Solicitors:
Solicitor for Public Prosecutions (Crown)
Self-represented (Defendant)
File Number(s): 2014/55959
[2]
JUDGMENT
On 4 August 2016 a jury found the Defendant guilty of murdering Nicholas McEvoy on 21 February 2014 by driving his van at Mr McEvoy as he walked along the nature strip beside Richmond Road, Glendenning.
On 18 November 2016 the Defendant was sentenced to imprisonment for 24 years commencing 4 August 2016 and expiring 3 August 2040 with a non-parole period of 18 years expiring 3 August 2034.
The Crown now applies on behalf of some of the relatives of Mr McEvoy for compensation under the Victims Rights and Support Act 2013 (NSW).
Although the claim was originally sought on behalf of more members of the family, the two persons in respect of whom compensation is now sought are the parents of the deceased, Terence and Marie McEvoy. The claim made on their behalf is made under Pt 6 of the Act which, as s 91 makes clear, is an alternative scheme to that contained in Pt 4 of the Act and enables the Court which finds the person guilty of the crime to direct the payment of compensation.
Section 97 of the Act provides:
97 Directions for compensation for loss
(1) A court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a specified sum be paid out of the property of the offender to any:
(a) aggrieved person, or
(b) aggrieved persons in such proportions as may be specified in the direction,
by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted.
(2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person.
Section 96 defines aggrieved person for the purpose of an order under s 97. Section 96 provides:
96 Definitions
In this Division:
aggrieved person, in relation to an offence, means a person who has sustained loss through or by reason of:
(a) an offence for which the offender has been convicted, or
(b) …
Section 99 sets out the factors to be taken into consideration when the Court is determining whether or not to order compensation. Section 99 provides:
99 Factors to be taken into consideration
In determining whether or not to give a direction for compensation and in determining the sum to be paid under such a direction, the court must have regard to the following:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person which directly or indirectly contributed to the injury or loss sustained by the aggrieved person,
(b) any amount which has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted,
(c) such other matters as it considers relevant.
In R v David Michael Wills: Application by Woolworths Ltd for a direction for compensation pursuant to s 77B of the Victims Support and Rehabilitation Act 1996 (NSW) [2013] NSWDC 1; (2013) 16 DCLR 4 Haesler DCJ set out some very helpful principles when considering the predecessor to the present Act, Victims Support and Rehabilitation Act 1996 (NSW). His Honour relevantly said:
[9] Loss is not defined but given the distinction in the Act between injury and loss it must include economic loss.
[10] A causal connection between the loss and the crime must be established: Fagan v Crime Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 673, R v Skaf [2001] NSWCCA 199 at [35].
[11] While the Act is silent on the topic, given the nature of the orders to be made are akin to civil compensation, it seems appropriate that the civil standard of proof apply. …
…
[13] A court must take into account the factors noted in s77D. Other relevant factors can include the amount sought and the identity of the victim: Flynn v R [2010] NSWCCA 171 at [70] per McCallum J. The asserted impecuniosity of an offender while relevant should not ordinarily be regarded as a reason for declining to make an order as circumstance may change or may later be demonstrated to be false: Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389 at [41].
It should be noted that s 77D was in identical terms to s 99 of the present Act.
As to an offender's capacity to pay, in Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389 Studdert J (McClelland CJ at CL and James J agreeing) said:
[41] …
(iii) the asserted impecuniosity of an offender against whom a direction is sought pursuant to s 77B of the Victims Act ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender's impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false;
The evidence discloses that Mr McEvoy's parents made application for financial support and recognition payments as provided for in s 29 of the Act. Their applications were unsuccessful on the basis that the relevant act of violence took the form of an injury that arose as a consequence of a motor accident. Under s 25(2) a person is not eligible to receive victim support if the injury arose as a consequence of a motor accident within the meaning of the definition in s 3 of the Motor Accidents Compensation Act 1999 (NSW).
The affidavit of Marie McEvoy sworn 10 June 2017 claims expenses totalling $25,792. A large portion of that claim is the costs of the funeral and associated matters totalling $20,280. The balance of $5,512 was for 32 days' work leave made up of attendances at police stations for interviews and preparation of victim impact statements and attending court including travel costs. Receipts and invoices attached to Mrs McEvoy's affidavit prove the total amount claimed for the funeral and associated expenses. The amount claimed for work leave, including travelling, amounts to $172.25 per day.
The affidavit of Terence McEvoy sworn 10 June 2017 claims $10,147 constituted by 32 days' work leave for the same attendances as Mrs McEvoy has claimed.
The Defendant was originally represented by Legal Aid and senior counsel. However, Legal Aid ascertained that applications such as the present are outside its scope of policies. The Defendant was informed of this on 1 June 2017. The matter was again mentioned on 23 June 2017 when the Defendant appeared for himself on audio visual link. He indicated that he would be appearing for himself on the application.
When Legal Aid were acting the Defendant had sworn and served an affidavit which in summary said that he had no assets, he did not own a home or any motor vehicles and that although he could not access his bank account whilst in custody he believed it would contain no more than a few hundred dollars. He ceased employment in 2014 and started receiving a New Start allowance at a rate of $240 per week. Whilst he is in custody he is employed as a painter and receives $41 per week which goes into a buy up account. His buy up account is capped at $100 per week.
As far as the two matters to which I must have regard in s 99, in relation to paragraph (a) I take into account my findings on sentencing the Defendant. I found that he was the aggressor in the events at the hotel and that he deliberately used his van as a weapon to drive at and strike Mr McEvoy, albeit only with the intention of inflicting grievous bodily harm upon him. I also take into account that, having struck Mr McEvoy, he left him to die on the nature strip. In relation to paragraph (b) I have no evidence to suggest that either of Mr and Mrs McEvoy would have any right to damages in civil proceedings in respect of the accident.
As to any other matters the Court considers relevant, no one could suggest that it was inappropriate for both of Mr and Mrs McEvoy to take time off from their work to be present at Court every day of the trial and at the sentence. I also take into account the length of the sentence imposed and that the Defendant will be 65 years old if released to parole at the earliest opportunity. There is nothing to suggest that the offender would be incapable of obtaining employment on his release.
I find that each of Marie and Terence McEvoy are aggrieved persons within the meaning of the Act. I find that they have sustained loss by reason of the offence for which the Defendant has been convicted.
In all of the circumstances, I consider that the amounts claimed are reasonable and that each of Mr and Mrs McEvoy should be compensated for the losses they have established in that regard.
Under s 9 of the Criminal Appeal Act 1912 (NSW) any order is suspended if a Notice of Intention to Appeal has been filed until the appeal is determined or until expiration of the Notice. The Defendant has filed a Notice which now expires on 30 August 2017. That means that the order I intend to make will be suspended at least until 31 August 2017.
Accordingly, I order that the sum of $25,792 be paid out of the property of the Defendant to Marie McEvoy and that $10,147 be paid out of the property of the Defendant to Terence McEvoy in each case by way of compensation for loss sustained by reason of the offence of the murder of Nicholas McEvoy in respect of which the Defendant was convicted.
[3]
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Decision last updated: 03 October 2019
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Meakin
Legislation Cited (5)
Victims Support and Rehabilitation Act 1996(NSW)
Act, Victims Support and Rehabilitation Act 1996(NSW)