AA (a pseudonym) v Cooper
[2015] VCC 185
•5 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| “AA” (a pseudonym) | Applicant |
| v | |
| SIMON MITCHELL COOPER | Respondent |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 23 February 2015 | |
DATE OF JUDGMENT: | 5 March 2015 | |
CASE MAY BE CITED AS: | AA (a pseudonym) v Cooper | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 185 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991 – Post-Traumatic Stress Disorder/Major Depressive Disorder as a result of sexual assaults – nature and extent of psychological injury – whether injury “a direct result” of the assault – relevance of financial circumstances of respondent – assessment of damages – past and future medical and like expenses
Legislation Cited: Sentencing Act 1991, s85B; Victims of Crime Assistance Act 1996
Cases Cited:Director of Public Prosecutions v Cooper [2013] VCC 1763; Stevens v Baxter [2009] VSC 257; RK v Mirik[2009] VSC 14; Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345; Esso Australia Pty Ltd v Robertson [2005] VSCA 138; Kaplan v Leigh-Archer (2007) 15 VR 405; Martin v Crimes Compensation Tribunal (1995) 8 VAR 39; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Savage v Crimes Compensation Tribunal [1990] VR 96; Weld-Blundell v Stephens [1920] AC 956; Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 222; Chalmers v Liang [2011] VSCA 439; R v Forde [2008] VCC 3; KBJ, AJJ & Ors v WS (Ruling) [2013] VCC 1029; Cahill v Goulopoulos (unreported, VCC, 27 November 2013); Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252
Judgment: Respondent to pay the applicant $65,000 compensation for pain and suffering, together with costs of past and future medical treatment.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Seccull | Waller Legal |
| For the Respondent | Mr J Conquest | Galbally & O’Bryan |
HIS HONOUR:
Preliminary
1 This is an application for compensation pursuant to the provisions of s85B of the Sentencing Act 1991 (“the Act”). The application is brought by “AA” (a pseudonym) (“the applicant”) against Mr Cooper (“the respondent”) arising out of sexual assaults which occurred on a number of occasions in 1984. The respondent was charged with six counts of indecent assault, to which he pleaded guilty, and was sentenced in this Court on 19 November 2013. His Honour Judge Norrish imposed a total sentence of three years’ imprisonment, wholly suspended for a period of three years.
2 In support of the application, the applicant tendered:
· His Police Statement dated 29 November 2012 (Exhibit A)
· A Victim Impact Statement made 3 October 2013 (Exhibit B)
· A medical report of Professor Lorraine Dennerstein, psychiatrist, dated 15 December 2014 (Exhibit C)
· Report of Dr Rosemary Stevenson, clinical psychologist, dated 25 November 2014 (Exhibit D)
· Report of CASA dated 12 December 2014 (Exhibit E)
· Report of Dr Barbara Kulijewicz, psychiatrist, dated 25 August 2014 (Exhibit F)
3 The applicant, Professor Dennerstein and Dr Stevenson attended for cross-examination.
4 The respondent tendered:
· An affidavit sworn 22 February 2015.
The indecent assaults
5 The circumstances leading up to the assaults and the detail of what occurred, are set forth in detail in the Reasons of the learned sentencing Judge. Save in respect of some matters to which I shall shortly refer, the respondent does not contest the factual findings made by his Honour. It is not contested that the assaults generally occurred in the circumstances referred to.
6 In brief compass, in 1984, when the applicant was seventeen or eighteen years of age, he was indecently assaulted by the respondent on three separate occasions. At the time, the respondent was between twenty-seven or twenty-eight years of age. The applicant came to know the respondent in about 1980, when he was thirteen or fourteen years of age, as the respondent was a pupil to the applicant’s father at the Victorian Bar. The respondent developed a close relationship with the applicant’s father and through him, the applicant and his family. The relationship extended to the respondent being welcomed into the family home and spending a significant amount of time with the applicant and his brother, both at the family home and at the respondent’s home.
7 Over the period from 1980 until the offending occurred, the applicant claims the respondent behaved in an inappropriate manner, including intimate touching, flirting and conversing in a manner to convey sexual innuendo. On occasions, the respondent would provide the applicant with alcohol and at the respondent’s suggestion, “skinny dip” in his swimming pool. In evidence, the applicant described this behaviour as manipulative, cunning and with a predatory undertone. He said the respondent had a sexual agenda.
8 The respondent denies these allegations and while he does not dispute generally that he behaved in the way alleged, he said that behaviour was not predatory, nor could it be said to be “grooming”.
9 The applicant alleges that as a result of the respondent’s offending, he has, for many years, and in particular since reporting the assaults to the police, suffered a range of psychological symptoms diagnosed as Post Traumatic Stress Disorder (PTSD) and a Major Depressive Disorder. These conditions have required treatment from various health professionals, in particular, Dr Rosemary Stevenson, psychologist, and Dr Barbara Kulijewicz, psychiatrist, which treatment will need to continue into the future.
Evidence of the Applicant
10 It is unnecessary for me to recite in detail the evidence of the applicant as to the sexual assaults, and the circumstances under which they occurred, as those matters are not the subject of contest. The events are adequately summarised in the Reasons for Sentence of his Honour Judge Norrish.[1] I adopt his Honour’s summary of the events. However there was one area of dispute. The respondent contested the applicant’s claim his conduct over the period from 1980 when they first met until the time of the offending, was manipulative and involved ‘grooming’.
[1]Director of Public Prosecutions v Cooper [2013] VCC 1763
11 It was put to the applicant in cross-examination that he was never threatened with violence nor intimidation. The applicant said that in the third incident, the respondent had become rough and aggressive.[2] He accepted there were no threats made prior to the offending. The applicant said that he considered the respondent’s conduct leading up to the offending as manipulative and cunning.[3] In re-examination, he said:
“It’s – I didn’t understand at the time what was happening in terms of the manipulation and the control, and the web that had been created that I was part of.
…
He had an agenda. He knew what he was doing. He was an educated person. He was older than me. He was a practising lawyer. He was controlling situations. It was always for his own personal satisfaction. He created situations to take advantage of me and my brother. He knew that the use of alcohol and certain other behaviour in a closed environment would – where there was nobody else would give him the opportunity for him to achieve what he wanted. That’s why I believe it was predatory. … .”[4]
[2]Transcript (“T”) 20, L8
[3]T21, L12
[4]T35, L6-9, T35, L31 – T36, L8
12 According to the applicant’s Victim Impact Statement, he described the respondent as “cunning, manipulative, always had an ulterior motive … ”. When he first met the respondent, he described himself as “young, impressionable, and easily manipulated”. He said the events at that time were not spontaneous nor errors of judgment.
13 In his Police Statement,[5] the applicant described the respondent’s behaviour over the relevant time.
[5]At paragraphs [9]–[39]
14 In his sentencing remarks, the judge reflected on the prosecution’s assertion that the applicant and his brother were groomed in the years leading up to the commission of the offences, although it was not suggested that they were being groomed to commit a specific offence. Rather it was said that the respondent was “desensitising” the victims to inappropriate sexual conduct. His Honour referred to the psychological evidence before him[6] and said the respondent had a complex psychosocial development and that he did not categorise the respondent’s treatment of the victims (in the period leading up to the offending) as “deliberate predatory behaviour”. He said:
“But he developed a relationship of an older sibling which he wrongly assumed might permit him to take liberties with that relationship in the belief that it was an acceptable manner of interplay with the two primary victims, engaging in what can be seen as what I describe as ‘sexual adventurism’. He had ‘confidence’ in the relationship, but not ‘control’. He did not live with the victims and they were free to come and go as they pleased, in the general sense. They were obviously free to complain, the second victim in fact did that. They were not threatened to be quiet.”[7]
[6]No psychological evidence as to the respondent was tendered before me, although I had the benefit of reading the sentencing judge’s summary of the psychological material relating to the respondent
[7]Sentencing Reasons, at paragraphs [31]–[32]
15 I had the opportunity to hear the applicant in evidence. I agree that the behaviour of the respondent could not be categorised as grooming the applicant in order to commit a specific assault. I further accept that over the years from 1980 until the commission of the offences, the respondent’s behaviour should not be categorised as sexually predatory. However, I do accept the evidence of the applicant that, over those years, there was touching, exposure and personal and sexual comments which were designed by the respondent to desensitise the applicant to sexually inappropriate behaviour which led to the sexual assaults in 1984. By that I do not mean that it was the respondent’s intention eventually to sexually assault the applicant in the way he did, but rather, by his behaviour and in the situation of trust which he enjoyed in the applicant’s family, created an atmosphere in which the applicant would be less likely to resist his approaches, which by 1984, had escalated to serious sexual assaults. To that extent, the respondent’s behaviour was manipulative and did involve some elements of grooming.
16 The applicant described the effect upon him of the offending, in particular, in his Victim Impact Statement of 3 October 2013. He described feelings of anguish, guilt and shame, in particular, in relation to his father. He said the events which occurred in 1984 had haunted him through to the present time and that the mental trauma he suffered included constant thoughts and memories. He described the emotion both he and his father suffered when he described the assaults to him in 2011. That disclosure was a “very big release” for the applicant. His parents had both been through significant trauma, as they had introduced the respondent into their home. This was a matter that concerned him greatly.
17 The applicant said that after the assaults, his confidence was low, he had little self-esteem and much self-doubt. He was angry about what had occurred to him at such a young age. He had difficulties with sleep and regularly felt anxious. He said his capacity to work was affected, he became lethargic and his concentration span was reduced. He described the effect upon him of the offending as:
“My analogy in describing these periods of ‘mental torture’ is this, ‘it’s like there is a constant light in the room flickering, sometimes it would get much brighter and glow, totally controlling my thoughts, sometimes these ‘bright periods’ would last a couple of days, other times a couple of weeks’ but the light never went out, it was always there. As such my career had been affected. It is impossible to endure and live in that constant ‘state of mind’, frequently involving little sleep, and without some impact occurring elsewhere in my life.
I cannot explain what it is like to go to bed night after night, year after year with this enormous sense of guilt, shame, and responsibility playing on my mind. Anger was building thinking that I should have done something earlier. The effects I have no doubt are compounded because I told no one about what was happening, I considered it my problem, I should have acted earlier, and saved myself from going through the mental anguish and trauma I was suffering.”
18 The applicant described difficulties with sleep, sometimes sleeping two to three hours per night, and that he continued to deal with thoughts of guilt, anger, regret, embarrassment and fear over decades.
Medical evidence
19 According to a report of Ms Jennifer Trainor, psychologist, of CASA,[8] the applicant first attended on 12 November 2012 and was treated from that time until April 2013. He complained of various traumatic stress symptoms, including frequent and persisting nightmares and intrusive memories of the assaults. He was said to also have avoidant symptoms and would withdraw from persons close to him. He reported severe anxiety, including panic attacks and irritability. He had problems with memory and concentration. It was noted that generally, persons with symptoms of PTSD struggle to trust others and to maintain significant relationships. Ms Trainor diagnosed the applicant as suffering from anxiety and depression and symptoms of PTSD.
[8]Centre Against Sexual Assault – a counselling and support service associated with the Royal Women’s Hospital
20 Dr Rosemary Stevenson, psychologist, treated the applicant on a number of occasions in October 2010, and then again from 22 April 2013 to the present time. She initially saw the applicant upon the referral of his general practitioner, for increased symptoms of anxiety and distress by reason of the development of diabetes, and because of workplace stressors.
21 In April 2013, the applicant complained of symptoms of anxiety and depression which had been exacerbated after his disclosure of the abuse.
22 He presented with distress because of the “shameful secret” that he harboured concerning the assaults. The applicant described symptoms of depression and anxiety and flashbacks to the assaults. He described using coping mechanisms over thirty years, including excess alcohol, gambling and “playing the role of the clown”. His rumination was said to not only relate to the incidents, but in relation to “sexual grooming” when he was a vulnerable teenager. He was visibly agitated and distressed while discussing the issues. Dr Stevenson diagnosed the applicant as suffering anxiety and depression, but that with the coping strategies provided, his prognosis was good. Dr Stevenson suggested that the applicant continue to attend fortnightly psychological sessions for a period of a year. The estimated cost for such a treatment was $6,000, before the reduction for the Medicare repayment.
23 Dr Barbara Kulijewicz, psychiatrist, treated the applicant from August 2014 until the present time. The applicant reported psychological difficulties for a long time but had not related them to the assaults until recent times. Dr Kulijewicz said the applicant had symptoms consistent with chronic PTSD and depression. The PTSD symptoms included re-experiencing the trauma in the form of flashbacks, daytime intrusive thoughts of the trauma, sleep disturbance and occasional nightmares. She said the applicant reported feeling anxious, on edge, having panic attacks, avoiding crowds and meetings, and having “no emotions for the people he usually loves”. He reported feeling “strange, shaky, vague, detached, has racing thoughts and heightened sensors”. He described struggling with anger, shame, embarrassment and guilt.
24 In relation to the applicant’s depression, he reported lowered mood, decreased motivation and interest in life, and suicidal ideation. He felt negative about his future, in particular, in relation to his career and finances. He had lowered concentration and had lost interest in work.
25 Dr Kulijewicz referred to a number of other aspects of the applicant’s medical history, including infertility, gout, knee dislocation and diabetes, with occasional episodes of hypoglycaemia. The applicant described difficulties in his first and second marriage, including lack of intimacy. Dr Kulijewicz prescribed Lexapro, commencing at 5 milligrams per day, but now at 20 milligrams per day. She said he had good insight into his psychological difficulties and that she would continue to treat him and monitor his progress.
26 Professor Lorraine Dennerstein, consultant psychiatrist, provided a comprehensive report and attended to be cross-examined. The applicant described to her the three incidents of sexual assault, and said the respondent had attempted to anally penetrate him and rape him. She noted the applicant idolised the respondent, who gave him cigarettes and alcohol. Around the time the incidents occurred, the applicant described difficulties with concentration and schoolwork. He said he became detached from his own family and had problems with intimacy and trust, and these affected his subsequent marriages. In later years, the applicant described flashbacks to the assaults, feelings of guilt that he had not done anything about them and that when the assaults were disclosed to his father, the applicant was shattered and destroyed. Professor Dennerstein said that the applicant now realised that he had suffered anxiety from his teenage years, with psychic and somatic anxiety. He said he always felt edgy and on guard and commenced gambling. The history obtained included that he was –
“… persistently depressed for years but not recognised this himself. He was tearful. He had lost appetite, early and middle insomnia, anhedonia, loss of interest and motivation and was socially withdrawn and reclusive. He had reduced his work hours and had thoughts that he would be better off dead. At the same time he was dealing with intrusive thoughts, flashbacks and dreams about the abuse.”
27 The applicant said he felt exhausted, with heightened moods and varied appetite. His sleep had improved with treatment and there was some improvement in his anxious state. The intrusive thoughts were present but improving. There were feelings of shame, guilt and anger. The applicant complained of being socially withdrawn and had to be “pushed to attend any social gathering”.
28 Professor Dennerstein diagnosed the applicant as suffering symptoms of a Chronic PTSD, having met the criteria of DSM-5.[9] The symptoms included, in particular, “intrusive thoughts, flashbacks, feeling unsafe and that the world is a dangerous place, difficulties with trust and intimacy and social withdrawal”. The intensity of those symptoms had improved with treatment but had been present for many years before being recognised. She said the applicant had been aware of feelings of guilt, shame, anxiety, depression and intrusive thoughts which had been exacerbated over the period of disclosure of the assaults.
[9]Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (5th ed).
29 In addition, the applicant suffered anxiety and depression. Some of the anxiety symptoms related to other health conditions, including the diagnosis of diabetes, leading to panic attacks in 2010. She said the applicant’s depressive symptoms met the diagnostic criteria of Major Depressive Disorder which was partially in remission with treatment. She also said that the applicant had an Alcohol Use Disorder. The applicant had used alcohol as a means of self-treatment. She said that the PTSD was related directly to the sexual abuse by the respondent. The Depressive Disorder was related to increased stress at the time and following the disclosure to the applicant’s family and police. She said the applicant required ongoing treatment for at least the next twelve months, possibly longer. That treatment should be monthly for twelve months and then at a reduced level for the second year, possibly each quarter. She said the applicant required ongoing medication for possibly eighteen months, and psychological treatment on a fortnightly or monthly basis for the next two years.
30 Professor Dennerstein finally commented that the applicant’s work capacities had been affected by restrictions in concentration and his anxiety and depression, which she said had led him to decrease his work hours.
31 In cross-examination, it was put to Professor Dennerstein that various events and medical conditions which had affected the applicant, including panic attacks, diagnosis of diabetes, workplace difficulties and stress in his marriages all formed the bedrock for the applicant’s current psychological state. She said, in her view, the position was the other way around. The applicant was anxious for a long period and found it hard to trust people because of the secret which he harboured. She said that was the bedrock of his current condition, on a background of having a vulnerable personality. She said it was not uncommon for persons in his position to keep the abuse hidden. She said that not all of the applicant’s problems in life were due to the sexual abuse, but that abuse rendered him more vulnerable and less able to cope with stressors which he experienced from time to time. She said the applicant had used alcohol to relieve his stress and deal with the thoughts of the abuse.
32 Professor Dennerstein considered the applicant’s PTSD would continue. There had been an exacerbation which required referral to a psychiatrist in August 2014. When it was suggested the treating psychologist had not received a history of symptoms of PTSD and had not made that diagnosis, she said that was more within the province of psychiatrists than psychologists. She said persons who suffer abuse, regularly abuse alcohol and drugs to relieve stress. She said it was significant that the trauma had occurred in the applicant’s formative teenage years. Because of that, it was much more likely the applicant would encounter thoughts of suicide, suffer anxiety and depression and with effect upon his sexual function. If the abuse is perpetrated by a person in a position of trust, then it is likely to affect later relationships and the consequent ability to tolerate closeness from others, including spouses and parents.
Legislation
33 Section 85B of the Act provides:
“(1) If a court—
(a) finds a person guilty of an offence; or
(b) convicts a person of an offence—
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).
(2) A compensation order may be made up of amounts—
(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, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.
(3)In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.
(4)In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.”
34 Section 85A defines “injury” to include:
“… mental illness or disorder …”
and
“… grief, distress or trauma or other significant adverse effect … .”
The authorities
35 The principles to be borne in mind in considering an application for compensation under s85B of the Act were set out by Forrest J in Stevens v Baxter.[10] His Honour summarised them as:
[10][2009] VSC 257
• “The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court provided the claims fall within categories set out under s 85B(2).
• An order for compensation is determined by the application, where relevant, of common law principles,[11] however the order itself is one for compensation not damages.[12]
• 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 the offender’s financial circumstances; it is a relevant but not controlling consideration.”[13]
[11]RK v Mirik[2009] VSC 14, at paragraph [148], Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345 at 352 and 356
[12]Esso Australia Pty Ltd v Robertson [2005] VSCA 138, at paragraphs [21]–[30]
[13]R v Mirik (supra) at paragraphs [135]–[143]
36 Section 85G permits the victim or offender to give or call evidence “in relation to” the application. The nature of the evidence which can be presented in such applications is not circumscribed and may include evidence of relevant facts relating to the offending or the injury suffered as a result. On that basis, I take into account my findings in relation to the conduct of the respondent over the period from 1980 to 1984. That conduct bears relevance as to the seriousness of the subsequent offending and has had some impact upon the applicant’s psychological condition at the present time. The real issue is the psychological injury suffered by the applicant as a result of the offending; that is, the various episodes of assault which occurred in 1984.
37 Section 85B(1) makes it clear that the injury suffered must be as a “direct result” of the offending.
38 The question of causation was considered in Kaplan v Leigh-Archer.[14] Buchanan JA said:
[14](2007) 15 VR 405
“Counsel for the applicant also submitted that compensation could only be awarded under s 85B of the Act if the offence was the sole cause of the injury. He said that was not so in this case for there were other factors which caused or contributed to the respondent’s post-traumatic stress disorder.
In Martin v Crimes Compensation Tribunal[15] Hansen J held that compensation could be awarded to a victim of crime even if the crime was not the sole cause of the victim’s injury. Statements to the same effect were made by the High Court in Fagan v Crimes Compensation Tribunal[16] and the Full Court in Savage v Crimes Compensation Tribunal.[17]
[15](1995) 8 VAR 39
[16](1982) 150 CLR 666 at 673 per Mason and Wilson JJ
[17][1990] VR 96 at 100. See also Director of Public Prosecutions v Esso Australia Pty Ltd [2003] VSC 222 at paragraph [9] per Cummins J
…
Nevertheless, in my opinion, the addition of the requirement that the result be ‘direct’ does not mean that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause. As Lord Sumner said in Weld-Blundell v Stephens:[18]
‘Direct cause excludes what is indirect, conveys the essential distinction, which causa causans and causa sine qua non cumbrously indicate, and is consistent with the possibility of a concurrence of more direct causes than one, operating at the same time and leading to a common result.’
Nor do I think that ‘direct’ is a synonym for ‘immediate’ or ‘proximate’ or ‘obvious’. An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective ‘direct’ is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. … .”[19]
[18][1920] AC 956 at 983
[19]At paragraphs [21] – [25]
39 In the same case, Nettle JA observed:
“I have therefore come to the view that when the draftsman of s 85B chose the expression ‘as a direct result of the offence’ he or she had in mind the sense in which the expression was used in relation to the injury in Fagan, which is to say an injury that is judged as a matter of fact, according to commonsense and experience, to have been caused by the offence.
But to that I would add three qualifications. First, just as commonsense notions of causation may differ as between everyday experience and litigious contexts, so too may the notion of ‘direct result’ differ as between everyday and litigious contexts. In particular, in cases where expert evidence is called to explain a connection between an offence and a result, the ‘educative effect’ of the expert evidence may infuse commonsense notions of causation with an educated perspective and so warrant a finding of direct result not open to an ordinary person uninstructed by the expert evidence.
Secondly, just as the several notions of causation involved in particular statutory regimes are to be understood by reference to the object of the statute in view, so too is the notion of ‘direct result’ in s 85B to be understood by reference to the object of the section — of providing victims of crime with a speedy and low cost option for seeking recompense from offenders without having to resort to civil proceedings.”[20]
[20]At 417
40 Section 85H provides that in determining the amount and method of payment of compensation, a court may take into account the financial circumstances of the offender, and the nature of the burden that its payment will impose. In Stevens v Baxter,[21] Forrest J said that the financial circumstances of a respondent might be taken into account, for example in the case of a youthful offender whose rehabilitation could be assisted by having resources available to him/her upon release from custody.[22]
[21]Supra
[22]At paragraph [35]
41 In Mirik,[23] Bell J said that the Act established a system which deprived the respondent from the conventional testing of the applicant’s case as may occur in a civil proceeding. His Honour therefore considered that there should be a reduction in what the Court considered to be full compensation to offset the advantage the applicant held by having a streamlined and simple system available, with the consequent disadvantage to the respondent. In that case, his Honour considered a reduction of 25 per cent was appropriate.[24]
[23]Supra
[24]So far as I am able to ascertain, such a reduction in compensation has not been the subject of comment, nor the approach applied in subsequent cases.
42 However, there are distinct differences between the manner in which the application before me has been conducted, and that which was before his Honour in Mirik. In the present case the applicant tendered a range of medical reports from treating and consulting practitioners. The respondent cross-examined several of the practitioners and the applicant himself. It was open to the respondent to arrange for the applicant to be medically examined by an appropriate forensic psychiatrist, but he chose not to do so. Given the difference as to the manner in which the respective proceedings were conducted, I do not propose to reduce the amount of compensation which I assess, in the same manner as did his Honour.
43 I was taken to a number of cases of this Court, and of the Court of Appeal in relation to previous awards of compensation under the Act. Helpfully, Kyrou JA, in Chalmers v Liang,[25] prepared a table of comparable cases in respect of awards of compensation made. It is clear, however, each case must be determined upon its own facts and circumstances.
[25][2011] VSCA 439
44 As was said by Vincent JA in Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd:[26]
“Bearing in mind the caution with which the making of comparisons between the awards of compensation in other cases under the Act or awards of damages under the common law or other legislation, I have had regard in a general fashion to those to which our attention has been directed. Due, inter alia, to the difficulty of identifying the precise considerations to which the various judges had regard in the individual matters and the weight attributed to the differing relevant factors as well as the significant variations in the circumstances and awards themselves, I found this process even less useful than the comparison of sentences imposed in different or not clearly identified fact situations.”[27]
[26]Supra
[27]At paragraph [40]
45 I have had regard to the awards of compensation made in various cases including RK v Mirik,[28] R v Forde,[29] KBJ, AJJ & Ors v WS (Ruling)[30] and Cahill v Goulopoulos.[31] While these cases provide some general parameters as to the compensation to be awarded for injury as a result of sexual offending, they provide only general guidance.
[28]Supra
[29][2008] VCC 3 per Judge Wodak
[30][2013] VCC 1029 per Judge Misso
[31](unreported, VCC, 27 November 2013) per Judge Maidment
46 In Dura Constructions (Aust) Pty Ltd v Dovigi,[32] Williams J considered, in brief compass, an argument that the contributory negligence of a victim may be taken into account in awarding compensation under the Act. Her Honour concluded:
“… I am persuaded that the contributory negligence or fault of the victim might be a relevant factor be taken into account in the exercise of either or both of the threshold discretion as to the making of an award and the subsequent determination of its amount, depending upon the nature of the common law relief available to the victim.”[33]
[emphasis added]
[32][2004] VSC 252
[33]At paragraph [73]
47 However, the application before her Honour involved circumstances far different from those in the present case. The matter concerned injury suffered by a worker who fell from a building in the course of his employment. His employer, the defendant, was prosecuted under the provisions of the Occupational Health and Safety Act 1985. Although he did not press the point in submissions, Mr Conquest, for the respondent, cross-examined the applicant on various matters, including:
· That both in the period after 1980 and in the course of the commission of the offences, the applicant “knew what was going on” and “what the respondent was about”;
· That he should have reported the respondent’s conduct earlier, both to his family and the police;
· That he voluntarily participated in the conduct.
48 In my view, even if those assertions put in cross-examination are correct, and I am not satisfied they are, the conduct of the applicant in the present case should not in any way lead to a reduction in compensation. Those practising in the area of sexual abuse are well aware that in circumstances where the perpetrator is in a position of trust, and the victim is young and vulnerable, failure by a victim to complain or resist is common; even if a victim understands the conduct of the perpetrator is wrong, he or she finds himself or herself in a position where they are unable to resist the conduct. Time and again, the courts see victims of sexual abuse carrying the secret of their abuse over many years, quite incapable of making a full disclosure until some event later in life acts as a trigger.
49 I make no reduction in compensation by reason of the matters referred to.
Conclusions
50 I accept that as a result of the sexual assaults constituting the offending, the applicant has suffered a range of psychological symptoms, and accept the opinion of Professor Dennerstein that the applicant suffers PTSD, together with a Major Depressive Disorder, which is partially in remission with treatment. I accept this psychological injury is as a direct result of the offending.
51 I accept that over the years since 1984, the applicant has suffered feelings of shame, guilt, embarrassment and anger. He has questioned whether the offending was his fault. I accept that his self-confidence and self-esteem have been affected and that he has been confused. I accept his complaints to the various medical practitioners of lack of interest and motivation, that he has, to an extent, been socially withdrawn and that he has suffered intrusive thoughts, flashbacks and dreams related to the abuse. I accept his relationships with others has been affected, in particular, personal relationships with his wife and family. I accept that at various times, he has suffered from depression and anxiety, in particular, over the period when he disclosed the abuse to his father and the police.
52 I accept the applicant’s description that over the years, he has harboured the abuse as a secret, and that it has been like a “constant light in the room flickering, sometimes it would get much brighter and glow, totally controlling my thoughts, sometimes these bright periods would last a couple of days, other times a couple of weeks, but the light never went out, it was always there …”.[34]
[34]Victim Impact Statement (exhibit B) – page 8
53 For those experienced in the treatment of persons who suffer sexual abuse, and for those in these courts who hear the stories of victims of sexual offending, these symptoms are, sadly, commonplace.
54 While the offending perpetrated by the respondent was serious, and the effect upon the applicant significant, I would not categorise the offending as at the worst end of the scale of offending of this type. While there was manipulation and some elements of grooming involved, there was no overt violence, threats of intimidation, nor actual penetration.
55 In addition, I bear in mind that the applicant, notwithstanding the significant symptoms to which I have referred, has been able to maintain employment in the real estate industry, rising to be a director of a real estate company. He exercises extensively, both to maintain fitness, and to assist in the treatment of his diabetes. He was married to his first wife for a period of nine years, and to his second wife to the present time. I accept that the symptoms of the PTSD have, to some extent, affected those relationships. He remains close to his family, in particular, his parents.
56 I accept that he has suffered other stressors in his life, as most people do, including a diagnosis of diabetes, some difficulties in his workplace relationships in 2010, infertility and the breakdown of his first marriage. However, none of these conditions and events contribute in any significant way to his PTSD or Depressive Disorder. In fact, as was said by Professor Dennerstein, the symptoms he suffers render him less capable of dealing with these stressors.
57 I accept there were aggravating features of the offending, including that the respondent was in a position of trust within the family, and his conduct was a blatant breach of that trust. Further, as stated, there was manipulation and some grooming involved, and although the offending occurred when the applicant was seventeen years of age, he was nonetheless vulnerable at that age, and at a formative time in his life. I reject any suggestion that the applicant, in failing to report the behaviour, or even acquiescing in the respondent’s conduct, should be regarded in any way as culpable for what occurred. Total responsibility rests with the respondent.
58 I bear in mind the financial circumstances of the respondent, as disclosed in his affidavit sworn 22 February 2015. It is clear from the authorities that the fact that the respondent has assets of significant value, does not mean that compensation should be assessed more generously than would otherwise be the case. Compensation should be assessed in a manner as dictated by the authorities to which I have referred. There is nothing in the financial circumstances of the respondent to suggest that the compensation should be reduced to give effect to the applicant’s rehabilitation, nor for any other reason.
59 Taking into account all the matters to which I have referred, in my view, it is appropriate to assess compensation in accordance with the relevant provisions of the Act in the sum of $65,000.00 (SIXTY FIVE THOUSAND DOLLARS) for pain and suffering experienced by the applicant as a direct result of the offending.
60 The parties have agreed the applicant’s past treatment expenses are assessed at $2,772.00.
61 As to future treatment expenses, I accept that the applicant requires both psychological and psychiatric treatment, together with medication over the next several years. I accept the evidence of Dr Stevenson that the cost of psychological treatment over the next twelve months is $6,000.00, reduced to $4,600.00 after reduction for Medicare rebate.
62 I accept the evidence of Professor Dennerstein that the plaintiff requires psychiatric treatment over the next two years, on a monthly basis, with sessions reduced to every three months in the second year. I accept the assessment of the applicant that the cost of this treatment, after rebates, at $972.00.
63 I further accept the applicant requires ongoing medication into the future at a cost of $648.00.
64 I shall hear further from the parties as to the appropriate orders to be made.
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