Aguirre (a pseudonym) v Nwigwe
[2024] VCC 1832
•22 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. CR-20-01521
| ADELE AGUIRRE (a pseudonym) (by her litigation guardian RACHAEL AGUIRRE) (a pseudonym) | Applicant |
| v | |
| OBIYO NWIGWE | Respondent |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2024 | |
DATE OF RULING: | 22 November 2024 | |
CASE MAY BE CITED AS: | Aguirre (a pseudonym) v Nwigwe | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1832 | |
RULING
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Subject:CRIMES COMPENSATION
Catchwords: Application by victim for a compensation order – sexual assaults
Legislation Cited: Sentencing Act 1991 (Vic); Confiscation Act 1997 (Vic); Victims of Crime Assistance Act 1996 (Vic)
Cases Cited:RK v Mirik (2009) 21 VR 623; Director of Public Prosecutions v Esso Australia Pty Ltd (2001) 126 A Crim R 13; Stevens v Baxter [2009] VSC 257; Shelton v Shelton [2023] VCC 801; DPP v Nwigwe [2022] VSCA 14; Kaplan v Lee-Archer (2007) 15 VR 405; AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233; Fernandez v Cohrs [2019] VSC 727
Ruling: Application granted. Compensation order made in favour of the applicant in the sum of $250,000
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K McDonald | Saines Lucas |
| For the Respondent | J Barrero (pro bono) | Doogue George Defence Lawyers |
HIS HONOUR:
1Adelle Aguirre,[1] the applicant, was the next door neighbour of the respondent, Obiyo Nwigwe. Rachael Aguirre,[2] the mother of the applicant, brings this application on her daughter’s behalf.
[1]A pseudonym - in order to prevent possible identification of the victim in this matter, pseudonyms of relevant individuals have been used.
[2] A pseudonym
2The applicant seeks compensation pursuant to ss85B(1) and 85B(2) of the Sentencing Act 1991 (Vic) (“the Act”) for pain and suffering occasioned by offences committed by the respondent against the applicant between 4 and 19 March 2020, when she was aged 13 years.
3On 29 June 2021, the respondent pleaded guilty to four charges of sexual penetration of a child under the age of 16 and one charge of using a carriage service to transmit indecent communications to a person under the age of 16.
4On 8 July 2021, the respondent was sentenced to a total of six years and six months’ imprisonment with a non-parole period of four years and three months’ imprisonment.
5No proceeding for common law damages has been issued against the respondent.
6No claim is made for medical expenses in this application.
Principles
7Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from an offender.
8The relevant principles in an application of this kind are well known and not in dispute.[3]
[3]See RK v Mirik (2009) 21 VR 623; Director of Public Prosecutions v Esso Australia Pty Ltd (2001) 126 A Crim R 13; Stevens v Baxter [2009] VSC 257
9I adopt the summary of relevant principles of her Honour Judge Magee in Shelton v Shelton[4] as follows:
(a) The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court, provided that the claim falls within the category set out in s 85B(2) of the Act.
(b) An order for compensation is determined by the application, where relevant, or common law principles; however, the order, itself, is one for compensation, not damages.
(c) Where there is a claim for pain and suffering, the pain and suffering must be a direct result of the offence.[5]
(d) Unlike a common law claim for damages, the financial circumstances of the respondent are a relevant, but not controlling, consideration.
[4][2023] VCC 801
[5]See s85B(2)(a)
10In this case, it was not disputed that the applicant was a victim, nor is it in dispute that her claim properly falls under s 85B(2)(a) of the Act.
11In defending the application, the respondent submitted that:
(a) the applicant had not established any injury as a direct result of the offending;
(b) as a result of his impecuniosity, it is inappropriate that any compensation be awarded to the applicant; and
(c) further or in the alternative, the material filed on behalf of the applicant does not disclose a sufficient basis to make a safe determination as to the nature and gravity of any injury experienced by the applicant.
12The parties prepared a Joint Court Book of available documents agreed in accordance with s 85G which included Victim Impact Statements of the applicant and both her parents, various police statements and an affidavit affirmed by the respondent on 15 July 2024. Both parties relied upon written submissions.
13The applicant also relied upon a number of medical reports to establish the nature and extent of her injury, to which I will refer below. All of the medical reports were served on the respondent and there was no notice for cross-examination.
Background
The circumstances of the respondent’s offending
14The circumstances of the respondent’s offending are set out in the sentencing remarks of his Honour Judge D Sexton.
15These circumstances are disputed by the respondent. Although not appropriate to set out the circumstances of the offending in any detail, for the purposes of this application, I summarise them as follows:
(a) The respondent was, in 2020, a doctor working in the Emergency Department of the Bendigo Hospital.
(b) The ability to sexually offend against the applicant came about through a friendship with her parents. Understandably, particularly given the respondent’s profession, they trusted him around their children. By his offending, the respondent betrayed that trust spectacularly by repeatedly sexually penetrating their young daughter in March 2020.
(c) On occasions, the sexual offending took place in close proximity to other young children, including the respondent’s own three young children.
(d) Whilst the offending was committed over a very short period of time, it was extremely intense, with multiple and escalating episodes of sexual penetration. Almost 1,000 phone and text messages were also exchanged between the respondent and his young victim.
(e) Whilst the respondent ceased offending on 19 March 2020, when the applicant later indicated a desire to tell someone about the relationship, the respondent said to the applicant that he would lose his family and commit suicide if she did so. Judge Sexton noted that this conduct, calculated as it was to avoid detection, was shameful and self-centred.
16At the sentencing hearing, the respondent’s counsel submitted that his moral culpability for the offending was reduced somewhat due to impaired psychological functioning at the time of the offending.
Financial circumstances of the respondent
17On 15 September 2020, the Court restrained the respondent’s interest in real property at 18 Cuzens Road, Alfredton, Victoria pursuant to s15(1) of the Confiscation Act 1997, for the purpose of satisfying any order for compensation which might be made in accordance with Part 4 of the Act. That restraining order was subsequently varied to permit the respondent to complete the sale of the property, and around $66,000 from that sale is held on trust until disbursed, with any balance to be paid to Asset Confiscation Operations, Department of Justice and Community Safety.
18The respondent is not an Australian citizen and, at the completion of his sentence, he will be deported to the United Kingdom. Save for the funds restrained as a result of the sale of his property, he has no savings or other assets. He has lost his registration as a medical doctor in both Australia and the United Kingdom. The grant of legal aid in these proceedings requires that he reimburse Victoria Legal Aid for the cost of legal assistance should he retain any of the restrained amount.
19In my view the financial circumstances of the offender are a lesser consideration having regard to the nature of the offending and the consequences to the applicant.
Injury suffered by the applicant
20It is not in dispute that the applicant experienced pre-existing injuries of attention deficit hyperactivity disorder (ADHD) (2015) and trichotillomania (2017).
21Treating psychologist Jody Jones initially saw the applicant upon referral from her paediatrician, Dr Mark Nethercote, in 2015 with the diagnosis of ADHD and had seen her on an episodic basis since this time.
22In the aftermath of the offending Ms Jones re-engaged with the applicant in April 2020. This followed a deliberate overdose of Ventolin by the applicant due to high distress. Ms Jones’ 22 clinical psychology consultations with the applicant between April 2020 and August 2021 bespeak the high need for support of the applicant by an appropriately qualified professional.
23Ms Jones reported that the applicant presented with trauma symptoms, conflicted feelings, irritability, labile mood, suicidal ideation, anxiety and panic symptoms.[6]
[6]Report of Jody Jones dated 25 October 2021
24The applicant was also referred to the Ballarat Centre Against Sexual Assault in May 2020 and had weekly counselling sessions for the rest of that year and further support during 2021. She had a further 19 one-hour sessions in 2021.
25Counsellor Lyndell White, in her report dated 10 December 2021, sets out her view that the diagnostic criteria for PTSD have been met. I place limited weight on her opinion as she is not a medical practitioner.
26There were also a number of reports from paediatrician Dr Mark Nethercote attesting to the presence of abdominal pain, particularly in her upper left quadrant; a history of difficulties with sleep; outbursts; suicidal ideation and a failed attempt; the applicant threatening to kill herself and others with a knife; with periods of escalation of impulsivity. In his report of August 2021, he stated that the reports of self-harm had settled. Most recently, in February 2022, his opinion was that:
“... despite having had intensive input with psychologist, Jody Jones since the assault in March 2020, and ongoing input with me, and involvement of CASA (Centre Against Sexual Assault), [the applicant] continues to suffer ongoing effects of her sexual assault, which will continue to require ongoing psychological and pharmacological treatment for many more months, if not years.”
27The applicant last cut herself in September 2022,[7] and has not had any thoughts of self-harm recently.
[7]Report of Associate Professor Khalid at Joint Court Book (“JCB”) 133
28In 2022, treating gastroenterologist, Dr Timothy Elliott, opined that:
(a) her ongoing abdominal pain is likely to have a psychological component and very likely to relate substantially to her sexual assault;
(b) it is well-recognised that major stressors, such as the applicant’s sexual assault, can contribute to chronic abdominal pain syndromes;
(c) chronologically these pains seem to have occurred since the assault.[8]
[8] Report of Dr Elliott dated 24 October 2022, JCB 129
29The applicant was referred to Associate Professor Abdul Khalid, a consultant psychiatrist, for the purpose of a medical assessment. In his report dated 15 April 2023, Associate Professor Khalid sets out his opinion that the applicant developed symptoms of Post-Traumatic Stress Disorder (PTSD) as a result of the sexual assault on the background of pre-existing ADHD and low average intelligence. Her symptoms of PTSD include flashbacks, nightmares and avoidance behaviour, with associated symptoms of irritability, deliberate self-harm and social withdrawal.
30Associate Professor Khalid considers her final diagnosis to be PTSD and Somatic Symptom Disorder with predominant pain in relation to the sexual assaults in March 2020. He acknowledged pre-existing conditions of ADHD, trichotillomania, pseudo seizures and low average intelligence. His other findings include that:
(a) the applicant’s recurrent abdominal pain complaint is the physical expression of her underlying anxiety and can be diagnosed as a Somatic Symptom Disorder with predominant pain;
(b) she will require long-term trauma focused cognitive behaviour therapy and eye movement desensitisation and reprocessing with a psychologist;
(c) she may also benefit from referral to a psychiatrist to consider commencing her on medication for treatment of her PTSD symptoms;
(d) her psychiatric prognosis is guarded. She has been traumatised by the sexual assaults and is likely to experience chronic symptoms of PTSD in the foreseeable future.
31Despite the respondent acknowledging the applicant had suffered trauma symptoms since the offending, he submitted that the Court should not be satisfied that there is any injury directly caused by the respondent.
Findings
32Injury is defined in s85A of the Act relevantly as:
“(a) actual physical bodily harm; or
(b)mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or
…
(d)grief, distress or trauma or other significant adverse effect; or
(e)any combination of matters referred to in paragraphs (a), (b), … and (d) arising from an offence”.[9]
[9]Sentencing Act 1991, s85A(1)
33I note the concession that the applicant suffered trauma as a result of the offending, which constitutes injury under the definition, and I so find.
34Applying established common law principles, the injury does not have to be the sole or even predominant cause of the applicant’s current symptoms and impairment. I am satisfied that the current symptoms are as a direct result of the offending save perhaps for the gastrointestinal issues, which I regard as pre-existing and separate to the Somatic Symptom Disorder and its physical expression of pain as a result of the offence-related anxiety.
35I am satisfied that the injury is a direct result of the offence.[10] That is, it is a substantial and operating cause of her injury. I accept Associate Professor Khalid’s opinion that there is no supervening cause of the applicant’s current symptoms.
[10]Kaplan v Lee-Archer (2007) 15 VR 405
36The pre-conditions for an order for compensation having been established, I reject the submission that it is inappropriate that any compensation be awarded to the applicant at all having regard to the respondent’s financial circumstances.
37It is not in dispute that $66,000 was restrained pursuant to the provisions of the Confiscation Act. In accordance with the principles in Mirik, and having regard to the respondent’s rehabilitation prospects at the age of 47 years with at least 20 years’ working life ahead of him upon his release from prison next year, his relative impecuniosity should yield to the requirement for adequate compensation. The severity of the injury and its ongoing effects on a young person override this concern. The priority is compensating the victim.
Assessment of compensation
38In committing the offences, the respondent took advantage of a friendship with the applicant’s parents, happening to reside next door to the applicant’s family.
39An appeal against the sentence[11] was dismissed on 18 February 2022.[12] In its reasons, the Court of Appeal stated:
“There is no doubt, and there was no argument to the contrary, that the respondent’s conduct was reprehensible and repellent. The respondent has done lasting damage to a child who trusted him and to a family that was particularly kind and generous to him. His conduct was exploitative and supremely selfish. He breached in the most appalling way the trust of the people who were trying the hardest to help him settle into the community and to make him feel welcome.[13]
[11] By the State on the basis that it was manifestly inadequate
[12]Director of Public Prosecutions v Nwigwe [2022] VSCA 14
[13]Ibid, [75]
40I adopt those findings.
41The Victim Impact Statement of the applicant and the statement of the applicant’s litigation guardian (her mother) are powerful, cogent and compelling evidence of the applicant’s suffering, grief, distress, trauma and other significant adverse effects referred to in the definition of injury in the Act.
42The applicant remains afflicted with nausea, depression, anxiety, insomnia, nightmares, social disadvantage, loss of innocence, pervasive feelings of insecurity, suicidal ideation and body dysmorphia. She experiences frequent outbursts, nightmares, intrusive thoughts, hypervigilance, fear, emotional distress, anger and flashbacks.
43Whilst it is difficult to predict with certainty, I accept Associate Professor Khalid’s opinion that the applicant will continue to suffer PTSD symptoms into the foreseeable future, and I find that it is likely to have a profound effect on the balance of her adult life.
44Acknowledging there has been some improvement, and even a trajectory of improvement, since the respondent’s incarceration, this was from a very low base of PTSD symptoms and suicidal ideation, erratic behaviour, impulsivity and attempts on her own life. Further, any improvement has to be considered in the context of the overall impact of the offending on the applicant.
45I find that as a direct result of the offending, the applicant has suffered PTSD, a Somatic Symptom Disorder with predominant pain, grief, distress, trauma, anxiety and also actual physical bodily harm occasioned by the assaults themselves.
46The applicant’s counsel submitted that an award for damages for pain and suffering in the range of $150,000-$250,000 was appropriate.
47Any amount of award for pain and suffering requires an instinctive synthesis of the factors referred to above. In this application, given the age of the applicant when the offending commenced, the intensity of the offending and its impact upon her, I assess the appropriate amount of compensation at $250,000.
48I accept the respondent’s submission that there is no scope under the application pursuant to s 85A for compensation to include loss of earnings.[14]
[14]See s85B(2)(a) Sentencing Act 1991; and Fernandez v Cohrs [2019] VSC 727, [47]
49I accept that the respondent’s impecuniosity is a matter to take into account pursuant to s 85H, and explicitly recognise that the payment of compensation, which includes all of the restrained amount, will place an additional burden upon the respondent, having lost his medical registration. Were this not so, the award of compensation would be higher.
Costs
50Section 85K of the Act makes it clear that each party should bear their own costs, unless the court otherwise orders.
51Although there have been a number of interlocutory steps, I am not in a position to make a finding that those costs ought be considered thrown away by reason of any particular unreasonable conduct of the respondent.
52Although the respondent only conceded during the course of the trial that the applicant had suffered injury, his counsel made appropriate submissions concerning the extent to which other factors should be taken into account in assessing an appropriate amount of compensation.
53In AA (a pseudonym) v Cooper (Ruling),[15] his Honour Judge O’Neill considered s85K of the Act and canvassed the various authorities.
[15][2015] VCC 233
54In summary, Judge O’Neill identified the following factors (which I adopt in this proceeding):
“(a)The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category.
(b)Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded.
(c)Circumstances which may justify the award of costs include the following:
(i)the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;
(ii)the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;
(iii)the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;
(iv)the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.”[16]
[16](Ibid) at paragraph [17]
55In this proceeding, although it was appropriate for counsel to be retained, there was no cross-examination of any witness; the application was not particularly complex; and the respondent had not contested the matter unreasonably, nor conducted himself in any other manner designed to frustrate the award of compensation.
56The fact that the offending occurred in a quasi-familial relationship is not sufficient to amount to a special or exceptional circumstance.
57Exercising my discretion, it is not appropriate to order that the respondent pay the applicant’s costs of this proceeding.
Conclusion
58Pursuant to s 85B(1) of the Act, I order the respondent pay compensation in the sum of $250,000 to the applicant.
59On 13 July 2023, the applicant received an award for special financial assistance, Category A, in the sum of $10,000 following an application under the Victims of Crime Assistance Act 1996.
60Section 85I of the Act is engaged in respect of the amount of $10,000 special financial assistance, which will be reduced from the award of compensation.
61There will be no order as to costs.
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