DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116

DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116 - VSCA 2006 case summary — Zoe

[4]

1 I have had the advantage of reading the draft reasons prepared by Vincent, J.A. I agree with the conclusions that his Honour has reached. I would make the following observations as to the circumstances in which the Director can appeal from a compensation order made under s.85B of the Sentencing Act 1991 ("the Act").

2 Division 2 of Part 4 of the Act provides a means by which a victim of a crime may obtain compensation more quickly, efficiently and cheaply than by instituting civil proceedings against the wrongdoer. Pleadings are not required, and facts founding the claim may be proved by evidence given in the trial or at a committal, by uncontested statements of fact or by a victim impact statement. Further, the court is not limited to injury for which damages at common law may be awarded[1] nor constrained by concepts such as proximity and foresight. Consistently with the aim of providing a cheap, expeditious remedy, which builds upon a criminal proceeding, the victim has no right of appeal from an award or a refusal of compensation. If unsatisfied with the decision by the court trying the offence, a victim may bring proceedings to recover damages.[2] The only means by which a decision under Division 2 of Part 4 that is contrary to the interests of the victim can be reviewed is by an appeal by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act.[3]

3 In the light of the statutory scheme, I would regard it as anomalous if the Director had an untrammelled right of appeal whenever the Director considered that a Court had erred in disposing of an application for compensation or was requested by a dissatisfied victim to appeal. In my opinion the requirement in s.567A that the Director be "satisfied that an appeal should be brought in the public interest" applies to an appeal against an order under Division 2 of Part 4.

4 That is not to say that an appeal will not be allowed because the requirement cannot be satisfied in the case of an appeal from a decision as to compensation. Notwithstanding the remarks of Winneke, P. in D.P.P. v. Gardener and Coates[4], I do not agree that in the case of such an appeal the public interest cannot be engaged in the sense contemplated in s.567A. Generally, an initial application under s.85C will not concern the public interest. An appeal, on the other hand, may raise different questions, which do affect the public interest. For example, a decision under Division 2 of Part 4 of the Act may reveal such manifest inadequacy as to render it necessary for a court of appeal to lay down principles to guide courts charged with determining applications for compensation and establish consistency in compensation awards by correcting idiosyncratic views of individual judges.[5] I do not think, however, that the public is interested in the sense required by s.567A in all appeals from orders made under Division 2 of Part 4 simply because the procedure afforded by those provisions, which enables the sentencing process to be used to compensate victims of crime, is itself in the public interest. More is required if the Director is to be satisfied that an appeal should be brought in the public interest.[6]

5 In the present case the Director may have concluded that the intervention of the Court was necessary in order to establish a point of principle, namely, the level of compensation required to address "the grief, distress or ... other significant adverse effect" directly resulting from the commission of the offence by the respondent, which killed the deceased.

6 I consider that the awards of compensation made in this case were manifestly inadequate. Accordingly, I would allow the appeal, set aside the awards of

compensation made in the court below and in lieu thereof make awards as Vincent, J.A. proposes.

[25]

26 It was made clear by the Attorney General that the use of the sentencing process to render offenders financially accountable to their victims was considered to be in the public interest and, of course, it is by no means difficult to envisage situations in which persons regarded as victims of crime would have no civil recourse of the kind to which the President adverted.[10] The right to compensation is clearly not confined by common law notions of duty of care nor are the parameters within which the provisions relating to victims' entitlements fixed by reference to any other concepts of tortious liability. There is no good reason in principle why the role of the Director of Public Prosecutions in protecting and advancing the public interest, with respect to victims' rights, and in particular those falling within Part 4, should not be regarded as encompassing the right to appeal in the event that he forms the view that the process has miscarried. In any event, if the Director was not intended to have the right to appeal in relation to orders made under this section, it would be reasonable to anticipate that there would have been some amendment to the definition of "sentence" in s.567 or some limitation to that effect specifically included in s.567A.

27 There is, in any event, no justification for imposing any restriction on the broad discretion conferred upon the Director in s.567A and certainly none that would require the Director to satisfy some externally assessable public interest test, which presumably could be the subject of challenge before any appeal against sentence could be brought or pursued. Parliament has vested in the Director a broad discretion to appeal upon being satisfied that it is in the public interest to do so. To my knowledge, it has never been suggested that that discretion has been fettered and, whilst I am unable to see any good reason why it should be, there are several obvious ones that would suggest that Parliament intended that no such challenge would be available. However, I need not pursue that aspect.

28 Accordingly, whether approached by reference to the words employed in the relevant provisions, the statutory context in which they appear or the obvious legislative intentions underlying them, the construction for which Dr Neal has contended must be rejected.

29 Turning then to the Director's assertions that the awards were manifestly inadequate in the circumstances, whilst the matters came before the Court by way of Crown appeal, they present issues of a different kind to those generally encountered in such matters, and which are more akin to those arising in an appeal against the assessment of damages made by a judge sitting alone rather than one against the claimed manifest inadequacy of a penalty imposed.

30 It must be borne in mind that an award for compensation is not made as a form of punishment, but in an endeavour to address through the payment of money, the injury and loss sustained by the applicant. It follows that broadly the principles applicable to an appeal against an assessment of damages would be those to which the Court should direct attention. Nevertheless, the fact that that injury and loss has resulted from the commission of a crime cannot be ignored. It is one thing, for example, for a person to lose through natural causes someone to whom the individual is deeply attached, another where death has resulted from civil wrongdoing, and another again where it has been brought about by criminal conduct. The grief and distress occasioned in the third situation, which often is experienced against a background of a sense of understandable outrage, may be in some situations even more acute and its impact upon the life of the individual more long lasting. In his judgment in D.P.P. v. Esso Australia Pty Ltd, Cummins, J. drew attention to what he referred to as "a number of incidents of s.85B proceedings, pointing out that -

[26]

"Compensation is not punishment and proceeds according to common law criteria: McDonald ... and In Re Poore ... . Further, it has long been held that very complex cases ought not be heard consequent upon a criminal sentence but should be heard in the civil list: Landholt ... and Braham ... .

...

First, the proceedings are under the Sentencing Act 1991, a criminal statute. The proceedings are heard in the Criminal Division by the sentencing Judge. Second, a condition precedent to the institution of s.85B proceedings is the recording of a criminal conviction. Third, the respondent to an application under s.85B is a party by reason of his, her or its character of being an offender. Fourth, the applicant has to be a victim of a crime. Fifth, there is an intimate connection between the antecedent criminal trial and the application. The documents the application proceeds upon are criminal trial documents, including committal depositions before the trial and victim impact statements after conviction: s.85F(2). Sixth, unlike ordinary civil process where the impecuniosity of the defendant is irrelevant, in s.85B applications the court may take into account the financial circumstances of the offender and the nature of the burden that the payment ordered will impose: s.85H(1). Seventh, by s.85H, the rehabilitation of the offender, always an important matter in sentencing, should not be deflected or defeated by a compensation order. Eighth, by s.85C(1)(b)(iii) a section 85B application may be made on the victim's behalf by the Director of Public Prosecutions. Ninth, s.85L preserves the applicant's right to recover civil damages separate and apart from, or in addition to, s.85B proceedings. And finally and importantly, pursuant to s.85B compensation can be awarded not only for injury constituted by 'actual physical bodily harm' (s.85A(1)(a)) but also (amongst other heads) by 'grief, distress, trauma, or other significant adverse effect'. Compensation can also be awarded for hospital, medical psychological and other expenses."[11]

[31]

36 There is no and there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, and no method of conversion of a human emotion or psychological reaction to an amount of money exists. Clearly, widely differing views as to the appropriate award to be made in a given case can be held and an appellate court must be extremely reluctant to intervene in such cases.

37 That approach, would obviously be the correct one to adopt when dealing with an appeal against a compensation order made under s.85B.

38 In the present case, there has been no complaint advanced that his Honour fell into error in any specific respect and the assertions contained in the Particulars relate to the weight allegedly attributed by him to the considerations there mentioned.

39 Against this background, the issue with which this Court is confronted is whether the award made in favour of the respective appellant can be seen to be so inadequate that it falls below that available in the exercise of sound discretionary judgment.

40 Bearing in mind the caution with which the making of comparisons between the awards of compensation in other cases under the Act or awards of damages under the common law or other legislation, I have had regard in a general fashion to those to which our attention has been directed. Due, inter alia, to the difficulty of identifying the precise considerations to which the various judges had regard in the individual matters and the weight attributed to the differing relevant factors as well as the significant variations in the circumstances and awards themselves, I found this process even less useful than the comparison of sentences imposed in different or not clearly identified fact situations.

41 In the case of Lori Riley, it is apparent that the grief and distress suffered by her has been very serious indeed to the extent that she has suffered symptoms consistent with the presence of post traumatic stress disorder and was, at the time that she was seen by Dr Cole, still experiencing difficulty.

42 In my view, the severity of the impact upon Ms Riley of the fact and circumstances of her father's death is simply not reflected in the award of compensation made by his Honour.

43 I would allow the appeal by the Director in her case, set aside the award made in the Court below and substitute an award in the sum of $50,000.

44 I would, for the same reason, allow the appeal with respect to the award made in favour of Damien Riley whose situation appears to be different not in the sense that he was less deeply affected by his father's death but because he appears to have been able to cope with his grief a little better.

45 In his case, I would increase the sum awarded to $35,000.

[38]

51 In cases where the primary victim is injured, rather than killed, and a relative seeks compensation for grief, distress or other trauma, it may also be appropriate to take account of changes to family life which occur as a result of the injury which has been suffered by the primary victim. For example this could include grief caused by marriage breakdown or family conflict arising from the depression or anger which the primary victim experiences as a result of his or her injury[17].

52 Despite his failure to refer explicitly to the factors taken into account, the trial judge considered the viva voce evidence of the applicants as to their grief at the loss of their father and the psychological reports on the affect which the death of their father had had on his children. For this reason I am unable to find that his Honour acted upon any error of principle or misapprehension of relevant facts.

53 Was his Honour's estimate of the compensation which should have been paid to the children of the deceased man wholly erroneous? As Vincent, J.A. points out in his judgment, awards made under other systems provide only limited assistance in assessing the amount which should be awarded for solatium in the circumstances of a particular case. The Victorian victims of crime assistance scheme places a statutory limit of $50,000 on compensation to an individual who is related to a primary victim of violent crime for losses which include distress caused by the death of the primary victim,[18] but this limit applies to compensation for criminal injuries which are paid by the state, on the basis that it has some obligation to compensate people injured as the result of criminal acts, rather than by the person who caused the harm.[19]

54 A number of awards have been made under s.85B in cases in which the victim was an adult child who seeks compensation for the death of their parent. Where injuries have been caused by breach of occupational health and safety requirements there have been a number of orders for payment of sums in excess of $35,000 to relatives of deceased victims.[20] I have also had regard to an internal data base kept in the Office of Public Prosecutions, on awards under s.85B, which was produced at trial.

55 The data base shows that awards of compensation for pain and suffering and mental distress made to people who had suffered direct harm as the result of violent offences such as sexual assault and intentional infliction of injury were often under $20,000. However this may in part reflect the statutory requirement to take account of the financial circumstances of the offender and the nature of the burden that will be imposed by the obligation to make the payment.[21]

56 In this case it was not submitted that Energy Brix's capacity to pay should have been taken into account. Comparison with other orders which have been made under s.85B in the context of industrial accidents persuades me that the orders for compensation in this case fall below the level of award that could be made in the exercise of a sound discretionary judgment.

57 For the above reasons I agree with Buchanan and Vincent, JJ.A. that the awards of compensation to Ms Lori Riley and Mr Damien Riley should be set aside and that they should receive compensation as indicated in the judgment of Vincent, J.A.

[39]

[1] An expansive definition of "injury" is contained in s.85A.

[2] Section 85L.

[3] The appeal may be limited to an appeal against the amount of an award unless a refusal to award any compensation meets the description of an "order made under Part 3 ... of the Sentencing Act 1991."

[4] [2004] VSCA 119 at [29].

[5] Cf. Griffiths v. R. [1977] HCA 44; (1977) 137 CLR 293 at 310 per Barwick, C.J.

[6] It is another question whether the exercise of the Director's discretion can be judicially reviewed. I doubt that it can be, although it is not necessary to answer the question in this case.

[7] Sentence T122.

[8] Sentence T122.

[9] D.P.P. v. Brian Lindsay Gardner and Michael Albert Coates [2004] VSCA 119 at [29].

[10] The broad definition of "victim" in the Sentencing Act reads:

" 'victim', in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;".

[11] [2003] VSC 367 at [6] and [7].

[12] R. v. Michael John Hayes (1987) 29 A.Crim.R. 452 at 468-469.

[13] [1942] A.C. 601 at 616-617. I need not refer to the numerous cases in which this approach has been considered and followed.

[14] I agree with Buchanan, J.A. that the question of whether the decision of the Director is susceptible to judicial review remains open. It may be that the appeal process would be considered to be part of the prosecution process. If so, it is not judicially reviewable, see Maxwell v. R. (1995-1996) 184 CLR 501.

[15] [2002] VSCA 88.

[16] Ibid at [16].

[17] Similar considerations governed an award of $100,000 to the wife of a seriously injured worker, and $50,000 to the sons of the same seriously injured worker in the case of Multiplex Constructions (Vic) Pty Ltd v. Mark William Watkins (County Court of Victoria, 21 November 2003). Similarly in various cases surrounding the Longford Gas Explosions, awards to the children and spouses of seriously injured or killed workers varied between $20,000 and $300,000; refer D.P.P. v. Esso Australia Pty Ltd [2003] VSC 222; D.P.P. v. Esso Australia Pty Ltd [2003] VSC 367 and D.P.P. v. Esso Australia Pty Ltd [2001] VSC 513.

[18] Victims of Crime Assistance Act 1996 ss.11-13.

[19] I. Freckelton, Criminal Injuries Compensation: Law, Policy and Practice, Chapter 2. For a discussion of the inconsistencies which may occur between awards, refer ibid at xv.

[20] See for example Multiplex Constructions Pty Ltd v. Mark William Watkins (County Court of Victoria, 21 November 2003), in which the wife of a deceased worker received $180,000, and the sons of the same worker each received $60,000_;_ see also D.P.P. v. Esso Australia Pty Ltd [2001] VSC 513 in which the three adult daughters of a deceased worker were awarded $50,000 each; the three adult sons of another deceased worker awarded $75,000 each, and the wife of a deceased worker received $300,000.

[21] Sentencing Act 1991 s. 85H(1).

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Cases Cited (1)