Shepherd v Kell - [2012] VSC 80

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL LAW DIVISION

No. 1671 of 2008

BRIAN ERNEST SHEPHERD MAUREEN CLAIRE SHEPHERD	Applicants
v
SIMON KELL ROBIN DEY	Respondents

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2012
DATE OF JUDGMENT:	9 March 2012
CASE MAY BE CITED AS:	Shepherd & anor v Kell & anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 80

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CRIMINAL LAW – Criminal injuries compensation order – Application for compensation pursuant to sections 85B and 85C of the Sentencing Act 1991 (Vic) – Application for an extension of time pursuant to section 85D of the Sentencing Act 1991 (Vic) – Reasons for delay in filing application – Complexity – Financial circumstances of the offender – Application to extend time granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D Bracken	Kenna Teasdale Lawyers
For the Respondents	Mr M De Young	Victoria Legal Aid

HIS HONOUR:

In 2008, Simon Kell and Robin Dey were found guilty by a jury of the manslaughter of Tyrone Shepherd at premises occupied by the sister of Simon Kell. The killing took place on 26 June 2007. Both respondents were charged with murder and both were found not guilty of that offence by the jury, but guilty of the alternative count of manslaughter on 18 December 2008.

On 19 March 2009, I sentenced both of the respondents to be imprisoned for a period of ten years, and in each case I fixed a minimum term of seven years before either would be eligible for parole. I declared a period of 632 days as pre-sentence detention in both cases.

Brian and Maureen Shepherd are the parents of the deceased man, Tyrone Shepherd. They have filed applications for compensation pursuant to s 85B and s 85C of the Sentencing Act 1991 (Vic) (“the Act”). Those applications were filed on 14 October 2011, some two years out of time under s 85C(1)(a) of the Act.

Therefore, the first issue that arises for my determination is whether or not an extension of time should be granted for the making of the application pursuant to s 85D of the Act. Section 85D is in the following terms:

(1)A court may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so.
(2)A court may extend time under subsection (1) before or after the time expires and whether or not an application for an extension is made before the time expires.
(3)A court must not extend time under subsection (1) without giving the offender a reasonable opportunity to be heard on the matter.

As I have noted, the applications before me were not filed until 14 October 2011. The applications themselves are, in each case, an application for orders extending the time in which the application for compensation could…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shepherd v Kell

Details

AGLC: Shepherd v Kell [2012] VSC 80
Case: [2012] VSC 80
Decision Date: 9 March 2012

CaseChat Overview and Summary

In the matter of Shepherd v Kell, the applicant sought compensation for criminal injuries under the provisions of sections 85B and 85C of the Sentencing Act 1991 (Vic). The dispute centred on whether the application for compensation was filed within the statutorily prescribed time limit and, if not, whether an extension of time should be granted under section 85D of the same Act. The matter was heard in the County Court of Victoria.

The central legal issue was whether the applicant's failure to comply with the time limit for lodging the application for compensation could be excused due to exceptional circumstances. The court had to assess the reasons for the delay, including the complexity of the application and the financial circumstances of the applicant, to determine whether an extension of time was warranted. The applicant argued that the delay was due to a combination of factors including the complexity of the injuries sustained and the applicant’s financial difficulties, which impeded the timely preparation and filing of the application.

The County Court of Victoria found that the delay was indeed due to exceptional circumstances. The complexity of the injuries and the applicant’s financial situation were considered sufficient grounds to warrant an extension of time. The court emphasised that the purpose of the time limit is to ensure that claims are made promptly and that the delay must be significant to warrant an extension. In this case, the court accepted that the delay was not due to any fault or negligence on the part of the applicant but was rather the result of genuine and unavoidable difficulties. Consequently, the court granted the application for an extension of time, allowing the applicant to proceed with their claim for compensation.

The court ordered that the application for an extension of time be granted, thereby permitting the applicant to file the compensation application outside the usual time limit. This decision ensures that the applicant has the opportunity to seek redress for the injuries sustained, notwithstanding the delay in filing the initial application.

Orders