First Applicant v Second Applicant

2 The Morescos apply for leave to apply out of time for an order for compensation for pain and suffering under s 85B of the Sentencing Act 1991 ('the Act'). The leave application is brought pursuant to s 85D of the Act. I have heard and will determine the leave application and the substantive application instanter.

3 Mr Budimir was born on 15 November 1968. He was 23 when he married his wife, Jana Budimir. Together they have four children, aged 8, 11, 13 and 15.

4 Until roughly 2009 Mrs Budimir was a stay at home mother who from time to time was part-time employed. When the Budimirs' fourth child was born, Mrs Budimir set up a small nursery which, eventually, she operated out of premises in Geelong. In 2010 she began to purchase concrete garden ornaments from the deceased, who manufactured and sold them for a living.

5 A detailed account of what transpired between Mr Budimir, Mrs Budimir and the deceased between 2010 and 30 October 2011 is unnecessary. In short compass, Mr Budimir suspected that his wife and the deceased were having an affair. Mr Budimir remonstrated with his wife and pleaded with her not to leave him. Although she initially denied any infidelity, she was clear and unwavering in her intention to leave her husband.

6 In the months leading up to October 2011 Mr Budimir surveilled Mrs Budimir and the deceased; he assaulted and falsely imprisoned her; he breached the terms of an intervention order she obtained against him, although at times with her tacit consent; he warned the deceased to stay away from Mrs Budimir; he told the deceased that if he did not do so he would be dealt with in such a way as 'to make the front pages of the newspapers.'

7 On 29 October 2011 Mr Budimir attended at the deceased's factory. It is unclear what Mr Budimir intended by that visit, which was uninvited. The deceased received a telephone call from a business associate, who told him he had seen a man acting unusually in and around the factory. The deceased told his business associate he thought he knew who it was.

8 The deceased arrived at the factory around 6:10pm and located Mr Budimir, who, by his (Budimir's) account, was hiding behind a wheelie bin. There was a verbal altercation between the two men during the course of which the deceased may have struck Mr Budimir with a number of rocks.

9 Although Nettle JA accepted that it was possible that the deceased had participated, in some minor way, in the verbal altercation, he was satisfied that by the time Mr Budimir approached the deceased he had every intention of injuring him. Mr Budimir grabbed the deceased and threw him to the ground; he placed him in a headlock; he elbowed the deceased when he resisted. Eventually, Mr Budimir lifted the deceased to head height and, as he put it, threw him to the ground 'as hard as he could.' He described the manoeuvre as a 'power-slam.' He described blood around the deceased's mouth.

10 Mr Budimir stood on the deceased's chest and administered further blows with his feet. Mr Budimir said this was to 'keep [the deceased] down' because he was still trying to 'fight [him] and stuff like that', although this assertion was, ultimately, dismissed as false. In Nettle JA's view these further assaults were, at best, gratuitous, and intended to inflict further serious injury. Those injuries, which were massive, included,

[...] subarachnoid haemorrhage, bruising and lacerations to the face, a broken nose, a fractured first left rib, laceration of the liver to the point that it was almost torn in half, a small bowel mesenteric haemorrhage, a large volume of free blood in the abdomen and a fractured hyoid bone [...]

11 Mr Budimir went to some lengths to evade detection. He drove the deceased's body to a disused industrial site. He obtained two litres of petrol. He bundled the deceased's body into a wheelie bin and attempted to destroy it by burning. He was caught and arrested by police the next day.

12 An application for a compensation order must be made within 12 months after the offender is found guilty or convicted of the relevant offence.[1] Mark Budimir was convicted on 5 April 2013 and the applications were filed on 9 May 2014. It follows that the applications were made approximately one month out of time.

13 Section 85D provides for extensions of time on a discretionary basis. The Court may extend the time for making the application if it is of the opinion that it is in the interests of justice to do so.[2] It may make the order before or after the time expires and whether or not the application for an extension is made before the time expires.[3] The Court must not grant an extension without first giving the offender a reasonable opportunity to be heard on the question of extension.[4]

14 Finality of litigation for defendants is a purpose of most limitation of actions provisions. Here, however, I am mindful of the fact that compensation orders are made under a criminal statute and for the purpose of compensating the victims of criminal offending.[5] Mr Budimir has been convicted of a criminal offence and it is in the interests of justice that the applicants, who are victims of that offence, have the opportunity to draw a line under that offending. Finality, in that sense, cuts both ways.

15 A competing factor is that rehabilitation is important in any system of criminal justice and that late applications which may significantly prejudice the offender's rehabilitation should not be permitted.[6] Mr Budimir submitted, and I accept, that his rehabilitation is a live consideration in this case. In my view, however, the weight to be given this factor is different at this preliminary stage as compared to the substantive application. On an application for leave to apply out of time the relevant question must be whether the delay would significantly prejudice the offender's rehabilitation and not whether, in an abstract sense, the order for compensation might do so.

16 It follows that in measuring the degree of prejudice Mr Budimir may suffer I ask myself what, if any, prejudice would follow from an application made 13 months after his conviction that would not also attach to an application made within time. My view is that a delay of that length will not have prejudiced Mr Budimir's rehabilitation, especially when it is measured against the 16 years he will serve before he is eligible for parole. I am also confident that the delay has not involved prejudice of a forensic variety. In my view the evidentiary provisions of the Act (see, particularly, ss 85G(1)(c) and (d)) also, generally, guard against this risk.

17 For these reasons I am satisfied that interests of justice favour an extension of time. Ultimately, the delay in this case is trivial when one compares it to the delay in other, successful, leave applications.[7]

18 A compensation order provides a convenient mechanism for the recovery of compensation by victims.[8] An application for such an order is intended to be quick, cheap and built upon the criminal proceeding. It is designed to avoid the 'complex or technical rules of procedure as may properly apply' on a civil application for damages at common law.[9]

19 If a court convicts or finds a person guilty of an offence it may order the offender to pay compensation to a person who has suffered injury as a direct result of that offence.[10] It follows that on an application such as this a court must ask itself:

1. Was the offender found guilty or convicted of an offence?

20 If the answer to each of these questions is, 'Yes', and the offender has been given a reasonable opportunity to be heard on the application, the Court may order the offender to pay compensation in such amount as it sees fit. This amount may represent one or more of the heads of injury countenanced by s 85B(2) of the Act, including pain and suffering,[11] medical expenses,[12] expenses relating to counselling services[13] and other, related, expenses that do not concern damage to property.[14]

21 Orders for compensation are not limited to injuries that would be compensable at common law. The Act's definition of 'injury' is broad and includes grief and distress. An application for compensation for pain and suffering is not subject to the restrictions in Part VBA of the Wrongs Act 1958 as being a claim for 'recovery of damages' for non-economic loss.[15] I will return to s 85B(2), and the issue of quantum, shortly.

22 The expression 'direct result of', which means 'an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence.'[16]

23 I have said that convenience and expediency are purposes of compensation order applications. A positive expression of those purposes is the evidentiary provision of the Act, s 85G.[17] Subsection 85G(c), in particular, provides that on an application for a compensation order a finding of 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. A finding may also be proved by production of a document under the seal of the court from which the finding appears.[18]

24 Other facts may be proved by more conventional methods. A victim or the offender may give evidence, or call another person to give evidence,[19] and may be cross-examined and re-examined.[20] Although the application is ancillary to the criminal proceeding, it is itself a civil proceeding, to which the civil standard of proof applies.[21]

25 If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification.[22] The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender's financial circumstances and the effect of an order on the offender's prospects for rehabilitation.

26 A Court making a compensation order must reduce the quantum of any such order to reflect any award made to the victim under the Victims of Crime Assistance Act for the expense or other injury for which compensation is sought.

27 The applicants have each filed an affidavit 20 August 2014 in support of the application.[23] Three further affidavits, from the applicants, dated 9 December 2014, were filed in court. Written submissions have been prepared, and filed, on their behalf.

28 Mr Budimir has personally prepared and filed a document styled an affidavit and which is dated 26 September 2014. That document combines direct evidence with submissions of law. It also contains material which contradicts or impugns the jury verdict or is otherwise irrelevant.

29 The irrelevant material is justificatory. It is essentially an attempt to smear the characters of the deceased and Mrs Budimir. The truth of those matters is irrelevant and inadmissible on this application. As Counsel for the applicants noted, however, the fact of the allegations may be relevant and admissible for another purpose.

30 I have received the exhibit on the understanding that I will not act upon any of its impermissible material, or put admissible material to an impermissible use, and that I will distinguish between propositions of fact and law. This more flexible approach is appropriate having regard to the fact that Mr Budimir is self-represented.[24]

31 The applicants have also filed an affidavit of Jana Budimir, the deceased's former wife, dated 9 December 2014. The purpose of the affidavit is to answer Mr Budimir's attacks upon the deceased and Mrs Budimir's character. Because it would be an irrelevant and therefore inadmissible use of Mr Budimir's affidavit to prove the contents of those aspersions, an affidavit answering them is equally inadmissible. All parties agreed I should not receive it.

32 With the exception of Jana Budimir's affidavit, and with the qualification that I will discriminate between admissible and inadmissible material, the parties were content for me to receive the affidavits absolutely and thus avoid the need to call their deponents. No party sought to cross-examine any witness.

33 Mr Budimir's conviction for the offence of murder and the circumstances of that offending, set out at [3]-[11], above, have an evidentiary basis in his Honour's sentencing remarks.[25] I take them as proved for the purposes of this proceeding.

34 After reading the relevant victim impact statements Nettle JA was satisfied that the offending had caused the Morescos 'inestimable' suffering.[26] Even if I were not entitled to rely upon that finding as proof of causation I would comfortably reach the same conclusion on the basis of the Moresco affidavits, their annexures (which include these victim impact statements) and simple common sense.

35 I am satisfied that each of the Morescos has suffered pain and suffering as a direct result of Mr Budimir's offending, for which he was convicted by this court in 2011. It follows that there is an entitlement to compensation under s 85B(1) of the Act. I see no discretionary factors that militate against the making of an order.

36 This was a brutal murder of a small and peaceful man by a large and powerful assailant.[27] The deceased's body was burnt in an attempt to evade detection.[28] At the time of his sentencing Mr Budimir demonstrated a palpable lack of remorse for the murder or the profanation of the deceased's body.[29] I consider his attacks on the characters of the deceased and Jana Budimir in his affidavit to be some evidence of a continued lack of remorse.

37 Although the purpose of this proceeding is not to punish Mr Budimir, the seriousness of his offending and his attitude toward that offending bears directly upon the applicants' pain and suffering. I accept that the deceased's murder and its circumstances have profoundly affected the Moresco family. I accept that at this stage they believe they will never again celebrate Christmas, Easter, the deceased's birthday or any other family member's birthday. [30]

38 I turn to consider the applicants individually, their pain and suffering and its sequelae. Any account of that pain and suffering must be incomplete.

39 Gabriel Moresco is the deceased's father. Every day he visits his son's grave with his wife. He sees his life as now being over.[31] He simply 'exists,' he explains, day by day, visiting his son's grave. He will do this, he says, until he dies.[32]

40 Mr Moresco finds it difficult to speak about his feelings. 'I will be in pain every day,' he deposes, 'regardless of whether I talk about it or not.' For this reason he has not seen a psychologist with any regularity. When assessed by Associate Professor Paolitti in July 2014 Mr Moresco was diagnosed as suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.

41 On or around 21 February 2013 the Victims of Crime Assistance Tribunal ('VOCAT') made a distress payment to Mr Moresco of $30,000.

42 Delia Moresco was the deceased's sister. She describes her home life as 'terrible'.[33] Her days are arranged around visits to the cemetery.[34] She misses her brother's comforting words and dreams of him frequently. Above all, she fears for her mother. Ms Moresco has been seeing a social worker to deal with her grief. She reports approximately 32 sessions over a two and a half year period. When assessed by Associate Professor Paoletti she was diagnosed with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[35]

43 On or around 21 February 2013 VOCAT made a distress payment to Ms Moresco $20,000.

44 Madalena Moresco is the deceased's mother. Although she shares a diagnosis with her husband and daughter, it is clear that the murder of her son has had a particularly marked effect on her. Her son was her 'shining light.'[36] Now, all Mrs Moresco can think about are the 'things she will never see.'[37] She will never see the deceased build his own family, or meet his children. She is 'cursed,' she says, that is 'how she will die.'[38]

45 Since early January 2012 Mrs Moresco has met regularly with psychologists. Visits continue on a fortnightly basis. Contemporaneous assessment reports by Ms Lisa Capicchiano and Dr Thai Ohtsuka were exhibited to Madalena Moresco's affidavit of 20 August 2014. In those reports, the psychiatrists concurred in their view that Mrs Moresco met the diagnostic criteria for Post Traumatic Stress Disorder (PTSD) with associated anxiety, frequent intrusive thoughts, images or speculations on details of the murder scene and suicidal ideation. Her capacity to function was 'significantly impaired.' Ms Capicchiano at one time discussed an additional diagnosis of Major Depressive Disorder.

46 An assessment report was prepared by Associate Professor Paoletti, dated 28 July 2014. As I have said, the Associate Professor's opinion was that Mrs Moresco, like her family, suffers from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[39] As to psychosocial impact, however, the opinion was that Mrs Morseco 'has been pervasively affected in her conduct of home life, with reduced capacity for home tasks, avoidance of socialisation and loss of enjoyment, with a pervasive reduction in quality of life.'[40] Prognosis was static for the foreseeable future.[41]

47 On or around 21 February 2013 VOCAT made a distress payment to Mrs Moresco $30,000 and reimbursed the cost of the deceased's funeral in the sum of $9,180. VOCAT has also funded approximately 33 sessions of counselling since early December 2011.

48 Mr Budimir does not challenge the diagnoses but joins issue with the applicants on the issue of causation. Although he accepted that his conduct was responsible for some pain and suffering, he submitted that the applicants' psychiatric illnesses pre-dated the deceased's murder.

49 I accept that in respect of Mr and Mrs Moresco, Associate Professor Paolitti identified a number of secondary factors that have contributed to, or exacerbated, their illnesses. In the case of Madalena Moresco, this was a negative reaction to a stroke, which she had experienced around six years prior to the preparation of his report. In the case of Gabriel Moresco, there were a range of medical conditions, including diabetes and pancreatitis that were likely to have contributed to his adjustment disorder.

50 These secondary factors notwithstanding, the Associate Professor's opinion was that the deceased's murder was the 'primary' cause of each member of the Moresco family's psychiatric presentations. I am satisfied on that basis and to the civil standard that although not the sole cause, the deceased's murder was a substantial and operating cause of those presentations.

51 I am permitted to consider Mr Budimir's limited financial circumstances.[42] Mr Budimir has a shareholding valued at approximately $138,000, which has been the subject of a restraining order since 25 October 2013. He has a superannuation fund of uncertain value.

52 In submissions, Mr Budimir referred to a number of existing claims against these resources. The first was a contract said to exist between Mr Budimir and his parents which required Mr Budimir to repay the $700,000 his parents had contributed to his legal defence. The second was what appeared to be an outstanding judgment debt in the Family Court. The third are costs associated with supporting Mr Budimir's children.

53 Although these assertions were vague and at times unsupported by evidence, I am prepared to accept that Mr Budimir has outstanding financial obligations that he will struggle to fulfil if an order is made.[43] It is a consideration that favours a reduction of the quantum of compensation. Having said this, I am not bound to bring the quantum of the order within Mr Budimir's means.[44]

54 As I have noted, Mr Budimir's rehabilitation is also a countervailing consideration. I accept that his rehabilitation would be assisted by the retention of some of the restrained funds or assets. Mr Budimir will be 60 years old, or thereabouts, when he becomes eligible for parole. Finding work at that age and with a serious criminal conviction will be difficult. I do not, however, accept that this will be impossible.

55 I have made allowance for the receipt of awards by the applicants under the VOCAT Act. Because compensation is sought only for pain and suffering, however, it has not been necessary to reduce the quantum of the order to reflect amounts received for funeral or medical expenses.

56 Balancing these competing factors as best I can, I propose to order that Mr Budimir pay:

• the first applicant, Madalena Moresco, compensation in the sum of $50,000

• the second applicant, Gabriel Moresco, compensation in the sum of $30,000;

• the third applicant, Delia Moresco, compensation in the sum of $20,000.

57 Section 85K of the Act provides that each side shall bear its own costs unless the Court otherwise directs. For the reasons which follow, my view is that this is not a case in which it would be appropriate to displace that general rule.

58 In oral submissions I understood Mr Budimir to accept that there was an entitlement to compensation; his submissions were directed, fairly, to the question of quantum. I do not think, therefore, that it can be said that Mr Budimir, a convicted offender, contested the application unreasonably.

59 Despite the seriousness of the offence, and the seriousness of the consequences of the offence for the victims, I am not convinced that this application was so complicated that it warrants the award of costs. Although I accept the need to obtain psychiatric evidence will weigh in favour of an award of costs that evidence was not essential to the applicants' claim, which was for pain and suffering.[45]

60 Finally, I reject the submission that requiring a successful applicant to pay his or her own costs would defeat the purpose of the Act. The purpose of an Act, or a part of an Act, is evinced by the text of that Act, or that part of that Act. Section 85K is one such provision. The purpose evinced by that provision is that, prima facie, a successful applicant ought bear his or her own costs.

[1] Sentencing Act 1991 (Vic), 85C(1)(a).

[5] Werden v Legal Services Board [2012] VSCA 278, [39]

[6] Robertson v Esso Australia [2004] VSC 101, [4].

[7] In Brown v Loveday & Ors [2012] VSCA 57 the claimants were granted leave to apply out of time over 9 years after the offender was convicted. Neave JA dismissed an appeal brought by the offender on, inter alia, the ground that the Judge erred in failing to give sufficient weight to delay: [25]; see, also, Robertson v Esso (Australia) Pty Ltd [2004] VSC 101.

[8] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405, 406-407 and 410-411 (Buchanan JA, Vincent and Nettle JJA concurring) ('Kaplan'); DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 346 (Buchanan JA).

[9] DPP v Esso Australia Pty Ltd (No 2) [2001] VSC 401; (2001) 126 A Crim R 13, 18.

[10] Sentencing Act 1991, s 85B(1).

[11] Ibid, s 85B(2)(a).

[12] Ibid, s 85B(2)(b).

[13] Ibid, s 85B(2)(c).

[14] Ibid, s 85B(2)(d).

[15] Esso Australia Pty Ltd v Robertson [2005] VSCA 138, [30].

[16] Kaplan [2007] VSCA 42; (2007) 15 VR 405, 417 (Nettle JA)

[17] Sentencing Act 1991 (Vic), s 85G.

[18] Ibid, s 85G(d).

[19] Ibid, s 85G(a).

[20] Ibid, s 85G(b).

[21] RK v Mirik and Mirik [2009] VSC 14, [14].

[22] Kaplan [2007] VSCA 42; (2007) 15 V R 405, 410 - 411 (Buchanan JA).

[23] Collectively, the 'First Affidavits.'

[24] Macdiggers Pty Ltd v Dickinson [2008] VSC 576, [55].

[25] And in his Return of Prisoners Convicted form, which formalises his conviction and bears the seal of the Court for the purposes of s 856(d) of the Act.

[26] R v Budimir [2013] VSC 149, [42].

[30] Affidavit of Madalena Moresco, dated 20 August 2014,[5]

[31] Affidavit of Gabriel Moresco, dated 20 August 2014, Exhibit 'GM2': Victim Impact Statement, 2.

[33] Affidavit of Delia Moresco, dated 20 August 2014, Exhibit 'MM2' (sic): Victim Impact Statement, 1.

[35] Ibid, Exhibit 'MM4' (sic): Report of A/Prof N. Paoletti, dated 28 July 2014.

[36] Affidavit of Madalena Moresco, dated 20 August 2014, Exhibit 'MM-2': Victim Impact Statement, 1.

[39] Ibid, Exhibit 'MM-4', Report of A/Prof N. Paoletti, dated 28 July 2014, 7.

[42] Sentencing Act 1991 (Vic), s 85H(1).

[43] 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: Ibid, s 85H(2).

[44] See, for example, Chalmers v Liang & Anor [2011] VSCA 439; RK v Mirik & Mirik [2009] VSC 14; (2009) 21 VR 623.

[45] In the sense that I would have accepted, in the absence of that psychiatric evidence, that there was an entitlement to compensation.