In an earlier post (R v Sokaluk [2012] VSC 167 – 17 Years and 9 months gaol for Black Saturday arsonist) I reported on the sentence imposed on the intellectually disabled man who started the Churchill Fire that claimed 10 lives.
Another development in this case is that the partner of one of the men who died is now seeking compensation from Sokaluk (see ‘Partner of Black Saturday bushfire victim seeks compensation’, ABC Online, 31 July 2013 and ‘Kittyanna Verghese sues arsonist over Black Saturday bush fire death’ The Australian, 31 July 2013).
From what I can infer from the stories, the applicant is not ‘suing’ in the traditional sense. The inference I would draw is that she is making an application for a compensation order under the Sentencing Act 1991 (Vic). Under that Act the Supreme Court can order the defendant to pay compensation. The amount of compensation is that amount the Court ‘thinks fit’ to compensate the victim for
“(a) for pain and suffering experienced by the victim as a direct result of the offence;
(b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;
(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, bye victim as a direct result of the offence, not including any expense arising from loss of or damage to property.” (s 85A).
When making an order, the court can take into account the financial position of the defendant (s 85H). I have no idea whether or not the defendant in this case would have any means to meet a compensation order. If he does have money or assets, they can be seized to pay the order (Sentencing Act 1991 (Vic) s 87 and Confiscation Act 1997 (Vic)), but if he does not have assets, the order would not be satisfied.
The story in the Australian tells us that the victim has already received $14000 under the Victims of Crime Assistance Act 1996 (Vic). This Act establishes an ex gratia scheme to assist victims of crime, what that means is that the money is paid from the government, not because the government is responsible or liable for the crime but to support citizens affected by crime. The government can seek to recover that money from Sokaluk (Sentencing Act 1991 (NSW) s 87A). Further if a compensation order is made in favour of Ms Verghese it will be decreased by the amount she has received under the Victims of Crime Assistance Act (s 85I).
Even having received Victims of Crimes assistance and even if she is successful in an application for a compensation order, Ms Verghese could also bring a civil action for damages (Sentencing Act 1991 (NSW) s 85L) but any damages paid under that sort of action would require her to repay the amount already received or would be reduced by any other amounts received.
Michael Eburn
31 July 2013.
Australian Emergency Law 
Michael, I’m always intrigued by the intent behind such a proceeding. I’m going to go out on a limb and make an assumption that the defendant has minimal, if any assets, so I wonder what this will achieve? Time will tell, I guess…..
Luke, like you I think there is little chance that the defendant will be able to meet any order; but people bring legal actions for lots of reasons, not just the money; in fact the research says most claimants deny that ‘the money’ is the motivating factor. Other factors are the need to reveal the truth, the need to punish the wrongdoer and the need to be heard. We can’t know the motivation here, and we might think that given the Royal Commission and the defendant’s imprisonment that there is little to be discovered and punishment has been provided, but that doesn’t mean a person who has suffered a loss actually believes that or thinks its been enough. I suspect, and of course I’m merely speculating here, that one motivation is the desire to be heard and the desire to bring to the offenders’ attention what impact their action had; to actually look the offender in the eye and say ‘look what you’ve done’. People may hope that the defendant will be obviously uncomfortable, and break down when faced with the enormity of their consequences; but that probably rarely happens.
As with all legal proceedings they are controlled by lawyers and lawyers and the courts know that the only remedy they can give is money so they look for evidence of issues that can be quantified which can frustrate and upset people who are looking for these extra-legal results. Further, in this case, whether the offender will actually be able to understand the consequences of their action may be uncertain.
How people react to grief and loss is infinite; we can’t know what’s motivating the applicant here but I’m sure it’s not dollars alone (and like you I suspect that this may not be a financially sensible process) but it may help with other remedies. On the other hand, the applicant may go hoping that facing the offender will achieve something for her and her grief; whether that succeeds only she will know and only after the event.
Michael Eburn
Michael, I assume this action would not be free for the applicant to pursue????
No it would not be free; I’m not sure what the costs, if any, of lodging the application would be, but she would need to fund her own lawyers to gather the evidence to support her claims. Unlike an action in tort (negligence) liability will not be an issue, he’s been found guilty of the offence, but she will have to bring evidence to show her losses and that the court should make the order. The general rule here is that there is no order for costs, so if an order is made the offender is not also required to pay the costs of the application (s 85K).