| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BACICH -v- CORREIA [2013] WADC 167 CORAM : GOETZE DCJ HEARD : 25 OCTOBER 2013 DELIVERED : 1 NOVEMBER 2013 FILE NO/S : APP 57 of 2013 MATTER : IN THE MATTER of Pt 7 of the Criminal Injuries Compensation Act 2003 BETWEEN : FRANK BACICH Appellant
AND
CECELIA CORREIA
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : H L PORTER File No : CI 74 of 2013, CI 75 of 2013 Catchwords: Criminal injuries compensation - Appeal by offender against award - Physical and psychological injuries arising from domestic violence - Turns on own facts
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Legislation: Criminal Injuries Compensation Act 2003 Result: Appeal dismissed
Representation: Counsel:
Appellant : In person
Respondent : Ms A M Padmanabham
Amicus Curiae : Ms R Hill appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Respondent : Alana Padmanabham
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
B v W (1989) 6 SR (WA) 79
Dos Santos v Dos Santos [2000] WADC 256
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Garton v McCormack (2002) 30 SR (WA) 307
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hogben v Darcy [2009] WADC 63
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221
Re Karra (1984) 2 SR (WA) 97
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
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Introduction 1 On 8 June 2011, the appellant Mr Bacich was involved in an incident at the home of his former partner Ms Correia, the respondent to this appeal. As a consequence of that incident, Mr Bacich was charged by police with a number of offences, being that he: 1. without a lawful excuse, trespassed on 26 Galian Way, Spearwood, ie, Ms Correia's home; 2. wilfully and unlawfully damaged property belonging to Ms Correia, being a cordless Panasonic telephone handset to the value of $35; 3. wilfully and unlawfully damaged property belonging to Ms Correia, being a front wooden door, valued at $500; and 4. unlawfully assaulted Ms Correia in circumstances of aggravation, namely he and Ms Correia had been in a family domestic relationship and a child was present at the time this offence was committed. 2 Mr Bacich was convicted of these offences on 6 September 2011, together with the following further offences, being that he: 3 For all six offences, Mr Bacich was placed on a 12 month community based order with supervision and programme requirements. 4 On 10 June 2011, Ms Correia sought and obtained a violence restraining order against Mr Bacich. This was served on him on 15 June 2011. The terms of the order restrained Mr Bacich from making any contact whatsoever with Ms Correia. Between 16 June and 25 September 2011, Mr Bacich breached that order by sending 47 text messages to Ms Correia's mobile telephone. He was charged with breaching the (Page 4)
violence restraining order and on 3 October 2011, he was fined the sum of $500. 5 As a result of Mr Bacich's offending, Ms Correia suffered physical and psychological injury. 6 Ms Correia made application for compensation under the Criminal Injuries Act 2003. On 18 June 2013, an award in the sum of $20,450 was made in her favour. 7 The learned assessor was not requested to provide, and did not provide, written reasons for her award. 8 Mr Bacich now appeals the award made to Ms Correia. At the hearing, I dismissed the appeal with reasons to be published later. These then are those reasons.
The appeal 9 By s 55(1) of the Act an offender may appeal to the District Court against an assessor's decision: Nature of the appeal 10 Section 56 of the Act provides that: (1) On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information. 11 Notwithstanding that the application is to be determined 'without being fettered by the assessor's decision', it is nonetheless pertinent to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. 12 An appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5]. It is necessary to start again and consider the evidence afresh. (Page 5)
13 The court may confirm, vary or reverse the assessor's decision either in whole or in part: s 56(2)(b) of the Act. 14 It is open to the court upon hearing an appeal to increase or decrease the award of compensation, even if a cross-appeal is not filed: Dos Santos v Dos Santos [2000] WADC 256; Nguyen v Assessor of Criminal Injuries Compensation [2000] WADC 221.
The evidence before the assessor 15 In making an application for compensation under the Act, an applicant necessarily places evidence before the learned assessor. In this case, the assessor had the evidence of the seven convictions referred to above, together with witness statements from the applicant, her daughter Monique Olivia Ferguson and her neighbour Timothy Peter Green. The Western Australian Police evidence matrix was also provided, together with photographs of Ms Correia showing, perhaps only to a limited extent, the nature of the physical injuries suffered by her, photographs of damage to the front door and an eight page report dated 26 November 2012 from Ms Carol Dawes, specialist clinical psychologist. 16 Mr Bacich did not seek to admit any further evidence at the hearing of the appeal.
The method of assessing the award 17 In assessing the amount of compensation on appeal, the court has regard to the evidence before the assessor. It has regard to the injuries suffered by Ms Correia in the consequence of the commission of the offending by Mr Bacich as disclosed in the evidence. 18 The amount of an award is not to be fixed as either a punishment of Mr Bacich or as an expression of sympathy for Ms Correia: B v W (1989) 6 SR (WA) 79, 89. 19 In assessing the amount of compensation, it is not necessary for the offending by Mr Bacich against Ms Correia to be the sole cause of the injuries allegedly suffered by her: Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673; S v Neumann (1995) 14 WAR 452, 463. The only requirement is that the injuries have been caused by the offending. That is to say, that, a causal relationship between the offending and the injuries is required. Whether that relationship exists or not is primarily a question of fact. It is not material that other unconnected events may also have had some relationship to the occurrence of the injuries. (Page 6)
The ground of appeal 20 Mr Bacich has filed a pro forma notice of appeal indicating that his sole ground of appeal is: Exaggerated amount to be well reduced (or waived). It is to be taken that, by this ground, Mr Bacich means that a manifestly excessive award has been made by the learned assessor. 21 At the hearing of the appeal, it quickly became apparent that Mr Bacich was not aware that his assaults upon Ms Correia and her daughter, together with the damage caused by him to their property, had caused psychological injury to Ms Correia. He had previously understood that the only injury she had suffered was a couple of bruises from his assault upon her. Had she only suffered a few bruises, then this appeal would have merit. However, the definition of 'injury' in s 3 of the Act includes both bodily harm and mental and nervous shock. As will be seen shortly, Ms Correia has suffered psychological injury following the assault upon her by Mr Bacich.
Summary of the evidence 22 The statements of Ms Correia, her daughter and neighbour indicate that Mr Bacich attended at the home of Ms Correia and her two children. Ms Correia's daughter Monique Ferguson was aged 14 years at the time, and her son was 10 years of age. 23 Ms Ferguson saw Mr Bacich arriving at the family home. He wanted certain poetry written by him to be returned to him. Ms Correia returned that poetry to him in an A4 envelope, but Mr Bacich demanded the folder in which the poetry had been previously kept. He then began abusing Ms Correia. Ms Ferguson attempted to telephone the police. Mr Bacich opened the security front door screen, took the telephone from her and struggled with Ms Ferguson. Eventually Mr Bacich obtained the telephone and threw it on the ground. 24 Ms Correia attempted to pick up the telephone, but Mr Bacich took it from her and threw it on the ground, crushing it with the heel of his boot. 25 Ms Ferguson then attempted to telephone the police on the house landline, but Mr Bacich also took that from her and smashed it. Mr Bacich then caused damage to the front door and assaulted Ms Ferguson. (Page 7)
26 Ms Correia sought to lock Mr Bacich outside the house by closing the front wooden door. Mr Bacich struggled with her. She agreed to go outside with him, but then he pushed her up against a brick wall. At this point, a neighbour Mr Timothy Green, asked if Ms Correia needed help and she asked him to call the police. Mr Bacich again shoved Ms Correia into a wall and then struck her a number of times across the face with the folder in which the poetry had previously been held. He threatened her against calling the police and was abusive. The police then arrived shortly afterwards. 27 Ms Correia suffered minor injuries to her face and hands, and she had a sore jaw and upper left arm. 28 Two days later, Ms Correia obtained a violence restraining order. That was served on Mr Bacich, but he breached it as outlined above. 29 In due course, on 11 and 25 October 2012 and 1 November 2012, Ms Correia attended upon a psychologist, Ms C Dawes whose report sets out in detail Ms Correia's relevant social history and her report to the psychologist of the incident. 30 From the psychological report, the following can be noted: 1. Ms Correia has not had any previous history of psychological disorder and had not been exposed to a traumatic stressor prior to the incident. However, following that incident, she reported nightmares, waking up feeling scared and fearful that Mr Bacich will at some point 'come back and get' her. She has difficulty trusting men and felt guilty that her children had been impacted upon by her relationship with Mr Bacich. She feels socially inadequate. She cannot trust her own judgment. She also feels lonely and finds it difficult to relax and trust her instincts. 2. Further, Ms Correia viewed the incident as affecting her relationship with her daughter, Ms Ferguson. She feels that her daughter has lost faith in her ability to make appropriate choices regarding men. As a consequence, her daughter, who is an intelligent child, acts like an adult and tells Ms Correia what to do. However, her daughter has suffered anger problems since the incident with Mr Bacich in respect of which she has been involved in additional incidents with girls from her school and Ms Correia feels responsible for her daughter's behaviour. (Page 8)
3. Ms Correia's profile is consistent with a post-traumatic stress presentation. She reported both intrusive and avoidant components of post-traumatic stress disorder. She is largely unsuccessful in attempting to exclude intrusive thoughts and images of the physical and verbal assault out of her awareness. She has persistent nightmares. She attempts to avoid extreme distress through both reducing contact with painful affect and externalising it. She has an elevated depression suggesting significant symptoms of depression with which she is, at times, struggling to cope. She fears an accidental meeting with Mr Bacich. She was visibly distressed recalling the details of the incident with him and was tearful when describing the impact of the assault upon herself and in particular, on her daughter. Ms Correia is hypervigilant. 4. Ms Correia will benefit from 10 sessions of monthly psychotherapy sessions and a further four to six sessions with a family therapist and her daughter. The fee recommended by the Australian Psychological Society for psychological counselling is $212 per hour. This means that 14 to 16 sessions will cost between $2,968 and $3,392. Ms Dawes charged a fee of $1,650 for her report, which presumably included the cost of the attendances. 31 In this case, Ms Correia suffered from the physical injuries of the aggravated assault upon her by Mr Bacich. Further, Ms Correia also suffered psychological injury as a result of his aggravated assault upon her, the damage to her property, and his breaches of the violence restraining order. In addition to all of this, Ms Correia's psychological injury was compounded by reason of Mr Bacich committing an aggravated assault against her daughter Ms Ferguson and he damaged her daughter's property, both of which Ms Correia witnessed. Compensation is payable not only in respect of the offending by Mr Bacich directly against Ms Correia, but also in respect of the offending by him against Ms Ferguson in the sense that Ms Correia in fact witnessed it and suffered psychologically from witnessing it. 32 It is well accepted that the phrase 'mental and nervous shock' in the definition of 'injury' in the Act comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offences or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more (Page 9)
enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5; S v Neumann (461); M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992). 33 In assessing mental and nervous shock, the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of victim's friends and family, court proceedings or public attention; Re Karra (1984) 2 SR (WA) 97; RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974); Garton v McCormack (2002) 30 SR (WA) 307, 311.
The award 34 On 18 June 2013, the learned assessor awarded Ms Correia $18,000 for her physical and psychological injuries, together with the cost of the psychological report of $1,650 and future psychological treatment costs of $800, thus making a total of $20,450. 35 In providing details of the award, Ms Correia was advised that: Provision for future psychological treatment has been made on the basis that the applicant, upon referral by a GP, is entitled to a Medicare rebate of $120 for 10 15 minute sessions per year with a Clinical Psychologist. The recommended rate for such treatment is $200, leaving a gap cost to the applicant of $80 per session. Provision has been made for 10 sessions to a total of $800.
Assessment 36 In deciding the application to which the decision under appeal relates afresh, and without being fettered by the assessor's decision, on the information that was in the possession of the assessor, I would have awarded Ms Correia general damages for her physical pain and psychological injury in a sum slightly exceeding the award made by the assessor in the sum of $18,000 given that Ms Correia's post-assault psychological profile is consistent with a post-traumatic stress presentation with elevated depression as outlined above. 37 I would also have awarded Ms Correia the cost of the 10 sessions recommended as well as the four to six sessions with Ms Correia's daughter and a psychologist in order to improve the relationship between (Page 10)
Ms Correia and her daughter following the incident caused by Mr Bacich. The reason for this is that part of the psychological trauma suffered by Ms Correia relates to the breakdown in her relationship with her daughter. If that relationship can be made better by the sessions recommended by the psychologist, then that might well improve Ms Correia's mental wellbeing.
Result 38 Pursuant to s 56(2)(b) of the Act, I can confirm, vary or reverse the assessor's decision, either in whole or in part. I am however mindful of the fact that the assessor does act as a specialist tribunal in the field of criminal injuries compensation. Further, Ms Correia has not sought to appeal the decision of the learned assessor, no doubt because the award is clearly within the range of an award which provides just compensation to Ms Correia for the offending against her by Mr Bacich. 39 Having reviewed the evidence and information that was in the possession of the assessor, and having decided the quantum of the claim afresh without being fettered by the assessor's decision, it is appropriate to confirm the assessor's decision to award Ms Correia the sum of $20,450 by way of criminal injuries compensation as being a correct assessment of the award which should be made in favour of Ms Correia. 40 The appeal was therefore dismissed at the hearing. Further, Mr Bacich was ordered to pay costs to Ms Correia fixed in the sum of $380. 41 Finally, it should be noted by Mr Bacich that the Consolidated Account, which is essentially the government of the State of Western Australia, is charged by the Act with the payment of the award to Ms Correia. If the Chief Executive Officer requests the assessor to reimburse all or part of the compensation paid to Ms Correia, then the Chief Executive Officer and Mr Bacich will be served with notice of an application for reimbursement. Mr Bacich will then be able to provide a written submission prior to any hearing about any matter relevant to the making of a compensation reimbursement order and be heard at the hearing. 42 By s 52 of the Act: (1) At the hearing of an application made under section 50(1), an assessor may make a compensation reimbursement order that (Page 11)
orders the offender to pay to the State an amount specified in the order being — (a) the whole or part of the amount paid or payable under the relevant compensation award; and (b) the whole or part of the amount, if any, deducted under section 42(3) or (4) and remitted to the Commonwealth under a law of the Commonwealth, in a lump sum or by means of instalments of such amounts and at such times as the order specifies. (2) In deciding whether to make a compensation reimbursement order and the amount to be paid under the order an assessor must have regard to the following — (a) the extent to which the offender is responsible for the victim’s injury or death; (b) whether the behaviour of the victim at the time of the offence in any way precipitated or provoked the offence; (c) whether any behaviour, condition, attitude, or disposition of the victim contributed, directly or indirectly, to the victim’s injury or death; d) the offender’s means to satisfy any such order having regard to — (e) the extent to which the offender is likely to be able to satisfy any such order within a reasonable time. (3) The CEO or the offender may at any time apply for a compensation reimbursement order to be amended or cancelled. (4) On an application made under subsection (3), an assessor may amend or cancel the compensation reimbursement order. 43 Further, s 53 provides that: (1) A compensation reimbursement order may be enforced by lodging a copy of it, certified by an assessor as a true copy, and an affidavit stating to what extent it has not been complied with, with a court of competent jurisdiction. (Page 12)
(2) When a compensation reimbursement order is lodged with a court of competent jurisdiction, the order is to be taken to be a judgment of the court against the offender in favour of the State and may be enforced accordingly.
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