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:

1. 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.

1. 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. 

1. 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.

1. 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.

1. 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 be made.

1. It would appear that Mrs Shepherd was given legal advice about these matters in mid-2010.  By way of explanation, and in her affidavit, Mrs Shepherd deposes:

I was completely overwhelmed by things after Tyrone’s death and just didn’t think about making an application under the Sentencing Act for compensation in relation to Tyrone’s death.  I’m not sure when I first found out that I could make such an application.  In about July 2010 things cleared a little and I spoke to my solicitor, Mrs Coates.  I believe that it has been difficult for Mrs Coates to obtain some documents in relation to making the application and that she has only recently received documents from Brian’s hospital admission necessary to assess the viability of any such application.[1]

As Mrs Shepherd goes on to note, even by the middle of 2010 the application was out of time, the sentence having been pronounced on the respondents on 19 March 2009.

[1]Affidavit of Mrs Maureen Claire Shepherd (8 September 2011) at [21].

1. There was then a further significant delay before any action was taken on the matter at all.  To draw attention to that, on 4 November 2011, during the course of a mention of the matter, I made the following observation to counsel for the applicants:

In so far as the material was concerned, it’s simply an observation that I read the affidavits of both Mr and Mrs Shepherd and as I read it, they both indicated that they became aware of their entitlements to make an application in about July of last year but the affidavits don’t indicate why it took from July of last year until now to make the application.  You may want to think about it, bearing in mind this is an application for extension of time and principles seem to suggest that if you’re out of time, then you should make the application as soon as feasible after you become aware of your entitlement.[2]

[2]Transcript of mention (4 November 2011) at 6.

1. On 27 February 2012, affidavits were filed on behalf of both applicants which would appear to be in response to my observation.

1. From that material it appears that Ms Coates, the applicants’ solicitor, first spoke with the applicant Maureen Shepherd in conference on 7 July 2010, following which she obtained medical authorities to be signed in order to get reports, with a view to pursuing an application pursuant to s 85 of the Act.  Ms Coates’ affidavit then includes the following:

I had considerable difficulty obtaining an authority from Mr Shepherd to obtain medical records from the Vietnam Veterans Counselling Service (VVCS) as he found it difficult to deal with practical issues relating to his psychological condition.  Throughout July and the remainder of 2010 I pursued this issue with Mr Shepherd and the VVCS.  It was necessary to do so cognisant of Mr Shepherd’s vulnerable psychological condition.  During this time I sent numerous letters to Mr and Mrs Shepherd and the VVCS.  After further discussion with Mrs Shepherd I mailed a medical authority for Mr Shepherd’s signature to Mrs Shepherd.  I received the signed signature in January 2011.[3]

[3]Affidavit of Ms Eleanor Lisa Coates (27 February 2012) at [5].

1. There was then a further delay, and affidavits which were proposed to be sworn by the Shepherds were not finalised until August 2011 because, according to the affidavit of Ms Coates, they found talking about what had happened to their son “acutely distressing”.  It is fair to say that the affidavits sworn by Mr and Mrs Shepherd reveal how difficult they found it to come to grips with their son’s death and also the need to pursue any application for compensation they wanted to make with expedition.  Ms Coates went on the describe how the original documents were filed on 14 October 2011 and finally served on the respondents, she having obtained a report from Dr Lester Walton on 11 August 2011. 

1. Having described those circumstances, this matter was again before me on 1 March 2012 when the application for extension of time was formally argued.  By this stage, the respondent Mr Dey had indicated that he wished to take no part in the proceedings but the respondent Mr Kell had indicated that he wished to be represented.  That was facilitated by Mr De Young from Victoria Legal Aid who appeared on his behalf.  At the outset of this hearing, Mr De Young indicated that although there had been a delay in commencing this application, he felt he was not in a position to say that there was any fault on behalf of the applicants in the matter.  He accepted that the delay was explained by the nature of the trauma that they had experienced and submitted that he was not in a position, on behalf of Mr Kell, to make a challenge to that explanation.  He then indicated that the only matter which he wished to direct my attention to was the length of time involved and two specific difficulties, including the impecuniosity of Mr Kell and the potential complexity of the final application for compensation, given what might be described as issues of causation.

1. Mr De Young also accepted that the primary consideration, as the Act makes clear, is whether or not it is “in the interests of justice” to grant the extension of time.

1. The cases which deal with this area include the following discussion by Cummins J in Robertson v Esso (Australia) Pty Ltd,[4] where his Honour said:

In fairness to the respondent in this case and to any respondent, plainly the Court should not facilitate, let alone encourage, claims made long out of time. Any respondent is entitled to know its position with finality some reasonable time after an offence and in particular in this case. …The expression "the interests of justice" - the touchstone of s 85D(1) - has been passed upon in other, civil, contexts. It has been held that the expression is one which properly should be construed not narrowly but liberally: Bourke & Ors v State Bank of NSW.  It is not to be utilised as a means to defeat otherwise legitimate claims unless real injustice is likely to be caused to a respondent: Baffsky v John Fairfax & Sons Ltd.  However as Mr Dreyfus has rightly pointed out in …his written submissions, Part 4 Div.2 compensation applications are consequent upon criminal convictions and different considerations, albeit not totally different, apply in relation to this type of proceeding as distinct from civil claims.  The offender has been convicted of criminal offences.  That is the basis of this and like compensation applications. This is a proceeding under a criminal statute.  Under the Sentencing Act 1991, compensation applications are made by victims of crimes committed by respondents. That circumstance - that an applicant is a victim of a crime committed by the respondent - of itself is a circumstance which should cause a Court to view out of time applications with a liberal and not narrow or pedantic approach. Victims should not be shut out readily. On the other hand, a pivotal principle of sentencing is rehabilitation, and it can be antipathetic to rehabilitation for offenders to have compensation proceedings brought against them long out of time. The interests of the victim are significant under s 85D in particular (and under Part 4 Div. 2) but those of the offender notably rehabilitation must be borne in mind.  …A proper balance needs to be achieved.[5]

[4][2004] VSC 101.

[5]Ibid. at [4], citations removed.

1. I am content to proceed on the basis that that analysis represents a reasonable description of the means by which the decision in this case must be made by me.

1. As Mr Bracken submitted, on behalf of the applicant, the issues raised on behalf of the respondent of his impecuniosity and the complexity of the matter are matters which are more relevant to the substantive application than to an application for extension of time. It is correct to say that, in the circumstances, no submission is made and no material is presented before me which indicates that the application for compensation is without merit or that the adverse effect on the respondent of granting that application for compensation would be such as to require strict requirements with the time limits under the Act.

1. Mr Bracken also submitted that it is a common feature of matters in this Court to deal with complex issues and, as such, the complexity of this matter should not be a bar to me granting the application to extend time.  In my opinion, the complexity may be overstated in the sense that it seems to me on a preliminary examination of the circumstances that it is concerned with issues of causation, particularly relating to the psychological condition of Mr Shepherd and the extent to which that has been exacerbated by his son’s death. 

1. Returning to the issue of impecuniosity, it should also be noted that, pursuant to the Act, and s 85H in particular, the Court is required to take the financial circumstances of the offender into account as far as practicable but a court is not prevented from making a compensation order only because it is unable to find out the financial circumstances of the offender.  Although Mr Kell has provided information about his financial circumstances in his affidavit dated 23 February 2012, so the Court is not “unable to find out” his situation,.  In my opinion, the claimed impecuniosity of Mr Kell would not of itself prevent the making of an order, and should not of itself prevent time for the application being pursued being extended.

1. Therefore, whilst I accept the entitlement of Messrs Kell and Dey to finality in this matter, given the concession made by Mr De Young that there appears to be a legitimate reason for the delay, I should not shut out what appears to be a legitimate application on the basis of that delay.  Applying a liberal approach of the kind described by Cummins J, I find that a proper balance between the interests of the applicants and the respondents  requires that the application for an extension of time be granted.