Adkins (a pseudonym) v Kimberley (a pseudonym)

[2019] VCC 2093

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

LARISSA ADKINS (A PSEUDONYM)	Applicant
v
LUKE KIMBERLEY (A PSEUDONYM)	Respondent

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2019
DATE OF RULING:	8 November 2019
CASE MAY BE CITED AS:	Adkins (a pseudonym) v Kimberley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2093

REVISED REASONS FOR RULING
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Subject: Section 85B Sentencing Act Application
Catchwords:            Crimes compensation – application by victim of rape – pain and suffering
  - psychiatric injury – award of costs
Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:Athian v Pang [2019] VCC 477; Moresco v Budimir [2015] VSC 51; Neall v Watson (1960) 34 ALJR 364; RK v Mirik and Mirik [2009] VSC 14; Stevens v Baxter [2009] VSC 257

Ruling:  Ex Tempore : Application granted

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr Miguel Belmar	Waller Legal
For the Respondent	Ms Elise Anselma

HIS HONOUR:

1       Larissa Adkins[1] was born in 1998. Between about 1 March 2011 and 24 December 2012 she was sexually assaulted and raped by Mr Kimberley.[2]  A jury trial was conducted on nine charges in May 2016.  Ultimately, the jury convicted Mr Kimberley on those nine charges related to the sexual assault and rape of Ms Adkins on 18 May 2016.

[1]A pseudonym

[2]A pseudonym

2 Ms Adkins now brings an application pursuant to s.85B of the Sentencing Act 1991. In her claim she seeks specifically compensation for pain and suffering as well as compensation for expenses incurred, or reasonably likely to be incurred.

3       For both these claims she must prove that they directly result from the offending which has been found by reason of the verdict of the jury upon the charges and conviction. 

4       The questions for determination in this matter are:

(a) Whether the court should award compensation to the applicant in accordance with s.85B and the amount of that compensation;

(b)      In awarding compensation, what, if any, account should be taken of the award made by VOCAT.

5       Turning to the background of this matter.  The facts of the offending are set out in the reasons for sentence of His Honour Judge McInerney.[3]

[3][2016] VCC 1199

6       I note that for the purposes of the plea, counsel for Mr Kimberley accepted the facts as detailed in the summary of prosecution opening, dated 24 November 2015.  That summary of prosecution opening has been filed in this application and is exhibited to the affidavit of Dylan Laurence Rae-White sworn 29 August 2017 and exhibited as DRW4.  I will not repeat the details of the offending of all the circumstances. 

7       In summary form the applicant was aged between 12 and 13 years of age.  Her father began working at an Italian Restaurant which was run by Mr Kimberley.  Resulting from that employment situation the applicant was introduced to Mr Kimberley.  He engaged in a period of grooming the applicant.  He professed his love for her and made promises to her of many things.  He then raped her on numerous occasions.

8       In about September 2013, Ms Adkins became involved with an older male named Cameron Reeve,[4] who over many months raped her.  He was ultimately charged and convicted for these offences.

[4]A pseudonym

9 The principles applicable to s.85B claims are set out in repeated judgments of the Supreme Court.[5] I do not need to repeat those principles. They are well settled in this court.[6]

[5]See for example, RK v Mirik and Mirik [2009] VSC 14, Stevens v Baxter [2009] VSC 257 at [5].

[6]See Athian v Pang [2019] VCC 477

10 Here it falls first to be considered whether s.85B(2)(a) and (b) for pain and suffering consequences that Ms Adkins complains of, and the medical expenses she claims are directly resulting from the offences committed against her. Attention in answering this query is focussed on the word 'directly.'

11      To answer this question, the following evidence leads to the conclusion that this query must be answered favourably to Ms Adkins.  First, her victim impact statement which is DRW5 and signed 15 June 2016 speaks eloquently of the effect that the offending has had on her.  She talks of the vulnerability she had as a young person from a somewhat difficult family life, which was taken advantage of by Mr Kimberley. 

12      Into that situation, Mr Kimberley appeared as a safe adult who promised her many things, but then betrayed her by his actions.  She talks of her anxiety and depression, her social isolation and ultimately an attempt to kill herself.  The depth of her suffering is also conveyed by the contemporaneous reporting of Ms Karto, her counsellor and psychologist, in 2014.[7]  

[7]See DWR6 and DWR7

13      She goes into great detail about the effects of the offending upon Ms Adkins.  In her report, she details Ms Adkins' sadness, feelings of hopelessness and worthlessness, loss of interest in daily activities and her longing to escape from her situation.  It paints a desolate picture of the situation Ms Adkins found herself in, in 2014, at a very young age. 

14      Ms Karto expresses the view, at p.2 of her report, at DRW7, that Ms Adkins has symptoms consistent with Post Traumatic Stress Disorder.  She then opines, 'Whilst it is believed that this is a direct impact of the sexual assault committed by the alleged offender, Mr [Kimberley], it is my assessment and observation that the sexual assault by [Mr Reeve] exacerbated these symptoms, leading to a more acute presentation of PTSD.'

15      I found the reporting of Ms Karto particularly useful as it was from a treating practitioner and was made contemporaneously.  It dealt with the issue of whether the offending by Mr Kimberley could be a direct cause of Ms Adkins' psychological condition in the context of other offending by Mr Reeve.

16      Dr Nathan Serry, psychologist, has also provided a report dated 13 February 2017.  He was briefed with material both as to the offending of Mr Kimberley and Mr Reeve.  He interviewed Ms Adkins.

17      He found that some four years after the offending of Mr Kimberley, Ms Adkins presented with a significant psychiatric condition, persistent depression and anxious distress and significant features of traumatisation. 

18      He attributed the majority of her condition to the offending at the hands of Mr Kimberley.  He did make the point that by reason of her pre-existing family situation, the effect of the abuse by Mr Kimberley had a deeper effect.

19      He notes that she had a great deal of personality vulnerability.  I understood this to be a long term effect of the offending of Mr Kimberley.  I consider this to be significant. 

20      Dr Serry considered that though it was somewhat conjectural, Ms Adkins required long-standing and intensive psychological intervention.  In context, he was supporting the need for medication and treatment by a clinical psychologist. 

21      A further affidavit filed by Ms Adkins and sworn 31 October 2019, deposes that she feels the impact of the abuse at the hands of Mr Kimberley will never go away.  The uncontroverted evidence is that Ms Adkins' psychological condition is directly related to the offending of Mr Kimberley, and that treatment is required for it. 

22      The amount to be awarded for the pain and suffering requires an instinctive synthesis of the many matters set out above.  Having performed that synthesis, I award the sum of $200,000, given the age at which the offending occurred, noting that she was a young, vulnerable child. 

23      In addition it is clear she had a background which meant the offending cut deeper on an already damaged psyche.  The fact that four years after the events, Dr Serry came to similar conclusions as Ms Karto as to the effects of the offending is a strong factor which supports the award.  I note that she is also young in years and has to bear this burden for the rest of her life. 

24      I am mindful that the impact of the offending of Mr Reeve must be separated and not included when it comes to assessing the effect of Mr Kimberley’s offending.  I have had particular regard to the judgment of Neall v Watson in the High Court.[8]

[8]Neall v Watson (1960) 34 ALJR 364 at 367

25      I accept the applicant's submissions as to the amounts to be awarded as to medical and life expenses of $6,600.  I have noted that there is a degree of conjecture about this, but what is undoubted is the evidence that she has a need for therapy and medication and it is likely to be long-standing. 

26      I have used those principles as the foundation of my assessment.  I have also taken into account the submission that the VOCAT award in totality should not be deducted from the award I make.

27      Rather and alternatively, it is submitted, only that special financial assistance award which totals the sum of $10,000 should be deducted.  The remaining amount of $4,872 should not be.  I accept that decision and rely in particular on the decision in Moresco v Budimir [2015] VSC 51 at paragraph 55, and also Athian ([2019] VCC 477) at paragraph 57.

28      MR BELMAR:  Your Honour, I am loath to interrupt you.  I just want it to be clear.  The way the submission was put was that there should be no deduction of any amount.  That was the primary position.  The secondary position was if any amount was deducted it should be in the manner that Your Honour has just indicated.

29      HIS HONOUR:  Yes, thank you.  In this matter I will not order costs for the whole proceeding in the applicant's favour as sought by the applicant in the sum of $32,000.  However, given the events of 24 October 2019 and the abandonment of the proceedings on that day through no fault of Ms Adkins, I do order the respondent pay her costs of that day, fixed in the sum of $1,950 for counsel, and instructor at $850.  I otherwise have a discretion as to whether or not to award costs.  I consider the following factors support the exercise of the discretion in the applicant's favour: 

(a)      the length of time since the original application, especially since the appeal was dismissed and in part occasioned by the respondent changing solicitors and then having no solicitor on record;

(b)      the respondent's attitude in denying that he had been served with material or had knowledge of the application when quite clearly he had;

(c)      the subject matter of the offending, such that it was difficult for the applicant to constantly have this matter delayed;

(d)      the complexity of the causation issues which required expert evidence and the retention of solicitors with experience and expertise in the field;

(e)      the retention of counsel which was necessary to deal with the causation issues; and

(f)       the manner in which the respondent has dealt with the application which has been to continually deny that the offending has occurred.

30      For all these reasons I consider the award of costs appropriate as this was not the “quick and easy” application contemplated by the Act.[9]  I award the sum of $20,000 for costs and disbursements as appropriate in all the circumstances.

[9]RK v Mirik and Mirik [2009] VSC 14 at paragraph [104] citing with approval from R v Oddy [1974] All ER 666

31      In summary then, I award the applicant the following amounts: 

(1)      $190,000 after deduction of the relevant VOCAT award;

(2)      $6,600 for medical and like expenses;

(3)      Costs in the sum of $2,800 for 24 October 2019,

(4)      Costs of the proceeding otherwise fixed in the sum of $20,000. 

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