2. Matter otherwise adjourned to Directions Hearing on 28 March 2003 in relation to any claim for loss of earnings.

Mr Heathcote instructed by Victorian Government Solicitor

TYPED VERSION OF RULING GIVEN ORALLY ON 28 FEBRUARY 2003

1. In this case, in my opinion, s.54 of the Victims of Crime Assistance Act 1996 should not operate either to preclude or to reduce the amount of the determination of any special financial assistance. I say that for a number of reasons. I have had the opportunity to look at the authorities, already being familiar with some of them. The following are not in any particular order of importance but they are factors which seem to me to be relevant in relation to the criminal record and the occurrence of the event.

2. Firstly, the applicant sustained the injury not whilst he himself was engaged in any affray or criminal activity. It was in the course of his employment.

3. Secondly, the extent of his criminal record could be described as very limited whilst serious - serious in the sense that terms of imprisonment were imposed for two principal offences. Nevertheless, limited in the sense that he is by no means a notorious or career criminal who has been a burden on society and who has caused financial detriment to society. There are the two offences. He himself would say, as he has, that they are two too many, but nevertheless he is not a career or notorious criminal. In fact he struck me as an impressive man and I accept what he has to say about his reformation.

4. He pleaded guilty to both of the offences that are involved in his criminal record. He has shown remorse, both here today and clearly earlier, as referred to in Mr Hodgson's report, and realises the gravity and the error of what he did. He is in full employment and I accept that he obtained that full employment within a week of being released from prison and he had been in full employment prior to going into prison. He has undertaken courses in order to reform, assist with the process of reform, and help him back into society. I see that he took a course in relation to anger control. He has reformed in relation to his contact with alcohol. I simply do not think he fits into the category of those types of cases where it is considered that the public purse should not be making an ex gratia payment to undeserving people. I do not think he fits into that category at all, and I am not of the view that there should be any interference with his right to obtain a determination. I do not preclude him and I do not make any reduction given the nature of the criminal record which he has, the way in which he impressed me, and the attitude which he has adopted.

5. In relation to his claim for special financial assistance, I am satisfied that the requirements of s.8A have been met. There has been a significant adverse effect as a result of an act of violence and it is an act of violence that falls within the prescribed categories A, B, C or D contained in s.8A and in the Victims of Crime Assistance (Special Financial Assistance) Regulation 2000. I think it is quite rightly conceded that it falls within "C". There is then the question of whether there should be what could be described as an uplifting, as a result of the wording of s.8A, including the reference to other prescribed amounts in prescribed circumstances.

6. In my view there should be such uplifting. I consider that it is one of the more difficult questions in the case, and that is in no way saying the other matters did not warrant serious consideration. One of the difficulties is created by the fact that there is the prospect of further surgery, and the probable outcome of that surgery is not known, although it is quite clear from Mr Rosenberg's report that there will be some disability remaining. Looking at the circumstances in which, for example, the Category A maximum amount is available for B, C or D - Acts of Violence, and this is, as I say, a "C" Act of Violence, it takes one back to the definition of "very serious physical injury". As has been pointed out, there is no definition of serious injury for the purposes of "B", whilst I note in s.8A that there is a reference to that, but there is no definition of it.

7. To get under the heading of very serious physical injury, there has to be loss of a body function. It has to be permanent or of long-term duration. It is not clear, and I do not know if there is any authority as to how much the individual and the effect on the individual is considered, or whether loss of a body function, being substantial loss of use of the right hand to a motor mechanic, is viewed any differently compared with if it had been the left hand or if it had been a job that did not involve or need dexterity in the use of the fingers.

8. I am satisfied that the maximum applicable to Category A should be available. I do not intend to award that maximum. There is obviously then a discretion between the minimum and the maximum. These things are necessarily a matter of impression. It is very hard to give hard and fast reasons as to why one would give $501 or $7,499 or whatever. I have settled upon a figure of $5,000. It seems to me that somewhere at about the halfway mark between that minimum and maximum of "A" is appropriate. I appreciate that it is the maximum that is uplifted, so that viewed one way the range is from $500 through to $7,500. It seems to me that a figure in the order of $5,000 is appropriate for what is, in my view, and having inspected the hand and read the reports, a very serious physical injury.

9. As indicated, I shall leave to one side the question of loss of earnings, as there is simply inadequate material upon which to rely, but that is something that the parties may be able to work out if further material is obtained. If not, I am happy to deal with the matter. If the loss of earnings can be justified, I see no reason why that loss of earnings should not be paid. That is, doubtless, a question for the parties, but it seems to me that, given the operation of the Accident Compensation Act, there will be a gap between WorkCover payments received and the pre-injury average weekly earnings. The Act would also apply in relation to the termination date of that entitlement. As I understand it, the WorkCover payments ceased because of the imprisonment, which termination would be in accordance with the provisions of that Act, so that would obviously mark the end of the period of entitlement.

10. There is then the question of the formal orders that are required to be made.

11. The order of the Magistrate of 4 March 2002 is set aside. In lieu thereof it is determined that the respondent pay to the applicant the sum of $5,000 by way of special financial assistance pursuant to s.8A. The matter is otherwise adjourned to a directions hearing on 28 March 2003. If that date is not satisfactory, it can be varied.