Attorney-General v B
[2010] TASCCA 6
•10 May 2010
[2010] TASCCA 6
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Attorney-General for Tasmania v B [2010] TASCCA 6
PARTIES: ATTORNEY-GENERAL FOR TASMANIA
v
B, K T
FILE NO/S: 693/2008
JUDGMENT
APPEALED FROM: TAD v KTB (2008) 17 Tas R 302, [2008] TASSC 36
DELIVERED ON: 10 May 2010
DELIVERED AT: Hobart
HEARING DATE: 9 March 2010
JUDGMENT OF: Crawford CJ, Evans and Porter JJ
CATCHWORDS:
Criminal Law – Procedure – Criminal injuries compensation – Tasmania – Injuries – Evidence and procedure – Documents admissible on application – Whether facts sufficiently appear from evidence and material.
Sentencing Act 1997 (Tas), s68.
R v Ferrari [1997] 2 Qd R 472 at 477; R v Kneeshaw [1975] QB 57 at 60; R v Braham [1977] VR 104 at 110; Landolt (1992) 63 A Crim R 220 at 223, considered.
Aust Dig Criminal Law [3208]
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe
Respondent: R C Mainwaring
Solicitors:
Appellant: Blissenden Lawyers
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2010] TASCCA 6
Number of paragraphs: 69
Serial No 6/2010
File No 693/2008
ATTORNEY-GENERAL FOR TASMANIA v K T B
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
EVANS J
PORTER J
10 May 2010
Orders of the Court
Appeal dismissed.
Serial No 2/2010
File No 693/2008
ATTORNEY-GENERAL FOR TASMANIA v K T B
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD CJ
10 May 2010
The appeal was brought from a refusal of a judge to order an offender to pay compensation under the Sentencing Act 1997, s68, to a person who suffered injury as a result of a crime committed by the offender. TAD v KTB (2008) 17 Tas R 302, [2008] TASSC 36.
Originally, the appellant was the person who claimed to have suffered injury. (I will refer to her as the complainant.) However, following realisation that she had no right of appeal, it was ordered that the Attorney-General replace her as the appellant. The Criminal Code, s401(2)(c), gave the Attorney-General the right of appeal.
The criminal proceedings
On 7 August 2007, the respondent pleaded guilty to maintaining a sexual relationship with a young person under the age of 17 years, who was the complainant. In the course of stating the facts, Crown counsel tendered her victim impact statement. It was the only material the learned judge had concerning the injuries, or any other impact on her, that resulted from the commission of the crime. Counsel for the respondent made a plea in mitigation. On 10 August 2007, a conviction was recorded and the respondent was sentenced to a term of imprisonment.
The sexual relationship subsisted between 21 February 1972 and 20 August 1975. The complainant was nine years old when it started and 12 years old when it ended.
The commission of the crime was summarised in the comments on passing sentence in the following way. The respondent preyed upon the little girl. He took her shopping and in his car, indecently assaulted her by rubbing her vagina and getting her to rub his penis. That was repeated on many car trips. On occasions, the assaults were aggravated by him putting his finger in her vagina. Once he tried unsuccessfully to have her kiss his penis. Once in his home, he exposed his penis and unsuccessfully tried to force her mouth onto it. The learned judge said: "These criminal acts were repeated on many occasions in your motor vehicle, in your workshop, on the beach and elsewhere." His Honour said that a serious circumstance of aggravation was that on one occasion the respondent told the girl that the conduct was her fault and that if she told anyone about it, he would see that her two-year-old brother was run over and killed. The girl believed the threat and it haunted her for many years thereafter.
Greater detail of the unlawful sexual acts constituting the crime was provided by prosecuting counsel to the learned sentencing judge. There was no mention of the complainant suffering physical injury as a result of them, but reference was made to an occasion when he inserted his fingers into her vagina and it hurt her and she told him to stop.
A printed form of victim impact statement was tendered on behalf of the complainant. The form provided for a description of physical injuries, but she described none. It also provided for details of financial loss suffered by her, but she described none. However, concerning emotional and psychological issues she may have suffered as a result of the crime, the statement contained the following information:
"My innocence was stolen and my childhood deprived of normality due to the continued sexual abuse. Details of this childhood sexual abuse make me and those who know and love me feel physically ill.
I lived in fear of my 2 year old brother's life being taken as K told me if I told my father about the abuse he would open the driveway gates onto the highway so my brother would end up being hit by a car.
I don't believe in God anymore because I thought if I prayed hard enough K would stop the abuse.
As a young adult I drank alcohol a lot but would not let anybody physically or emotionally near me. Because I had not disclosed the abuse to my parents they remained friends with K and his wife. My mother organised K to take photographs at my wedding I wanted to scream 'you bastard this is not right' I remember feeling physically and emotionally on my wedding day with each photo he took I would get flashbacks of the abuse. My wedding day was ruined.
I have been diagnosed with PTSD by my Psychologist Dr Julian Watchorn. My GP put me on anti-depressants to help me through the ordeal of reporting to Police.
I feel as I've lived a lie my whole life as I only disclosed to my husband and parents a few days before making the Police report.
For years I suffered from a lack of trust and would not establish a relationship with a man because if a man tried to physically touch me I would verbally threaten to strike him. There have been ongoing issues with sexual relationships within my marriage for many years as result of the abuse and it continues to be so to the present time.
I feel guilty and ashamed about the pain I have caused my parents and husband. My parents especially because they feel they should have seen the signs and protected me. K even used my father to get a job.
It created obsessive and possessive parenting skills. I have boys and until the age of 10 yrs I would not allow them to go to a male public toilet. Beyond 10 yrs I would hold the door open to the men's toilet and tell them to sing while they wee'd and if they stopped I would go into the toilet to make sure they were okay. When the boys wanted to join cubs at age 6 I would only allow it if my husband became a cub leader as I didn't trust my children with strange men. I had to keep my boys safe. I attended all school camps and if they went for a sleepover I felt anxious, ill and panicky, if the same parent asked them back I considered them to be a sexual predator.
I am emotionally exhausted due to the pretence of being strong and I have clinically detached myself from many people and do not have more than two close friends. I can honestly say that the sexual abuse K did to me is as traumatic today as it was back then, only now it has ruined my life as an adult as well as a child."
In the sentencing comments, the learned judge accepted that the crime "had completely ruined the complainant's life, both as a child and an adult". The information upon which that acceptance was based could only have been found in the victim impact statement.
The making of an application for compensation
At the hearing on 7 August 2007, Crown counsel informed the learned sentencing judge on behalf of the complainant that she foreshadowed that she might make an application for compensation under s68 through a private legal practitioner. On 4 January 2008, a written application that the respondent pay compensation was filed by her. It first came before the learned sentencing judge for directions on 4 February 2008.
Section 68(3) provided that a compensation order might be made by the court on its own motion or on an application made by the person in whose favour the order was sought, or on behalf of that person by the Director of Public Prosecutions. By subs(4), such an application was required to be made as soon as practicable after the offender was found guilty or convicted of the relevant offence.
In the judgment from which the appeal has been brought, the learned judge found that the application was made as soon as practicable as required by subs(4). That question is no longer an issue.
The material on which the complainant sought to rely
At a directions hearing on 4 February 2008, the learned sentencing judge identified issues he anticipated would arise on the hearing of the application and ordered that certain issues be tried first, namely whether the application was made as soon as practicable; if yes, whether the court should exercise its discretion in the complainant's favour; and if yes, what material was admissible upon the assessment of compensation and whether the respondent was entitled to challenge any of it.
Because the learned sentencing judge ceased to hold office, the application was heard by another judge. That judge noted that the entitlement to compensation was governed by s68(1)(b), which gave the court a discretion whether to order the offender to pay compensation. The learned judge determined that it was appropriate, in the course of considering the exercise of that discretion, to determine first the material to which the court could have regard for the purpose of making the assessment. That was because of the provision in s68(6) that enabled the court to exercise its powers "if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers". Also to be considered was the provision in s68(9) that "in determining ... the amount of loss, destruction or damage to property that a person has suffered as a result of an offence, the court is not bound by the rules of evidence and it may inform itself in any matter in any way it considers appropriate". There arose a contest between the parties concerning the material upon which the complainant would be entitled to rely.
In addition to the material provided to the court at the sentencing hearing, the complainant wanted the learned judge to consider the following material when assessing compensation:
(a)A statutory declaration of the complainant dated 5 September 2006, which was provided by her for the purpose of prosecuting the respondent and which was contained in the Crown papers filed for the purposes of the proceedings. It contained more factual details concerning and surrounding the commission of the crime than were stated by prosecuting counsel to the learned sentencing judge.
(b)An affidavit of the complainant sworn on 14 December 2007, to which was annexed a 10-page report of Dr Julian Watchorn dated 2 October 2007. The complainant sought to rely on the annexed report as evidence of the injuries she suffered as a result of the crime. Dr Watchorn was a clinical psychologist. He provided the report at the request of the complainant's legal practitioner with a view to its use in association with the claim for compensation. It dealt with the psychological injuries said to have been suffered by the complainant as a result of the crime. In summary, Dr Watchorn's opinion, as expressed in the report, was that as a result of prolonged childhood sexual abuse by the respondent, the complainant suffered from post-traumatic stress disorder as well as clinical depression. She exhibited the common characteristics of post-traumatic stress disorder, namely intrusive experiences, purposeful avoidance of reminders of the abuse or numbing of the distress, and a heightened arousal. He described the emotional and psychological impact upon her as significant. She experienced recurrent fearful thoughts of the respondent and suffered from frequent nightmares and sleep disturbance that related to the sexual abuse. That had led to her struggling with depression and developing a sense of hopelessness about the future. Since she had made statements to the police, she had experienced heightened anxiety and depression. Dr Watchorn continued:
"She has been prone to ruminating about the abuse that has occurred to her in childhood, has become socially withdrawn, is frequently teary and sad, and suffers with low self-worth. Ms D exhibits a heightened level of arousal which appears to stem from the childhood abuse. It is the author's opinion that Ms D's self concept and social interactions have also been significantly affected by this abuse. It is also the author's opinion that Ms D will continue to experience psychological distress as a result of the abuse, particularly in the short-term, i.e. over the next twelve months. It is also the author's opinion that Ms D will continue to experience symptoms of anxiety and depression further into the future. Finally, it is the author's opinion that Ms D will require further psychological support in order to help her more fully overcome the impact of such abuse.
The author supports Ms D's application for criminal injuries compensation on the basis that she has suffered substantial psychological distress as a result of the abuse in question. Due to her ongoing psychological distress, it is the author's assessment that Ms D will require psychological counselling to assist her in further recovering from this incident. The author estimates that this mental health professional service would involve at least twenty counselling sessions at an estimated cost of $2600 (20 sessions at $130 per session).
In summary, as a result of prolonged childhood sexual abuse, Ms D currently experiences Post Traumatic Stress Disorder (PTSD) as well as clinical depression. Her condition, in particular the PTSD, can best be described as lifelong, and there is a clearly a need for ongoing treatment on a semi-regular basis in the form of psychological counselling. With such intervention, there is the likelihood of a gradual improvement in her condition, particularly in respect to the depression, yet it is likely that the impact of her early abuse will be life-long."
The judge's decision concerning the admissibility of that material
To understand the issues that are raised by the appeal, it is necessary to understand the provisions of s68 that are relevant to it. They are:
"68 — (1) If a person is found guilty or convicted of an offence and the court finds that another person has suffered injury, loss, destruction or damage as a result of the offence, the court —
(a) must, if the offence is burglary, stealing or unlawfully injuring property; and
(b) may, in the case of any other offence —
order the offender to pay compensation for that injury, loss, destruction or damage.
...
(6) A court may exercise its powers under this section if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.
(7) In subsection (6),
'the available documents' means —
(a) any written statements or admissions that were made for use, and would have been admissible, as evidence on the hearing of the charge; or
(b) the depositions taken at the committal proceeding; or
(c) any written statements or admissions used as evidence in the committal proceeding.
(8) Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any injury, loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.
(9) In determining, for the purposes of this section, the amount of loss, destruction or damage to property that a person has suffered as a result of an offence, the court is not bound by the rules of evidence and it may inform itself in any matter in any way it considers appropriate."
The learned judge noted from the provisions of subs(6) and (7) that the court was permitted to exercise its powers under the section to order the respondent to pay compensation if the facts sufficiently appeared from:
·any evidence or material presented to the court; or
·the available documents, defined as:
·any written statements or admissions that were made for use, and would have been admissible, as evidence on the hearing of the charge;
·the depositions taken at the committal proceedings;
·any written statements or admissions used as evidence in the committal proceedings; and
·together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.
It was observed by the learned judge that subs(6) limited the circumstances in which the court might exercise the power to order compensation to those in which "the facts sufficiently appear" from particular evidence or material, and held that for the circumstances of this case, the expression "any evidence or material presented to the court" meant only the material presented to the sentencing judge at the time of the plea and sentencing. Such material included the statement of facts and submissions by prosecuting counsel, the victim impact statement and the plea in mitigation by counsel for the complainant. The statutory declaration of the complainant dated 5 September 2006 could also be considered because it fell within par(a) of the definition of "the available documents" in subs(7). However, it was held that Dr Watchorn's report could not be considered as it did not qualify under subs(6) and (7).
The learned judge held that subs(9) applied only to the determination of claims with respect to loss, destruction or damage to property, and not those arising from injury, so that it did not assist the complainant.
Was the learned judge's interpretation of s68(6), (7) and (9) correct?
The learned judge's interpretation of the subsections is attacked by grounds 1A and 1 of the appeal. They are:
"1AThat the learned Judge at first instance erred in law in holding that the phrase 'any evidence or material presented to the Court' (Section 68(6)) means any such material provided to the learned sentencing Judge at the time of plea and sentencing.
1That the learned Judge at first instance erred in law in holding that Section 68(9) of the Sentencing Act 1997 was 'not applicable' to a determination of the 'amount of loss' arising from the 'injury' 'suffered' by the [complainant]'."
There is appellate authority for the proposition that the general purpose of legislation which gives a court dealing with an offender the power to order the offender to pay compensation to a victim, is to provide a summary and inexpensive method of compensating the victim, that it is usually designed for cases in which the entitlement is clear and that it is not intended to cater for cases involving complicated or extensive inquiry or investigation. R v Ferrari [1997] 2 Qd R 472 at 477; R v Kneeshaw [1975] QB 57 at 60; R v Braham [1977] VR 104 at 110; Landolt (1992) 63 A Crim R 220 at 223.
In that last mentioned case it was said by Hampel J, with whom the other members of the Court of Criminal Appeal of Victoria agreed:
"In my opinion, the object [of the Penalties and Sentences Act 1985 (Vic), s92] ... is to enable the court to order compensation to the victim in cases in which both liability to compensation and quantum can be simply determined. The procedure is not designed to require a court sitting in its criminal jurisdiction to engage in what amounts to a contest requiring the examination and cross-examination of witnesses, including the convicted person against whom the compensation order is sought. (See the observations by the Full Court in Braham [1977] VR 104.) If upon an application for a compensation order it appears to the court that there is a real issue to be determined, it should decline to make an order and leave the question to be determined by a civil court in accordance with its normal procedures."
There may be found in the legislation governing a case an indication that is contrary to what I have been saying. Further, the court that is asked to award compensation should not refuse to do so merely because the evidence before it might not permit an award for a sum which might normally be expected to be recovered by the victim in a civil action against the offender. The amount awarded is merely on account of the damages which the injured party might recover in a civil court. Re Poore (1973) 6 SASR 308 at 311. And see R v McDonald [1979] 1 NSWLR 451 at 459.
It was submitted for the appellant that there is a beneficial purpose behind s68 and that it ought to be interpreted favourably for the benefit of victims. See the Acts Interpretation Act 1931, s8A.
Nevertheless, the general purpose of s68 accords with the authorities to which I have just referred, and particularly so in the case of a claim for compensation for injuries suffered as a result of an offence.
It is convenient to consider first the provisions of s68(9). What is immediately noticeable from a comparison of subs(1) and (9) is that whereas the basic entitlement in subs(1) is to compensation for "injury, loss, destruction or damage" a person has suffered as a result of an offence, the evidentiary provisions of subs(9) are expressed to apply only to a situation where a court is "determining ... the amount of loss, destruction or damage to property that a person has suffered as a result of an offence". There is a reference to "injury" in subs(1), and in subs(8), but not in subs(9). As a consequence of the difference between the two provisions, the learned judge held that subs(9) does not apply to the determination of claims arising from injury. That was also the view of Evans J in Monks (2001) 122 A Crim R 324.
Subsection (1)(a) obliges a court to order an offender to pay compensation if another "has suffered injury, loss, destruction or damage" as a result of an offence of a certain type, namely "burglary, stealing or unlawfully injuring property". By virtue of the definition of "stealing" in s67, it extends to far more offences than stealing alone. It means any of the offences in Chapters XXIV, XXV, XXVI or XXIX of the Criminal Code. They include stealing by a person holding a power of attorney, stealing by misappropriation, unlawfully dealing with registers and records, unlawfully dealing with wills and documents of title, robbery, blackmail, demanding property with menaces with intent to steal and corruptly taking a reward for the recovery of stolen property. The definition in s67 of "unlawfully injuring property" includes arson, unlawfully setting fire to property, causing a fire with intent to injure a person or property, casting away or destroying or endangering a ship, injuring public utilities and interfering with a boundary mark.
Depending on the circumstances of the particular case, many of those offences may result in a victim suffering personal injury with or without financial loss and damage. They may cause property loss, destruction or damage and also financial loss and damage, but not personal injury, or as well as personal injury. Victims may suffer financial loss that does not include loss or destruction of property or damage to property, and they may or may not suffer personal injury as well.
Subsection (1)(b) gives to the court a discretion whether to order an offender to pay compensation if another "has suffered injury, loss, destruction or damage" as a result of any other type of offence. Offences are not confined to crimes under the Criminal Code. By virtue of the Acts Interpretation Act, s46, an "offence" means any contravention of, or failure to comply with, a law for which a person is liable to be punished, whether summarily or otherwise.
As with the offences to which par(a) applies, some of the offences to which par(b) applies may also cause personal injury, financial loss and damage, property loss and destruction of or damage to property, either alone or in combination.
It is problematic whether the reference to "injury" in subs(1) is to personal injury only or whether it extends to any injury, whether personal, financial or otherwise, that a person may suffer as a result of an offence. I do not think it is necessary to determine the question.
Subsection (9) provides that the court may inform itself in any way it considers appropriate, and is not bound by the rules of evidence, when, for the purposes of exercising its obligations or powers under the section, it determines "the amount of loss, destruction or damage to property that a person has suffered as a result of the offence". There is significance in the fact that the subsection makes no reference to injury, unlike subs(1) and (8). The omission should be regarded as deliberate. It follows that the evidentiary provisions of the subsection do not apply to the determination of the amount of injury suffered as a result of an offence.
It is not an easy matter to interpret the expression, but giving the words their ordinary and natural meaning, so far as that is possible, the conclusion I have reached is that the subsection applies to the quantification, in monetary terms, of any loss, destruction or damage to property that has been caused. The expression refers to the determination of the amount of loss, destruction or damage to property, and not merely to the determination of any loss, destruction or damage.
It was submitted for the appellant that in the expression "the amount of loss, destruction or damage to property that a person has suffered as a result of an offence", the words "to property" confine only the meaning of "damage" and do not confine the meaning of "loss", so that the evidentiary provisions of the subsection extend to the determination of "the amount of loss ... that a person has suffered as a result of an offence". That may be correct. It is unnecessary to decide that. However, even accepting that to be the case, it does not avail the complainant, for it does not apply the provisions of the subsection to the determination of personal injuries that have been suffered. As I said, the omission of any reference to injury should be regarded as deliberate. Further, the reference to the determination of the amount of loss cannot be regarded as a reference to the determination of injury.
The only conclusion reasonably open is that the evidentiary provisions of subs(9) are not intended to assist the determination of personal injuries a person has suffered as a result of an offence. The learned judge was correct to hold that its provisions cannot be used for that purpose.
It would have been a simple drafting task to extend the provisions of subs(9) to circumstances such as those that arise in this case. It could have referred simply to the determination of the amount of compensation or to the ascertainment of injuries. It did not do so.
There is nothing in the papers that suggest the complainant was claiming compensation for the amount of any loss. Her claim was confined to one for compensation for personal injuries she suffered as a result of the crime, without a claim for a loss in the form of an amount of money.
Subsection (6) also presents difficulties, although the meaning of "the available documents", that is provided by subs(7), is relatively easy to understand. It was submitted for the appellant that the reference to "evidence or material presented to the court" is not limited to evidence and material presented to the sentencing court at the time of the plea and sentencing hearing, as was held by the learned judge, but extends to any evidence and material that may be presented to the court in support of the application for compensation at any time.
Such an interpretation is not reasonably open. If that was intended, the reference to "the available documents" would have been unnecessary, as would all of subs(9). The section gives powers to a court in which an offender is found guilty or convicted of an offence. Subsection (6) provides that those powers may be exercised if the facts sufficiently appear from any evidence or material presented to that court and additionally, from "the available documents", which is a reference to much of the material relevant to the trial and sentencing process that is commonly contained in a prosecutor's file, or commonly included in the set of Crown papers provided for the use of a criminal court. When considered in conjunction with one another, it is obvious that those references are principally to the evidence and material that is before the court, or available for presentation to or use in the court, for the purposes of the prosecution of the case. Such an interpretation is consistent with the general purpose of legislation such as the section to provide a summary and inexpensive method of compensating a victim in relatively simple cases.
The way in which the section was drafted overall is not consistent with the interpretation for which the appellant contends. The learned judge was correct when she held that she could not consider Dr Watchorn's report.
The judge's decision concerning the exercise of the discretion to order the payment of compensation
Notwithstanding that at the very end of her judgment the learned judge purported to answer in the negative the question whether the court should exercise its discretion in favour of the complainant, her Honour did not in fact exercise it. She concluded that s68(6) only permitted the court to exercise its discretion to order the offender to pay compensation if the facts sufficiently appeared from the evidence and material to which the subsection referred, found that the facts did not sufficiently appear from the statements and submissions of prosecuting and defending counsel and the victim impact statement, and concluded that it followed that she must refuse the complainant relief.
The learned judge held that the evidence and material had to be sufficient to enable the court to determine both the offender's liability to pay compensation and the amount of the compensation that should be ordered. Her Honour concluded that the statement of the complainant in the victim impact statement that she had been diagnosed with post-traumatic stress disorder by her psychologist, was sufficient to establish that an injury had resulted from the crime. She then considered and resolved the remaining question in the following way:
"Does the available material otherwise disclose sufficient facts from which the Court could assess compensation? Counsel for the applicant has emphasised the limited nature of the claim made, which he says can be quantified broadly from the available material. However, the content of Dr Watchorn's report emphasizes the material which will not be available to the Court, and which would be needed to make a proper assessment of any compensation amount. It is not for the applicant to, in effect, say, I will take whatever I can get on the basis of the material that may be had regard to. The question is, do the facts sufficiently appear to enable the Court to make an order of compensation for the injury she claims. I am not satisfied that they do.
I am mindful that the applicant may have no alternative remedy available to her. That is a factor that would have been relevant had other factors not overtaken it. I also accept that the applicant's claim is not per se complex and difficult. However, the absence of further material makes it so."
Was there error?
Ground 3 of the appeal complains of a specific error in law or in fact. It is:
"That the learned judge at first instance erred in law and/or in fact in her approach to the material in the report of Dr Julian Watchorn by holding:
(a) The material in the report of Dr Julian Watchorn could not be taken into account because Section 68(9) was 'not applicable'; and
(b) The material converted a claim that was 'not per se complex and difficult' to a claim that was complex and difficult."
I have rejected the validity of par(a) as a ground. Paragraph (b) misstates what was said by the learned judge. She said: "However, the content of Dr Watchorn's report emphasizes the material which will not be available to the Court, and which would be needed to make a proper assessment of any compensation amount." A little later her Honour said that the absence of further material made the complainant's claim complex and difficult. With respect to the learned judge, that was poorly expressed. What she was saying is that without further material, such as that contained in Dr Watchorn's report, the facts did not appear sufficiently to enable the court to make an assessment and order for compensation. In other words, the facts did not sufficiently appear from the material to which the court could have regard.
It is convenient to deal with grounds 5 and 7 at the same time. They are:
"5 That the learned Judge at first instance erred in law in her determination referred to in Ground 4 hereof by failing to consider the relevance of Section 68(8) of the Sentencing Act 1997 and by failing to give that subsection appropriate weight in her reasons for her decision.
7 That the learned Judge at first instance erred in law in holding that other factors had overtaken the factor that the Applicant was unlikely to have any alternate remedy."
The learned judge did consider the relevance of s68(8). She accepted that the complainant would not be able to sue the respondent successfully for damages at common law because of the passage of time since the commission of the crime and the provisions of the Limitation Act 1974. The saving provisions of s68(8) did not assist her. The learned judge accepted that would have been a factor in the complainant's favour if the court was called upon to exercise its discretion under s68(1) and (6) to order the payment of compensation. Her comment, to which ground 7 relates, was merely that it was not a relevant factor unless the facts sufficiently appeared from the evidence and material to which the court could have regard and the discretion was activated. There was no error in that.
Ground 4 is:
"That the learned Judge at first instance erred in law in holding that the Claimant cannot present a claim that is limited and not a full assessment for damages arising from personal injury."
There is merit in the first part of the ground, but not the second, for she did not hold that. It arises out of the remark of the learned judge that: "It is not for the applicant to, in effect, say, I will take whatever I can get on the basis of the material that may be had regard to." No suggestion was made by her Honour that the complainant's case needed to be sufficient for an assessment of damages for personal injury.
The remark arose out of her Honour's earlier mention of the fact that the complainant's counsel had submitted there was sufficient material for the court to make a broad assessment to compensate her for pain and suffering and loss of amenities of life associated with her post-traumatic stress disorder.
Subsection (8) acknowledges that the amount of a compensation order may not be as much as what might be recovered by way of damages at common law, and it provides for a claimant's right to pursue the difference in a common law action.
Counsel for the appellant submitted that even if the material before the learned judge was inadequate for the making of a full assessment of compensation for all of her injuries, suffering and the like as a result of the crime, nevertheless there was sufficient material upon which an assessment of a smaller amount could be made. Authority supports the submission in addition to the provisions of subs(8). For example, in Re Poore (supra) at 310, Bray CJ commented that the purpose of the legislation he was considering was to afford a quick remedy to the injured party in addition to ordinary remedies, adding that "the amount is merely on account of the damages which the injured party might recover in a civil action against the wrongdoer".
However, notwithstanding that the ground succeeds, it is not enough for the appeal to succeed. The decision of the learned judge that the facts did not sufficiently appear to enable the Court to make an order of compensation for the injury she claims, must be shown to be erroneous. Grounds 2 and 6 raise the making of such an error, particularly ground 6. They are:
"2 That the learned Judge at first instance erred in law in failing to exercise the discretion given the following:
(a) The finding that 'there is … sufficient material … to establish the existence of an injury';
(b) The finding that ' … the Applicant's claim is not per se complex and difficult'; and
(c) The content of the victim impact statement and the Appellant's statutory declaration 5th December 2006.
…
6 That the learned Judge at first instance erred in law in failing to hold that the Claimant should be awarded compensation by failing to uphold the submission on behalf of the Applicant [that there was sufficient material for the court to find liability and make a broad assessment of compensation] and referred to in paragraph 38 of the judgment."
Section 68 gives no entitlement to compensation to persons merely because they are the victims of crime. Given that the complainant did not claim to have suffered any "loss, destruction or damage as a result of the offence", her claim was limited to one for compensation for personal injuries only as a result of the offence.
What injuries did the evidence and material, to which the learned judge could have regard under subs(6), suggest that she suffered? The only source of information that was available was her victim impact statement, for the other material dealt with the commission of the crime, rather than its consequences.
Her statement asserted that she suffered a number of psychological and emotional problems as a result of the commission of the crime. It said that she has been diagnosed with post-traumatic stress disorder by Dr Watchorn, without a statement that it resulted from the commission of the crime. It may be inferred that is what she intended to communicate. The statement described a number of behavioural problems and attitudes she says she has as a result of the crimes. I have set out all of the material part of it earlier in this judgment.
Victims are permitted by the Sentencing Act, s81A(2), to furnish to the sentencing court a victim impact statement that gives particulars of any injury, loss or damage suffered by the victim as a direct consequence of the offence, and describes the effects on the victim of the commission of the offence. Such statements are regularly tendered to and used by courts when sentencing offenders. However, they are rarely used in support of an application for a compensation order for personal injuries suffered as a result of an offence. In fact, this is the first case of that kind I have experienced, at first instance or on appeal.
There is nothing in the Act that directs a sentencing judge to have regard to the impact of an offence on a victim when determining the appropriate sentence. Nevertheless, it is clear that the consequences of an offence, including its effect on a victim, are important considerations in the sentencing process, and the severity of the sentence may be increased because of them.
No doubt it is for that reason that ss81A(7) and 81(2) require that the sentencing court must ensure that the offender has knowledge of, and the opportunity to challenge, the information contained in a victim impact statement. The offender may challenge the truth of any of that information received by the court, and if so, the court may require it to be proved in like manner as if it were received at a trial. See ss81A(7) and 81(4).
The legislative system has provided victims with a relatively simple and expedient way for them to communicate their suffering to courts, often publicly, without being challenged about what they say.
I have no doubt that the contents of many victim impact statements are influenced by the emotional feelings of the victim, his or her dislike for the offender, and a desire for retribution. That comment particularly applies to statements asserting psychological injuries or difficulties as a result of a crime. The statements are never on oath and they require particular caution before they are wholeheartedly accepted.
Offenders rarely challenge them, but that does not mean necessarily that they accept everything contained in them, and I am sure that also applies to judges who receive them, even if they are unchallenged. It is not infrequent that judges feel uncomfortable about accepting everything that is contained in them, for there is usually no way of knowing, or confirming, that what is complained of was in fact caused by the offence. Because they are not on oath and the court will often have no other information about the victim, and the influence that other life experiences have had on him or her, there is a need for pragmatism when dealing with them.
If judges demonstrate a willingness to accept every fact in them that is not challenged, and a readiness to increase the severity of sentences having regard to every one of them, accused persons will be encouraged to challenge much of what is contained in them. As a consequence, victims may be forced to give evidence to support the contents of their statements, and the statements may need to be supplemented and supported with evidence from other witnesses, including medical and other experts. Such a course is not one that is generally desirable for the sentencing process. Victims will be deterred from providing their statements. Many, if not most, will not want to give evidence and to be exposed to the court's processes. Hearings will be prolonged by the dispute.
On the other hand, many offenders may not have the personal or financial resources to be able to mount a comprehensive challenge to a victim impact statement.
I think it true to say that for reasons such as those I have mentioned, sentencing officers tend to treat victim impact statements, when not supported by expert evidence or reports, or other corroborative evidence, with a degree of circumspection when it comes to psychological injuries and the like. That is not to say that they are disregarded, for they are not. But experience shows that they tend to be accepted in an extremely general sense, without resort to detailed fact-finding. Sentencing officers usually avoid making precise findings concerning the adverse effects an offence may have had on a victim. Thus, it is common that in comments on passing sentence judges often make general, non-specific, and extremely brief findings about them. By way of examples, the following were statements made in sentencing comments in four cases I have selected at random in which victim impact statements were tendered:
"The complainant continues to suffer considerably. She believed the threats that were made to her and has had suicidal thoughts and continuing nightmares. She may well have been irreparably harmed by your conduct."
"His crimes have caused psychological harm to his granddaughter. She is 16 years old and suffers from depression. She missed a year at school."
"The complainant has been affected psychologically by the crime. He was plainly distressed when reading his victim impact statement and understandably so. Hopefully he will be able to move on with his life and leave his memories of what happened in the background. No doubt that is what he wants very much."
"It is all too common that the victim of child sexual abuse will suffer deep psychological problems later in life. That is the case here. The extent to which all of his problems have resulted from the crime is beyond the capacity of the Court to determine."
The last of those comments is particularly pertinent for this case.
The learned judge was faced with making an assessment and ordering the payment of compensation by the offender to the complainant for the injuries she suffered as a result of the crime, based only on her assertions in her victim impact statement. They were not on oath and they were not supported by expert evidence or any other form of corroborative evidence. The learned judge was presented with a much more difficult task than is usually required when making an assessment of the amount of property loss or damage or financial loss. She accepted that the statement established as a fact that an injury had been suffered by the complainant as a result of the offence. However, she concluded that it did not establish sufficient facts to enable her, in her words, "to make a proper assessment of any compensation amount". She referred to the contents of Dr Watchorn's report as demonstrating the kind of material that would be needed to make a proper assessment.
Has the learned judge been shown to have erred when she came to that conclusion? I am not persuaded of that. The contents of the victim impact statement were brief. That Dr Watchorn had diagnosed her with post-traumatic stress disorder was hearsay. The statement was unsworn and not supported by any other evidence or material to which the learned judge was permitted to have regard, and which normally would be expected to be presented to a court when assessing damages for personal injuries in a civil court. It was received by the court at a time when there was no application for a compensation order (although its possibility was foreshadowed). Once the application had been made, the respondent had lost the opportunity to challenge the statement, to cross-examine the complainant, to have her examined by a psychiatrist or psychologist, and to call evidence in rebuttal. Effectively the complainant's case rested entirely on the statement, and if it was to be used to assess compensation, everything in it would have had to be accepted. The concern of the learned judge that the facts did not sufficiently appear from such an untested and unsupported document is understandable.
I would dismiss the appeal.
File No 693/2008
ATTORNEY-GENERAL FOR TASMANIA v K T B
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
10 May 2010
I agree with the reasons of Crawford CJ and would also dismiss the appeal.
File No 693/2008
ATTORNEY-GENERAL FOR TASMANIA v K T B
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
10 May 2010
I agree with the reasons for judgment of Crawford CJ. I would dismiss the appeal.
10