A v & C v v L S
[2025] VCC 285
•24 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| A V & C V | Applicants |
| v | |
| L S | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2025 | |
DATE OF JUDGMENT: | 24 March 2025 | |
CASE MAY BE CITED AS: | A V & C V v L S | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 285 | |
REASONS FOR JUDGMENT
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Subject:Section 85B application
Catchwords: s85B application for compensation – two applicants – financial circumstances of offender – whether VOCAT awards ought be reduced from compensation order – special financial assistance award – pain and suffering – costs of the application
Legislation Cited: Sentencing Act 1991; Victims of Crime Assistance Act1996
Cases Cited:DPP v Energy Brix Australia Corporation Pty Ltd [2006] 14 VR 345; Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252; Tanner v Smart [2010] VSC 463; V1 v Xydias [2009] VSC 616 .; Cheng v Zhuang [2016] VSC 24; St Clair and Holmes v Jamieson [2019] VSC 57; DPP v Pain and Bush; Lambert and Paris v Pain [2019] VSC 728; H.G. v Pryse [2020] VCC 240; Commonwealth v Baume (1905) 2 CLR 405; Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450; Kaplan v Lee-Archer [2007] 15 VR 405
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant (CV) For the Applicant (AV) | Ms N Vallins Mr D Nguyen | Slater & Gordon Lawyers Shine Lawyers |
| For the Respondent | Mr C Wareham | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
1There are two applications before the court. In each, the applicants seek compensation pursuant to s85B of the Sentencing Act 1991 (the “SA”). Those applications arise from the criminal conduct of the respondent, Mr L. For his conduct, Mr L was sentenced to a term of three years’ imprisonment by her Honour Judge Hawkins on 2 March 2023. Subsequent to that, each applicant made claims pursuant to the Victims of Crime Assistance Act 1996 (“VOCAA”) and were awarded various amounts.
2In respect of the applications in this Court, the respondent accepts that each of the applications are in time and that both applicants have sustained injury as a direct result of his offending. Further, the respondent broadly accepted the calculation of the medical and like expenses, loss of earnings and special damages, as claimed by each applicant.
3As a result of those concessions, the issues in dispute crystalise to the following topics:
(a) what is the appropriate award for pain and suffering compensation?;
(b) should the Victims of Crime Assistance Tribunal (“VOCAT”) awards be deducted from any award of compensation in this Court?;
(c) were costs of the application recoverable by the applicants?
Relevant chronology
4The relevant charges and sentences associated with each charge are set out in the reasons of her Honour Judge Hawkins. Importantly, the relevant factual basis detailing the circumstances of the offending are recounted. I was informed by counsel that this was taken from an agreed summary read to the court at the time of plea. The parties were content for her Honour’s recounting of the circumstances of offending at paragraphs [6]-[20] of her Reasons for Sentence to be accepted as the factual basis for the applications currently before this Court. For this reason, it does not need to be set out again and I proceed on the basis of that recitation of the facts contained in her Honour’s reasons at paragraphs [6]-[20].
A consideration of the adult victim’s claim
5The adult victim (“AV”) was born in 1979 and is now 45 years of age. At the application she was not called to give evidence. A joint Court Book was tendered. In it, there was a Victim Impact Statement dated 11 October 2022, statements of her to police dated 29 December 2021 and 21 April 2022, and medical reports of her treating psychologist, Dr Peters, dated 28 November 2022 and 24 October 2023, and a medico-legal report of Dr Hacker, psychiatrist, dated 21 November 2023.
6The following is taken from this material.
7AV was born in Northern Ireland. She, her mother and maternal grandparents immigrated to Australia in about 1983. She seems to have had an unremarkable childhood in the sense she attended school to year 12, achieved well academically and had no discipline issues.[1] She played sport, had friends and worked part-time at Safeway and NAB.
[1]Joint Court Book (AV) (“JCB”) 130
8In 2002, she was in a relationship with Robert[2], who was to become her husband. He was a police officer. On his urging, she sat the police entrance exam and passed, joining the academy in October 2003. To complete her occupational history, she became a detective in 2009 and worked in the Crime Squad from then for five years in St Kilda.
[2] A pseudonym
9In 2014, she moved to the Crimes Investigation Unit. She remains in that position. She married Robert in 2015 and they have two children currently aged eight and six.
10Having regard to her Honour Judge Hawkins’ reasons, it is only briefly necessary to recount that Mr L came to live with Robert and AV in their rental property from 2005 to 2008. During that time, he installed a hidden camera in the bathroom and filmed AV. He downloaded that video and kept stills of the images. Some were circulated to others.
11Then, when AV and Robert moved to their own home from 2008-2010, Mr L would ocassionally attend their home after social netball. During this time, he installed a camera in the bathroom. From this he retrieved video and stills of AV which he downloaded and kept stills of the images. Some were circulated to others.
12It was on 15 December 2021 that the AV first became aware of the videos and the stills. Mr L was arrested in March 2022. AV had some time off work, which was preplanned. At this time, she recalled sleep difficulties, was tearful and lost her libido. Her first police statement dated December 2021 recounts that she was “shocked and horrified”. Her 2022 statement records that she felt “considerable distress and psychological harm”. It is relevant to note that she had been seeing Dr Peters in 2020 in relation to an assault at work which resulted in stress.[3] Dr Peters considered that there had been a full recovery from that assault.[4]
[3]JCB 142
[4]JCB 154
13In mid-2022, she returned to see Dr Peters and had seven sessions of counselling.[5]
[5]JCB 153
14In her report of October 2024, Dr Peters opined that she was now seeing the AV only on her initiation. At that time, AV reported almost daily triggering of emotional discomfort and increased flashbacks.[6] She continued to experience daily sleep disturbance, hypervigilance and concentration difficulties. This led to an overall finding that her symptoms were improving but she still had PTSD.[7] As at 28 November 2022, Dr Peters opined that “[AV] is experiencing moderate levels of anxiety and stress and currently displays symptoms of PTSD”.[8] This is similar to Dr Hacker’s opinion.[9] Both consider that she needs access to ongoing therapy.
[6]JCB 142
[7]JCB 144
[8]JCB 155
[9]JCB 139
15On the basis of that uncontested material, I find that the AV has an improving psychological state but that she remains with a chronic PTSD condition. She experiences almost daily triggering of underlying features of this condition. Dr Hacker states:
“The context of being stalked by a trusted friend and coworker had a profound and far reaching effect on [the AV’s] personal life and relationships but also a more far reaching extended impact into her day to day work life.”[10]
[10]JCB 138
16So while it might be said she has worked continuously, had no significant medication or treatment, I accept this is a deeply profound condition for her. On the basis of Dr Peters’ reporting, I find there is no pre-existing condition at play currently. Further, I find this condition is essentially permanent with only marginal improvement likely, given its longevity to date.
17In coming to a decision as to the appropriate amount to award in respect of pain and suffering compensation, I am mindful of the principles which operate in respect of s85B compensation. In DPP v Energy Brix Australia Corporation Pty Ltd [2006] 14 VR 345 at [30], [31] and [36], his Honour Vincent JA stated:
“30.It must be borne in mind that an award for compensation is not made as a form of punishment, but in an endeavour to address through the payment of money, the injury and loss sustained by the applicant. It follows that broadly the principles applicable to an appeal against an assessment of damages would be those to which the Court should direct attention. Nevertheless, the fact that that injury and loss has resulted from the commission of a crime cannot be ignored. …
31.The broad definition of ‘victim’, inclusion of the terms ‘grief, distress or trauma or other significant adverse effect’ within the definition of ‘injury’ and the extension of the notion of mental illness or disorder, beyond that recognized by the common law, which is suggested in s.85A(b), indicates that Parliament intended that the focus of attention should be placed upon the actual impact upon an applicant of the commission of the offence rather than whether that impact could be the subject of an award of common law damages. It follows that whilst some assistance could be derived from a comparison of awards made in other circumstances, care must be exercised to ensure that the possible differences are not overlooked. …
…
36.There is no and there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, and no method of conversion of a human emotion or psychological reaction to an amount of money exists. Clearly, widely differing views as to the appropriate award to be made in a given case can be held …”
18I was urged to consider a range of cases which might guide my decision as to the amount to be awarded by both parties. It was accepted that such case law does not operate to set a benchmark or yardstick and that each case must be looked at individually. I have particularly had regard to those cases at paragraph [72], in respect of AV’s submissions, and paragraph [6.5] of the respondent’s submissions.
19It is obvious, however, that the circumstances of this case are unique. For example, the actions of Mr L were those of a close personal friend violating the deep trust AV had in him. This is the basis for the profound, shattering effect his behaviour had, even though, in contrast to other cases, there was no physical aspect to his behaviour or death of a loved one.
20Having examined the medical material and the various statements of AV, I have determined to award the amount of $90,000 for pain and suffering. While an award of this nature is not susceptible to detailed analysis, the fact of AV’s ongoing ability to work, her lack of sustained treatment or medication regime and the moderation of her symptoms over time underpins my decision to award this amount.
Mr L’s financial position
21The respondent’s financial position is a matter which may be taken into account pursuant to s85H(1).[11] Here, the respondent submits that his only substantial asset is a unit which is valued at an amount between $600,000-$700,000. However, his affidavit and that of his mother’s reveals that, of this value, the sum of about $520,000 is owed to his mother to repay the loan used to purchase the property.
[11]Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 at [50]
22The respondent submits that in making awards to AV and the child victim (“CV”), regard must be had to his rehabilitative prospects and, to this extent, an award should not leave him in a state of penury, as this would adversely affect his rehabilitation.
23The starting point for consideration of this submission must be real certainty as to the true financial state of Mr L.[12]
[12] St Clair and Holmes v Jamieson [2019] VSC 57 at [38] – [39]
24Without that firm basis, the assessment of the potential for any award to detrimentally affect his rehabilitation is difficult to make.
25I accept the submission of CV at paragraph [61] of her submissions. There is a substantial deficit in the financial material said to establish Mr L’s financial position. Critically, the discharge of mortgage of the unit is said to be financed by a loan of $520,000 from his mother to Mr L.[13] While the loan agreement is provided, there is no exhibit material as to the mortgage, the outstanding discharge amount or documents to evidence the spending of that money.
[13]JCB 207 at [3] of the affidavit of B L 12 August 2024
26In addition, the affidavit of Mr L contains no documentary evidence to support the assertions made, and while Mr L was not cross-examined on this affidavit, it is almost impossible to truly understand how funds have been used by him since 2021.
27Additionally, Mr L is a middle aged, educated man with a long work history. He has served the majority of his sentence and could be expected to re-enter the community and workforce. Overall, I do not find that I have sufficient material to determine what, if any, burden on his rehabilitative prospects an award would have.
Deductions from s85B compensation for past VOCAT awards
28Section 85I of the Sentencing Act provides:
“Court must reduce compensation by amount of assistance under victims of crime legislation
If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of—
(a)any award made to the victim under the Victims of Crime Assistance Act 1996; or
(b)any assistance paid to the victim under the Victims of Crime (Financial Assistance Scheme) Act 2022—
for the expense or other matter for which compensation is being sought under this Subdivision.”
29There was debate between the parties as to what, if any, awards from VOCAT ought be deducted from s85B compensation awarded by this Court.
30The applicants made alternative submissions. Their primary contention was that only where there was a match between the VOCAT award for a head of damage and a s85B application for compensation, would that trigger s85I and a reduction would be required. The most obvious example occurs in respect of future medical and like expenses.
31In the VOCAT applications, awards had been made in respect of such amounts. In this case, compensation was sought for future medical and like expenses compensation. The applicants accepted that if they were successful in obtaining awards of future medical and like compensation in this Court, they would have to reduce the award in this Court by the amount received from VOCAT in respect of future medical and like expenses. They submitted that the text of s85I supported this interpretation. They specifically relied on the words in the Act which state that repayment was required “for the expense or other matter for which compensation is being sought under this subdivision”.
32Specifically though, the applicants submitted that the VOCAT awards of special financial assistance (SFA) were not a match for pain and suffering compensation in s85B applications and, as such, there was no requirement to reduce the pain and suffering compensation awarded by this Court by the SFA amount.
33In support of this argument, they relied on the objects of the VOCAA – which specifies that the purpose of the SFA awards are to express the community’s support of the victim.[14]
[14]Section 1 VOCAA
Section 1 Purpose and objectives of Act
(1) The purpose of this Act is to provide assistance to victims of crime.
(2) The objectives of this Act are—
(a) to assist victims of crime to recover from the crime by paying them financial assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct result of the crime; and
(b) to pay certain victims of crime financial assistance (including special financial assistance) as a symbolic expression by the State of the community's sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime; and
(c) to allow victims of crime to have recourse to financial assistance under this Act where compensation for the injury cannot be obtained from the offender or other sources.
(3) Awards of financial assistance (including special financial assistance) to victims of crime are not intended to reflect the level of compensation to which victims of crime may be entitled at common law or otherwise.
(4) The scheme provided by this Act is intended to complement other services provided by government to victims of crime.
34It was submitted the purpose and objectives of the Act made SFA distinct from a pain and suffering award under the SA. A further matter said to support that interpretation was the fact that the SFA is awarded in bands of fixed amounts referrable to the criminal conduct and not to the victim’s personal circumstance.
35Reliance overall was placed on Warren CJ’s decision in Xydias where Her Honour stated at [23]:
“None of the applications to the Tribunal include a claim for pain and suffering and this is not a head recoverable under the Victims of Crime Assistance Act. Accordingly, I am not required to reduce the award on this basis. (footnote omitted)”
36The respondent’s position was that all VOCAT awards had the effect of reducing the damages in this Court irrespective of whether there was a matching claim for compensation or not.
37Faced with that submission, the applicants made an alternative submission. They submitted that if all VOCAT awards were to be deducted then they would bring into this compensation application all claims which resulted in VOCAT awards. In this way, no matter what was deducted, their position would be no worse off.
38Dealing with the applicants’ primary submission, that only if they made a compensation claim in the s85B application that matched an award would s85I be triggered. To support that argument, the applicants relied primarily on the text of s85I. As can be seen, that section is titled “Court must reduce compensation by amount of ... any award ... under the Victims of Crime Assistance Act 1996”. The text of the section is then set out. The first part of the section reads:
“If a court decides to make a compensation order ...”
39This establishes the first criterion for the section. Obviously if no compensation is awarded in accordance with s85B, then no reduction from the compensation awarded by this Court will be required.
40The next part of the section is a duplicate of the title of the section:
“[The court] ... must reduce the amount of the compensation by the amount of—
(a) any award made to the victim under the [VOCAA] ...
...
for the expense or other matter for which compensation is being sought under this Subdivision.”[15]
[15]This being Subdivision 1, compensation for pain and suffering etc, sections 85A to 85M
41The respondent’s argument focuses on the words “any award” contained in the title and the initial part of the text of s85I. He submits this has a plain meaning that s85B compensation orders must be reduced by “any award”.[16] The respondent submits “any” is a broad word that is meant to capture all VOCAT awards. I reject that contention because it fails to account for the remainder of the text which follows, to conclude the section, being “for the expense or other matter for which compensation is being sought under this Subdivision.” All words of the section must be given purpose and meaning if the text is to be properly interpreted.[17] Those concluding words are words of limitation. They require reduction of the s85B compensation order where there has been a matching expense or claim awarded in VOCAT. This interpretation is specifically supported by authority on the topic most in contention between the parties: that of whether special financial assistance (“SFA”) awarded by VOCAT results in a reduction in the compensation ordered by this Court.
[16]Respondent’s submissions at paragraph 4.9
[17] Commonwealth v Baume (1905) 2 CLR 405 at 414
42Much attention was focused on this debate. The applicants relied heavily on a decision of the Chief Justice in the matter of Xydias. In that case, five applicants sought s85B compensation arising from a series of rapes and indecent assaults perpetrated upon them by the respondent. Some of the applicants had applied to VOCAT, and some payments had been made to them.[18] It is not clear whether those claims included applications for SFA. In this context, the Chief Justice made the obiter comments on which the applicants rely and set out at [35] above.
[18]Xydias at paragraph [23]
43It is unclear from the facts in Xydias if the issue of s85B compensation being reduced by SFA amounts was in contention. Other authority which the applicants rely on stems from this Court and, while persuasive, are not binding.
44The applicants refer to Xydias but do not seem to grapple with other VSC authority more directly on point. This starts with Tanner v Smart [2010] VSC 463. In that case, the parents and brother of a manslaughter victim made s85B claims. Each of the parents and the brother were awarded amounts in VOCAT. The issue of the interaction between the VOCAT awards and the s85B compensation had to be considered by Lasry J. He was taken to Xydias. He considered it as part of his examination of the issue, and stated:
“As Warren CJ observed in V1 v Xydias, pain and suffering is not a head recoverable under the Victims of Crime Assistance Act 1996. However, given that the applications before me were put solely on the basis of pain and suffering and the applicants’ awards from VOCAT were for distress, there is a “doubling up”, therefore I am required to reduce the quantum of compensation to each of the applicants commensurate with their VOCAT awards.”[19]
[19]Tanner v Smart [2010] VSC 463, paragraph [9]
45Next, in Cheng v Zhuang [2016] VSC 24, his Honour Kaye J dealt with the issue briefly. In that case, Ms Cheng claimed s85B compensation for pain and suffering arising from the death of her daughter who was killed by the respondent in May 2012. She received VOCAT awards which Kaye J deducted from the s85B award he made.[20] The force of this authority is somewhat diluted because it is not apparent if SFA payments made up a part of the VOCAT award.
[20]Cheng v Zhuang [2016] VSC 24, paragraph [34]
46In St Clair and Holmes v Jamieson [2019] VSC 57, Bell J dealt with s85B applications for Ms St Clair and her brother Mr Holmes: three members of their family had been murdered by one Jamieson. In recounting the principles to be applied in relation to s85I, his Honour stated:
“Under s 85I, the court must reduce compensation by any amount awarded under the Victims of Crime Assistance Act 1996 (Vic) ‘for the expense or other matter for which compensation is being sought’ under s 85B. That is fair, for otherwise there would be double compensation. This will be most relevant in relation to awards for pain and suffering under s 85B(2)(a) where an award for distress has been made under the Victims of Crime Assistance Act, for that is clear case of double-up. Where awards are made under that Act for expenses, they may not double-up with awards made under s 85B(2)(b)–(d) of the Sentencing Act and therefore may not need to be deducted. It will depend on ‘the expenses or other matter for which compensation’ (s85I) is being sought, as compared with what was awarded under the Victims of Crime Assistance Act. To apply s 85I, the court first assesses the amount of compensation for pain and suffering (and any eligible expenses) that is appropriate without reference to, and then reduces the amount actually to be ordered by, any award made under the Victims of Crime Assistance Act.”[21]
[21]St Clair and Holmes v Jamieson [2019] VSC 57, paragraph [15]
47In that case, Ms St Clair and Mr Holmes had been awarded $30,000 each for distress under VOCAT, and his Honour deducted these amounts from the compensation order he made.[22] Given the direct consideration of the issue by his Honour at first blush, this stands as solid authority in support of the respondent’s contention, I consider. However, it will be noted his Honour referred to VOCAT ordering a payment for “distress”. Whether this is a synonym for SFA is unclear. I will return to this point.
[22]Ibid, paragraphs [30], [34] and [41]
48Next, in DPP v Pain and Bush; Lambert and Paris v Pain [2019] VSC 728. His Honour Croucher J was dealing with the murder of Mr Paris at the hand of Mr Pain. Ms Lambert was the wife of Mr Paris, and Ms Paris was the deceased’s mother. They both filed applications pursuant to s85B for compensation. Both Ms Lambert and Ms Paris had received VOCAT awards.[23]
[23]See paragraphs [238]–[241] and particularly footnotes 50 and 51, which state that Ms Lambert and Ms Paris received VOCAT awards for distress
49Croucher J specifically noted that payments for “distress” awarded in VOCAT had the effect of reducing the s85B awards in this regard. Stopping and considering St Clair in light of this, it could be said that Bell J was only commenting on a requirement to reduce the s85B compensation in circumstances where an award for “distress” was made. Such awards can be made in accordance with s13(1) of the VOCAA for related victims. This stands in contrast to an award for SFA which is made in accordance with s8A for primary victims. It is to be remembered that in this application both applicants had received awards under the SFA provision as primary victims. Section 13 permits payments of up to $50,000 where the applicant experiences distress as a direct result of the death of the primary victim.[24]
[24]Section 13(2)(c)
50It could be suggested that Bell J was specifically commenting that payments under s13(2)(c) had to be deducted from s85B(2)(a) awards, rather than dealing with payments for SFA under s8. Considering the cases just traversed, in light of that argument, it can be seen that in Xydias there is no indication of what amount for “distress” under s13, if any, was awarded.
51In Tanner the awards were specifically said to be for “distress”, but no mention of whether the award was made under s13 or in respect of SFA under s8A. However, the awards were in the amounts of $10,000 and $7,500. These seem to mirror the amounts awarded in s8A(4) SFA, which set the category A award maximum at $10,000. However the victims were related victims and as such could only receive compensation pursuant to s13. In Zhuang there was a VOCAT award of $15,000. Whether this was pursuant to s13 or an SFA payment in accordance with s8A is unclear. However, the fact that it was in excess of the category A SFA payment seems to suggest that it was not and was a s13 payment.
52In St Clair the amounts awarded to Ms St Clair and Mr Holmes was $30,000 each. Both were related victims. It is not specified whether this was pursuant to s13 or an SFA payment in accordance with s8A. However, the award amount of $30,000 is clearly in excess of the maximum amount involved in an SFA payment. This strongly suggests it was a s13 payment which was deducted. This supports an argument that his Honour Bell J was making comments confined to situations where a s13 payment had to be deducted from the compensation awarded under s85B and not making that automatically applicable to SFA awards.
53In Paris and Lambert, Ms Paris received a VOCAT award of $10,000 and Ms Lambert some $33,000. Croucher J noted both awards were for “distress”, though did not specify whether the payment was pursuant to s13 or s8A. However, both Ms Paris and Ms Lambert were related victims and could not recover SFA under s8A. They could only recover under s13.
54Given the above, it seems that:
a)Section 13 VOCAA payments for “distress” must be deducted from s85B compensation where pain and suffering is awarded.
b)It is undecided if s8A SFA payments have to be deducted from s85B where pain and suffering is awarded.
55Section 8A of the VOCAA states:
“Special financial assistance to primary victims for significant adverse effects
(1) Without limiting persons who are primary victims by virtue of section 7, for the purposes of this section a person is also a primary victim of an act of violence if he or she experiences or suffers any significant adverse effect as a direct result of an act of violence committed against him or her.”
56The term “significant adverse effect” is defined in the Act to mean:
“in relation to a victim of an act of violence, includes any grief, distress, trauma or injury experienced or suffered by the victim as a direct result of the act of violence but does not include any loss of, or damage to, property”.
57In interpreting this section, the applicants rely on the objects of the Act which, inter alia, state (s1(2)(b)) that such payments are made:
“as a symbolic expression by the state of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced or suffered by them as victims of crime.”
58This is called in aid to argue that SFA payments are not a match to a pain and suffering award in a s85B Sentencing Act claim and therefore should not be factored into the s85B award. There is some force in this argument, because it could be thought a claimant ought not be adversely affected by the state’s expression of the community’s sympathy – but rather should receive fair and just compensation on common law principles in addition to the community’s symbolic payment.
59To this, the respondent submits that this is the very reason s85I is drawn using the wide words “any award”. This is to draw in SFA payments to the final calculations made at the time of the s85B award. In support of that contention they rely on H.G. v Pryse.[25] In that case an ex gratia payment made by the OPP to the victim due to a delay in trial was used to reduce the s85B award.[26] His Honour Judge Lacava did not explain the reason for drawing in the ex gratia payment, nor does it appear that there was any debate about the issue. For this reason it is hard to draw any particular ratio from it to inform this debate.
[25] [2020] VCC 240
[26]His Honour Judge Lacava at paragraph [10]
60More importantly, however, the text of the Act seems to me to use a consistent term across both s8A SFA payments and again at s13; that is the term “distress”. In the interpretation of a statute, words should be given a consistent meaning.[27] In this circumstance that tends towards an indication that where a payment is made in respect of distress, it ought be factored into the s85B calculation in the way that has been done in the Supreme Court.
[27] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452
61The point is not clear, however the applicants’ arguments before me do not appear to have been ventilated in the Supreme Court proceedings referred to above.
62Overall I consider the preferrable interpretation to be that only s13 awards are to be deducted from s85B compensation for pain and suffering. Section 8A is applicable only to primary victims. It applies where that primary victim suffers “any significant adverse effect…” That term includes a payment for “distress” in the context of that section. While words in a statute are to be given the same meaning,[28] I consider that the context of this section, in which the term is used, differs substantially to the terms of s13. First s13 does not utilise the term “significant adverse effect.” Quite clearly the drafter made a distinction in the way the two sections approached compensation to victims. Second and to this end, the sections deal with different categories of claimants: s8A being directed to primary victims and s13 directed to related victims for a wider category of effects than just distress. As stated previously this permits an award in set bands to, in part, reflect community sympathy. This reinforces my view that s8A payments are not a match for s85B compensation for pain and suffering. As a result they are not to act to reduce the s85B award under s85I.
[28] Ibid
A consideration of CV’s claim
63I respectfully adopt the reasons of her Honour Judge Hawkins at paragraphs [6]-[20] of her Reasons for Sentence to establish the factual basis on which the application proceeds.
64Briefly, Mr L concealed an optical recording device in the bedroom of his then 13 year old step-daughter. The device recorded CV in various states of undress. Three separate digital files were created by Mr L.
65CV was born in October 2007, to parents who were both police officers. Her parents separated and, in about 2016, divorced. In about 2017, her mother purchased a house in South Yarra and she moved to live primarily with her. At around this time, Mr L began assisting with pick ups and drop offs for CV to and from school. At around the age of 11, that is in 2018, Mr L became her mother’s partner. He began living with her and CV.
66At some point after that time, Mr L installed the recording device in CV’s bedroom and the offending then began to occur. However, it was only in about early 2022 that her mother found out about the offending. At that point, Mr L was turned out of the home. He left the police force and began working as a manager at the local IGA store, which just happened to be under the apartment block that she and her mother lived in. Ultimately, an IVO was taken out against him.
67The video recordings, it appears, had begun in about September 2021.
68In support of her application for compensation, two Victim Impact Statements, a psychologist’s report of Ms Cameron dated 29 August 2022, and a report of Dr Jayarajah dated 25 January 2024 were filed. The following recounting is taken from that material.
69By way of relevant past medical history, CV used to cut herself every night with a razorblade on her ankles and wrists from Year 7 in 2020 until March 2022. That predated knowledge of the incident with Mr L.
70In about December 2021, she had begun seeing a counsellor in relation to stressors associated with the separation of her parents.[29]
[29]JCB (CV) 54
71In her first Victim Impact Statement, CV described that when she first learned of what occurred:
“When this first happened I was in shock; I felt frustrated and sad. I felt violated and disgusted with myself. I felt frightened to close my eyes. My bedroom and my home didn’t feel safe. I felt so physically ill with myself that I started to cut at my ankles and my body because I hated the sight of it. I cut so deep that I needed stitches. These scars will remain on me forever and will be a memory of what he did. I also stopped eating to change the body that he saw; to be a different person to the one he remembered. I couldn’t sleep or eat. Every time I closed my eyes I got paranoid and scared. It was difficult to leave my house or go near school. I was frightened and traumatised. I couldn’t leave my bed or do anything I enjoyed like reading or hanging out with my friends.”[30]
[30]JCB (CV) 50
72Her counsellor recorded that in early 2022, when Mr L’s offending was disclosed, this had a significant effect on CV’s mental health. She recorded:
“[CV] felt violated. As a result, she has lost trust in her guardians and feels unsafe in this world. [CV]’s anxiety has escalated; her sleep patterns have worsened and when she sleeps, she has nightmares. [CV] has self-harmed and has negative thoughts regarding her future.”
73She recorded that schooling became difficult, as did participation in her favourite hobbies of sports, reading and social activities with her friends. She considered, as of mid-2022, that counselling sessions would be required on a weekly to fortnightly basis over a long period of time.
74Dr Jayarajah recorded that during 2023 her eating disorder worsened. She had had no more episodes of self-harming after the initial one in August 2021. By mid-2023, she had returned to school on a more normal basis and had started socialising with her friends. At the time of the consult with Dr Jayarajah in January 2024, CV indicated that she felt she had a good future and did not think negatively about the events.[31]
[31]JCB (CV) 126
75She did, however, record ongoing feelings of not being able to trust people anymore, feeling unsafe and violated by what Mr L had done. Overall, it was considered that her mental state had now become more stable. Her recounting of her current symptoms reveals that she is now able to enjoy going to the beach, seeing friends and reading. She experiences panic attacks once every two weeks triggered by watching TV or a movie.[32]
[32]JCB (CV) 126
76Her sleep remains poor and, according to her, is “terrible”. She experiences nightmares most nights of Mr L taking videos of her. Her appetite remains poor but she is now eating normally, not vomiting or restricting her consumption. Her energy levels and motivation are described as good, despite her lack of sleep. Her trauma symptoms continue to include flashbacks and reliving experiences daily, but she described them as being of brief moment. Some of the flashbacks involve those of the self-harm that she has done. She is generally hypervigilant. There is very occasional fleeting suicidal ideation with no intent.
77She is not taking any medication and does not regularly consult with a psychiatrist or psychologist. She does, however, have a referral to commence therapy with a different psychologist than Ms Cameron but has not fulfilled it yet. Currently, there are no changes planned to her treatment.
78As at January 2024, she was working part-time, attending school full-time and seemed to socialise normally. Dr Jayarajah’s conclusion after mental state examination was that there was an ongoing PTSD and an exacerbation of persistent depressive disorder relevant to the claimed abuse.[33] It was recommended she have psychological therapy on a fortnightly basis for six months, and then monthly to six weekly sessions for a further 6-12 months, once stabilisation has been achieved.
[33]JCB (CV) 131
79Dr Jayarajah also recommended eye movement desensitisation and reprocessing therapy, 6-12 sessions weekly to fortnightly at $250 per session. In addition, outpatient group therapy might also be thought to be useful.
80There is, however, a notation in Dr Jayarajah’s report that CV’s psychiatric injury has not substantially stabilised and is likely to improve with further treatment. Though it is unlikely to remit completely, she makes the point that there is further improvement which is likely to occur.[34] I would accept for a child claimant an amount for medication of $30 a month for 2 and a half years ought be allowed given the persistence of symptoms to date.
[34]JCB (CV) 137
81Relying on these materials and with reference to the general principles as to the award of pain and suffering compensation, I consider an award in the sum of $140,000 is appropriate. This is primarily because of the young age of CV at the time of the offending by a close figure who was in the role of her step-father. His behaviour breached the fundamental trust that a child has for a step-parent, particularly one with whom she had a good relationship. The initial period during which she cut herself, had worsening depression and anorexia, was undoubtedly traumatic. She has made some recovery from that and is likely to do so further. However, Dr Jayarajah’s opinion makes it apparent that this will be a condition which has long-lasting permanent effects. That is a significant burden to carry for a young person with a long life ahead of them.
82For the reasons above, I would allow the sum of $140,000 by way of pain and suffering, and I would allow the sum of $11,200 for future medical and like expenses less the amount awarded in VOCAT.
83For the adult victim I have found she has a chronic PTSD condition and her symptoms are improving as of October 2023. Given the longevity of her condition, I have determined to award the amount of $90,000 for pain and suffering. I will allow the sum of $18,000 for future medical and like expenses less the amount awarded in VOCAT.
Costs of the proceeding
84Parties were invited to file submissions as to the costs associated with;
a)the hearing;
b)the application to reopen; and
c)the further submissions filed as to the reopening and the substantive point in respect of the applicability of s85I of the Sentencing Act.
85Section 85K of the Sentencing Act 1991 states:
“Costs of proceeding
Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.”[35]
[35] Section 85K Sentencing Act 1991 (Vic)
86The applicant for CV submitted that costs incurred as part of re-opening the case should not be awarded against the applicant or her solicitors. The applicant (CV) does not seek any costs from the respondent in respect of the further submissions filed on the re-opening application and substantive legal point. The applicant for AV submitted that each party ought bear their own costs associated with the re-opening of the case. Further, it submits no order for costs ought be made against her as the application to re-open was made by the other applicant (CV). The respondent ultimately seeks there be no order as to costs in the substantive hearing, and that the costs in respect to the re-opening of the hearing are sought against the applicant for CV.
87In Kaplan v Lee-Archer, Nettle JA stated that “the method of s 85B is to provide a quick low cost mechanism for the victim to recover compensation.” [36] Having heard this application in court which took place for half a day’s hearing time, with one issue in contention, being whether the VOCAT awards ought be reduced from the s85B award, and considering further written submissions on this point, I find that the straightforward nature of the case does not warrant an award for costs and each party ought bear their own costs.
[36] [2007] 15 VR 405 at [60]
88For these reasons, I order that each party bear their own costs in respect of both the substantive s85B application and the application to re-open the case.
89Parties are to file orders giving effect to the above reasons in 7 days.
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