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.