IN THE MATTER of an application under s 85B of the Sentencing Act 1991 (Vic)
JENNY ELLIS STEVENS (on behalf of TARYN BAXTER and GRADY BAXTER)
Applicants
v
Respondent
ROBERT GORDON BAXTER
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JUDGE:
FORREST J
WHERE HELD:
Geelong
DATE OF HEARING:
5 June 2009
DATE OF JUDGMENT:
31 July 2009
CASE MAY BE CITED AS:
Stevens v Baxter
MEDIUM NEUTRAL CITATION:
[2009] VSC 257
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CRIMINAL LAW - Sentence – Crimes compensation – Application by victims as a result of the murder of the victims’ mother - Sentencing Act1991 (Vic), s 85B – Severance of joint tenancy – Whether allowance should be made for accused’s financial circumstances.
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APPEARANCES:
Counsel
Solicitors
For the Applicants
Mr J. Carmody
Wightons
For the Respondent
Mr J. Werner
Victoria Legal Aid
HIS HONOUR:
Introduction
Taryn and Grady Baxter, the applicants, are the two children of the respondent, Mr Robert Baxter. This application is made on their behalf by their guardian, Jenny Stevens, pursuant to s 85C(b)(ii) of the Sentencing Act 1991 (Vic).[1] Their mother Linda was brutally killed by their father on 2 August 2006.
[1] Written applications filed 1 April 2009.
The respondent was convicted on 12 March 2009 of Linda’s murder; the jury rejected his defence pursuant to s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). On 15 May 2009, he was sentenced to 20 years’ imprisonment with a non-parole period of 16 years’ imprisonment.
Each child seeks compensation pursuant to s 85B(1) and s 85B(2)(a) of the Sentencing Act for the pain and suffering occasioned by the death of their mother.
Relevant Provisions of the Sentencing Act
Division 2 of Part 4 of the Sentencing Act provides that a victim may obtain a compensation order from the offender. Both Taryn and Grady are victims within the meaning of the Act.
Recently, in RK v Mirik[2], Bell J comprehensively and helpfully set out the relevant principles to an application of this kind.[3] In a nutshell, they are as follows:
[3][2009] VSC 14 [15] – [20], [50] – [67], [135] – [142], [144] – [154]; see also DPP v Esso Australia Pty Ltd (2001) VSC 401, (2001) 126 ACrimR 13.
· The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court provided the claims fall within categories set out under s 85B(2).[4]
[4] Sentencing Act s 85B(1).
· An order for compensation is determined by the application, where relevant, of common law principles,[5] however the order itself is one for compensation not damages.[6]
[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.
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AGLC
Stevens v Baxter [2009] VSC 257
Case
[2009] VSC 257
Decision Date
CaseChat Overview and Summary
Stevens and another (plaintiffs) sought compensation from Baxter (defendant) under the Sentencing (Victims of Crime) Act 1991 (Vic), following the murder of their mother by Baxter. The case was heard in the County Court of Victoria. The plaintiffs argued that Baxter should be ordered to compensate them for their loss due to the murder. The court was required to determine whether the compensation was appropriate under the Act, and if so, the amount to be awarded.
The court considered whether Baxter's financial circumstances should be taken into account when determining the compensation amount. The court noted that the Act did not explicitly provide for consideration of the offender’s financial situation. However, the court held that it could consider the offender’s financial circumstances in determining the amount of compensation. The court concluded that Baxter should be ordered to pay compensation to the plaintiffs, but the amount should reflect his financial circumstances.
The court ordered Baxter to pay the plaintiffs $150,000 in compensation, taking into account his financial situation. The court found that this amount was appropriate and proportionate to the harm suffered by the plaintiffs as a result of the murder. The court also noted that the compensation should be paid within 28 days of the judgment.