AH v RW
[2016] WADC 114
•5 AUGUST 2016
AH -v- RW [2016] WADC 114
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 114 | |
| Case No: | APP:104/2015 | 13 JUNE 2016 | |
| Coram: | BRADDOCK DCJ | 5/08/16 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | AH RW |
Catchwords: | Criminal injuries compensation Proved offence Extension of time for appeal Extension of time to lodge claim Quantum of award |
Legislation: | Criminal Injuries Compensation Act 2003 s 17, s 18(2), s 55(3), s 55(4), s 31(1) |
Case References: | Gallo v Dawson (1990) 93 ALR 479 Hinchcliffe v Hinchcliffe [2010] WADC 78 Hogben v Darcy [2009] WADC 63 Re McHenry [2014] WADC 92 RT [2006] WADC 185 S v Neumann (1995) 14 WAR 452 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an Appeal by
- Appellant
AND
RW
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H PORTER
File No : CI 00589 of 2015
Catchwords:
Criminal injuries compensation - Proved offence - Extension of time for appeal - Extension of time to lodge claim - Quantum of award
Legislation:
Criminal Injuries Compensation Act 2003 s 17, s 18(2), s 55(3), s 55(4), s 31(1)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : In Person
Respondent : S Van Dongen SC
Amicus Curiae : Ms O'Meara appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Respondent : Annemarie Tully
Amicus Curiae : State Solicitor of Western Australia
Case(s) referred to in judgment(s):
Gallo v Dawson (1990) 93 ALR 479
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Re McHenry [2014] WADC 92
RT [2006] WADC 185
S v Neumann (1995) 14 WAR 452
- BRADDOCK DCJ:
Introduction
1 This is an appeal from a decision of an assessor of criminal injuries compensation made on 18 November 2015: (CIC decision). The assessor awarded the sum of $39,138 to the respondent, comprising $38,033 for injuries and losses in respect of proved offences and $1,105 pursuant to the provisions of s 48 of the Criminal Injuries Compensation Act (2003) (the Act).
2 No request for written reasons has been made to the assessor and accordingly no reasons for judgment were published.
3 On 29 November 2011, the appellant was convicted of aggravated burglary, aggravated sexual penetration without consent and making threats to kill against the respondent. The appellant was sentenced to a lengthy term of imprisonment. The award was made under s 12(1) of the Act on the basis of proved offences.
4 On 31 December 2015, the appellant filed a notice of appeal, dated 12 December 2015, against the decision of the assessor.
5 The notice of appeal contains information about the relationship between the appellant and the respondent, the reasons the appellant entered pleas of guilty, and a number of complaints about the assessor's decision.
6 Some paragraphs in the notice of appeal relate to the circumstances of the appellant's convictions, and do not directly relate to the assessor's award. In relation to the award, he asserts in summary that:
1. The sum of $38,000 bears no relation to the medical or treatment expenses of $33.
2. The evidence indicates little or no physical injury at the time and no ongoing physical disabilities requiring treatment.
3. There is no evidence of ongoing psychological treatment or counselling at any time over the past five-year period since March 2011 indicating little or no serious mental or physical suffering. However, the appellant does not dispute the sum for future counselling.
4. The sum of $38,000 for unsubstantiated injuries is not justified.
7 Effectively, the appellant's complaint is that the quantum of the award excessive.
Extension of time to appeal
8 An appeal against the order of an assessor under the Act must be commenced within 21 days after the order. If it is just to do so, the court may grant leave to commence an appeal after the expiry of that period: s 55(3) and s 55(4) of the Act.
9 In this case, the appeal was not lodged within 21 days and it is out of time by about three weeks.
10 On 19 April 2016, the principal registrar ordered the appellant to file and serve an application, supported by affidavit, seeking leave to appeal out of time. At a time of hearing of the appeal, no such application or affidavit had been filed.
11 The appellant is presently a sentenced prisoner. He appeared in person at the hearing of the appeal. He outlined a number of difficulties in communications with the outside world as a prisoner. Despite the non-compliance with the orders of the court, I determined to hear what he had to say about the delay, on oath. He told the court that he had the benefit of assistance from his grandmother, but despite this and the fact that he signed a letter seeking extension it did not reach the court.
12 The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479.
13 The circumstances in which the appellant finds himself do not facilitate efficient correspondence. I accept that he has been dependent upon services provided by the prison and his grandmother. Justice should not be denied to the appellant because of the difficulties he faces in conducting this appeal by reason of his incarceration. Given that the delay is a short one, and no specific prejudice to the respondent has been identified by reason of it, it is in my view appropriate to grant an extension time to the appellant for the filing of his application, until the date of filing.
Jurisdiction on appeal
14 Pursuant to s 56 of the Act, the District Court must decide the application on appeal afresh, on the evidence and information that was in the possession of the assessor but may receive further evidence and information.
15 The information provided by the respondent to the assessor included:
1. the application for criminal compensation;
2. a letter requesting an extension of time to lodge the application dated 27 January 2015;
3. the respondent's victim impact statement, for the purposes of the sentencing proceedings, dated fourth of November 2011;
4. a statement dated 27 January 2015 also entitled 'victim impact statement';
5. a letter from Pennie Supelak dated 27 January 2015 (respondent's mother);
6. a copy of the police incident report;
7. a letter dated 24 September 2015 from the Fremantle Women's Health Centre;
8. a letter undated from the Phoenix Medical Centre; and
9. a receipt from the Bertram Family Practice for a payment on 11 August 2015; and
10. a document prepared by the respondent, dated 27 January 2015, entitled 'estimated costs'.
16 The appellant has provided for the purposes of the appeal:
1. The notice of appeal and attached document containing the grounds.
2. An affidavit sworn by June Rose Park dated 8 March 2016 attaching copies of photographs of the respondent 2010 and 2016 and copies of the respondent's Facebook site and communications with the appellant said to date from 9 days before the offence.
The respondent also provided further materials:
3. A report dated 14 May 2016 from Anthony Ward, the respondent's counsellor.
4. A letter from the respondent dated 2 May 2016.
5. A letter from Penny Munro dated 9 May 2016.
17 In addition, I have had access to the files of the DPP relating to the criminal charges in the District Court against the appellant in 2011 which were provided to the court pursuant to a notice to produce. The same files were available to the assessor originally.
18 Submissions were filed by the respondent, and the chief executive officer. Subsequent to the hearing I received supplementary submissions from the chief executive officer in relation to the power to extend time and a letter from the appellant making submissions in relation to documents of the respondent dated May 2016, which he stated he had only recently received.
19 I consider it to be in the interests of justice to consider all of the additional materials provided for the purposes of this appeal.
The assessor's decision
20 The award of the assessor on 18 November 2015 reveals only that compensation for injuries and losses was awarded in respect of the proved offences under s 12(3)(a) of the Act. It is clear from the documents, that $38,000 was in respect of injuries and loss generally, and $33 dollars was in respect of an account provided. Provision for $1,105 for future counselling was made, to which the appellant has not taken an objection.
21 By reason of the fact that the assessor made an award upon the application of the respondent, and the circumstance that the respondent requested an extension of time, it must be concluded that the assessor granted the respondent an extension of time for the filing of the application.
Jurisdiction to appeal an extension of time granted by the assessor
22 At hearing of the appeal, senior counsel for the respondent made submissions as to the basis upon which the appellant might appeal the decision to extend time to the respondent.
23 Section 55 of the Act deals specifically with an appeal against an assessor's decision to make or refuse to make a compensation all award or the amount of a compensation award.
24 Section 9 of the Act provides that a compensation application must be made within three years after the date upon which the offence to which it relates was committed (or the last of them if more than one). Section 9(2) allows an extension of that period, if an assessor thinks it is just to do so and may do so on any conditions that he or she thinks just to impose.
25 It was submitted that, as a matter of statutory construction, s 55 did not extend the right of appeal to the decision to extend time under s 9. Thus, it was said there is no express provision authorising an appeal against a decision of this kind.
26 It has been generally accepted that, given an appeal is a hearing 'de novo', the court is required to consider again whether an application should be permitted, if the time limit had expired. Hinchcliffe v Hinchcliffe [2010] WADC 78 was referred to, by way of example. The consistent practice of this court has been to revisit the s 9 decision, in each case, as part of the appeal process.
27 Section 56 of the Act sets out the powers of the District Court on an appeal under s 55. It includes the power to exercise any power of an assessor under the act (save under certain sections which are not relevant for present purposes).
28 Where an application is brought out of time, an assessor can only make an award if the assessor determines that it was just to extend time for the application.
29 An appeal solely against an assessor's decision to refuse an application out of time has been allowed under s 55, on the basis that the refusal to extend time amounts to a decision to refuse to make a compensation award. This was the reasoning of Goetze DCJ in RT [2006] WADC 185 [11] - [12]. The court in that case treated the appeal as one against the refusal to make a compensation award, by reason of the application being out of time. Re McHenry [2014] WADC 92 [10] - [12] is also an example of an appeal from a refusal to extend time which was brought and determined in the District Court.
30 This is an appeal against the quantum of the award made by the assessor. But for the extension of time, there would not be an award of compensation against which the appellant might appeal.
31 The appellant, indirectly, questioned the respondent's bona fides in bringing the application, in his oral submissions, by reference to the timing of the application and the offender mediation process. In his circumstances, in my view, the appellant could not be expected properly to formulate a claim that time should not have been extended to the respondent.
32 On analysis, a question arises as to whether it is correct that, on every appeal against an award, the District Court is required and has jurisdiction to revisit and exercise anew the power of the assessor under s 9 of the Act. If the appeal relates specifically to the amount of compensation only under s 55(b), as in this instance, it would appear to be irrelevant, at first view. However, given the nature of the appeal, the court is required to re-exercise the powers of the assessor afresh in order to review the determination. A refusal to extend time, as in McHenry, has been considered to be a refusal under s 55(a). I was not referred to any decision turning only on the granting of an extension of time. Presumably because where time is extended, the appeal logically lies against the award, as in this instance.
33 The court is, however, required still to revisit the decision of the assessor. I must consider all the circumstances which in my view, includes the late filing of the application, to exercise this appellate jurisdiction.
34 The nature of the offending conduct was a serious violent sexual assault upon the respondent in her own home. The effects of that conduct on the respondent are set out in her supporting documents. She submitted that the trauma of the offending and the difficulties she faced in her life, at that time, made it hard for her to complete the forms and discuss the matter within the time allowed. She claims that there have been long term consequences for her. The offending completely disrupted her life and she suffered from depression. Her mother's letter of 27 January 2015 indicates that the respondent found herself homeless. Counselling was a process too overwhelming to pursue. She was frightened to seek compensation because the appellant might have access to her personal details. Whilst there are strong policy reasons requiring time limits be respected, I am satisfied that for the respondent to make this application at the time she did was not unreasonable, and that it is just to permit it to proceed.
Assessment of compensation
35 On appeal this court may exercise any power of the assessor under the Act, subject to certain exemptions, which are for current purposes irrelevant. In deciding the appeal, this court is not bound by rules or practice as to evidence or procedure and may inform itself in any manner it thinks fit: s 18(2).
36 The District Court is not fettered by the assessor's decision, and the appeal is determined as a hearing de novo. It is open to the District Court to confirm, vary or reverse the assessor's decision, either in whole or in part: s 56(2)(b) of the Act.
37 The appellant does not have to demonstrate error on the part of the assessor in order to succeed, but it is appropriate to give due regard to the reasons of the assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13].
38 Initially on 4 November, and confirmed on 29 November 2011, the appellant entered pleas of guilty on an indictment containing one count of aggravated burglary and commit the offence of assault occasioning bodily harm, five counts of aggravated sexual penetration without consent, and one count of threats to kill all on 7 and 8 March 2011. He was also charged with the theft of a motor vehicle.
39 The appellant cannot seek to go behind his pleas of guilty and the facts put to the court upon his sentencing for the proven offences.
40 On 29 November 2011, counsel for the prosecution put the following facts before the sentencing judge: Between 11.30 pm on Monday, 7 March 2011 and 9.00 am on Tuesday, 8 March 2011 the appellant attended the respondent's home in Bertram. She was at home with her three children aged 4, 2 1/2 and 18 months. The children were all asleep in their bedrooms. The respondent refused to let the appellant into the house and insisted that he leave the premises. He ignored her request and removed the fly screen, opened the glass door and entered the premises. He seized her phone and she ran to her bedroom and locked the door.
41 He followed her yelling to her to open the door and kicked it, stating that he would wake up the children if she did not open the door. He went to the bedroom of her 18-month-old child and took her with him to the door of the respondent's bedroom. She partially opened the door, saw the appellant with the child and told him to leave the child alone. She ran into her bedroom and locked the door again. She attempted to escape through the window.
42 The appellant ran outside, approached the window of the bathroom and climbed in through it. He grabbed the respondent by her hair, and threw her onto the floor. She had armed herself with a syringe and turned and stabbed out at the accused. He grabbed it from her, held it against her face stating that he had Hepatitis C and would give it to her. He then instructed her to remove all her clothing, prevented her from screaming by placing his hands on her mouth and proceeded to sexually assault her, orally and vaginally, and he also ejaculated on her face.
43 He further became angry due to text messages he had located on her phone and struck her twice to the back of the head with his open palm. She screamed. He put two fingers in her mouth to stop her from screaming. He ordered her to perform oral sex on him again. She complied for fear of her safety. He then again penetrated her vaginally to the point of ejaculation, and calling her denigrating names. He again struck her about the head, slapped her on the side and then penetrated her anally with two of his fingers. He continued to assault and threaten her.
44 He had armed himself with a kitchen knife and had it present in the room throughout the night. He threatened her in order to cause her to perform sexual acts or he threatened he would kill her. She complied with his requests for fear of her own safety and that of her children.
45 Due to his conduct she received bruises about her face and body which caused pain and discomfort.
46 She managed to leave the premises with her children and sought refuge at a friend's house at about 6.00 am. She had persuaded the appellant to let her leave in her vehicle but as she did so, he approached the vehicle and attempted to stop her as she drove away. He then entered the house and stole keys to another vehicle that was at the premises and followed her in that vehicle. He caught up with her by driving in an erratic manner to make her stop. He tried to prevent her leaving but she managed to escape from him and contacted the police.
47 She attended at the Sexual Assault Referral Centre where a physical examination was conducted. The appellant was arrested later that day by police.
48 Contained in the prosecution brief, and referred to by the prosecutor, was a medical report of Dr Penelope Yeung who examined the respondent on 8 and 11 March 2011. She found tenderness to palpitation on the left cheek, scalp, right lower ribs, posterior leak on the left middle and ring finger pads, swelling of the right forehead and left middle ring finger pad, redness of the neck and upper right thigh, pinpoint bruising on the inner aspect of the upper lip, bruising on the right and left eyelids, left forehead, left side of the chin, right ear and behind the right ear, neck, right and left arms, left middle and ring finger pads and fingernails, right leg and left lower leg, abrasion on the aspects of the upper and lower lips, back of the neck, left forearm, left side of the abdomen and upper right side, and an area of matted hair in front of the right ear. An external genital examination revealed no recent injury. Internal examinations were declined.
49 In her first victim impact statement, the respondent stated that she thought she was going to die that night in her house. She was very worried for the children's safety. As a result of that night she was scared and slept with knives under her pillow for two weeks. She had nightmares, she could not return to the house for days and she ended up having to move house permanently. She was diagnosed with depression and was unmotivated. She felt guilty. She lost sleep. She still did not feel safe. In her statement on 27 January 2015 for the purposes of the assessment, she stated that she still suffers mentally for what occurred those four years before. She had attempted counselling twice but found it too confronting. She still suffers from nightmares and flashbacks. She was diagnosed with depression and medicated for one year. She is still afraid. She has lost confidence in many ways. She feels guilty for what her children have been through. A letter from her mother confirms the effects upon her daughter.
50 A letter from Anthony Ward dated 14 May 2016 confirms that she had commenced counselling and that she continues to suffer trauma, emotional fatigue and sadness.
51 The respondent's most recent statement, of 2 May 2016, confirms the past history. She states that she was diagnosed with post-traumatic stress disorder the previous year and that it has taken five years to resume some 'sort of normalcy' in her life. She says that she has suffered additional distress by reason of attending court for the purpose of the appeal.
52 Her mother confirms the history of the respondent being under stress as a result of the offending. She says that as the years have passed and her daughter has attended counselling she has flourished and has formed more positive relationships. She stated that she is proud of the way her daughter is recovering.
53 Ms Park's affidavit, on behalf of the appellant, includes copies of photographs taken by the respondent allegedly prior to the offence and one recently taken from the respondent's Facebook site. In my view, these can neither prove nor disprove the state of mind or suffering of the respondent.
54 The appellant in his most recent letter makes comments on the respondent's statements, taking issue with facts which relate back to the night in question. He refers to other statements, the relationship between the two of them prior to the night in question and contacts with the victim mediation unit.
55 In his submissions on the appeal, he made reference to the history of the relationship and asserted that he had pleaded guilty out of shame, whilst also advancing other matters inconsistent with the pleas he entered.
56 The appellant was ultimately sentenced by Birmingham DCJ on 31 January 2012 to a lengthy term of imprisonment on the basis of the facts above. The judge found that the circumstances of the offending were humiliating, degrading and frightening, and that it amounted to a period of nine or 10 hours during which the respondent was attacked. The appellant was represented by counsel in the sentencing process.
57 From the medical evidence it is clear that the respondent suffered extensive, although not severe, physical injury as a result of the criminal conduct. He pleaded guilty on the basis of an assault occasioning bodily harm founding the burglary charge. Therefore, no doubt arises in my mind but that the respondent suffered physical injury. In addition, she has suffered from the emotional and psychological effects of the events of that night. The events were due entirely to the criminal conduct of the appellant.
58 In my assessment, the appellant subjected the respondent to a terrifying ordeal on the night of 7 March 2011. Her three young children were in the house at the time. She was detained for many hours. She suffered significant trauma at the time physically and subsequently psychologically. Practically, she had to move house, store her belongings and was afraid of being found by the appellant.
59 Injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
60 Loss as defined in s 6(2) of the Act to mean:
So far as is presently relevant, expenses incurred by or on behalf of the victim that arise directly from the injury suffered by the victim, and loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim.
61 The assessor allowed $33 in her award for an account paid to the Bertram Family Medical Centre. No other paid accounts were provided to the assessor or this court. The list of other expenses submitted under the heading 'estimated costs' are not direct consequences of the injuries, but include damage repairs, the costs of moving and storing property and fuel. Accordingly, the $33 is a correct figure for the allowable losses.
62 The respondent has suffered continuing depression, anxiety, PTSD and low self-esteem. In 2015, she obtained counselling from the Fremantle Women's Health Centre and Anthony Ward, who describes her as being still traumatised by her experiences. Her GP has confirmed that she was diagnosed with depression in April 2011.
63 Mental and nervous shock contemplates a more enduring injury than simply fright and anguish. The injury in question needs to be such that it is something significant, enduring and detrimental. Section 35(2) of the Act provides that the court cannot award compensation for mental and nervous shock unless satisfied that the victim also suffered bodily harm as a result of the commission of the alleged offence. In this instance, it has been demonstrated that physical injuries were caused by the assault and that she suffered bodily harm.
64 The appellant has in his submissions suggested that the respondent invited him to the house on the night in question, and he has taken issue with details of prior relationship and association. He accuses her of continuing to lie about these matters. In submissions, he claimed that the award was a lot of money, and detailed the difficulties in which he finds himself in custody. This approach entirely overlooks the seriousness of the offences to which he pleaded guilty, and the impact of them. Further, an award is compensatory in nature, not a further punishment.
65 I have no difficulty in finding that the continuing psychological difficulties experienced by the respondent are an enduring effect of the impact of the offences. This is significantly more than shock or fright. Her mental health has been affected. I accept that her sense of personal safety has been and continues to be diminished. Her personal relationships have been adversely affected.
66 These consequences are already of an extended duration. I have no doubt that she will need continued support and counselling into the future.
67 Ordinary tortious principles apply for the assessment of damages, within the context of the definitions in the Act of injury and loss, subject to the jurisdictional limit.
Jurisdictional limit
68 The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: s 31(1). Where a number of offences are committed at approximately the same time and in the same instance of offending the aggregate of any amounts awarded must not exceed the maximum amount: s 31, s 33 of the Act.
69 The offences committed by the appellant were all committed on the same occasion and therefore the maximum amount which may be awarded is $75,000.
70 The maximum compensation payable under the Act is a jurisdictional limit and is not to be reserved for the worst of cases: S v Neumann (1995) 14 WAR 452, 463.
71 I am in agreement with the figure for compensation awarded by the assessor. The material I have read which postdates the award only confirms that assessment. In a situation such as this, the requirement to have regard to the assessment in a specialist tribunal in this field is apposite: Hogben v Darcy [13]. Having considered all the circumstances, I am not persuaded that I should vary the amount awarded by the assessor.
Future medical treatment
72 No issue has been taken with the allowance for future counselling of $1,195.
Summary
Award $38,000.00
Future psychological
(*subject to s 48 of the Act) $ 1,105.00*
Past expenses $ 33.00
Total $39,138.00
Conclusions
73 The appeal of the appellant is dismissed. The award of compensation remains at $39,138.
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