Applicant v Second respondent

Supreme Court of Victoria|2009-02-02|Before: BELL J

CRIMES COMPENSATION - application by victim of intentionally causing serious injury and rape - victim experienced very serious pain and suffering - two imprisoned offenders having no capacity to pay compensation - discretion to take financial circumstances of offenders into account - discretion relevant both to making of order and amount - when victim's interests can be given greater weight - order for compensation reduced but still substantial - principle that crimes compensation is kept for straightforward cases - whether modified by modern scheme for victims' compensation - ordering less than full compensation - avoiding over-compensation where victim's claims not fully tested - distinguishing against crimes committed by co-offenders - victim's common law right of personal inviolability - victim's human right of personal integrity - Sentencing Act 1991, ss 85B(1)-(4), 85C, , , (1)-(2).

1 Mr K was viciously beaten by the twin brothers Cetin Mirik and Metin Mirik using bricks and an old metal bicycle frame. He was subjected to a depraved anal rape by Cetin Mirik using geranium sticks. For their crimes, the two offenders were convicted and sentenced to substantial periods of imprisonment. Mr K was left with shocking internal injuries, fractured vertebrae and permanent physical disabilities. He has to use a colostomy bag, probably for the rest of his life.

2 The Sentencing Act 1991 confers on the criminal courts a discretion to order offenders to pay civil compensation for pain and suffering experienced by victims as a direct result of crimes. This saves the victim the time, trouble and expense - and the further trauma - of having to commence separate proceedings in a civil court. Mr K asks me, as the sentencing judge, to make an order for compensation against the Mirik brothers in a six figure sum.

3 Cetin Mirik and Metin Mirik are aged 55 years. They will be aged about 59 and 57 years if the authorities release them from prison on parole when they become eligible. They have no assets to speak of and will be living on disability support pensions. Their English is poor. They will probably never do any significant paid work again. They may be deported. These matters were taken into account when they were sentenced, as were their prospects of rehabilitation, which an order for compensation would not assist.

4 The Act allows the criminal courts to refuse to hear and determine applications for compensation where the facts are not sufficiently clear. It also permits the court to take into account the financial circumstances of the offender and the burden that payment of compensation would impose. Cetin Mirik and Metin Mirik say this is not a straightforward case and that, short of some unexpected windfall, they will not be able to pay any order for compensation. On these two grounds they submit that, despite what they did to Mr K, I should exercise my discretion to refuse to order compensation, leaving him to start again in a civil court.

Taking greater account of the interests of victims of crime

5 The bedrock value is that every person without exception has a unique dignity which is the common concern of humanity and the general function of the law to respect and protect. As Brennan J said in Marion's Case,[1] "[h]uman dignity is a value common to our municipal law and to international instruments relating to human rights", to which I would add certain pertinent legislation. It finds common law expression in the "fundamental right to personal inviolability ... which underscores the principles of assault, both criminal and civil".[2] It finds international law expression in the International Covenant on Civil and Political Rights[3] which (among other things) protects "the right to ... security of the person".[4] It finds legislative expression in (for example) the Crimes Act 1958 and now also in the Charter of Human Rights and Responsibilities Act 2006, which gives several recognition to the human right to personal integrity.[5] More and more it has found expression in legislation allowing criminal courts to order offenders to pay civil compensation to victims of crime.

6 Thus, in Victoria, the modern legislation - which is in Part 4 of the Sentencing Act - is more beneficial to victims, in procedure and content, than its historical antecedents.[6] The scheme in Part 4 is part of a set of enactments that assists and supports victims of crime. It reflects developments in legislative policy and social attitudes about how the courts should take greater account of the interests of the victims of crime. Doing so is now embedded more deeply in law and public administration than it once was.

7 These developments may be tracked by reference to the legislation (see below) and the plethora of official reports prepared on the subject in Victoria over the past 20 or so years.[7] An important milestone was the adoption by the General Assembly of the United Nations, on 29 November 1985, of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. [8] The annex of the Declaration states the basic principles to be applicable to the treatment of victims of crime. The principles are access to justice and fair treatment, restitution (which includes offender-paid compensation), compensation (meaning state-paid compensation) and assistance. Clauses 4 and 5 (as part of the principle of access to justice and fair treatment) provide this:

4 Victims should be treated with compassion and respect for their dignity. They are entitled access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

5 Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.

Clause 8 (as part of the principle of restitution) provides offenders should, where appropriate, make fair restitution to victims, including by paying payment for the harm or loss they have suffered. A declaration is not domestic law. But a declaration can assist the courts to appreciate the significance of fundamental values,[9] especially the unique dignity of every individual inherent in the human rights of victims of crime.

8 The set of enactments comprises the Victims of Crime Assistance Act 1996 as amended by the Victims of Crime Assistance (Amendment) Act 2000, the Confiscation Act 1997, the Sentencing Act 1991 as amended by the Victims of Crime Assistance (Amendment) Act 2000, the Victims' Charter Act 2006 and the Corrections Amendment Act 2008.

9 The Victims of Crime Assistance Act 1996 established the Victims of Crime Assistance Tribunal.[10] The purpose of that Act,[11] as amended by the Victims of Crime Assistance (Amendment) Act 2000,[12] is to provide assistance to victims of crime and to assist them to recover from the crime by paying them certain amounts, including amounts as "a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime". One object of the Confiscation Act 1997 is to preserve assets for the purpose of satisfying orders for victims of crime.[13] The Act creates powers enabling the seizure and forfeiture of assets that represent the proceeds of criminal activity.[14] I will deal with the Sentencing Act below. The Victims' Charter Act 2006 recognises principles that govern the response to persons adversely affected by crime by investigatory, prosecuting and victims' service agencies.[15] One of the principles is that a victim may apply to a court for an order that an offender pay compensation.[16] One of the objects of the Act is "to recognise the impact of crime on the victims of that crime, including the impact on members of victims' families".[17] Part 9C of the Corrections Amendment Act 2008 makes provision for the creation of a prisoner compensation quarantine fund.[18] Certain damages awarded to prisoners must be paid into the fund to ensure victims can enforce awards of damages (including compensation).[19] The Act sets up a victims' notification[20] and payment[21] scheme in respect of quarantined monies.

10 That brings me to the Sentencing Act.

Easy access to civil justice for victims in criminal proceedings

11 The fundamental purpose of conferring power on the criminal courts to order offenders to pay compensation is giving victims easy access to civil justice.[22] When an offender has been dealt with by the courts, the judge can be in a good position to consider the issue of compensating the victim. The factual circumstances relevant to compensation may have been fully or at least sufficiently established by the evidence led or the admissions made by the offender. It can be clear that the offender's crime has caused loss or damage to the victim. Once the court receives evidence of the extent and value of such loss or damage, it can then expeditiously determine whether and what compensation to order. This saves the victim the time, expense, inconvenience and possible additional trauma of having to institute a civil proceeding. Not doing so may deprive the victim of ready access to just compensation, leaving them with an understandable sense of grievance. As the Supreme Court of Canada said in R v Fitzgibbon:[23]

Why should a victim of crime in a situation where the amount involved is readily ascertained and acknowledged by the accused be forced to undertake the often slow, tedious and expensive civil proceedings against the very person who has stolen from or defrauded the victim?

12 The provisions of Part 4 of the Sentencing Act give effect to that purpose. They deal with the related subjects of restitution (s 84), compensation for pain and suffering (ss 85A-85M) and compensation for property loss (s 86). Mr K's application is for compensation for pain and suffering under s 85B(1).

13 Section 85B(1) gives the court a discretion to make an order for compensation, including for pain and suffering, against a person found guilty of or convicted of an offence for any injury suffered by the victim as a direct result of the offence. Section 85C(1)(a) requires the application to be made within 12 months of the finding or conviction. The time can be extended under s 85D(1). Under s 85C(1)(b), the application can be made by the victim or, in some situations, on their behalf. The beneficial purpose of the provisions is indicated by one of those situations, which is that the victim is unable to make the application by reason of the injury (s 85B(1)(b)(ii)).

14 It has been said that proceedings under s 85B are "incidents of criminal proceedings."[24] It has also been said a proceeding under s 86 of the Sentencing Act is "a summary procedure ancillary to criminal process."[25] Though compensation is thus ordered as part of the criminal justice process, it is civil compensation, not additional punishment.[26] Therefore the civil standard of proof on the balance of probabilities and not the criminal standard of proof beyond reasonable doubt is applicable.

15 The provisions of the Act do not specify how applications for compensation are to be made. I think this was left deliberately open. As Cummins J said in DPP v Esso Australia Pty Ltd (No 2),[27] "it is undesirable that s 85B proceedings be burdened down by substantial complex or technical rules of procedure as may properly apply" to civil applications. The legislature intended the procedures to be flexible and fair - to have a "degree of procedural flexibility and informality".[28] There is no requirement for an application to be made in writing. Therefore it can be made orally or in writing.

16 Once an application is made, s 85G(2) prevents the court from making an order for compensation without first giving the offender a reasonable opportunity to be heard. Therefore the offender must be given notice of the application. That is inherent in the common law rules applying to proceedings of this kind[29] and in the offender's right to a reasonable opportunity to be heard (s 85G(2)), to appear (s 85E(1)) and to give evidence and examine witnesses (s 85G(1)).

17 Many offenders and some victims will be self-represented. The court has a general duty to ensure a fair hearing by giving self-represented parties due assistance.[30] This has been described as a "special responsibility".[31] That general duty and special responsibility will apply to self-represented offenders and victims in applications for criminal compensation.[32] The offenders in the present case were initially self-represented, but ultimately they obtained legal representation.

18 The court can deal with an application for compensation at or soon after the sentencing hearing. Depending on the nature of the issues, that will be the desirable course. But, giving the offender a reasonable opportunity to be heard may often require the court to deal with the application for compensation at a later hearing. To ensure the offender would not be "unfairly oppressed", that is what Cummins J did in Gregory and Stawenga v Gregory.[33] Appropriately, this course was followed in the present case. Mr K waited until the offenders were convicted and sentenced before making his application.

19 The court has not made rules about or prescribed forms for making written applications under s 85B. Mr K's solicitors used a simple form they designed for the purpose. It gave notice to the offenders and the Director of Public Prosecutions of Mr K's application for a compensation order. It specified a date for a directions hearing before the court. It named the offenders as respondents and included the prosecutor - in this case, the Director - as someone who would be notified. It specified the number of the proceeding in the criminal list of the court in which the offenders had been convicted and sentenced. The application was filed with and stamped by the prothonotary on 18 February 2008. For the purposes of the 12 months time limit specified in s 85C(1) of the Act, that meant the application was made on that day. The offenders having been convicted and sentenced on 21 February 2007, the application was made within time. The date of the directions hearing was chosen in consultation with the chambers of the sentencing judge (in this case, me). As the sentencing judge will be familiar with the matter, it is obviously sensible and desirable that they hear and determine the application.[34] However, under the Act, that is not actually requisite. Any judge of the court can do so. Mr K's solicitors then served the application so made on the offenders and the Director.

20 Criminal compensation proceedings do not have to be conducted with pleadings.[35] Nor is it intended the issues will be such as to require the kind of examination expected in a fully contested civil trial. For example, if there are substantial questions of contribution, the court might determine it would not be appropriate to hear and determine the application.[36] However, in some cases there will be significant factual and legal issues to consider. That does not necessarily mean the court can't hear and determine it. Sections 85F and G give the court additional powers to receive evidence, statements and documents, which may enable a proper consideration of serious legal and factual issues.[37] The court will need to adopt a fair and convenient procedure for dealing with them.

21 It was obvious at the first directions hearing there were significant issues to consider in the present case. Therefore I gave directions for the victim and then the offenders to file and serve, within three weeks, any affidavits on which they sought to rely. Section 85H(1) allows the court to take the financial circumstances of the offender into account. As s 85H(2) allows the court to make an order for compensation in the absence of such evidence, it is the responsibility of offenders to provide it. I told the offenders that, if they wanted their financial circumstances to be taken into account under s 85H(1), they should include details of these in their affidavits, which they did. I also gave directions for the victim and then the offenders to file and serve, again within three weeks, short contentions of fact and law. This ensured all parties had due notice of the issues. It was understood the court would have the file of the sentencing hearing, which contained various material, such as Mr K's victim impact statement, which s 85F allows to be taken into account. The parties accepted each others' affidavits. No party required any witnesses to be cross-examined.

23 Cetin Mirik pleaded guilty to the offences of intentionally causing serious injury to and raping Mr K at North Fitzroy on 13 April 2005. He was convicted of these offences by me on 21 February 2007. On that day he was sentenced to imprisonment for seven years on the first charge and four years on the second, making a total of 11 years. It was ordered that two years of the sentence of imprisonment for the crime of rape be served cumulatively with the sentence of imprisonment for the crime of intentionally causing serious injury, making a total effective sentence of imprisonment for nine years. A non-parole period was set of imprisonment for six years and six months.

24 The Director's appeal against the sentence imposed on Cetin Mirik for the offence of intentionally causing serious injury was dismissed.[38] The Director's appeal against the sentence imposed for the offence of rape was upheld. That sentence was increased to imprisonment for eight years. It was ordered that three years of the term of imprisonment imposed for the offence of intentionally causing serious injury be served cumulatively with the sentence of imprisonment imposed for the offence of rape. The Court of Appeal specified a total effective sentence of 11 years. A non-parole period was set of imprisonment for eight years.[39]

25 Metin Mirik pleaded guilty to the offence of intentionally causing serious injury to Mr K at North Fitzroy on 13 April 2005. He was convicted of this offence by me on 21 February 2007. On that day he was sentenced to imprisonment for six years and six months. A non-parole period was set of imprisonment for four years and six months. The Director's appeal against that sentence was dismissed.[40]

26 The Mirik brothers subjected Mr K to a vicious bashing using bricks and a metal bicycle frame. Cetin Mirik subjected Mr K to a depraved anal rape with geranium sticks. The three men had previously been friends. The offences were committed while the offenders were in an alcoholic stupor.

27 The drinking started on 12 April 2005 and continued throughout the night at Cetin Mirik's flat. At about 7.30am on 13 April neighbours in nearby flats heard them arguing and fighting inside and then outside the flat.

28 The neighbours later looked out to see Mr K lying naked on the concrete in the courtyard. They saw Metin Mirik repeatedly bashing Mr K with a brick to his head and body. Mr K was not fighting back and was barely moving. He was defenceless in the face of what was being done to him. The two brothers rolled Mr K over onto his stomach. Cetin Mirik dropped a bicycle frame onto Mr K's stomach and struck him repeatedly with a brick. Both of them stomped on Mr K several times. At some point not seen by the neighbours, Cetin Mirik inserted six geranium branches into Mr K's anus. Metin Mirik was not involved in that rape.

29 After attacking Mr K, Cetin Mirik and Metin Mirik attempted to conceal Mr K under the veranda of the flats. Mr K was in a shocking state and, as we shall see, very seriously injured. The Mirik brothers went to a nearby laundry and washed themselves before returning to the flat. As for Mr K, they left him outside naked, unconscious, covered in dirt and blood and for dead.

30 The neighbours called the police. They arrived to find Mr K unconscious in the courtyard. He had six geranium branches protruding from his anus. He was taken to hospital where he received the treatment I will later describe. I will also later describe his injuries, which are ongoing. The Mirik brothers were arrested shortly afterwards and convicted and sentenced as set out above.

31 There has been a general discretionary principle that crimes compensation orders should only be made in straightforward cases. The offenders submit Mr K's application for compensation should be dismissed because it involves complex questions requiring in-depth consideration. It will be necessary to identify the relative contributions of the offenders to the victim's injuries in a context where the two offenders committed one crime but only one offender committed the other. The two offenders have different capacities to pay, which is a further complicating factor.

32 On those grounds, the offenders submit this case is not one suitable for determination in the crimes compensation jurisdiction of the court. The right of the victim to compensation is more appropriately dealt with in the court's civil jurisdiction. Therefore the court should exercise its discretion to refuse to hear and determine Mr K's application. He should be left to pursue his civil remedies.

33 These submissions require me to consider the scope and application of the principle in the context of the changes to the Victorian legislation and the modern approach of taking greater account of the interests of victims. I will start with the cases in the United Kingdom where the principle was established.

Crimes compensation in straightforward cases: the United Kingdom

34 However just and convenient for victims crimes compensation orders may be, the traditional function of the criminal courts is to determine the criminal guilt of and impose a just sentence on the offender, not to order compensation for victims. Speaking generally, the criminal courts work within a criminal justice paradigm, which is focussed on the public function of trying and punishing offenders, whose means and rehabilitation are important considerations, while the civil courts work within a civil justice paradigm, which is focussed (relevantly) on the private function of awarding damages for actionable injuries, where the means and rehabilitation of the wrong-doer are irrelevant.[41] These two functions are not the same and can involve competing considerations, as when a criminal court is asked to award compensation against an offender of limited means whose rehabilitation is a sentencing consideration.[42] Moreover, the criminal courts are acutely aware that crimes compensation proceedings are not conducted with the full rigour of a civil trial.[43] Nor do the criminal courts always have the time and experience ideally required to conduct a fully contested civil trial of a victim's application, and then make a principled assessment of what the compensation should be.

35 Thus, from the earliest days of the conferment on the criminal courts by statue of the power to award crimes compensation, the judges have been wary of exercising it. Our legislation was copied from s 4 of the Forfeiture for Felony Act 1870 (UK).[44] The first reported case on s 4 was, it appears, R v Lovett.[45] The court held the power was "to be exercised with the utmost caution".[46] That put a gloss on the operation of the legislation which has proved, in the United Kingdom, to be very enduring. As we will see, the courts here have historically adopted a similar approach. The question I will need to consider later is how applicable that approach is under our current legislation.

36 The courts have sought to reconcile the conflicting demands of their traditional criminal jurisdiction with the power to award civil compensation by adopting the principle that criminal compensation should be kept for clear and straightforward cases, and cases where the victim's claim is clearly proved. This is the principle on which the offenders in this case rely.

37 The principle has been frequently stated in the United Kingdom. Two well-known examples will suffice. In R v Inwood,[47] Scarman LJ said this approach should be adopted:[48]

Compensation orders were introduced into our law as a convenient and rapid means of avoiding the expense of resort to civil litigation... One has to bear in mind that there is always the possibility of a victim taking civil proceedings, if he be so advised. Compensation orders should certainly not be used when there is any doubt as to the liability to compensate...

The point was expanded in R v Kneeshaw:[49]

It has been stressed in this court more than once recently that the machinery of a compensation order under the Act of 1972 is intended for clear and simple cases. It must always be remembered that the civil rights of the victim remain. In a great majority of cases the appropriate court to deal with the issues raised by matters of this kind is in the appropriate civil proceedings. A compensation order made by the court of trial can be extremely beneficial as long as it is confined to simple, straightforward cases and generally cases where no great amount is at stake.

38 The need for clear proof of the claim was taken up in R v Vivian[50] in 1978. The Court of Appeal[51] held: "no order for compensation should be made unless the sum claimed... is either agreed or has been proved... [I]n the absence of agreement or evidence as to the correct amount which could be claimed... no order should have been made."[52]

39 Some saw this principle as restricting the access of victims to criminal compensation and as contributing to the low incidence of compensation orders.[53] By s 67 of the Criminal Justice Act 1982 (UK), this new s 35(1A) of the Powers of Criminal Courts Act 1973 was introduced:

Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor.

40 Clearly the legislature wanted to ensure victims would get some compensation when the court could order it, even if the state of the evidence did not permit an order to be made in the fullest amount that might be possible. Thus the court was empowered to order compensation in an "appropriate amount" having regard to the evidence and representations.

41 But the amendment was not interpreted as bringing about a substantial change in the law. Again the courts acted quickly. In apparently the first reported case after s 35(1A) was introduced, the Court of Appeal said its effect was "simply to ameliorate the strict requirements"[54] stipulated in R v Vivian[55] that there must be evidence or agreement as to the "correct amount" of the compensation. There the matter rests. In the United Kingdom, where applications are now made under s 130 of the Powers of Criminal Courts (Sentencing) Act 2000 (UK), the current position is that the power to order criminal compensation is reserved for clear and straightforward applications in which the victim's loss is well established.[56]

42 I will compare the position in New Zealand, which is very different.

Crimes compensation as a statutory presumption: New Zealand

43 New Zealand is interesting because, in the light of changes to its legislation, the courts have modified their approach to the application of the principle. I think we have to do the same here.

44 Initially, the New Zealand courts followed the traditional approach. For examples, in R v Rollo[57] the offender had been convicted of theft. She was fined $300 and ordered to pay compensation of $2600, although she was wholly dependant on invalidity benefits and had no significant assets. The Court of Appeal[58] quashed the fine and order, and adjourned the case for 12 months. Following the authorities in the United Kingdom,[59] the court held the general statutory power[60] to order compensation "should not be used where there is a doubt as to the liability to compensate... It is to be borne in mind that the civil liability of the convicted person is not extinguished."[61]

45 The provisions[62] were replaced by the sentence of reparation[63] introduced by the Criminal Justice Act 1985 (NZ). Section 11 required reparation to be ordered unless the court was satisfied it would be "clearly inappropriate" to do so. Section 22(1) empowered the court to "sentence the offender to make reparation" for either or both of emotional harm or loss or damage to property. Under s 23, reports could be obtained on the nature of the emotional harm, or the value of property lost or damaged.

46 The amendments were interpreted as bringing about a substantial change in the law, as the decision in R v O'Rourke[64] indicates. An insurer obtained a compensation order of $8,350 against the receiver of a stolen motor vehicle which he was stripping down for parts. The sum ordered was the full value of the insurer's loss. The offender argued that, as he was the receiver and not the thief, full compensation should not be his single responsibility. The Court of Appeal[65] upheld the order as the insurer's loss was the result of the offender's criminal conduct. It also said the offender had "ample means to pay".[66] The court went on to explain how the new provisions required a different approach:[67]

The provisions are obviously meant to be used. We deprecate any approach which tends to relegate them to the sidelines, as an inferior alternative to civil remedies, or which confines their application to only clear and simple cases. That was the view taken under the former s 403 of the Crimes Act 1961, which enabled the Court to award compensation. However, that section has been replaced by the far more detailed provisions of the present ss 22 and 23, and under their regime there can be no justification for continuing to support the former view. On the contrary, we think the Court is now obliged, as part of the sentencing process, to consider reparation and to go into the questions of the amount and the offender's ability to pay as fully as it can, in terms of ss 22 and 23.

47 The 1985 provisions were replaced when the Sentencing Act 2002 (NZ) was enacted. The new provisions were designed to enhance the sentence of reparation by ensuring it would be used more frequently than previously.[68] A purpose of the Act was "to provide for the interests of victims of crime."[69] One of the defined purposes of sentencing was "to provide reparation for harm done by the offending".[70] As the Court of Appeal stated in R v Donaldson and Chapman,[71] s 12 contains a "presumption in favour of reparation". As the Court of Appeal[72] later stated in R v Pender and Roberts,[73] the presumption was expressed in stronger terms than under s 11 of the Criminal Justice Act 1985.

48 By s 12, if the court is lawfully entitled to impose a sentence of reparation, "it must impose it", the only exception being that the court "is satisfied that the sentence would result in undue hardship for the offender or the dependents of the offender, or that any other special circumstances would make it inappropriate." Under s 35(1), the court can consider whether the offender has "insufficient means to pay the total value of the loss, damage, or harm". If so, it may sentence the offender to make reparation in an amount less than that total value, and by instalments. Section 33(1) gives the court a discretionary power to seek a reparation report on the offender's financial capacity and the maximum amount they are likely to be able to pay.

49 There is now not much reference in New Zealand to the old principle that crimes compensation is kept for straightforward cases.

51 I will first state the principle by reference to the Victorian authorities and then see whether its application has been affected by the legislative amendments.

52 In R v Braham[74] the Full Court considered the power in s 546(1) of the Crimes Act 1958 to order an offender to pay compensation for loss and damage caused by the crime to the victim's property. Citing R v Kneeshaw[75], it said "it would be a proper exercise of the discretion to refuse to make an order where there was involved a complicated or extensive investigation into the conditions of its exercise..."[76] R v Braham was followed by the Full Court in R v Aitken[77] in reference to the same powers, by the Court of Criminal Appeal in Landolt[78] in reference to the analogous power in s 92 of the Penalties and Sentences Act 1985, by the Court of Appeal in DPP v Gardner and Coates[79] in reference to s 86 of the Sentencing Act 1991 and by the Court of Appeal in Kaplan v Lee-Archer[80] in reference to s 85B of the Sentencing Act 1991. Numerous single judges have applied the principle.[81]

53 Thus the principle has been held to apply in Victoria. But I think its application must take account of the legislative amendments, for they have significantly enhanced the capacity of victims to make applications for compensation and the power of the court to hear and determine them. The amendments also restrict the power of the court to refuse to do so.

54 The amendments were made by the Victims of Crime Assistance (Amendment) Act 2000. In his second reading speech for the bill for that Act, the Attorney-General said the "bill proposes to facilitate such actions by improving the process for victims to obtain compensation directly from the offender."[82] The amendments give further affect to the object specified in s 1(i) of the Sentencing Act 1991, namely "to ensure that victims of crime receive adequate compensation and restitution." This object is important when interpreting the provisions of the Act[83] and in understanding the scheme of compensation it creates.

55 Speaking of the amending legislation, in DPP v Energy Brix Australia Corporation[84] Vincent JA said that, along with s 85B, it enacted "a number of measures designed to assist and support the victims of criminal activity..."[85] Referring to the Attorney-General's second reading speech, his Honour said: "It is clear, beyond any possibility of dispute, that it was perceived by the legislature to be in the public interest that such assistance and support should be available in the criminal process."[86]

56 The significance of the amendments can be appreciated by comparing the amended provisions, which are in ss 85A-M of the Sentencing Act 1991, with their immediate predecessors, which were in s 86 of that Act.[87]

57 The former s 86(1) of the Sentencing Act allowed the court to make an order for compensation for loss or damage and pain and suffering.[88] Section 86(8) provided the court -

must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with any admissions made by or on behalf of any person in connection with the proposed exercise of the powers.

The "available documents" were defined in s 86(9) to mean written statements made for use and admissible in the hearing of the charge, the depositions taken at the committal and any written statements or admissions used as evidence in the committal.[89] There were no provisions allowing the victim or witnesses called on their behalf to give evidence. It was expected the court would deal with the application on the basis of the evidence and documents already before it, or not at all.

58 Turning to the current legislation, as we have seen, s 85B(1) confers a power on the court to order the offender to pay compensation to the victim. We have also seen that, under ss 85C and 85E, there are flexible and convenient procedures for making applications. As the court's power to order compensation remains discretionary, it can still refuse to hear and determine the victim's application. But, consistently with the beneficial purpose of the provisions, s 85F(1) restricts the court's power to do so:

(1) A court must not refuse to hear and determine an application for a compensation order unless, in its opinion, the relevant facts do not sufficiently appear from -

(a) evidence given at the hearing of the charge; or

(b) any statement of the material facts relevant to the charge given to a court in a proceeding for the offence by the prosecution and not disputed by or on behalf of the defendant; or

together with admissions made by or on behalf of any person in connection with the application.

The new s 85F(2) retained the expanded list of "available documents" specified in s 86(9) in its 1999 amended form.[90]

59 So, when the Victims of Crime Assistance (Amendment) Act 2000 inserted the power to award compensation for injury (including pain and suffering) as ss 85A-M of the Sentencing Act 1991, the conditional restriction on the court proceeding which used to be in the former s 86(1) was replaced with the conditional restriction on the court not proceeding which is now in s 85F(1).

60 Section 85G(1) allows the court, as the Attorney-General put in the second reading speech, to "have regard to a wider range of documents and evidentiary materials, including evidence from the victim in relation to the application".[91] It provides that, on an application for a compensation order -

(a) the victim or the offender may give evidence or may call another person to give evidence in relation to the application; and

(b) the victim, offender and other person who gives evidence may be cross-examined and re-examined; and

(c) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and

(d) the finding may be proved by production of a document under the seal of the court from which the finding appears; and

(e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section.

61 As we have seen, s 85G(2) provides the "court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order."

62 Thus, under s 85G(1), the court has an enhanced capacity to receive evidence and act on findings while, under s 85G(2), it must still give offenders a reasonable opportunity to be heard. To carry out its responsibilities under these provisions, the court has various procedures open to it. For example, when offenders show it to be justified, the court can adjourn the hearing of an application while a victim is examined by an offender's medical practitioner, and can refuse to order compensation if the victim does not agree.[92]

63 Section 85H(1) allows the court, so far as practicable, to take into account "the financial circumstances of the offender and the nature of the burden that... [payment of the order] will impose." Under s 85H(2), the court can make an order even if it has been "unable to find out the financial circumstances of the offender." As explained by the Attorney-General in the second reading speech, the belief of the government was that provision would "make offenders accountable to their victims whenever practicable and at the victims' election."[93]

64 Section 85J(1) imposes a new obligation on the court to give reasons for its decision. The obligation applies to a decision to grant or to refuse to grant a compensation order. It also applies to a decision to refuse to hear and determine an application. The court must state the reasons in writing and cause them to be entered in the records of the court.[94] Thus, when exercising its discretion to hear and determine an application, the court must explicitly justify its reasons for doing so.

65 Section 85K deals with the costs of proceedings in applications for compensation orders under ss 85A-M. It provides each party must bear their own costs unless the court otherwise determines.

66 To summarise, the new provisions under which the criminal courts can order civil compensation against offenders are part of a legislative network that assists and supports victims of crime. The provisions have a new purpose, which is to ensure victims receive adequate compensation and restitution. The procedures enabling victims to make applications have been enhanced. The provisions enabling the courts to hear and determine applications have also been enhanced. The position as regards the discretion of the court to refuse to hear and determine applications has been reversed. Now the court must not refuse to hear and determine applications unless specified conditions are met and it justifies its decision in writing.

67 I think it is necessary to take account of these important changes when applying the principle that the power to award criminal compensation is meant for straightforward cases. The principle cannot be applied with its former force. It has been weakened by the amendments the Parliament has made. The legislation in Victoria is now different to the legislation in the United Kingdom. The authorities on the application of the principle in the United Kingdom are now not as applicable in Victoria.

68 Under the current legislation here, I take my responsibility to be to hear and determine an application for compensation if I can practicably do so, following the procedures and applying the tests that have been specified. The question whether the court is to exercise its discretion to refuse to hear and determine an application is dealt with specifically in s 85F(1). Having regard to decision of the Court of Appeal in Kaplan v Lee-Archer,[95] I don't think I am at liberty to decide that s 85F(1) has subsumed the principle, but I think it probably has. At the least, once the court has decided not to refuse to proceed under s 85F(1), many fewer cases will be considered too complex for determination under the new provisions than under the former provisions. More cases will be now capable of being heard and determined by the criminal courts, if the victim elects to pursue the right of easy access to civil justice which the legislation provides.

69 Under the approach I have just explained, I should apply the provisions of s 85F(1) to see whether this is a case which I must not refuse to hear and determine on the ground that the facts to do sufficiently appear. That requires me first to identify the relevant facts, as revealed by the evidence and materials referred to in s 85F(1)(a)-(c). After that, if I thought the case was too complex for hearing and determination under ss 85A-M, I could exercise my discretion to refuse to do so, giving reasons in writing under s 85J.

70 Mr K's application is for compensation for general pain and suffering and some special expenses. The relevant facts are the commission of the crimes against Mr K, the identification of Cetin Mirik and Metin Mirik as the offenders, the injuries sustained by Mr K, the physical and psychological impact of those injuries on him as may be relevant to an assessment of the pain and suffering he has experienced and the character and amount of the special expenses.

71 All of those facts sufficiently appear from the evidence given at the hearing of the charge (s 85F(1)(a)), which proceeded by way of sentence on the guilty pleas of the offenders, from the statements of the prosecution made at the hearing which were not disputed by the offenders (s 85F)1)(b)) and from various documents coming within the description of available documents (s 85F(2)), including Mr K's victim impact statement (s 85F(1)(d)).

72 The fact that the two offenders were responsible for committing one crime together and that Cetin Mirik was alone responsible for committing the other appears from those facts and does not make the case so complex and unclear as to be unsuitable for hearing and determination under ss 85A-M. The court will have to determine what particular orders for compensation should be made against the offenders, which will have to reflect the contribution which they each individually made to the pain and suffering experienced by the victim.[96] The identification of the degree of Mr K's pain and suffering, the amount of the compensation that should be ordered against the offenders and their relative contributions to Mr K's pain and suffering can be carried out on the basis of the facts as they appear or have been established.

73 Having regard to the crimes committed against the victim and the pain and suffering he has experienced, the orders for compensation may be substantial. That does not of itself make the case complex, unclear or unsuitable for hearing and determination.

74 In deciding whether to make orders for compensation, the financial circumstances of the offenders and the nature of the burden payment of compensation will impose can be considered under s 85H(1). I have received evidence in that regard and can properly consider it and the issues it raises in determining the application.

75 The evidence and admissible material show Mr K was the victim of the serious injury perpetrated by Cetin Mirik and Mirik Metin and the rape perpetrated by Cetin Mirik. Mr K suffered very serious injuries and has experienced significant pain and suffering. Mr K now applies for orders for civil compensation against the offenders from the criminal court which has sentenced them for their crimes. The court can expediently hear and determine his application on the basis of the material already before it, supplemented by some further additional evidence from the victim and the offenders. I am not of the opinion specified in s 85F(1) that the facts of the case do not sufficiently appear. I do not think the application is too complex for hearing and determination. Mr K should not be put to the trouble, expense, time - and additional trauma - of having to make his application to a civil court.

76 I therefore decline to exercise my discretion to refuse to hear and determine Mr K's application.

TAKING THE OFFENDERS' FINANCIAL CIRCUMSTANCES INTO ACCOUNT

77 The offenders submit no order for compensation should be made against them by reason of their financial circumstances. They say the order will not be satisfied and will require the victim to institute enforcement proceedings, which will likely lead to the bankruptcy of the offenders.

78 The offenders also submit that they are liable to be deported under s 501(2) of the Migration Act 1958 by reason of having a substantial criminal record (see s 501(6)-(7)).

Assessment of offenders' financial and personal circumstances

79 Cetin Mirik is 55 years of age and divorced. His former wife lives in Melbourne but he is not in contact with her. He has one son from his previous marriage who is 25 years of age. He has not seen him for six years. He has no dependents.

80 He was born in and is a citizen of Turkey. He is a permanent resident of Australia. He has a limited command of the English language. He needed an interpreter during the hearing of the victim's application for compensation.

81 Cetin Mirik's parents are elderly, bankrupt and live in rented public housing in Fitzroy. They have no assets or income other than a disability support pension. They have no assets in their country of birth, Turkey.

82 Before being imprisoned, he was living on a disability support pension, which he had been receiving for about 10 years. He received $360 per fortnight after paying rent. Cetin Mirik used to supplement his pension working part-time as a cleaner-gardener at a motel. He used to earn up to $60 per week and was paid $12 per hour. Before being imprisoned, he was living in rented public housing.

83 He has no assets whatsoever, in Australia or in Turkey. He does have $1,275 in his gaol bank account. He earns up to $35 per week in gaol, which he uses to buy personal items. He has a $1,500 debt to a department store.

84 He has a number of medical conditions, which is why he was getting a disability support pension. In particular, he has a heart condition, for which he takes medication. When he gets out of gaol, he has no one to support him.

85 Cetin Mirik is eligible for release on parole in 2013, when he will be about 59 years of age. His term of imprisonment will expire in 2016, when he will be 62 years of age.

86 Metin Mirik is 55 years of age. He was born in and is a citizen of Turkey. He is a permanent resident of Australia.

87 He is married, and his wife does not work. They were both receiving a disability support pension before he was imprisoned, and she still receives it now. She has a heart condition and depression. They have three children, aged 25, 22 and 15 years.

88 Metin Mirik has no assets in Australia or in Turkey. His only income before being imprisoned was a disability support pension. He earns some money in gaol, but spends it all on personal items.

89 His parents are elderly and have no assets. They cannot support him financially. His children are not in a position to help him.

90 Mrs Mirik lives in their house and is expected to remain there during the period of his imprisonment.

91 On the basis of the relevant documentation, I was informed by counsel for Metin Mirik, without objection by counsel for Mr K, that Metin Mirik and his wife are joint owners of their modest government-provided home, which they have leased back to raise some finance. The formal arrangements with the government operate to diminish their interest in the house. They have an interest in the property of about 20 per cent, which might go up to about 23 per cent over the next 10 years. I received the relevant documents into evidence. The property is also mortgaged, with some $16,000 outstanding.

92 I think the evidence establishes that Mr and Mrs Mirik have very little equity in their property, if any at all, and are never likely to have any or much equity. I will therefore treat Metin Mirik and his wife as having no assets. They do have a right to live in the house, so Mr Mirik can return to it after being released from prison.

93 Metin Mirik is eligible for release on parole in 2011, when he will be about 57 years of age. His term of imprisonment will expire in 2013, when he will be 59 years of age.

Finding on the offenders' financial circumstances

94 On the basis of the evidence I find that Cetin Mirik and Metin Mirik have no assets with which to satisfy an order for compensation, and are not likely to have any assets in the future. On their release from prison, if not deported, they will have income only from a disability support pension. They are unlikely to obtain employment or to earn any significant income from employment. An award of compensation, unless it was in only a token amount, could not be paid by them unless they were to come into a windfall gain.

Discretionary consideration under s 85H(1) of the Sentencing Act 1991

95 Here is s 85H(1) and (2) of the Sentencing Act 1991:

(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.

(2) A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.

96 There can be no doubt that the court's power to take the financial circumstances of the offender into account under s 85H(1) is discretionary. As it uses the word "may", the legislation "shall be construed as meaning that the power... may be exercised, or not, at discretion."[97] By contrast, as regards children, s 85H(1) has been modified so "may" has been replaced with "must".[98] Differently to an adult offender, the power "must" be exercised to take a child's financial circumstances into account.

97 Under the former s 546 of the Crimes Act 1958, the court could order compensation against an offender for causing loss or damage to a victim's property. There was no provision expressly allowing the offender's financial circumstances to be taken into account. Following R v Ironfield,[99] the Full Court in R v Braham[100] decided it "was not wrong in principle to order compensation in the case of a man without means".[101] The reasons given in R v Ironfield were blunt:[102]

If a man takes someone else's property or goods he is liable in law to make restitution or pay compensation even if no compensation order is made by the court before which he is convicted. A victim who wishes to assert his rights need not be put to the additional trouble and expense of independent proceedings, and certainly cannot be required to forgo his rights in order the facilitate the rehabilitation of the man who has despoiled him. In contrast, liability to pay a fine or costs can only arise from an order of the court and, in the case of a fine, is entirely punitive.

98 Possibly the decision in R v Braham left open the question whether the offender's means were a relevant consideration.[103] Any doubt on that score was removed legislatively by the predecessor to s 85H(1), which was s 86(2) of the Sentencing Act 1991.

99 The position stated in R v Ironfield[104] for the United Kingdom was also changed legislatively by s 1(4) of the Criminal Justice Act 1972, which provided this:

In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall have regard to his means so far as they appear or are known to the court.

100 You will see s 1(4) of the legislation in the United Kingdom made explicitly clear the offender's means were relevant both as to whether to make an order and the amount. Section 85H(1) of our legislation is not so clear. It might be thought the opening words of s 85H(1) ("if a court decides to make a compensation order") mean the court can only take this into account on the question of the amount.

101 I do not think that is right. It seems to me the opening words refer to whether the court is otherwise satisfied under s 85B(1) that an order should be made. Being so satisfied, under s 85H(1) the court can, at its discretion, and having regard to the offender's financial circumstances and the nature of the burden that payment of the compensation would impose, determine the appropriate amount of compensation to be nil. To give effect to that determination it would make no order for compensation. The court could also determine, at its discretion, having regard to those considerations, to make an order for compensation for the full amount, if it thought this was appropriate. Alternatively, having regard to those considerations, it could make an order of compensation for an amount that was less than the full amount. Under s 85B(4), the court has a discretion to order that compensation be paid by instalments. It is implicit in the provisions of s 85B(1) and (4) and s 85H(1) that the court also has a discretion to defer the date from which the payment of any compensation or instalments would commence.

102 So, under s 85B(1) and (4) and s 85H(1), taking the financial circumstances of the offender into account is discretionary, both as to whether an order should be made, the amount of the order, whether any order should be paid in a lump sum or by instalments and as to the date from which payment of the amount or the instalments might commence. The question is, what weight should I give to the lack of means of the offenders in the present case? The comparative jurisprudence in the United Kingdom, Canada and New Zealand assist me to answer that question.

Offenders' means in crimes compensation: United Kingdom

103 In the United Kingdom, under s 1(4) of the Criminal Justice Act 1972 and its successors, the means of the offender are a powerful discretionary consideration. The courts will generally refuse to make an order for compensation against an offender without the means to pay. The reason is that it may impact on their rehabilitation, especially if they have been sentenced to imprisonment. The victim is left to their civil rights, where the means of the offender are irrelevant.

104 Thus in R v Oddy,[105] the Court of Appeal[106] carefully examined the new[107] provisions. It referred to the "good deal of discussion" that had occurred about "the value of compensation orders as one of the instruments of the courts in dealing with crime and criminals".[108] It went on to make these observations about the policy behind the new requirement to take the defendant's means into account:[109]

Section 1(4) introduces an entirely new factor into the discretion of the court. Why was that factor introduced? Having regard to the general policy of the 1972 Act, which was an Act to make further provisions with regard to the administration of criminal justice, it seems to us that that section must be construed as extending the powers of the court and of the objectives for which compensation orders are made, because, if the sole object of making compensation orders is, as it was under the 1870 Act, to give the equivalent of a quick and easy civil remedy, then the means of the accused would be irrelevant. The means of the accused are relevant for a number of reasons. The courts have got to be realistic. It is no good courts making compensation orders which can never be discharged by an accused person, and equally it is no good making compensation orders which, to use counsel's phrase, are likely to be counter-productive in the sense that they may result in the accused committing further offences to discharge an order.

105 Similarly in R v Inwood,[110] a compensation order of £12,682.50 made against a defendant convicted of dishonesty offences who lacked the means to pay was quashed. Speaking for the Court of Appeal, [111] Scarman LJ said compensation orders should not be used "when there is a real doubt as to whether the convicted man can find the compensation."[112] His Lordship said the reluctance of the courts to make compensation orders against indigent defendants was due to the harm it could do to the prospects of their rehabilitation. Thus, in the case before the court, the risk was that the convicted man -[113]

may resort to the sort of criminal activity, at which he found it to be so easy to be successful for a period of five years, is one which the Courts have to consider. In our judgment, this appellant has no means with which he can meet the compensation order. Accordingly, in our judgment, the order should not have been made and must now be quashed.

106 The particular concern of the courts for the rehabilitation of imprisoned offenders came through strongly in R v Panayioutou.[114] A compensation order was made against a defendant who had dependents, was not certain would have a job when he came out of prison, and had no capital. It was quashed by the Court of Appeal:[115]

a compensation order should not be made if its effect will be to subject [the offender] on his discharge from custody to a financial burden which he will not be able to meet from his available resources and which might encourage him to commit further offences in order to obtain the means to meet the requirements of the order.

107 The courts in the United Kingdom have been equally concerned to ensure orders for payment of compensation by instalments do not go on for too long. In R v Scott[116] the Court of Appeal[117] quashed a compensation order of £7,024.95 made against a defendant convicted of dishonesty offences. Under the order, the first £1,000 had to be paid by weekly instalments of £4 and "the balance thereafter to be paid as quickly as possible and the defendant is expected to pay any lump sums in his ability to pay."[118] The order was found to be bad in principle, for these reasons:[119]

What we are concerned with is what we regard as a bad compensation order. It seems to us to have every vice which a compensation order should not. This Court upon a number of occasions, as the authorities show, has endeavoured to impress upon judges that compensation orders should not be made unless, first, the most careful enquiry is made by the court into the capacity of a defendant to pay compensation. Secondly, when the court has satisfied itself that there is some capacity to pay, it should ensure, if it is minded to give time to a defendant to pay, that that time is not excessive. Thirdly, the order must be precise in its terms. For example, if it is to be met by the payment of instalments, then those payments must be ordered to begin and end at a specified time in total fulfilment of the gross amount of the compensation order.

108 That is not to say no order can be made against an offender of limited means, especially where they enjoy good health and have reasonable prospects of employment, the amount of the compensation is small and it can be paid by modest instalments within a reasonable period of time. What is a reasonable time depends on the circumstances,[120] and requires a consideration of the amount of the proposed order against the offender's means to pay, which are considered broadly, sensibly and realistically, not punctiliously.[121] Orders to pay modest amounts of compensation by instalments fitted to the offender's means over one year[122] and two years[123] have been regarded as reasonable. Orders to pay instalments over four years,[124] more than four years,[125] more than six years,[126] seven and a half years[127] and 40 years[128] have been regarded as not reasonable.

109 The principles stated in these authorities have been applied many times.[129] Orders have been quashed because there was no realistic possibility of them being satisfied, within a reasonable time or at all.[130] The principles are still applicable in the United Kingdom. In 1990 a leading text analysed the cases and said the law was, "if the offender has no prospects of employment or, if employed, his earnings are so low that he has virtually no income in hand after deductions for rent, community charge, utilities and other expenses, a compensation order should not be made."[131] In 1991 it was held that the means to pay was "an essential pre-requisite to the making of an order."[132]

110 The criminal compensation legislation of the United Kingdom was re-enacted in 2000. The power to make compensation orders is now in the Powers of Criminal Courts (Sentencing) Act 2000 (UK). Section 130(11) of that Act repeats the earlier requirement for the defendant's means to pay to be considered in deciding whether, and in what amount, an order should be made. Therefore the established principles continue to be relevant. They were recently applied in Revenue and Customs Prosecution Office v Duffy.[133] The Divisional Court (Richards LJ and Swift J) quashed a compensation order because the magistrates were "bound to take account of the respondent's means and should not have made an order which would require payment of compensation over too long a period, or with which there was no reasonable prospect of compliance."[134]

111 The courts in the United Kingdom have also considered the important question of the relationship between the extent of the victim's injury or loss and the offender's means to pay. As Miers has asked, "at what point in the possible discrepancies between the offender's means and the ideal assessment of the victim's injury does the insufficiency become so great that a court should refrain from ordering any compensation at all?"[135] Arguably ordering a small amount diminishes the gravity of the offence.[136] The answer given by the courts has been that it is better to make no order than a greatly reduced order which is derisory.[137]

112 However much I acknowledge the importance of these authorities and share the concern of the courts in the United Kingdom for the rehabilitation of indigent and imprisoned offenders, I think it is necessary to look carefully at the Victorian legislation to see if a different approach to the exercise of the discretion to awarding compensation should be adopted. Before doing so it is instructive to look at the criminal compensation schemes in Canada and New Zealand, which strike a different balance between the interests of offenders and victims to the United Kingdom.

113 In Canada, for constitutional reasons,[138] the federal statutory power (which is in general terms[139]) to order offenders to pay compensation is "an integral and vitally important part of the criminal trial proceedings."[140] Although, in the leading case of R v Zelensky,[141] Laskin CJ said the offender's means were a relevant consideration,[142] subsequent authorities show it is not "in every case, controlling".[143] Thus, in Canada, it can be correct in principle to make very large compensation orders against offenders without the means to pay. In such cases the interests of the offender are given greater weight as a discretionary consideration.

114 So it was that a compensation order of $1,000,000 was upheld in R v Gagnon.[144] The offender was convicted of conspiracy to commit robbery and imprisoned for 12 years, as well as being ordered to pay restitution of $1,000,000. There were several violent robberies involved. The offender had no means to pay; nor was he very likely to obtain those means. The Ontario Court of Appeal[145] accepted means to pay was a relevant consideration[146] but (citing R v Fitzgibbon)[147] said a court was not "required to be satisfied of an offender's ability to pay before imposing a compensation order".[148] It noted that there had been no disclosure of what had happened to the bulk of the stolen funds.[149] It said that the damages in this case were readily ascertainable and there was no basis for requiring them to be recovered in civil proceedings. Acknowledging that the size of the order would not assist the rehabilitation of the offender, it held that "the interests of the victims are paramount in this situation".[150]

115 Another large compensation order was upheld in R v Perciballi.[151] The two offenders were convicted for their role in a $3.1 million robbery of an armoured truck. They were sentenced to 10 years' imprisonment and ordered to pay compensation of $2,380,000, being the full amount of the missing proceeds. The personal circumstances of the offenders were such that they could not pay that amount.

116 The Ontario Court of Appeal[152] referred to the relevant authorities and held that "an ability to pay is only one of the many factors to be considered... It is not a precondition for the making of the order."[153] It also rejected the argument that the order would be crushing on the offenders:[154]

In my view, the "crushing" amount of the order is merely a reflection of the gravity of the offence and, in the circumstances of this case, where a loss of this magnitude was both foreseen and planned, the order creates no unfairness. ... A civil judgment in the same amount could have been obtained... without difficulty. There is no principled basis to force the victim into bringing a civil action where liability is clear and the amount readily ascertainable.

117 In some cases, large orders have been reduced on appeal after giving due consideration to the offender's means, but to still significant amounts. This happened in R v Biegus.[155] The offender, who was still at school, was convicted of thefts involving unlawful access to ATM machines by him and three co-offenders. The thefts netted them $652,534.12. His share of the proceeds was about $250,000 (plus $14,000 which he had already returned). He was prepared to accept a compensation order of $250,000, but was ordered to pay the full amount of the bank's loss, being $652,534.12. The sentencing judge had recognised the offender would never be able to repay that amount. He was also sentenced to reformatory school for two years (less one day).

118 The Ontario Court of Appeal[156] cited R v Devgan[157] and R v Siemens[158] for the proposition that the offender's ability to pay was a factor to consider.[159] It held the compensation order had to be reduced to $264,000 because the order for $652,534.12 was contrary to the governing principles:[160]

The sentencing judge recognized the accused's inability to pay the order imposed, but failed to address why that fact became irrelevant in ultimately imposing the order. Although the sentencing court is not required to make ability to pay the overriding consideration in respect of a restitution order, it is one of the factors which the court must consider and weigh... In this case, it is clear that the court was very aware of the inability to pay and appeared to therefore consider the order somewhat futile, but imposed it in any event. In my view the judge erred in that regard.

119 A compensation order was reduced in R v Bradbury.[161] The offender was convicted of fraud, sentenced to imprisonment for one year and nine months and ordered to pay restitution of $66,070. She was 50 years of age and married with two children. The court reduced the order to $10,000, as well as ordering that 12 months of the offender's sentence of imprisonment could be served as home detention.[162]

120 Orders have also been quashed by the Canadian appeal courts for failing to give due weight to the offender's lack of means. Thus in R v Taylor[163] a pathological gambler convicted of fraud was sentenced to imprisonment for two years and ordered to pay compensation of $4,000,000. The Ontario Court of Appeal[164] said restitution orders should "only be made with restraint and caution".[165] Here the offender would never be able to pay even a "minute part" of the order, which was "purely symbolic" and "futile".[166] The judge had made the order to save the victims the trouble of going to the civil courts, but that was not the only consideration.[167] In this case, the "overriding factor is the means of the [offender]".[168] The order would be quashed because it "would kill all hope" for the offender for the future and "likely impair his chances of rehabilitation."[169]

121 A smaller order for restitution was quashed for the same reasons in R v Chambers.[170] Following R v Taylor,[171] the Ontario Court of Appeal[172] upheld an appeal by a woman convicted of defrauding the government of social security benefits. She was ordered to pay $11,434.01 in overpaid mothers' allowance. The Court set aside the order because the offender had no ability to pay and it would undermine her rehabilitation.[173]

122 Thus, in Canada, the means of offenders are a consideration, but not a controlling one. In some cases, it will be proper to exercise the discretion to award compensation against an offender without means to pay, even in a large amount, because the interests of the victim should be given greater weight.

Offenders' means in crimes compensation: New Zealand

123 The New Zealand courts' statutory power to award compensation was initially in general terms[174] and the courts followed the United Kingdom approach. So in R v Rollo[175] the offender had been convicted of theft. She was fined $300 and ordered to pay compensation of $2600, although she was wholly dependant on invalidity benefits and had no significant assets. The Court of Appeal (Davison CJ, Somers and Mahon JJ) quashed the fine and order, and adjourned the case for 12 months. The compensation provisions did not expressly refer to the offender's means. However, reflecting the English authorities, the court held they had to be taken into account:[176]

Parliament could hardly have contemplated the making of orders which are not realistic, that is to say, in cases where there can be no real expectation that the sum ordered to be paid will in fact be paid. The absence of present means would not itself inhibit the making of a short term order by instalments by persons who have existing or immediate expectation of employment. But orders to pay large sums in compensation over a long period are not suitable. In many cases they will be quite ineffective and in others may merely provoke further crime. Nor is it appropriate to direct payments to be made following a sentence of imprisonment of reasonable length by those who have no means with which to meet the sum.

124 As you saw earlier, when these provisions were replaced in 1985, the courts changed their approach. The new provisions gave the court the express power to consider the offender's means. Here is s 22(6) of the Criminal Justice Act 1985:

Notwithstanding anything to the contrary in this section, where the offender has insufficient means to pay the total value of the loss or damage ... on sentencing the offender to make reparation, the court may direct the offender to make -

(a) Reparation for any amount which is less than the value or amount of the loss, damage, or harm; or

(b) Periodic payments in respect of the loss, damage, or harm; or

125 Section 22(6) was considered in a number of cases, which culminated in R v Fleming.[177] An injured offender, capable of only some part-time work, and whose company was insolvent, was convicted of fraudulently using a document. He was sentenced to periodic detention for six months and ordered to pay reparation of $10,288. The probation officer's report under s 23 was that the offender had no assets or income and was not in a position to meet reparation payments.

126 The Court of Appeal[178] quashed the reparation order. Approving earlier authorities, it noted that, under s 22(6), an offender with limited means could be ordered to pay a lesser amount and by instalments tailored to meet their circumstances. These were important considerations. Moreover, "a reparation order should not be made where the appellant is in no financial position to meet it and is likely to be exposed to enforcement procedures for non-payment."[179]

127 In R v Cunard[180] the offender committed dishonesty offences causing losses exceeding $10,000. He was aged 44 years, living on social security benefits and bankrupt with debts exceeding $311,000. He offered to pay reparation at $10 per week, but the reparation report said this was unrealistic. In addition to sentencing the offender to imprisonment for two years and six months, the sentencing judge ordered reparation of $10,000 at $20 per week, commencing 30 days after his release, saying he could not let the matter pass.

128 The Court of Appeal[181] quashed the reparation order. Following earlier authorities, including R v Rollo,[182] it held it was "inappropriate to direct that reparation be made following a sentence of imprisonment by an offender who has no means to meet the sum".[183] Further, reparation was inappropriate in this case, despite the offender's offer, because he had no ability to meet it, and payment could only be made in instalments over more than 10 years.[184]

129 I have already noted the 1985 provisions were replaced by the Sentencing Act 2002 (NZ). I have described the 2002 provisions, which create a stronger presumption in favour of reparation and allow the court to seek a reparation report.

130 The power to seek a reparation report was considered in R v Quayle.[185] The Court of Appeal[186] accepted the power was discretionary. But -

an obvious purpose of a reparation report is to assess the financial capacity of the offender to pay and whether or not payment, if ordered, should be in a lump sum or by instalments. While not a mandatory requirement, it is unwise for a Judge, in our view, to order reparation without such a report where there is evidence which suggests that the offender may not have the means to make payment.[187]

131 A report was sought in R v Bailey[188] The offender was convicted of theft offences and sentenced to 400 hours of community work and ordered to pay reparation of $17,840 by instalments of $20 per week. The report said the offender's financial situation was very poor. The Court of Appeal[189] held the order was excessive in amount and in requiring payments for up to 17 years. It substituted an order for reparation of $3,000 at the same rate, which reduced the repayment period to about three years.

132 Orders for reparation were made against two offenders in R v Donaldson and Chapman.[190] The offenders were 19 and 21 years of age. One had a variable employment history and the other was a single parent living on social security benefits. The orders against them were for $21,508.99 and $22,694.26 respectively. The Court of Appeal approved[191] the statement in R v O'Rouke[192] that the new provisions were meant to be used and not relegated to the sidelines, but held the amounts ordered were too great, as they would require payment for about nine years at say $50 per week. It reduced the amounts to $10,000 and $6,000 respectively.

133 It can be seen the courts in New Zealand try not to make orders for criminal compensation against offenders without means, and try to reduce orders to an amount the offender can pay, including by instalments over a reasonable period of time.

Offenders' means in crimes compensation in Victoria: the present case

135 When the legislature enacted ss 85A-M of the Sentencing Act 1991, I think it struck a different balance between the interests of victims and adult offenders than the previous legislation, and a different balance to the one struck under the legislation in the United Kingdom. The position here, I think, is that an adult offender's means are a relevant but not a controlling consideration.

136 The purpose of the new compensation provisions is to give victims easy access to civil justice in the criminal courts. The provisions give the courts enhanced capacity to achieve that purpose. They restrict the capacity of the courts to use their discretionary power to refuse to hear and determine applications. In general terms, the idea behind the new provisions is that the courts will order compensation wherever practicable.

137 The power to order compensation is discretionary. It is conferred in terms that allow the court to take into account the financial circumstances of the offender and the nature of the burden that payment of compensation will impose. This permits the court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to imprisonment. These are very significant considerations in the exercise of the discretion. After taking these considerations into account, the court could order no or reduced compensation, defer payment of compensation or order payment of compensation by instalments over a reasonable period.

138 Admitting the significance of these considerations, there are cases where the court could exercise its discretion to order compensation despite the offender's lack of means and the burden that payment of compensation would impose. In such cases, the interests of giving the victim just civil compensation will have priority over the interests of the offender in avoiding that result in criminal proceedings.

139 That has been the approach of single judges of this court, and I agree with it. In R v Watson[193] Teague J made a compensation order of $80,000 against an offender after taking into account that, because of his minimal assets and means, "payment of compensation, even in part, is highly unlikely."[194] I agree with Williams J in Dura Constructions (Aust) Pty Ltd v Dovigi[195] that, by enacting s 85H(1), "the legislature was concerned to ensure that the rehabilitation of the offender should not be adversely affected by an award of compensation." But, as the provision is (for adults) discretionary, it is not an error of principle to make an order for compensation that might affect the offender's rehabilitation, as long as it is properly taken into account.[196] In Nicholson v Kostov[197] Kellam J made an order for $47,500 against an offender whose means wouldn't fully cover it. His Honour said "there are a range of future possibilities which might change the situation and the financial circumstances of the respondent cannot be the final determinant of a sum of compensation to be ordered."[198]

140 A child offender cannot be ordered to pay compensation above the maximum amount of $1000,[199] and then only if the child has the capacity to pay.[200] This represents a different kind of balance struck for child offenders to the one struck for adult offenders. There is no maximum amount of compensation specified for adult offenders and taking their capacity to pay into account is discretionary.

141 Where appropriate, an order for substantial compensation can be made after taking an offender's means into account. I think the present case comes within this category. The offenders are unable to pay any reasonable amount of compensation to the victim, a situation that is likely to remain in place for the rest of their lives. But the offenders have subjected the victim to crimes of violence of the utmost gravity. Mr K has received very serious injuries from which he has suffered, and continues to suffer, substantial pain and suffering. The liability of Cetin Mirik and Metin Mirik to pay compensation has been clearly established. The amount of compensation (unless reduced) will be very large, but that will be a consequence of what the offenders have done to the victim. It would be an injustice to Mr K to put him to the additional time, expense, trouble - and trauma - of having to issue civil proceedings against Cetin Mirik and Metin Mirik when their incapacity to pay would be an irrelevant consideration in those proceedings. In these circumstances, the court should give substantial effect to the victim's election to exercise his statutory right to make application for a civil compensation order in the criminal proceedings. I acknowledge doing so will potentially impair the offenders' prospects of rehabilitation, but in this case the victim's interests should have greater priority.

142 I think it would be wrong in the present case to exercise the discretion in s 85H(1) to reduce the amount of compensation down to what the offenders could pay, say on their release from imprisonment. Section 85B(1) allows the court to order compensation. Mr K is entitled to a large order for compensation for the significant pain and suffering he has experienced as a direct result of the horrible crimes that the offenders committed against him. The personal impact on him of these offences has been terrible. However much the amount actually ordered may be reduced under s 85H(1), it must still be compensation. Reducing the large compensation due to Mr K down to the small amount that Cetin Mirik and Metin Mirik could pay, and then only by small weekly instalments over a substantial period of time, would result in a derisory order, one that would mock Mr K's pain and suffering and not constitute compensation.

143 However, the financial circumstances of Cetin Mirik and Metin Mirik, the burden that payment of compensation would impose and the potential impairment of their rehabilitation should be taken into account to an appropriate extent. They are and will be impecunious and without assets on their release from prison. They will be totally reliant on a disability support pension for their survival. They will both have been in prison for substantial (although different) periods. Their English is poor. They may be deported. Under s 85H(1), I determine to reduce the compensation order in each of their cases by 25 per cent. I decline to reduce it further by reason of these considerations because I think the position of the victim deserves very substantial recognition.

144 Mr K's application is for compensation under s 85B(1) of the Sentencing Act 1991. Under that section, the court may order the offender to pay compensation "of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of sub-section (2)". Section 85B(2) sets out the amounts of which compensation may be made up.

145 Compensation may be made on the application by "a person who has suffered any injury" as a direct result of the offence.[201] The definition of "injury" in s 85A(1) is broad. It includes "grief, distress or trauma or other significant adverse effect".[202] It should be noted that the "range of injuries for which compensation may be obtained is wider than the range generally recognised by the civil law."[203]

146 Mr K's application is for pain and suffering (plus certain special expenses). Under s 85B(2)(a), compensation may be made up of amounts that include "pain and suffering experienced by the victim as a direct result of the offence".

147 As we have seen, the common law courts act to vindicate the inherent human dignity of every individual without exception. There is "a fundamental right to personal inviolability existing in the common law, a right which underscores the principles of assault, both criminal and civil".[204] Further, crimes of violence offend against the victim's fundamental human right of personal integrity.

148 Generally speaking, when crimes compensation under s 85B(1) and (2) is being determined, common law principles are relevant.[205] That is consistent with the purpose of the scheme, which is to give victims easy access to the civil remedy of compensation. Therefore compensation is available for "pain and suffering" under s 85B(2)(a) in the cognate sense in which that expression is used in the common law, which encompasses loss of enjoyment and amenity of life.

149 But, as we have seen, the criminal court, when ordering crimes compensation, is not limited to compensating injuries that would be compensable at common law. Moreover, whilst general common law principles are relevant to a determination of the amount of appropriate compensation, the court can take into account that the injury has resulted from the commission of a crime. The grief and distress caused by a crime can be greater than that caused by a civil wrong.[206] Remember, "the focus of attention should be placed upon the actual impact upon the applicant of the commission of the offence rather than whether that impact could be the subject of an award of common law damages."[207] Here is Mr K's sad description of that impact:

All in all, as a result of the crimes and injuries I suffered, I have changed from a capable and hard-working family man into someone who is unable to satisfactorily care for his family and who is useless, helpless, hopeless and worthless. Life has very little joy associated with it for me now.

150 An order under s 85B(1) being by way of compensation and not punishment, there is no compensation available under that section for punitive or aggravated damages. Victims must commence separate civil proceedings to obtain compensation of that kind.

151 The injury must directly result from the offence,[208] but, consistently with the beneficial purpose of the provisions, no narrow conception of what is a direct result is adopted. Here is what Buchanan JA said on that subject in Kaplan v Lee-Archer:[209]

In my view the introduction of the adjective "direct" is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.

152 The evidence shows the injuries suffered by Mr K, and the pain and suffering experienced by him, directly result from the offences committed against him. However, it is necessary to distinguish between the injury, and pain and suffering, directly resulting from the offence of intentionally causing serious injury committed by Cetin Mirik and Metin Mirik and the crime of rape committed by Cetin Mirik.

153 In crimes compensation proceedings, offenders do not have the assistance of "mechanisms such as pleadings, discovery and interrogatories, which are available in civil proceedings."[210] For want of the kind of detailed forensic and judicial examination that is available in civil proceedings, there exists a potential for compensation orders to be made against offenders when they shouldn't or in amounts that exceed the victim's correct entitlement. That potential exists in practically every case, and I should guard against it happening here. The offenders have not had the opportunity to test the claims of the victim as fully as they could in ordinary civil proceedings. It is important that injustice is not done to offenders by making assessments of compensation that overshoot the mark. Doing justice by victims can't be at the expense of doing injustice to offenders. The victim's right to bring civil proceedings for "any expense or other matter" not satisfied by an order of compensation is not affected by an order under s 85B(1),[211] so any undershoot can be recovered. The offender is in the obverse position.

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.

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