring.
[78](1992) 63 A Crim R 220, 223 per Hampel J, Phillips CJ and Vincent J concurring.
[79][2004] VSCA 119, [29] per Winneke P, Callaway and Buchanan JJA concurring.
[80](2007) 15 VR 405, 412 per Buchanan JA, Vincent and Nettle JJA concurring.
[81]Bentley v Furlan (1999) 3 VR 63, 67-68 (Ashley J), Gregory and Stawenga v Gregory [2000] VSC 190, [30] (Cummins J), Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252, [53] (Williams J).
Thus the principle has been held to apply in Victoria. But I think its application must take account of the legislative amendments, for they have significantly enhanced the capacity of victims to make applications for compensation and the power of the court to hear and determine them. The amendments also restrict the power of the court to refuse to do so.
The amendments were made by the Victims of Crime Assistance (Amendment) Act 2000. In his second reading speech for the bill for that Act, the Attorney-General said the “bill proposes to facilitate such actions by improving the process for victims to obtain compensation directly from the offender.”[82] The amendments give further affect to the object specified in s 1(i) of the Sentencing Act 1991, namely “to ensure that victims of crime receive adequate compensation and restitution.” This object is important when interpreting the provisions of the Act[83] and in understanding the scheme of compensation it creates.
[82]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1913 (Rob Hulls, Attorney-General).
[83]See s 35(a) of the Interpretation of Legislation Act 1984 (Vic) and generally CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. This approach to the interpretation of the provisions was adopted in Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252, [41], [72] per Williams J.
Speaking of the amending legislation, in DPP v Energy Brix Australia Corporation[84] Vincent JA said that, along with s 85B, it enacted “a number of measures designed to assist and support the victims of criminal activity…”[85] Referring to the Attorney-General’s second reading speech, his Honour said: “It is clear, beyond any possibility of dispute, that it was perceived by the legislature to be in the public interest that such assistance and support should be available in the criminal process.”[86]
[84](2006) 14 VR 345.
[85]Ibid, 351.
[86]Ibid.
The significance of the amendments can be appreciated by comparing the amended provisions, which are in ss 85A-M of the Sentencing Act 1991, with their immediate predecessors, which were in s 86 of that Act.[87]
[87]The evolution of the statutory power of the courts in Victoria to order criminal compensation is described in Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd edition, 1999) (to 1999); in Gregory and Stawenga v Gregory [2000] VSC 190, [28] per Cummins J; extensively in Bentley v Furlan (1999) 3 VR 63, [11]-[51] per Ashley J (to 1999); in Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252, [18]-[22] per Williams J (from 1991); and in Ian Freckelton, Criminal Injuries Compensation: Law, Practice and Policy (2001) 299-300 (to 2001).
The former s 86(1) of the Sentencing Act allowed the court to make an order for compensation for loss or damage and pain and suffering.[88] Section 86(8) provided the court –
must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with any admissions made by or on behalf of any person in connection with the proposed exercise of the powers.
The “available documents” were defined in s 86(9) to mean written statements made for use and admissible in the hearing of the charge, the depositions taken at the committal and any written statements or admissions used as evidence in the committal.[89] There were no provisions allowing the victim or witnesses called on their behalf to give evidence. It was expected the court would deal with the application on the basis of the evidence and documents already before it, or not at all.
[88]Section 86(1) of the Sentencing Act 1991 originally allowed compensation only for loss and damage to property. It was amended by s 74(1)(a)(i) of the Victims of Crime Assistance Act 1996 to allow the court to make an order for compensation in respect of the victim’s pain and suffering as well as for loss or damage to property.
[89]The list of “available documents” in s 86(9) was amended by s 11 of the Sentencing (Amendment) Act 1999 to include “(d) any victim impact statement made to the court for the purpose of assisting it in determining sentence, including any medical report attached to it.”
Turning to the current legislation, as we have seen, s 85B(1) confers a power on the court to order the offender to pay compensation to the victim. We have also seen that, under ss 85C and 85E, there are flexible and convenient procedures for making applications. As the court’s power to order compensation remains discretionary, it can still refuse to hear and determine the victim’s application. But, consistently with the beneficial purpose of the provisions, s 85F(1) restricts the court’s power to do so:
(1) A court must not refuse to hear and determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from –
(a) evidence given at the hearing of the charge; or
(b) any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or
(c) the available documents –
together with admissions made by or on behalf of any person in connection with the application.
The new s 85F(2) retained the expanded list of “available documents” specified in s 86(9) in its 1999 amended form.[90]
[90]Section 22(2)(d) of the Victims of Crime Assistance (Amendment) Act 2000 amended s 86(9) of the Sentencing Act to omit the reference to any medical report attached to a victim impact statement.
So, when the Victims of Crime Assistance (Amendment) Act 2000 inserted the power to award compensation for injury (including pain and suffering) as ss 85A-M of the Sentencing Act 1991, the conditional restriction on the court proceeding which used to be in the former s 86(1) was replaced with the conditional restriction on the court not proceeding which is now in s 85F(1).
Section 85G(1) allows the court, as the Attorney-General put in the second reading speech, to “have regard to a wider range of documents and evidentiary materials, including evidence from the victim in relation to the application”.[91] It provides that, on an application for a compensation order –
[91]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1913 (Rob Hulls, Attorney-General).
(a) the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and
(b) the victim, offender and other person who gives evidence may be cross-examined and re-examined; and
(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and
(d) the finding may be proved by production of a document under the seal of the court from which the finding appears; and
(e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section.
As we have seen, s 85G(2) provides the “court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order.”
Thus, under s 85G(1), the court has an enhanced capacity to receive evidence and act on findings while, under s 85G(2), it must still give offenders a reasonable opportunity to be heard. To carry out its responsibilities under these provisions, the court has various procedures open to it. For example, when offenders show it to be justified, the court can adjourn the hearing of an application while a victim is examined by an offender’s medical practitioner, and can refuse to order compensation if the victim does not agree.[92]
[92]Bakic v Yamasa Seafood Australia Pty Ltd [2003] VSC 309, [26]-[29] per Smith J.
Section 85H(1) allows the court, so far as practicable, to take into account “the financial circumstances of the offender and the nature of the burden that… [payment of the order] will impose.” Under s 85H(2), the court can make an order even if it has been “unable to find out the financial circumstances of the offender.” As explained by the Attorney-General in the second reading speech, the belief of the government was that provision would “make offenders accountable to their victims whenever practicable and at the victims’ election.”[93]
[93]Victoria, Parliamentary Debates, Legislative Assembly, 26 May 2000, 1913 (Rob Hulls, Attorney-General).
Section 85J(1) imposes a new obligation on the court to give reasons for its decision. The obligation applies to a decision to grant or to refuse to grant a compensation order. It also applies to a decision to refuse to hear and determine an application. The court must state the reasons in writing and cause them to be entered in the records of the court.[94] Thus, when exercising its discretion to hear and determine an application, the court must explicitly justify its reasons for doing so.
[94]Under s 85H(2), failure to comply with s 85H(1) does not invalidate the decision.
Section 85K deals with the costs of proceedings in applications for compensation orders under ss 85A-M. It provides each party must bear their own costs unless the court otherwise determines.
To summarise, the new provisions under which the criminal courts can order civil compensation against offenders are part of a legislative network that assists and supports victims of crime. The provisions have a new purpose, which is to ensure victims receive adequate compensation and restitution. The procedures enabling victims to make applications have been enhanced. The provisions enabling the courts to hear and determine applications have also been enhanced. The position as regards the discretion of the court to refuse to hear and determine applications has been reversed. Now the court must not refuse to hear and determine applications unless specified conditions are met and it justifies its decision in writing.
I think it is necessary to take account of these important changes when applying the principle that the power to award criminal compensation is meant for straightforward cases. The principle cannot be applied with its former force. It has been weakened by the amendments the Parliament has made. The legislation in Victoria is now different to the legislation in the United Kingdom. The authorities on the application of the principle in the United Kingdom are now not as applicable in Victoria.
Under the current legislation here, I take my responsibility to be to hear and determine an application for compensation if I can practicably do so, following the procedures and applying the tests that have been specified. The question whether the court is to exercise its discretion to refuse to hear and determine an application is dealt with specifically in s 85F(1). Having regard to decision of the Court of Appeal in Kaplan v Lee-Archer,[95] I don’t think I am at liberty to decide that s 85F(1) has subsumed the principle, but I think it probably has. At the least, once the court has decided not to refuse to proceed under s 85F(1), many fewer cases will be considered too complex for determination under the new provisions than under the former provisions. More cases will be now capable of being heard and determined by the criminal courts, if the victim elects to pursue the right of easy access to civil justice which the legislation provides.
[95](2007) 15 VR 405.
Why Mr K will not be left to his civil rights
Under the approach I have just explained, I should apply the provisions of s 85F(1) to see whether this is a case which I must not refuse to hear and determine on the ground that the facts to do sufficiently appear. That requires me first to identify the relevant facts, as revealed by the evidence and materials referred to in s 85F(1)(a)-(c). After that, if I thought the case was too complex for hearing and determination under ss 85A-M, I could exercise my discretion to refuse to do so, giving reasons in writing under s 85J.
Mr K’s application is for compensation for general pain and suffering and some special expenses. The relevant facts are the commission of the crimes against Mr K, the identification of Cetin Mirik and Metin Mirik as the offenders, the injuries sustained by Mr K, the physical and psychological impact of those injuries on him as may be relevant to an assessment of the pain and suffering he has experienced and the character and amount of the special expenses.
All of those facts sufficiently appear from the evidence given at the hearing of the charge (s 85F(1)(a)), which proceeded by way of sentence on the guilty pleas of the offenders, from the statements of the prosecution made at the hearing which were not disputed by the offenders (s 85F)1)(b)) and from various documents coming within the description of available documents (s 85F(2)), including Mr K’s victim impact statement (s 85F(1)(d)).
The fact that the two offenders were responsible for committing one crime together and that Cetin Mirik was alone responsible for committing the other appears from those facts and does not make the case so complex and unclear as to be unsuitable for hearing and determination under ss 85A-M. The court will have to determine what particular orders for compensation should be made against the offenders, which will have to reflect the contribution which they each individually made to the pain and suffering experienced by the victim.[96] The identification of the degree of Mr K’s pain and suffering, the amount of the compensation that should be ordered against the offenders and their relative contributions to Mr K’s pain and suffering can be carried out on the basis of the facts as they appear or have been established.
[96]Cf Kaplan v Lee-Archer (2007) 15 VR 405, 412 per Buchanan JA.
Having regard to the crimes committed against the victim and the pain and suffering he has experienced, the orders for compensation may be substantial. That does not of itself make the case complex, unclear or unsuitable for hearing and determination.
In deciding whether to make orders for compensation, the financial circumstances of the offenders and the nature of the burden payment of compensation will impose can be considered under s 85H(1). I have received evidence in that regard and can properly consider it and the issues it raises in determining the application.
The evidence and admissible material show Mr K was the victim of the serious injury perpetrated by Cetin Mirik and Mirik Metin and the rape perpetrated by Cetin Mirik. Mr K suffered very serious injuries and has experienced significant pain and suffering. Mr K now applies for orders for civil compensation against the offenders from the criminal court which has sentenced them for their crimes. The court can expediently hear and determine his application on the basis of the material already before it, supplemented by some further additional evidence from the victim and the offenders. I am not of the opinion specified in s 85F(1) that the facts of the case do not sufficiently appear. I do not think the application is too complex for hearing and determination. Mr K should not be put to the trouble, expense, time - and additional trauma - of having to make his application to a civil court.
I therefore decline to exercise my discretion to refuse to hear and determine Mr K’s application.
TAKING THE OFFENDERS’ FINANCIAL CIRCUMSTANCES INTO ACCOUNT
Offenders’ submissions
The offenders submit no order for compensation should be made against them by reason of their financial circumstances. They say the order will not be satisfied and will require the victim to institute enforcement proceedings, which will likely lead to the bankruptcy of the offenders.
The offenders also submit that they are liable to be deported under s 501(2) of the Migration Act 1958 by reason of having a substantial criminal record (see s 501(6)-(7)).
Assessment of offenders’ financial and personal circumstances
Cetin Mirik
Cetin Mirik is 55 years of age and divorced. His former wife lives in Melbourne but he is not in contact with her. He has one son from his previous marriage who is 25 years of age. He has not seen him for six years. He has no dependents.
He was born in and is a citizen of Turkey. He is a permanent resident of Australia. He has a limited command of the English language. He needed an interpreter during the hearing of the victim’s application for compensation.
Cetin Mirik’s parents are elderly, bankrupt and live in rented public housing in Fitzroy. They have no assets or income other than a disability support pension. They have no assets in their country of birth, Turkey.
Before being imprisoned, he was living on a disability support pension, which he had been receiving for about 10 years. He received $360 per fortnight after paying rent. Cetin Mirik used to supplement his pension working part-time as a cleaner-gardener at a motel. He used to earn up to $60 per week and was paid $12 per hour. Before being imprisoned, he was living in rented public housing.
He has no assets whatsoever, in Australia or in Turkey. He does have $1,275 in his gaol bank account. He earns up to $35 per week in gaol, which he uses to buy personal items. He has a $1,500 debt to a department store.
He has a number of medical conditions, which is why he was getting a disability support pension. In particular, he has a heart condition, for which he takes medication. When he gets out of gaol, he has no one to support him.
Cetin Mirik is eligible for release on parole in 2013, when he will be about 59 years of age. His term of imprisonment will expire in 2016, when he will be 62 years of age.
Metin Mirik
Metin Mirik is 55 years of age. He was born in and is a citizen of Turkey. He is a permanent resident of Australia.
He is married, and his wife does not work. They were both receiving a disability support pension before he was imprisoned, and she still receives it now. She has a heart condition and depression. They have three children, aged 25, 22 and 15 years.
Metin Mirik has no assets in Australia or in Turkey. His only income before being imprisoned was a disability support pension. He earns some money in gaol, but spends it all on personal items.
His parents are elderly and have no assets. They cannot support him financially. His children are not in a position to help him.
Mrs Mirik lives in their house and is expected to remain there during the period of his imprisonment.
On the basis of the relevant documentation, I was informed by counsel for Metin Mirik, without objection by counsel for Mr K, that Metin Mirik and his wife are joint owners of their modest government-provided home, which they have leased back to raise some finance. The formal arrangements with the government operate to diminish their interest in the house. They have an interest in the property of about 20 per cent, which might go up to about 23 per cent over the next 10 years. I received the relevant documents into evidence. The property is also mortgaged, with some $16,000 outstanding.
I think the evidence establishes that Mr and Mrs Mirik have very little equity in their property, if any at all, and are never likely to have any or much equity. I will therefore treat Metin Mirik and his wife as having no assets. They do have a right to live in the house, so Mr Mirik can return to it after being released from prison.
Metin Mirik is eligible for release on parole in 2011, when he will be about 57 years of age. His term of imprisonment will expire in 2013, when he will be 59 years of age.
Finding on the offenders’ financial circumstances
On the basis of the evidence I find that Cetin Mirik and Metin Mirik have no assets with which to satisfy an order for compensation, and are not likely to have any assets in the future. On their release from prison, if not deported, they will have income only from a disability support pension. They are unlikely to obtain employment or to earn any significant income from employment. An award of compensation, unless it was in only a token amount, could not be paid by them unless they were to come into a windfall gain.
Applicable principles
Discretionary consideration under s 85H(1) of the Sentencing Act 1991
Here is s 85H(1) and (2) of the Sentencing Act 1991:
(1)If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
(2)A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.
There can be no doubt that the court’s power to take the financial circumstances of the offender into account under s 85H(1) is discretionary. As it uses the word “may”, the legislation “shall be construed as meaning that the power… may be exercised, or not, at discretion.”[97] By contrast, as regards children, s 85H(1) has been modified so “may” has been replaced with “must”.[98] Differently to an adult offender, the power “must” be exercised to take a child’s financial circumstances into account.
[97]Interpretation of Legislation Act 1984, s 45(1).
[98]By s 417(1) of the Children, Youth and Families Act 2005, the provisions of Part 4 of the Sentencing Act are amended (relevantly) so that “may” is replaced with “must”.
Under the former s 546 of the Crimes Act 1958, the court could order compensation against an offender for causing loss or damage to a victim’s property. There was no provision expressly allowing the offender’s financial circumstances to be taken into account. Following R v Ironfield,[99] the Full Court in R v Braham[100] decided it “was not wrong in principle to order compensation in the case of a man without means”.[101] The reasons given in R v Ironfield were blunt:[102]
If a man takes someone else’s property or goods he is liable in law to make restitution or pay compensation even if no compensation order is made by the court before which he is convicted. A victim who wishes to assert his rights need not be put to the additional trouble and expense of independent proceedings, and certainly cannot be required to forgo his rights in order the facilitate the rehabilitation of the man who has despoiled him. In contrast, liability to pay a fine or costs can only arise from an order of the court and, in the case of a fine, is entirely punitive.
[99][1971] 1 WLR 90, 91.
[100][1977] VR 104.
[101]Ibid, 108 per Young CJ, Gowans and Harris JJ.
[102][1971] 1 WLR 90, 91.
Possibly the decision in R v Braham left open the question whether the offender’s means were a relevant consideration.[103] Any doubt on that score was removed legislatively by the predecessor to s 85H(1), which was s 86(2) of the Sentencing Act 1991.
[103]See Cooper v Sinnathamby [2007] WASCA 32, [24]-[25]. I would have thought, on general principles, the means of the offender were relevant: see Hookham v R (1994) 181 CLR 450, 460 per Deane, Dawson and Gaudron JJ.
The position stated in R v Ironfield[104] for the United Kingdom was also changed legislatively by s 1(4) of the Criminal Justice Act 1972, which provided this:
In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall have regard to his means so far as they appear or are known to the court.
[104][1971] 1 WLR 90.
You will see s 1(4) of the legislation in the United Kingdom made explicitly clear the offender’s means were relevant both as to whether to make an order and the amount. Section 85H(1) of our legislation is not so clear. It might be thought the opening words of s 85H(1) (“if a court decides to make a compensation order”) mean the court can only take this into account on the question of the amount.
I do not think that is right. It seems to me the opening words refer to whether the court is otherwise satisfied under s 85B(1) that an order should be made. Being so satisfied, under s 85H(1) the court can, at its discretion, and having regard to the offender’s financial circumstances and the nature of the burden that payment of the compensation would impose, determine the appropriate amount of compensation to be nil. To give effect to that determination it would make no order for compensation. The court could also determine, at its discretion, having regard to those considerations, to make an order for compensation for the full amount, if it thought this was appropriate. Alternatively, having regard to those considerations, it could make an order of compensation for an amount that was less than the full amount. Under s 85B(4), the court has a discretion to order that compensation be paid by instalments. It is implicit in the provisions of s 85B(1) and (4) and s 85H(1) that the court also has a discretion to defer the date from which the payment of any compensation or instalments would commence.
So, under s 85B(1) and (4) and s 85H(1), taking the financial circumstances of the offender into account is discretionary, both as to whether an order should be made, the amount of the order, whether any order should be paid in a lump sum or by instalments and as to the date from which payment of the amount or the instalments might commence. The question is, what weight should I give to the lack of means of the offenders in the present case? The comparative jurisprudence in the United Kingdom, Canada and New Zealand assist me to answer that question.
Offenders’ means in crimes compensation: United Kingdom
In the United Kingdom, under s 1(4) of the Criminal Justice Act 1972 and its successors, the means of the offender are a powerful discretionary consideration. The courts will generally refuse to make an order for compensation against an offender without the means to pay. The reason is that it may impact on their rehabilitation, especially if they have been sentenced to imprisonment. The victim is left to their civil rights, where the means of the offender are irrelevant.
Thus in R v Oddy,[105] the Court of Appeal[106] carefully examined the new[107] provisions. It referred to the “good deal of discussion” that had occurred about “the value of compensation orders as one of the instruments of the courts in dealing with crime and criminals”.[108] It went on to make these observations about the policy behind the new requirement to take the defendant’s means into account:[109]
Section 1(4) introduces an entirely new factor into the discretion of the court. Why was that factor introduced? Having regard to the general policy of the 1972 Act, which was an Act to make further provisions with regard to the administration of criminal justice, it seems to us that that section must be construed as extending the powers of the court and of the objectives for which compensation orders are made, because, if the sole object of making compensation orders is, as it was under the 1870 Act, to give the equivalent of a quick and easy civil remedy, then the means of the accused would be irrelevant. The means of the accused are relevant for a number of reasons. The courts have got to be realistic. It is no good courts making compensation orders which can never be discharged by an accused person, and equally it is no good making compensation orders which, to use counsel’s phrase, are likely to be counter-productive in the sense that they may result in the accused committing further offences to discharge an order.
[105][1974] 2 All ER 666.
[106]Lawton LJ, Mais and Phillips JJ.
[107]Namely, s1(4) of the Criminal Justice Act 1972 (UK).
[108][1974] 2 All ER 666, 669.
[109]Ibid, 670.
Similarly in R v Inwood,[110] a compensation order of £12,682.50 made against a defendant convicted of dishonesty offences who lacked the means to pay was quashed. Speaking for the Court of Appeal, [111] Scarman LJ said compensation orders should not be used “when there is a real doubt as to whether the convicted man can find the compensation.”[112] His Lordship said the reluctance of the courts to make compensation orders against indigent defendants was due to the harm it could do to the prospects of their rehabilitation. Thus, in the case before the court, the risk was that the convicted man –[113]
may resort to the sort of criminal activity, at which he found it to be so easy to be successful for a period of five years, is one which the Courts have to consider. In our judgment, this appellant has no means with which he can meet the compensation order. Accordingly, in our judgment, the order should not have been made and must now be quashed.
[110](1974) 60 Cr App R 70.
[111]Lawton and Scarman LJJ and Dunn J.
[112](1974) 60 Cr App R 70, 73.
[113]Ibid.
The particular concern of the courts for the rehabilitation of imprisoned offenders came through strongly in R v Panayioutou.[114] A compensation order was made against a defendant who had dependents, was not certain would have a job when he came out of prison, and had no capital. It was quashed by the Court of Appeal:[115]
a compensation order should not be made if its effect will be to subject [the offender] on his discharge from custody to a financial burden which he will not be able to meet from his available resources and which might encourage him to commit further offences in order to obtain the means to meet the requirements of the order.
[114](1989) 11 Cr App R (S) 535.
[115]Ibid, 536 (Russell LJ, Hodgson and Baker JJ).
The courts in the United Kingdom have been equally concerned to ensure orders for payment of compensation by instalments do not go on for too long. In R v Scott[116] the Court of Appeal[117] quashed a compensation order of £7,024.95 made against a defendant convicted of dishonesty offences. Under the order, the first £1,000 had to be paid by weekly instalments of £4 and “the balance thereafter to be paid as quickly as possible and the defendant is expected to pay any lump sums in his ability to pay.”[118] The order was found to be bad in principle, for these reasons:[119]
What we are concerned with is what we regard as a bad compensation order. It seems to us to have every vice which a compensation order should not. This Court upon a number of occasions, as the authorities show, has endeavoured to impress upon judges that compensation orders should not be made unless, first, the most careful enquiry is made by the court into the capacity of a defendant to pay compensation. Secondly, when the court has satisfied itself that there is some capacity to pay, it should ensure, if it is minded to give time to a defendant to pay, that that time is not excessive. Thirdly, the order must be precise in its terms. For example, if it is to be met by the payment of instalments, then those payments must be ordered to begin and end at a specified time in total fulfilment of the gross amount of the compensation order.
[116](1986) 83 Cr App R 221.
[117]Lord Justice Watkins and McNeilland and Otton JJ.
[118](1986) 83 Cr App R 221.
[119]Ibid, 223.
That is not to say no order can be made against an offender of limited means, especially where they enjoy good health and have reasonable prospects of employment, the amount of the compensation is small and it can be paid by modest instalments within a reasonable period of time. What is a reasonable time depends on the circumstances,[120] and requires a consideration of the amount of the proposed order against the offender’s means to pay, which are considered broadly, sensibly and realistically, not punctiliously.[121] Orders to pay modest amounts of compensation by instalments fitted to the offender’s means over one year[122] and two years[123] have been regarded as reasonable. Orders to pay instalments over four years,[124] more than four years,[125] more than six years,[126] seven and a half years[127] and 40 years[128] have been regarded as not reasonable.
[120]R v Olliver (1989) 11 Cr App R (S) 10.
[121]R v Howell (1978) 66 Cr App R 179, 182; R v Bolden (1987) 9 Cr App R (S) 83; cf R v Scott (1986) 83 Cr App R 221, 223; R v Phillips (1988) 10 Cr App R (S) 419, 421.
[122]R v Holden (1985) 7 Cr App R (S) 7; R v Hills (1986) 8 Cr App R (S) 199.
[123]R v Olliver (1989) 11 Cr App R (S) 10; R v McCullough (1982) 4 Cr App R (S) 98; R v Makin (1982) 4 Cr App R (S) 180.
[124]R v Bradburn (1973) 57 Cr App R 948; R v Bagga (1989) 11 Cr App R (S) 497, 499.
[125]R v Scott (1986) 83 Cr App R 221.
[126]R v Daly [1974] 1 WLR 133 (The “court has said on more than one occasion that it is not appropriate to use this machinery or to claim that regard has been had to the means of the defendant if the outcome of the order will involve his being committed to that kind of payment for as long as that.” 134 per Lord Widgery CJ).
[127]R v Makin (1982) 4 Cr App R (S) 180.
[128]R v McCullough (1982) 4 Cr App R (S) 98.
The principles stated in these authorities have been applied many times.[129] Orders have been quashed because there was no realistic possibility of them being satisfied, within a reasonable time or at all.[130] The principles are still applicable in the United Kingdom. In 1990 a leading text analysed the cases and said the law was, “if the offender has no prospects of employment or, if employed, his earnings are so low that he has virtually no income in hand after deductions for rent, community charge, utilities and other expenses, a compensation order should not be made.”[131] In 1991 it was held that the means to pay was “an essential pre-requisite to the making of an order.”[132]
[129]See eg R v Vivian (1979) 68 Cr App R 53 (“The view of this Court is that no order for compensation should be made unless the sum claimed by way of compensation is either agreed or has been proved.” (55). The compensation order of £100 against a defendant convicted of property and dishonesty offences was quashed for want of proof of victim’s loss); R v Parker (1981) 3 Cr App R (S) 278 (a compensation order of £640 against a 16 year old student arsonist quashed because “he was not going to have the means to pay any compensation order in the foreseeable future” (280)); R v Bagga (1989) 11 Cr App R (S) 497 (“If Bagga was living on supplementary benefit, and has absolutely no money… then it was wrong to make a compensation order in his case”(499)). The order to pay £400 by instalments of £2 per week was quashed because “it would have taken him four years to pay off the full £400” (ibid)).
[130]See eg R v Webb [1979] Crim LR 466 (order of £200 compensation against a defendant supporting a family on earnings of £10 per week quashed).
[131]David Miers, Compensation for Criminal Injuries (1990) 236-237.
[132]R v Holmes (1992) 13 Cr App R (S) 29, 32.
The criminal compensation legislation of the United Kingdom was re-enacted in 2000. The power to make compensation orders is now in the Powers of Criminal Courts (Sentencing) Act 2000 (UK). Section 130(11) of that Act repeats the earlier requirement for the defendant’s means to pay to be considered in deciding whether, and in what amount, an order should be made. Therefore the established principles continue to be relevant. They were recently applied in Revenue and Customs Prosecution Office v Duffy.[133] The Divisional Court (Richards LJ and Swift J) quashed a compensation order because the magistrates were “bound to take account of the respondent’s means and should not have made an order which would require payment of compensation over too long a period, or with which there was no reasonable prospect of compliance.”[134]
[133](2008) 2 Cr App R (S) 103.
[134]Ibid, [28].
The courts in the United Kingdom have also considered the important question of the relationship between the extent of the victim’s injury or loss and the offender’s means to pay. As Miers has asked, “at what point in the possible discrepancies between the offender’s means and the ideal assessment of the victim’s injury does the insufficiency become so great that a court should refrain from ordering any compensation at all?”[135] Arguably ordering a small amount diminishes the gravity of the offence.[136] The answer given by the courts has been that it is better to make no order than a greatly reduced order which is derisory.[137]
[135]David Miers, Compensation for Criminal Injuries (1990) 243. The “ideal assessment” is one that is full and proper in the circumstances, and not reduced by reason of insufficiency of evidence or the offender’s capacity to pay, that is, total recompense according to law in civil proceedings (233).
[136]Ibid, 243, citing DA Thomas, Current Sentencing Practice (Sweet and Maxwell).
[137]The principle is stated in DA Thomas, Current Sentencing Practice (Sweet and Maxwell), vol 2 (at 90244).
However much I acknowledge the importance of these authorities and share the concern of the courts in the United Kingdom for the rehabilitation of indigent and imprisoned offenders, I think it is necessary to look carefully at the Victorian legislation to see if a different approach to the exercise of the discretion to awarding compensation should be adopted. Before doing so it is instructive to look at the criminal compensation schemes in Canada and New Zealand, which strike a different balance between the interests of offenders and victims to the United Kingdom.
Offenders’ means in crimes compensation: Canada
In Canada, for constitutional reasons,[138] the federal statutory power (which is in general terms[139]) to order offenders to pay compensation is “an integral and vitally important part of the criminal trial proceedings.”[140] Although, in the leading case of R v Zelensky,[141] Laskin CJ said the offender’s means were a relevant consideration,[142] subsequent authorities show it is not “in every case, controlling”.[143] Thus, in Canada, it can be correct in principle to make very large compensation orders against offenders without the means to pay. In such cases the interests of the offender are given greater weight as a discretionary consideration.
[138]R v Zelensky [1978] 2 SCR 940.
[139]Canada’s Criminal Code has conferred power on the courts to award criminal compensation for property damage since 1892: R v Zelensky [1978] 2 SCR 940, 948 per Laskin CJ. Since 1970 that power has been conferred by s 653(1) of the Criminal Code 1970 (Can). By that section, the Court could, on application by the person aggrieved, at the time the sentence was imposed, order the convicted person to pay “an amount by way of satisfaction or compensation for loss of or damage to property suffered by the applicant as a result of the commission of the offence”. Under s 653(2), the order was enforceable as a civil judgment.
[140]R v Fitzgibbon [1990] 1 SCR 1005, 1011.
[141][1978] 2 SCR 940.
[142]Ibid, 961.
[143]R v Scherer (1984) 16 CCC (3d) 30, [28] per Martin, Houlden and Robins JJA (Ontario Court of Appeal)
So it was that a compensation order of $1,000,000 was upheld in R v Gagnon.[144] The offender was convicted of conspiracy to commit robbery and imprisoned for 12 years, as well as being ordered to pay restitution of $1,000,000. There were several violent robberies involved. The offender had no means to pay; nor was he very likely to obtain those means. The Ontario Court of Appeal[145] accepted means to pay was a relevant consideration[146] but (citing R v Fitzgibbon)[147] said a court was not “required to be satisfied of an offender’s ability to pay before imposing a compensation order”.[148] It noted that there had been no disclosure of what had happened to the bulk of the stolen funds.[149] It said that the damages in this case were readily ascertainable and there was no basis for requiring them to be recovered in civil proceedings. Acknowledging that the size of the order would not assist the rehabilitation of the offender, it held that “the interests of the victims are paramount in this situation”.[150]
[144](2000) 147 CCC (3d) 193.
[145]Catzman, Laskin and Weiler JJA.
[146](2000) 147 CCC (3d) 193, [137].
[147][1990] 1 SCR 1005.
[148](2000) 147 CCC (3d) 193, [137].
[149]Ibid.
[150]Ibid, [138].
Statutory requirements
Mr K’s application is for compensation under s 85B(1) of the Sentencing Act 1991. Under that section, the court may order the offender to pay compensation “of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of sub-section (2)”. Section 85B(2) sets out the amounts of which compensation may be made up.
Compensation may be made on the application by “a person who has suffered any injury” as a direct result of the offence.[201] The definition of “injury” in s 85A(1) is broad. It includes “grief, distress or trauma or other significant adverse effect”.[202] It should be noted that the “range of injuries for which compensation may be obtained is wider than the range generally recognised by the civil law.”[203]
[201]Section 85B(1).
[202]Section 85A(1)(d).
[203]Kaplan v Lee-Archer (2007) 15 VR 405, 407 per Buchanan JA; DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 346 per Buchanan JA.
Mr K’s application is for pain and suffering (plus certain special expenses). Under s 85B(2)(a), compensation may be made up of amounts that include “pain and suffering experienced by the victim as a direct result of the offence”.
As we have seen, the common law courts act to vindicate the inherent human dignity of every individual without exception. There is “a fundamental right to personal inviolability existing in the common law, a right which underscores the principles of assault, both criminal and civil”.[204] Further, crimes of violence offend against the victim’s fundamental human right of personal integrity.
[204]Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1991-1992) 175 CLR 218, 253 per Mason CJ, Dawson, Toohey and Gaudron JJ.
Generally speaking, when crimes compensation under s 85B(1) and (2) is being determined, common law principles are relevant.[205] That is consistent with the purpose of the scheme, which is to give victims easy access to the civil remedy of compensation. Therefore compensation is available for “pain and suffering” under s 85B(2)(a) in the cognate sense in which that expression is used in the common law, which encompasses loss of enjoyment and amenity of life.
[205]DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 352 per Vincent JA and 356 per Neave JA; R v Ferrari [1997] 2 Qd R 472, 477 per McPherson JA; R v McDonald [1979] 1 NSWLR 451, 469-461; Bentley v Furlan [1999] 3 VR 63, 67, 69 per Ashley J; Gregory and Stawenga v Gregory [2000] VSC 190, [29] per Cummins J.
But, as we have seen, the criminal court, when ordering crimes compensation, is not limited to compensating injuries that would be compensable at common law. Moreover, whilst general common law principles are relevant to a determination of the amount of appropriate compensation, the court can take into account that the injury has resulted from the commission of a crime. The grief and distress caused by a crime can be greater than that caused by a civil wrong.[206] Remember, “the focus of attention should be placed upon the actual impact upon the applicant of the commission of the offence rather than whether that impact could be the subject of an award of common law damages.”[207] Here is Mr K’s sad description of that impact:
All in all, as a result of the crimes and injuries I suffered, I have changed from a capable and hard-working family man into someone who is unable to satisfactorily care for his family and who is useless, helpless, hopeless and worthless. Life has very little joy associated with it for me now.
[206]DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, 352-3 per Vincent JA.
[207]Ibid, 353 per Vincent JA.
An order under s 85B(1) being by way of compensation and not punishment, there is no compensation available under that section for punitive or aggravated damages. Victims must commence separate civil proceedings to obtain compensation of that kind.
The injury must directly result from the offence,[208] but, consistently with the beneficial purpose of the provisions, no narrow conception of what is a direct result is adopted. Here is what Buchanan JA said on that subject in Kaplan v Lee-Archer:[209]
In my view the introduction of the adjective “direct” is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.
[208]Section 85B(1) and (2).
[209](2007) 15 VR 405, 411.
The evidence shows the injuries suffered by Mr K, and the pain and suffering experienced by him, directly result from the offences committed against him. However, it is necessary to distinguish between the injury, and pain and suffering, directly resulting from the offence of intentionally causing serious injury committed by Cetin Mirik and Metin Mirik and the crime of rape committed by Cetin Mirik.
In crimes compensation proceedings, offenders do not have the assistance of “mechanisms such as pleadings, discovery and interrogatories, which are available in civil proceedings.”[210] For want of the kind of detailed forensic and judicial examination that is available in civil proceedings, there exists a potential for compensation orders to be made against offenders when they shouldn’t or in amounts that exceed the victim’s correct entitlement. That potential exists in practically every case, and I should guard against it happening here. The offenders have not had the opportunity to test the claims of the victim as fully as they could in ordinary civil proceedings. It is important that injustice is not done to offenders by making assessments of compensation that overshoot the mark. Doing justice by victims can’t be at the expense of doing injustice to offenders. The victim’s right to bring civil proceedings for “any expense or other matter” not satisfied by an order of compensation is not affected by an order under s 85B(1),[211] so any undershoot can be recovered. The offender is in the obverse position.
[210]Kaplan v Lee-Archer (2007) 15 VR 405, 412 per Buchanan JA.
[211]Section 85L.
The court has a discretion under s 85B(1) to order the offender to pay compensation “of such amount as the court thinks fit”. This encompasses a discretion to determine that the amount of compensation will be less than full compensation. By this means the courts can give the victim an appropriate measure of justice without running the risk of doing injustice to the offender. This is a different discretion to the one specified in s 85H(1) to take the financial circumstances of the offender into account. In deciding to order less than full compensation, the court can take into account the limited extent to which the offender has been able to test the claims of the victim in the proceedings under ss 85A-M. It can reduce the amount that it may have ordered had those claims been fully tested to avoid over-compensating the victim. Of course, the court can order what it considers to be full compensation if it thinks it has a satisfactory evidentiary basis for doing so.
The offenders in the present case have not had the opportunity, by civil trial procedures, fully to test the victim’s claim. But the evidence and admissible materials satisfy me that the victim has substantially established his claim. To avoid overshooting, however, I will reduce the compensation down to 75 per cent of my general assessment of what full compensation might conceivably have been.
Victim’s pain and suffering
The evidence shows Mr K has suffered these injuries as a direct result of the offences:
(a)Severe injury to the head and face resulting in loss of consciousness, reduced Glasgow Coma Score, unstable veins in the face, subdural haemorrhage in the region of the left tentorium, depressed fracture of the left orbital rim and fracture of the left nasal bone;
(b)Multiple abrasions and bruising to the chest, abdomen and left clavicle;
(c)Wedge fracture of the first lumbar vertebrae;
(d)Fracture of the transverse process of the fourth lumbar vertebrae;
(e)Anal, rectal, perineal and duodenal injuries and perforations requiring, amongst other things, surgical repair and dissection with a sigmoid end colostomy;
(f)Post-traumatic metabolic acidosis;
(g)Post-traumatic hypothermia;
(h)Aggravation of pre-existing hypertension and diabetes;
(i)Haemodynamic instability secondary to intra-abdominal sepsis;
(j)Anxiety;
(k)Depression;
(l)Fatigue;
(m)Impaired sleep;
(n)Loss of appetite;
(o)Severe psychological injury including reaction to the trauma and the aftermath of the crimes and to the ongoing pain and disability caused by the injuries.
Mr K has fully described his hospitalisation and treatment. He was hospitalised for a month after the crimes were committed upon him, initially in intensive care in an induced coma. He was later re-admitted to intensive care. He has had two bouts of surgery. Mr K has also fully described the severe and gross effect of his injuries upon him, physically and psychologically. He has to use a colostomy bag, probably for the rest of his life. It is uncomfortable and embarrassing. He is ashamed of it, especially because his wife has to help him change it. It has to be changed several times a day, which interrupts his sleep. He often has spillages, accidents and leaks. His mobility is much limited by the need to use the bag.
Mr K is in constant pain, both in respect of the colostomy bag and also in respect of his lower back, which pain is aggravated by prolonged periods of standing and sitting. He has good days and bad days with the pain in his back.
Mr K suffers severe emotional difficulties as a result of the crimes. He suffers flashbacks and unwanted memory. He feels stressed, anxious, tense and nervous much of the time. He has sleeping problems. He sees fewer of his friends and has lost motivation, self-confidence and self-esteem. He worked full-time before the crimes, but now lives on a disability support pension. His intimate relationship with his wife has been adversely affected. Mr K is being treated by a psychologist and a psychiatrist. The psychiatrist has diagnosed that Mr K has a chronic adjustment disorder with anxiety, depression and features of traumatisation consistent with partial post-traumatic stress disorder. His condition has stabilised but there is a risk of further deterioration given the physical and psychological injuries that he has suffered. He will require on-going psychiatric treatment, particularly given his on‑going mood disturbance and personal anxiety difficulties. I have already spoken of his sad description of the impact of the crimes on him.
Determination of compensation
Mr K was the victim of two separate crimes, that of intentionally causing serious injury and rape, the first being committed by Cetin Mirik and Metin Mirik together, and the second being committed by Cetin Mirik alone. The two crimes have both directly caused very serious pain and suffering to Mr K, but the rape has caused the suffering to a greater degree, especially because it alone caused his internal injuries.
Cetin Mirik alone should be responsible for the compensation resulting from the crime of rape. He alone committed that crime against Mr K.
Cetin Mirik and Metin Mirik should be responsible in equal measure for the pain and suffering resulting from the crime of intentionally causing serious injury. They were jointly responsible for committing that crime. Nothing in its circumstances, or the impact on Mr K of the actions of the individual offenders in committing it, allows me to distinguish between them for the purposes of compensation in respect of it.
I think it is possible to disentangle to an acceptable degree the pain and suffering experienced by Mr K, and its impact upon him, as between the two separate crimes. Broadly speaking, Mr K’s internal injuries, and the psychiatric and the psychological consequences of it, are due to the crime of rape. His external injuries, including the serious injuries he suffered to his back, have resulted from the crime of intentionally causing serious injury. Some not insignificant contribution to Mr K’s psychiatric and psychological condition was made by this crime.
Assessed according to general common law principles, I would determine the compensation for pain and suffering directly caused by the crime of rape to be in the order of $150,000 and that caused directly by the crime of intentionally causing serious injury to be in the order of $100,000. In view of the limitations of the proceedings under ss 85A-M conducted before me, I am not comfortably satisfied of the foundation of compensation orders in those amounts. I will reduce these amounts by 25 per cent to ensure I do not overshoot in my determinations. That leaves figures of $112,500 and $75,000. I am comfortably satisfied with the foundation of compensation orders in those reduced amounts. From those amounts as the base, I will reduce the amount of compensation by a further 25 per cent to take account of the offender’s financial circumstances and the burden that payment of compensation will impose. I would therefore determine that the compensation payable to Mr K by Cetin Mirik in respect of the crime of rape to be $84,375 and the amount of compensation payable by Cetin Mirik and Metin Mirik in respect of the crime of intentionally causing serious injury to be $56,250 ($28,125 each).
Under s 85B(2)(b) and (c), Mr K is entitled to compensation of $50 per year for membership of the Colostomy Support Association and $200 per year for postage and delivery of disposable colostomy bags. Mr K is 49 years of age. I will allow these expenses for a period of 30 years, making a total of $7,500. On the balance of probabilities, I think he will have these expenses for the rest of his life. Cetin Mirik is responsible for compensation in this respect as it relates solely to the crime committed by him.
Section 85I requires the court to reduce a compensation order by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996. Mr K has been awarded $8,000 under that Act. It must be deducted from the compensation I order in this case, and I will do so pro-rata (80 per cent from the compensation payable by Cetin Mirik and 20 per cent from the compensation payable by Metin Mirik).
In the circumstances I think I should make separate orders against each of the offenders. I think this is more clear and better differentiates between their liability, having regard to the crimes that were separately committed. In determining the amount of compensation I have looked generally at the orders made in other cases.[212]
[212]In Re Wathen [2007] VSC 80; Kaplan v Lee-Archer (2007) 15 VR 405; Josefski v Donnelly [2007] VSCA 6; Nicholson v Kostov [2006] VSC 328; DPP v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345; Schloss v Farfalla [2002] VSC 385; DPP v Esso Australia Pty Ltd [2001] VSC 401; R v Watson [2000] VSC 411; DPP v Parsons [2000] VSC 327; R v Scarborough [2000] VSC 255; Gregory and Stawenga v Gregory [2000] VSC 190; Baltas and Roberts; Re Berichon [1999] VSC 551.
I will therefore order Cetin Mirik to pay compensation to Mr K under s 85B(1) of the Sentencing Act 1991 in the amount of $113,600 (being compensation of $84,375 for the crime of rape, plus $28,125 compensation (half) for the crime of intentionally causing serious injury, plus $7,500 compensation for special expenses less $6,400 (80 per cent) for the amount awarded to Mr K under the Victims of Crimes Assistance Act 1996).
I will order Metin Mirik to pay compensation to Mr K under s 85B(1) of the Sentencing Act 1991 in the amount of $26,525 (being compensation of $28,125 (half) for the crime of intentionally causing serious injury less $1,600 (20 per cent) awarded to Mr K under the Victims of Crimes Assistance Act 1996).
I will not defer payment of the order until the offenders are released from prison. In all likelihood, the offenders will be no more able to pay the order in prison than when they are released, so the position is neutral in that regard. But if the offenders come into a windfall whilst in prison, the victim should be able to take immediate enforcement action.
CONCLUSION
Under s 85B of the Sentencing Act 1991, a victim who has suffered any injury as a direct result of a crime may make application to a criminal court for an order that the offender pay civil compensation. This saves the victim the expense, time, trouble – and trauma – of having to commence additional proceedings in a civil court. The purpose of the scheme is to give victims easy access to civil justice in the criminal courts.
Compensation may be made up of amounts for pain and suffering and certain specified expenses. At its discretion, the court can determine the appropriate amount of compensation, take the offender’s financial circumstances into account and refuse to hear and determine the application.
Mr K made application for a compensation order against the twin brothers, Cetin Mirik and Metin Mirik, after they were convicted and sentenced to substantial periods of imprisonment for crimes they committed against him. The two men viciously beat Mr K with bricks and an old metal bicycle frame. He was also subjected to a depraved anal rape by Cetin Mirik using geranium sticks. Cetin Mirik and Metin Mirik committed the crime of intentionally causing serious injury. Cetin Mirik committed the crime of rape.
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. The evidence established he has experienced substantial pain and suffering, and continues to do so. The most severe pain and suffering is due to the crime of rape for which Cetin Mirik is responsible. But severe pain and suffering is also due to the crime of intentionally causing serious injury for which Cetin Mirik and Metin Mirik are responsible.
The offenders resisted the application on the grounds that it was too complicated to be heard by the criminal court and that the facts were not sufficiently clear. They said Mr K should be left to his civil remedies, which would require him to start again in a civil court. The offenders also contended no order should be made because of their financial circumstances. The evidence showed they have no assets and will be living on disability support benefits after being released from prison. It is most unlikely any compensation order will be paid. Their prospects of rehabilitation were taken into account when they were sentenced. A compensation order could potentially impair their prospects of rehabilitation.
After examining the evidence I have concluded this application is not too complicated to be heard in the criminal court and this is not a case where the facts are not sufficiently clear. Mr K has clearly established his pain and suffering and it justifies the making of a substantial order for compensation. The evidence showed sufficiently how much pain and suffering was due to the two separate crimes.
When the court is exercising its discretion to make a compensation order, the financial circumstances of the offender are a relevant but not a controlling consideration. There are cases where the court can decline to make an order because there is no realistic prospect of it being paid, but this is not one of them. The offenders were guilty of shocking, violent criminal activity which left the victim with terrible injuries and very serious ongoing pain and suffering. The crimes grievously offended against the victim’s common law right to personal inviolability and his human right to personal integrity. In this case, the interests of the victim should receive substantial recognition. A large compensation order is appropriate. That order should be made despite the offenders’ lack of means to pay and its potential to impair their prospects of rehabilitation, although it should be reduced by 25 per cent to take those considerations into account.
When a victim applies to a criminal court for compensation, the court and the offenders are not usually able to examine the victim’s claim as fully as could a civil court in fully contested proceedings. For want of a full forensic and judicial examination of the claim, there is a potential for the court to overshoot in determining the amount of compensation. To avoid doing so, the court can order compensation in a reduced amount of which it is comfortably satisfied, remembering the victim’s rights to obtain full compensation in civil proceedings are not affected. In this case, for that reason, I have decided to reduce the amount of compensation that I might conceivably have ordered by 25 per cent.
Other issues of detail going to the amount of the compensation are dealt with in the judgment.
Cetin Mirik is ordered to pay compensation to Mr K under s 85B(1) of the Sentencing Act in the amount of $113,600. Metin Mirik is ordered to pay compensation to Mr K under s 85B(1) of the Sentencing Act in the amount of $26,525. The total amount of compensation is $140,125.
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