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IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CIVIL DIVISION
Case No. CR-13-01796
KAORI ASANA (A PSEUDONYM)
Applicant
v
JOHN GRIMA
Respondent
---
JUDGE:
HER HONOUR JUDGE CAMPTON
WHERE HELD:
Melbourne
DATE OF HEARING:
DATE OF JUDGMENT:
25 May 2015
CASE MAY BE CITED AS:
Kaori Asana v Grima
MEDIUM NEUTRAL CITATION:
[2015] VCC 655
COMPENSATION ORDER UNDER
s85B Sentencing Act 1991
--Subject:- Compensation for Victim of Crime-Intentionally Causing Serious InjuryContravening Family Violence Intervention Order-Assessment of Pain and Suffering
Catchwords: Family Violence-Crimes Compensation
Legislation Cited: Sentencing Act 1991 s 85B
Cases Cited: Stevens v Baxter [2009] VSCA 257
Judgment: Compensation of $80,000
APPEARANCES:
Counsel
Solicitors
For the Applicant
For the Respondent
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
!Und efined Boo km ar k, I
HER HONOUR:
Background
1
On 29 September 2014, the respondent pleaded guilty to one charge of
intentionally causing serious injury to Kaori Asana and to one charge of
contravening a family violence intervention order. On 9 October 2014, he was
sentenced to six years' imprisonment with a non-parole period of four years.
2
The applicant brings this application for compensation for pain and suffering as
a result of these crimes committed against her pursuant to s85B of the
Sentencing Act (the Act). S85B(1) of the Act provides that if a Court convicts a
person of an offence it may, on the application of a person experiencing pain or
suffering as a result of the offence, order the offender to pay any compensation
for the pain and suffering that the Court thinks fit.
3
The detailed circumstances of the offending are contained in the sentence I
imposed on the respondent on 9 October 2014. It is not necessary for me to
set them out again in extensive detail. It is sufficient to say that between 16 and
20 April 2013 the respondent, physically assaulted the applicant at their home
address. The assaults took place over four days. They were of a savage and
sustained nature; and included the respondent:

punching and kicking the applicant in the face;

pinning her down and trying to gorge her eyes;

grabbing her arm and biting her on the arm;

grabbing her by the hair and yanking at her head;

smashing her head against a wall;

using his knees to assault her; and

using a meat tenderiser to hit her on the legs and buttock until she passed
out.
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4
As well as these physical assaults, the respondent threatened and verbally
insulted the applicant. He threatened to cut her tongue out; referred to her as
being dumb; and told her that her family and children all hated her.
5
At the time he assaulted the applicant, the respondent was subject to an
intervention order prohibiting him from committing family violence against her.
The intervention order was granted to the applicant on 13 December 2012 at
the Magistrates’ Court at Broadmeadows.
Physical injuries
6
When the applicant eventually escaped the house, she was taken by a
neighbour and friend to the police station and then to the Royal Melbourne
Hospital. Dr Elizabeth King conducted a physical examination during which she
observed:

extensive deep purpled black bruising over the applicant’s bilateral
forehead, eyes, cheek, jaw and right shoulder;

bruising behind her ears and to the forearms;

an extensive right-sided temporal conjunctival haemorrhage, and a left eye
lacrimal nasal and temporal conjunctival haemorrhage; and

scratches to the right arm and bloodied scabs on the legs consistent with
a meat tenderiser being used.
7
Dr King’s diagnosis was a soft tissue neck injury; a right frontal petechial brain
haemorrhage; lipase rise likely to be traumatic; and multiple rib fractures, acute
and chronic.
8
The applicant was also seen by Dr Maaike Molle on 20 April 2013. His findings
on physical examination of the applicant were much the same as those of
Dr King. In his report, he described various elements of the injuries as being
consistent with blunt force trauma at various times and as defensive in nature.
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In his opinion the injuries were significant and potentially life threatening.
9
In her affidavit supporting this application, the applicant states that she suffered
significant pain and suffering as a result of the offending against her. She has
scarring on her body from her legs all the way to her face. These scars are a
constant reminder to her of what she has been through. She cannot cover them
all as this would necessitate covering herself from head to toe. When it gets
hot in summer, she struggles to know what to wear as her legs, arms, back and
face are the worst. She feels like her old self does not exist anymore. When
she looks in the mirror she is constantly reliving what happened to her because
her body is covered in reminders. Her jaw and ribs still ache and she has to
cover her face in make up to cover the scarring.
Emotional injuries
10
With respect to her emotional state, the applicant stated that she is still
struggling to come to terms with what happened.
She is confused and
struggle’s to believe that the abuse happened by the hands of the person whom
she believed she loved and was loved in return. She is engaging in regular
counselling with a psychologist to help her to come to terms with the depression
and anxiety that has overwhelmed her. She struggles to sleep and when does
so, she sometimes relives the crimes that were committed against her.
11
The crimes have also affected the applicant’s relationship with her family. They
feared they would lose her. Her father and mother are constantly worried about
her and it hurts her to know this. Her daughter is only twelve years old and
seeing her mother in hospital was terrifying for her. Her daughter felt like she
had almost lost her mother and blamed herself to some extent for not protecting
her mother. The applicant stated that as a mother “it felt like torture hearing this
kind of thing from her child”.
12
On a more positive note, the applicant is currently resuming her career in aged
care as a personal care attendant. However, this is after many months of
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delaying her career due to being physically limited in her capacity to care for
her patients.
13
The applicant also relied on a counselling report from Imelda Westworth a
psychologist. In her report dated 4 July 2013, Ms Westworth concluded that the
symptoms of post-traumatic stress, and depression and anxiety suffered by the
applicant were the result of the physical and emotional abuse that she was
subjected to throughout her 18 month relationship with the respondent.
14
Ms Westworth considered that “the threat to the applicant’s life and being locked
in a room for days in April 2013 had a significant impact on her. It was likely
that the recent abuse had exacerbated her pre-existing symptoms of anxiety
and depression that she experienced following sexual abuse she suffered as a
child”. The report recommended a further 12 counselling sessions.
Financial circumstances of the respondent
15
The respondent is currently serving his sentence at the Marngoneet
Correctional centre. He has served 15 months of his sentence and has 32
months until his earliest possible release date.
16
s85(H) of the Act provides that
(1) If a Court decides to make an order it may in determining the amount of
the compensation take into account as far as practical the financial
circumstances of the offender and nature of the burden its payment will
impose.
17
The respondent’s financial situation is detailed in his affidavit of April 2015. Prior
to his incarceration the respondent had not worked in paid employment since
the beginning of 2012. He worked up until then on a contractual basis as
required, installing car audio systems.
In early 2012 he developed bad
depression and was unable to work.
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18
While he was not working, the respondent’s income was confined to TAC
payments he received due to his wife’s death in a road accident in 2010. He
claimed that he had no investments, shares, cars or money standing in any
bank accounts. He earned $28 per week in prison industries and had $200
deposited into his prison account per month by his parents.
19
However, when he was cross-examined, the respondent agreed that there
could be money in his Commonwealth Bank account. He could not say how
much there was but could not dispute that there was about $22,000 in the
account.
20
The respondent claims that his only asset is a residential property at 5 Vaucluse
Avenue, Gladstone Park, which is subject to a restraining order imposed by
Judge Cohen on 1 October 2013. The respondent bought the Gladstone Park
property in 2000 for $205,000. He paid a deposit of $15,000 with savings and
obtained a mortgage over the property for $190,000.
21
The respondent estimated that the property is now worth approximately
$205,000. However, when he was cross-examined, the respondent agreed that
based on sales of similar three bedroomed houses in the area, it could be worth
between $300,000 to $360,000. The rate certificate showed an improved value
of $337,000.
22
The mortgage over the property is approximately $205,000 as the respondent
extended it in 2005, in order to purchase a new car and pay bills. His current
partner currently resides in the Gladstone Park property.
She pays the
mortgage, of approximately $1,500, in lieu of rent. The respondent’s parent’s
pay all the outgoing bills on the property.
Debt to parents
23
The respondent claims that he owes his parents $250,000. This is because he
borrowed approximately $150,000 from his parents in relation to legal
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proceedings in 2007/2008. In addition he borrowed a further sum of
approximately $100,000 with respect to legal representation in relation to the
current criminal proceedings.
24
When he was cross-examined the respondent agreed that there was no
documentation with respect to these loans. His evidence was that there was a
verbal agreement between them. The agreement was that he would repay the
loan when he sold the property.
25
In approximately 2010 the respondent’s parents took out a caveat over the
property to secure their interest due to the claimed loan. They have also made
an exclusion application on the basis of their interest in the property.
Submissions of Counsel
26
Counsel for the Applicant sought compensation of $100,000. He submitted
that:

The injuries suffered by the applicant were considerable and had been
inflicted over a number of days.

The respondent had the ability to obtain gainful employment once he left
prison as he had worked for periods in the past.

The respondent had an asset he could sell or borrow money on, being the
Gladstone Park property which was worth between $300,000 to $360,000.
The Award
27
In Stevens v Baxter [2009] VSC 257 at para 5, Forrest J distilled the general
principles applicable to an application of this kind. They are as follows.
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
The determination of the amount of compensation to be paid to an
applicant is entirely within the discretion of the court provided that
the claim falls within categories set out under s85B(2).

An order for compensation is determined by the application where
relevant of common law principles. However, the order itself is one
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of compensation, not damages.
28

Where a claim for pain and suffering is maintained, it must be a
direct result of the offence.

The Act does not permit an award for either aggravated or
exemplary damages which may be sought in a separate civil claim.

Expenses, medical or otherwise, actually incurred and reasonably
likely to be incurred may be the subject of a compensation order.

Unlike a common law claim for damages, the financial
circumstances of the offender are relevant.

A court is not obliged to reduce the amount of compensation
payable on the basis of an offender’s financial circumstances. It is
relevant but not a controlling consideration.
In awarding the applicant compensation of $80,000 I have taken the above
considerations into account. The compensation awarded is with respect to the
pain and suffering the applicant endured as a result of the respondents
offending between 16 April and 20 April 2013. In awarding compensation in so
far as is practical I have taken into account the respondent’s financial
circumstances.
29
With respect to the submission that there was no up to date medical reports
with regard to the applicant’s physical injuries, it was apparent from the medical
reports tendered at the plea hearing that they were severe and potentially life
threatening.
30
In the photographs tendered to the court the applicant looked like she had been
in a major car accident. She was hospitalised for 10 days due to the extent of
her injuries. She has been left with scars which are a constant reminder to her
of the ordeal.
31
The applicant suffered physical and emotional abuse from a person she
believed loved her. As well as her physical injuries, the applicant has suffered
significant emotional trauma and it is clear from the material before the court
that she is still struggling to come to terms with what happened to her.
32
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The applicant has received the sum of $10,000 from the Victims of Crime
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Assistance Tribunal which sum is to be subtracted from the sum of $80,000.
This leaves a balance of $70,000 .Pursuant to s85B of the act I order that the
respondent pay the applicant compensation of $70,000.
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