Significant Awards in s85B Sentencing Act 1991 (Vic) Applications

Angela Sdrinis Legal represented two Applicants for their claim for compensation under s85B of the Sentencing Act 1991 (Vic) (the Act) at hearing on 27 November 2023 in front of Her Honour Judge Tsikaris, with Mr Darren Bracken as Counsel for the Applicants.

Judgment was handed down on 15 February 2024. This judgment is an historic win, demonstrating the changing attitude in the law to ensuring adequate compensation for victims of sexual abuse.

The judgements were significant for two reasons. Firstly Her Honour found that VOCAT payments did not need to be repaid and secondly she awarded compensation over and above the declared asset position of the offender.

Background

The Applicants were subject to indecent assaults committed by the Respondent between 1970 – 1972. The Respondent was convicted and sentenced on 15 December 2022 for nine counts of indecent assault upon a male, in relation to three victims.

The Applicants lodged their applications within the 12-month period as stipulated by s85C of the Act.

Legal Principles

Division 2, Part 4 of the Act provides that a victim may obtain a compensation order from an offender. Pursuant to s85B, a Court may make a compensation order in favour of a person who has suffered an injury as a direct result of the offence. Injury is broadly defined under s85A(1)(d).

The questions for determination before the Court were:

a)    Whether the Court should award compensation to the applicants in accordance with s85B and the amount of that compensation.

b)    In awarding compensation, what, if any, should be taken off the award made by the Victims of Crime Assistance Tribunal (VOCAT).

The amount of compensation to be paid is entirely within the discretion of the Court. The application is one for compensation, not damages. Therefore, unlike a common law claim for damages, the financial circumstances of the Respondent are a relevant, but not a controlling, consideration. The Court is not prevented from making an order which exceeds the value of the Respondent’s assets.[1]

VOCAT Decision

Compensation under the Act is intended to be a quick and seamless process for victims of a crime. Because compensation under the Act is payable by the offender, it differs from awards through the VOCAT, where VOCAT, a Victorian government-funded scheme, can make payments to eligible victims of violent crimes.

Her Honour agreed with the Second Applicant’s submission that where a victim has received a VOCAT payment, this should not be deducted from the s85B compensation order. This is because a claim for pain and suffering is not recoverable under the Victims of Crime Assistance Act 1996, and Special Financial Assistance from VOCAT is not the same as pain and suffering.

This is not the first time the Court has agreed with Applicants on this point,[2] however Courts can still tend to be conservative and deduct VOCAT payments from s85B awards.[3] However, this finding should bring peace to victims of crime apply for both VOCAT payments and s85B compensation.

Her Honour was able to differentiate the payments ruling that VOCAT awards are symbolic gestures of sympathy, condolence and recognition of the adverse effects suffered by the victim.

Compensation Decision

Her Honour agreed that both Applicants have suffered an injury as a direct result of the offences.

In determining compensation, her Honour considered the financial position of the Respondent and weighed up the Respondent’s prospects for rehabilitation against the interest of the victims of the effect of crime upon them.[4] Her Honour determined that the material supplied by the Respondent did not adequately set out his true financial circumstances, however as stated above, this did not preclude her Honour from making an order in excess value of the Respondent’s assets.[5]

With respect to the First Applicant, her Honour accepted the offences were committed over a long period of time and involved a significant breach of trust for the purposes of satisfying the Respondent’s sexual desires. Her Honour awarded the First Applicant $200,000 for pain and suffering, and $64,312 for medical expenses.

With respect to the Second Applicant, her Honour accepted the offending was predatory and very serious. Her Honour awarded the Second Applicant $220,000 for pain and suffering, and $26,000 for medical expenses.

We are encouraged by this recent s85B win and hope to continue to push the threshold on s85Bs so that victims of crime, particularly sexual abuse, receive the recognition and compensation from offenders that they deserve.

Phoebe Mahon

Solicitor

Angela Sdrinis Legal

[1] Baltas & Anor v Berichon [1999] VSC 551.

[2] See V1 & Ors v Xydias [2009] VSC 616, [23]; Boake (a pseudonym) & Ors v Clunue [2017] VCC (Reasons for Judgment), [26]; Silva (a pseudonym) & Anor v Finighan [2021] VCC (Reasons for Judgment), [11].

[3] See Brooks and Ors v R.A. Meade [2017] VSC 172; Marks (a pseudonym) v Bolton (a pseudonym) [2022] VCC 565.

[4] RK v Mirik & Mirik [2009] VSC 14.

[5] Ibid 652, [138]-[139]; Sentencing Act 1991 (Vic) s85H.