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Supreme Court 27 July 2017

R v Meakin (No. 4)

[2017] NSWSC 999

Homicide
CRIMINAL LAW VICTIMS COMPENSATION VICTIMS RIGHTS AND SUPPORT ACT 2013 APPLICATION BY PARENTS FUNERAL COSTS LOSS OF WAGES

Citation: R v Meakin (No. 4) [2017] NSWSC 999
Court: Supreme Court of New South Wales
Date: 27 July 2017
Judge: Davies J

Background

A jury convicted the defendant in August 2016 of murdering Nicholas McEvoy by deliberately driving a van at him as he walked along a nature strip at Glendenning. The defendant was sentenced to 24 years' imprisonment with an 18-year non-parole period.

Following conviction and sentence, the Crown applied on behalf of the deceased's parents, Terence and Marie McEvoy, for compensation under Part 6 of the Victims Rights and Support Act 2013 (NSW). The parents had previously sought victim support payments under Part 4 of the same Act, but those applications were refused because the injury arose from a motor accident, which is an excluded category under the Act.

The parents claimed compensation for funeral and associated expenses, and for wages lost while attending police interviews, preparing victim impact statements, and attending court proceedings throughout the trial and sentence.

  • Whether the parents qualified as "aggrieved persons" who had sustained loss "by reason of" the offence under sections 96 and 97 of the Victims Rights and Support Act 2013 (NSW)
  • Whether the specific losses claimed (funeral costs and lost wages) were causally connected to the offence and recoverable under the Act
  • Whether the defendant's impecuniosity was a reason to decline making a compensation direction
  • What weight to give the defendant's financial position, his potential for future employment, and the length of his sentence when determining the appropriate order

Decision

Davies J found that both parents were aggrieved persons within the meaning of the Act and had sustained economic loss by reason of the murder. The funeral costs, totalling $20,280, were proven by receipts and invoices attached to Mrs McEvoy's affidavit. The lost wages claims, covering 32 days each for attendance at police stations, preparation of victim impact statements, and court attendances, were accepted as reasonable.

On the question of the defendant's financial position, the court applied the principle confirmed in Connor v R [2005] NSWCCA 431: an offender's asserted impecuniosity is not ordinarily a reason to decline making a compensation direction. Financial circumstances can change through rehabilitation, employment, or good fortune, and claimed impecuniosity may later be shown to be false. The defendant's own affidavit disclosed minimal assets and a prison income of $41 per week, but the court noted he would be eligible for parole at 65 years of age with no apparent impediment to future employment.

The court also considered the factors in section 99 of the Act. Under section 99(a), the court took into account its earlier sentencing findings that the defendant was the aggressor, deliberately used his van as a weapon, and left the victim to die on the nature strip. No civil proceedings had been brought by the parents, so section 99(b) was not relevant. The court was satisfied that the amounts claimed were reasonable in all the circumstances.

Under section 9 of the Criminal Appeal Act 1912 (NSW), the orders were to be suspended upon the filing of a notice of intention to appeal. The defendant had filed such a notice, expiring 30 August 2017, meaning the orders would be suspended at least until that date.

Orders Made

  • The defendant to pay $25,792 out of his property to Marie McEvoy by way of compensation for loss sustained by reason of the murder of Nicholas McEvoy.
  • The defendant to pay $10,147 out of his property to Terence McEvoy on the same basis.

Key Takeaways

  • Under section 97 of the Victims Rights and Support Act 2013 (NSW), a court that convicts a person of an offence may direct payment of compensation from the offender's property to an aggrieved person for economic loss causally connected to the offence.
  • A causal link between the claimed loss and the offence must be established, with the civil standard of proof applying, given the nature of the orders is akin to civil compensation.
  • An offender's asserted impecuniosity is not ordinarily a sufficient reason to decline making a compensation direction. Future changes in financial circumstances, including post-release employment, are legitimate considerations (confirming the approach in Connor v R).
  • Funeral expenses and lost wages incurred in attending police interviews and court proceedings by immediate family members of a murder victim can constitute recoverable "loss" within the meaning of the Act.
  • The Part 6 court-based compensation scheme operates as an alternative to the Part 4 victim support scheme, and may be available even where a family member has been excluded from Part 4 payments on other grounds (here, because the death arose from a motor accident).

Legislation and Cases Referenced

Legislation
- Victims Rights and Support Act 2013 (NSW), ss 25, 29, 91, 96, 97, 99
- Victims Support and Rehabilitation Act 1996 (NSW) (predecessor legislation)
- Criminal Appeal Act 1912 (NSW), s 9
- Motor Accidents Compensation Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389
- 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