Compensation awards under s.85B of the Sentencing Act 1991

In Victoria, victims of crime can apply under section 85B of the Sentencing Act 1991 for compensation.

It has been repeatedly acknowledged that the procedure for compensation under s.85B of the Act is a procedure that permits quick and easy access to compensation.  In that respect, the awards are less than one might receive in a civil claim. In Nicholson v Kostov [2006] VSC 328, Kellam J stated (at [20]):

In my view, an appropriate sum to be ordered to be paid to the applicant by way of criminal compensation is $55,000. In my opinion, this sum is less than one third of a sum which might be appropriate for pain and suffering were this a common law proceeding. However, criminal compensation is entirely different than civil compensation.

The fact that awards for compensation under the Act are “entirely different than civil compensation” arises substantially from the fact that an offender has not had the opportunity to fully test the claims of victims and the fact that victims retain their rights to claim for any under-compensation though further civil suits.  Bell J stated in RK v Mirik and Mirik [2009] VSC 14 (at [154]):

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.

In Stevens v Baxter [2009] VSC 257, Forrest J summarised the principles as follows (at [5]):

•          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).

•          An order for compensation is determined by the application, where relevant, of common law principles, however the order itself is one for compensation not damages.

•          Where a claim for pain and suffering is maintained, it must be a direct result of the offence.

•          The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.

•          Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.

•          Unlike a common law claim for damages the financial circumstances of the offender are relevant.

•          A court is not obliged to reduce the amount of compensation payable on the basis of the offender’s financial circumstances; it is a relevant but not controlling consideration.

It is difficult to predict, with any degree of precision, what award may be made in favour of a victim. The discretion is wide. The table below summarises some recent awards:

Year Name of case Judge Description of offending Amount awarded
2005 Winstone v Lowe [2005] VCC 1314; Judge Campbell Claim brought by written statement of claim.  Plaintiff had previously been awarded $7,500 pursuant to section 86 of the Sentencing Act 1991 and $2,500 under the Victims of Crime Assistance Act 1996.  Defendant convicted of sexual assault on the plaintiff, involving rubbing her genitalia, both outside and inside her clothing, while the plaintiff was pre-pubescent and the defendant was some 40 years her senior.  The plaintiff developed a serious addiction to prescription drugs.  The plaintiff diagnosed with generalised anxiety disorder, severely depressed and post-traumatic stress disorder.   $80,000
2006 Nicholson v Kostov [2006] VSC 328; Kellam J Offender broke into home at night with an axe and attacked the applicant causing serious injury, including a fracture of the right femur.  Injury is described as “shocking”.  The amount of compensation awarded was less than one third of a sum which might be appropriate for pain and suffering under a common law proceeding.   $55,000, reduced by $7,500 pursuant to compensation paid under the Victims of Crime Assistance Act 1996.
2006 DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; Buchanan, Vincent & Neave JJA Employee killed in workplace accident when he was buried beneath red hot ash and burning char.  The deceased’s two adult children made application for compensation.  Compensation orders were made in the County Court in favour of one of the adult children in the sum of $15,000 and the other in the sum of $20,000.  Court stated that although (but note that this amount not awarded under the Sentencing Act 1991) some assistance can be gained from comparing awards in other circumstances, care must be exercised to ensure that the possible differences are not overlooked.  New award substituted.   $50,000 for one adult child and $35,000 to the other.
2007 Beaumont v Wathen [2007] VSC 80 Teague J Parents and siblings of murdered woman made application for compensation.  Respondent pleaded guilty to murder. Mother $50,000; father $20,000; brother $10,000; brother $30,000; sister $20,000.  
2007 Kaplan v Lee-Archer [2007] VSCA 42; Buchanan, Vincent & Nettle JJA Offender instructed employees at nursery to take money out of registers.  Offender later convicted of theft.  Employee made application for compensation.  Detailed discussion in relation to the nexus between the offending and the injury.   $40,000
2007 Josefski v Donnelly [2007] VSCA 6; Buchanan, Vincent & Nettle JJA Defendant pleaded guilty to failing to stop his motor vehicle after it was involved in an accident resulting in the death of James Donnelly.  Family members applied for compensation for pain and suffering.  County Court awarded compensation to Kevin Donnelly and Julia Donnelly of $50,000 each and Amelia Donnelly $55,000.  Those amounts were reduced pursuant to recoveries under the Victims of Crime Assistance Act 1996.  Appeal brought on the basis that it was argued that the amounts ordered were penal.   Amounts awarded by County Court not disturbed.  Appeal dismissed.
2008 Ioannou v Catania [2008] VSC 302 Bell J Respondent convicted of intentionally causing serious injury to applicant.  Respondent set fire to applicant causing serious burns and related injuries.  Injuries include severe post traumatic stress disorder and chronic depression.  Injuries so severe that no amount of money would provide full compensation.  Respondent’s only asset was interest in a house.  The house was sold and proceeds of $32,000 held by Department of Justice.  Compensation of $8,204 paid to applicant under Victims of Crime Assistance Act 1996.   $40,255.33, reduced by the amount paid under Victims of Crime Assistance Act 1996.  Balance equal to amount held by Department of Justice.
2009 Stevens v Baxter [2009] VSC 257 Forrest J Father of applicants for compensation murdered applicant’s mother by stabbing her to death in family home.  Applicants did not see offending, but heard it.  First applicant 8 years old and second applicant 12 years old at time of mother’s death.  Each applicant received $30,000 under the Victims of Crime Assistance Act 1996.  Each applicant had clearly suffered major psychological trauma.  No orders for costs made. $240,000 (to each applicant), to be reduced in each case by $30,000 by reason of the monies received under the Victims of Crime Assistance Act 1996.  
2009 DPP v Farquharson [2009] VCS 186 Cummins J Application for compensation by mother of three deceased children.  Father convicted of murder when he deliberately drove car into a dam and children drowned in car.  Children were aged 10, 7 and 2 at the time of their deaths.  Compensation sought only for grief, distress and grief like suffering and not for any psychiatric injury since award of damages for psychiatric injury had already been received from Transport Accident Commission.  Since no award to be made on account of psychiatric injury, no reliance placed on medical reports other than to the extent that they revealed extensive grief and grief like suffering.  Respondents assets comprised $66,000 in a bank account.  The amount was insufficient to meet any order for compensation.   $75,000 for each child (the amounts being awarded only for grief and grief related suffering as a direct result of the murders).
2009 RK v Mirik [2009] VSC 14 Bell J Applicant viciously beaten by respondents using bricks and metal bicycle frame.  Applicant objected to depraved anal rape using sticks.  Applicant left with shocking internal injuries, fractured vertebrae and permanent physical disabilities.  Respondents impecunious.  Offences were committed whilst offenders were drunk.  Application made for compensation for general pain and suffering and some special expenses.  Amount of compensation reduced to 75% of general assessment of what full compensation might have been under a standard civil claim.  Significant physical and mental injuries as described at [158] and [159]. Initially, $150,000 in respect of the charge of rape and $100,000 in respect of the charge of intentionally causing serious injury.  The amounts were each reduced by 25% on account of the fact that they related to applications for compensation under the Sentencing Act 1991 and then reduced further by 25% on account of the fact that the respondents were impecunious.  Ultimately, the amount of $84,375 was ordered in respect of the rape and $56,250 in respect of intentionally causing serious injury.  
2010 Kavus v Osman [2010] VCC Judge Rizkalla Four counts of indecent act of child under 16 and one count of indecvent assault.  $35,000
2010 Caponnetto v Di Natale [2010] VCC Judge Wilmoth Historical offences relating to child molestation over several years. $80,000 to each applicant.
2015 Creamer v Creamer [2015] VSC 625 Beale J Claim brought by deceased’s first wife and adult children against the second wife, who had been found guilty of defensive homicide. $55,000 to each adult son and $25,000 to the ex wife
2015 AA (a pseudonym) v Cooper [2015] VCC 185 Judge O’Neill Claim brought by victim of historical sexual assault.  Assaults occurred in the 1980’s, when the victim was 27 or 28 years old.  The assaults occurred on three separate occasions.  $65,000
2015 Kaori Asana v Grima [2015] VCC 655 Judge Campton Claim brought by victim of physical assault over a 4 day period.  The assault involved punching and kicking the applicant in the face, pinning her down and trying to gorge her eyes, grabbing her arm and biting her on the arm, grabbing her by the hair and yanking at her head, smashing her head against a wall, using his knees to assault her and using a meat tenderiser to hit her on the legs and buttock until she passed out.  $80,000
2016 Cheng v Zhuang [2016] VSC 24 Kaye JA Claim brought by mother of deceased, following murder conviction.  $125,000
2016 Marcents v Efandis (no 2) [2016] VSSC 332 Beach J Claim brought by adult daughter of deceased, following murder conviction. Amount awarded equal to amount held by Asset Confiscation Office ($21,000)
2016 Lyndsay (a pseudonym) v Hermanus (a pseudonym) [2016] VCC 569 Judge Hampel Claim for serious historical sexual offences involving 2 acts of anal penetration (buggery) by father of his 8 year old daughter.  Sexual abuse had profound impact on victim’s life, including depression, anxiety and distress.  $160,000
2016 Kelly (a pseudonym) v R1 & Ors (a pseudonym) [2016] VSCA 90 Beach and Ferguson JJA Sexual offences committed by the offender against 2 nieces and 2 grand-nieces (total 4 victims).   Offences committed between 1975 and 1993.  Victims aged between 4 and 14.  Offending involved touching and rubbing against the victims with erect penis. Victim 1 suffered from, inter alia, post-traumatic stress disorder, persistent depressive disorder, panic attacks and heightened anxiety.  Impact of offending on victim 2 described as “catastrophic”.  Victim 2 suffered from anorexia nervosa, bulimia nervosa, an obsessive compulsive disorder, chronic post-traumatic stress disorder, panic disorder, frequent panic attacks and persistent depressive disorder. Victim 3 suffered from depression, anxiety and panic attacks, struggled to maintain friendships and had low self-esteem and negative thoughts about herself. Victim 4 suffered from persistent depressive disorder and some manifestations of a chronic post-traumatic stress disorder together with symptoms of traumatisation. $95,000 $135,872 $64,408 $80,000
2017 Hunt v Akkus [2017] VSC 79 Jane Dixon J Claim brought by sibling of deceased, following murder conviction.  Claim brought about 7 years out of time. $45,000
2019 St Clair and Homes v Janieson [2019] VSC 57 Bell J Murder.  Application for compensation by daughter and son of murdered mother and murdered step father.  Daughter – $130,000 reduced by $30,000 for VOCAT payment   Son – $150,000 reduced by $30,000 for VOCAT payment