Back v Penny - [2010] WADC 136

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BACK -v- PENNY [2010] WADC 136

CORAM: EATON DCJ

HEARD: 25 AUGUST 2010

DELIVERED : 15 SEPTEMBER 2010

FILE NO/S: APP 79 of 2009

MATTER :IN THE MATTER of Part VI of the Criminal Injuries Compensation Act 2003

BETWEEN: MARAE BACK
Appellant
AND
DANIELLE MARIE PENNY
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :W J MILLAR
Citation  :[2009] WACIC 54
File No  :CI 446 of 2009

Catchwords:

Criminal injuries compensation - Appeal by offender - Application for extension of time

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Assessor's award reduced by $500, otherwise confirmed

Representation:

Counsel:

Appellant:     In person
Respondent:     no appearance
Amicus Curiae              :     Ms S A Kavanagh on behalf of Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Not applicable
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

EATON DCJ: On 6 April 2009 Danielle Marie Penny applied for criminal injuries compensation under the provisions of the Criminal Injuries Compensation Act 2003 (the Act) arising out of an offence said to have been committed at Spencer Park, in Albany on 29 April 2006. The respondent to the application for compensation was the person charged, Marae Back. She had been dealt with in the Albany Magistrates Court on 22 May 2006 having entered a plea of guilty to a charge of assault occasioning bodily harm. She was placed on a Community Based Order.
On 16 September 2009 Mr J W Millar, a criminal injuries compensation assessor, awarded Ms Penny compensation in the sum of $15,077.50, giving reasons for doing so. He assessed an appropriate level of compensation for the applicant's injuries and associated suffering at $12,500. An interim payment of $1,200 had been made for the cost of a psychologist's assessment and report. A further amount of $181.50 had been paid for a doctor's report. He allowed $346 for travelling expenses and $850 for future psychological treatment.
On 22 October 2009 Marae Back filed a notice of appeal under the Act, she having been notified of the award. She indicated that she was dissatisfied with the decision of the assessor because 'the assessment was made based on quite a few untrue statements and I would like the chance to get my points across'.
Section 55 of the Act provides that an offender may appeal to this court against an assessor's decision as to the amount of a compensation reimbursement order. The appeal must be commenced within 21 days after the date of the decision. The court may allow an appeal to be commenced after that period, even if the period has expired, if it is just to do so. The appeal must be conducted in accordance with the rules of the court.
The decision of the assessor is dated 16 September 2009. The notice of appeal was filed on 22 October 2009 and is therefore out of time. The appellant, Ms Back said in that regard:
I wish to lodge these documents out of time because I have been away and only just received the letter. I will have the necessary letters etc that I need for this case within the next four weeks.
On 27 October 2009 the chief executive officer of the Department of the Attorney‑General entered an appearance as amicus curiae. On 2 February 2010 Ms Back entered the appeal for hearing.
On 23 February 2010 Registrar Kingsley directed that, on or before 23 April 2010, the appellant file and serve an affidavit setting out the materials upon which she intends to rely to support her application for leave to appeal out of time. That application was to be heard at the same time as the appeal. The appellant was directed to serve copies of the notice of appeal and the orders made on the respondent by registered post and file an affidavit of service before the hearing. Both the appellant and the respondent were directed to file and serve a book of any documents in addition to those provided to the Assessor on which they intend to seek leave to rely at the hearing at least 14 days prior to the hearing. The appellant, the respondent and the chief executive officer were to file and serve an outline of submissions at least three clear days prior to the hearing. There was liberty to apply.
On 16 June 2010 Registrar Kingsley listed the matter for hearing and directed that on or before 2 July 2010 the appellant file and serve an affidavit supporting an application for leave to extend the time to appeal. He also directed the appellant to serve, by post, copy of the affidavit on the respondent and on the chief executive officer.
On 7 July 2010 the appellant filed an affidavit sworn on 25 June deposing to being in Bunbury at the time of the letter notifying her of the outcome of the application. She claims to have telephoned the court to advise that she would appeal out of time and that she needed to seek legal advice before doing so. The appeal process has taken longer than expected, she said, because of her current financial situation which has made it difficult to obtain legal advice.
On 30 July 2010 the appellant filed a further affidavit deposing to having sent a copy of the appeal by registered post to Ms Penny at 20 Lakeside Drive, Albany in October 2010 [sic] and annexing a copy of Ms Penny's 'Facebook' page which indicated, she said, receipt of the documents.
The chief executive officer has provided the court with a list of authorities and an outline of submissions.
The relevant delay in filing the notice of appeal in this matter is 13 days. Having regard to the fact that the appellant is unrepresented, that there seems to be a reasonable explanation for the delay in filing the notice of appeal and the absence of any apparent prejudice to the respondent I am prepared to extend time by a period of two weeks, allowing the appeal to be commenced within time because I consider, in all the circumstances, that it is just to do so.
I conclude also that, having regard to the further affidavit filed on 30 July 2010 as to service by registered post and the comments said to appear on the internet chat site, that the respondent is aware of and has notice of the appeal and that it is appropriate to determine the appeal notwithstanding her absence.
The applicant for compensation alleged in the papers which accompanied her application, that she was on her front lawn at 24 Bellingham Street, in Albany with her three young children, when two cars stopped at the nearby road verge. She alleges that there were people in both cars, some with weapons. Marae Back, urged on by those in the cars, approached and attacked her. The attack, she said, took place in the presence of her three young children.
On 22 May 2006 Marae Back was charged in the Albany Magistrates Court with assault occasioning bodily harm arising out of the event referred to. On that day she entered a plea of guilty and was placed on a community based order for six months. The material facts recited to the court were as follows:
About 2.30 pm on Saturday 29 April 2006 the accused drove a vehicle with three female passengers to the complainant's house at 24 Bellingham Street in Spencer Park, Albany. The accused parked the vehicle near the corner of Gairdner Road and Bellingham Street and walked to the complainant's house. The three passengers were walking behind the accused. The complainant was out the front of her house speaking to some friends when the accused walked up to her and said 'me and you Danielle'. The accused punched the complainant in her head. The accused grabbed the complainant by her hair and pulled her down to punch her in the face area again. The complainant slipped in doing so, the accused grabbed at the complainant's shirt which became lodged over the complainant's head. The accused continuously punched the complainant in her face and head area before leaving. The complainant was taken to Albany Hospital where she was assessed by a doctor and her face and head were x‑rayed. She received severe bruising and swelling to her face and head area and a bloodshot eye. The complainant is of slim build and approximately 159 centimetres tall. The accused is slim build and approximately 170 centimetres tall. The accused was located at a later date and participated in a videotaped record of interview. At the interviewer's conclusion the accused was arrested and the present charge preferred.
Dr Matthew Hodge reported on 11 March 2008 that he had attended Danielle Penny at 15.25 pm on Saturday 29 April 2006 in the Emergency Department of Albany Regional Hospital. She alleged that she had been assaulted on that day by a woman who pulled her shirt over her head and then hit her over the head with an unknown object. She said that she did not lose consciousness. She was complaining of pain and swelling in her face. On examination he found a large bruise over her right cheekbone and some swelling and bruising around both eyes, the right side more extensively than the left. There was, he reported, some tenderness over the left side of her cheek with some tenderness over her nose. X‑rays revealed no fractures of the facial bones. She was offered Panadeine but refused. She was taken home by her aunt and did not return.
There are photographs among the papers which graphically demonstrate the extent of the bruising and minor injuries suffered by the applicant, Ms Penny.
She, in her application, relied upon the report of a clinical psychologist, one Jacqueline Ryan dated 30 October 2008. The author expressed the opinion that Ms Penny had suffered significant mental and nervous shock resulting from the assault and had developed post‑traumatic stress disorder as a result of being exposed to it. The author recommended six months of counselling sessions as a remedy. She said, by way of caveat:
I would like to comment that I have only seen Ms Penny on the one occasion and therefore have no information on her pre‑morbid functioning. I can comment that I believe the exposure to the assault has been extremely difficult for her and she reports being significantly affected in many areas of her life. She reported that she has had no psychological intervention and I therefore believe she will continue to be partially incapacitated until she receives assistance to help alleviate her anxiety and depressive symptoms.
Her final opinion was that Ms Penny suffered from a range of symptoms consistent with post‑traumatic stress disorder as a result of being exposed to serious assault. She was unsure as to Ms Penny's long‑term prognosis as she had not received treatment for her post‑traumatic stress disorder symptoms. She was, said the author, currently actively suicidal. Urgent follow‑up with her general practitioner was recommended.
The appellant submitted that the assessment of criminal injuries compensation was based principally on the report of the psychologist who, said the appellant, had seen Ms Penny on one occasion some two years after the event giving rise to her application for compensation. The author of the report expressed the opinion that Ms Penny had suffered significant mental and nervous shock resulting from the assault and had developed post‑traumatic stress disorder. Her continuing condition, she concluded, appeared to be directly the result of being exposed to the assault. She said:
In her interview she reported she has not been exposed to other traumas in her life. She has a supportive family and group of friends.
In May 2009 the appellant wrote a letter to the Office of the Assessor of Criminal Injuries Compensation received by that office on 21 May of that year. She informed that she had moved from Albany in December 2007. As to the claimed absence of other traumas in Ms Penny's life at the material time the appellant pointed out that Ms Penny had failed to advise the author of the psychological report that she had given birth to a daughter who passed away in 2008.
It is clear that the assessor subjected the psychologist's report to some scrutiny. He said, in his reasons supporting the assessment:
On 29 November 2008, some two years and seven months after the incident, the applicant was seen by clinical psychologist, Ms Ryan, for psychological assessment. In her report Ms Ryan identified numerous symptoms which met the criteria for a diagnosis of post-traumatic stress disorder. Some of those symptoms relate directly to the offence, but others are of a more general nature and some of them would be consistent with the criteria for diagnosis of major depression.
In her report Ms Ryan states that during the interview with the applicant the applicant reported that she had not been exposed to any other traumas in her life. No mention is made of the prolonged illness and treatment of the applicant's son and, therefore, she does not refer to the effects of those factors upon the applicant. No mention is made in a report of the applicant giving birth to a still-born child. In her report Ms Ryan, therefore, expresses the opinion that the applicant's condition 'appears to be directly the result of being exposed to the assault (the offence)'.
Later in his reasons the assessor said:
It is apparent that Ms Ryan was not informed of other significant stressors in the life of the applicant at about the time when the offence occurred and thereafter. Both the applicant and her mother appeared to recognise that the state of health of the applicant's son has been a significant stressor for the applicant. Giving birth to a still-born child must add to her concerns. In those circumstances I have examined the report of Ms Ryan with some circumspection. For obvious reasons I am not satisfied that the symptoms identified by Ms Ryan, including the applicant's suicidal ideation and attempts, are solely attributable to the offence. It seems likely that the applicant's high score in the depression inventory conducted by Ms Ryan is mainly attributable to stressors other than the offence.
It is clear from all the material before me and, in particular, the appellant's submissions that there has been a state of enmity as between the appellant and Ms Penny for about 10 years. That situation has embroiled not only the appellant and Ms Penny but also their respective families and friends. It does seem to be the case that on 29 April 2006 that state of enmity erupted into violence as between the two protagonists. It has continued through the medium of internet chat sites since then. Notwithstanding the appellant's departure from Albany and her relocation to the Perth metropolitan area several years ago, the state of enmity continues, exacerbated by the application for criminal injuries compensation filed on 6 April 2009, some three years after the event giving rise to the application and this present appeal.
The appellant pointed also to differing statements allegedly made by Ms Penny, firstly to police following the incident on 29 April 2006, secondly to the assessor in the course of her application and thirdly to the psychologist referred to. When asked, at the hearing of her appeal, about her reaction to the statement of material facts put before the Magistrate at the time of her sentencing in the Albany Magistrates Court the appellant said that she was unable to throw light on her response at the time because she was then (at the time of sentencing) undergoing drug and alcohol counselling.
In her submissions the appellant cast doubt on other claims made by Ms Penny to the psychologist, including her claimed fear of being in public places for the purpose of, for example, going shopping.
The appellant also made reference to an incident which occurred on 29 April 2006 prior to the altercation between her and Ms Penny, an incident involving one Lauren Wynne. The appellant claimed that Ms Penny and Ms Wynne had fought about one hour prior to her altercation with Ms Penny and suggested that Ms Penny might, by the time of their altercation, have been bruised in the earlier incident.
It is clear that the assessor, in his reasons for assessment, took into account the incident referred to by the appellant. He said:
In that earlier incident the applicant had been involved in an argument with a woman named Lauren Wynne which developed into an exchange of abuse, hair pulling and exchange of punches during which the applicant got the better of Lauren Wynne without suffering any significant injury herself.
Clearly, the Assessor was aware and took into account that earlier incident.
Following the incident giving rise to the claim, both the appellant and Ms Penny obtained a violence restraining order against the other. That step may have been sensible, given the ongoing hostilities between them.
In summarising her submissions the appellant suggested that the $12,500 compensation awarded to Ms Penny was excessive. I take the view, having considered the reasons for assessment that the assessor did take into account the events leading up to the incident giving rise to the claim for compensation, the state of affairs that existed as between Ms Penny and the appellant at the time and was careful to avoid compensation for events or conditions not related to the incident giving rise to the claim. As mentioned, he scrutinised the report of the psychologist and treated it with some circumspection.
It is the case that the Office of Criminal Injuries Compensation directed, upon receipt of the application, that the appellant be notified of it. By letter of 17 April 2009 the appellant was advised of the application for compensation and was invited to furnish full details of any matters she wished to be considered by the assessor prior to determination of the application. The appellant, having been notified, in a letter of 6 May 2009 referred to the ongoing conflict between the protagonists noting that the incident giving rise to the claim was only one of many confrontations. The appellant requested that she be provided with all information relating to the claim. In accordance with that request, under cover of a letter of 19 May 2009, she was provided with copies of the applicant's application, statement of effects and reports submitted in support of her application which, of course, included the report of the psychologist. The provision of the information was accompanied by advice that the information provided was not to be copied nor shown to anyone and was to be used solely for the purpose of providing submissions in response to the application. Despite that injunction the appellant posted a message on her Facebook internet site:
come over ere. i jus got danielles claim for criminal injuries compensation. come n see what she wrote. she's a good little liar.
Quite correctly the assessor, in his reasons for assessment, made reference to the message on the web site and concluded that the appellant was in breach in taking that step. He found that the appellant's conduct in that regard was indicative of continuing malice towards the applicant, Ms Penny. He said:
It also detracts from the reliability of the offender's contentions that it has been the applicant who has been the instigator of conflict between them. In those circumstances I can place little weight on the evidence given by the offender in her statements. Accordingly, I am not satisfied that any behaviour or attitude on the part of the applicant which the offender contends constituted harassment before the day of the incident justifies a refusal or reduction in the compensation assessed for the applicant's injuries and losses.
In my view the assessor was quite correct to take the attitude that he did. Given the long history of enmity as between the appellant and Ms Penny, any attempt to attribute blame as between the two for the state of affairs which existed would be a pointless exercise. He was, with respect, correct in his conclusion that no prior conduct of the applicant justified a refusal or reduction in the compensation assessed. In the circumstances, it would have been impossible to attribute conduct to one which was not well and truly reciprocated by the other.

The assessor went further in terms of the implications arising from and consequences of the appellant's breach of the injunction in that he accepted Ms Penny's solicitor's contention that she had been humiliated by the action of the offender in breaching the injunction and that the breach was relevant to the amount of compensation to be awarded to the applicant. He said:
It is understandable that the breach would add to the applicant's distress. In those circumstances I consider it appropriate that I should add a further $500 to my assessment of compensation for the applicant's injuries and associated suffering making a total assessment in that regard of $12,500.
In arriving at that conclusion I assume that the assessor relied upon his general discretion found in s 29 of the Act which provides that an assessor may have regard to any factors or circumstances that the assessor thinks are relevant.
Counsel for the CEO of the department, as amicus curiae, noted that s 29(1) is subject, inter alia, to s 12(3) which provides that an assessor must not make a compensation order in respect of a compensation application unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence.
The assessor was rightly circumspect with regard to the claims made to and recorded by the author of the psychologist's report. It does seem fair to conclude that the applicant for compensation, in her interview with the author of that report, was less than a frank and fulsome historian. The broader context of the enmity which existed and had existed for many years as between Ms Penny and the appellant (which included, it seems, ongoing confrontation on the internet involving friends and family on both sides) would suggest that the assessor was wrong to accept, at face value, the applicant's solicitor's claim of humiliation as a result of breaching the injunction against publication. In my view, in addition to that practical aspect, it was not open to the assessor, in all the circumstances, to be satisfied that the claimed humiliation did in fact occur and was the consequence of the commission of the proved offence. It was, rather, a manifestation of the ongoing state of affairs which existed between the appellant and Ms Penny.
I am aware that an appeal under the Act is by way of a hearing de novo. I may, pursuant to s 56 of the Act, vary, reverse or confirm the assessor's decision either in whole or in part. I may increase or decrease the award of compensation even if no cross-appeal is filed. Notwithstanding that the application is to be determined without being fettered by the assessor's decision, it is nevertheless appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation.
The maximum compensation available is $75,000. That is merely a jurisdictional limit and not reserved for the worst cases. The correct approach to adopt in fixing an appropriate amount of compensation is to apply ordinary tortious principles for assessment of damages subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and subject, of course, to the jurisdictional limit imposed by the Act.
Having considered all of the circumstances and material put before me both by the CEO of the department and the appellant, I have come to the conclusion that the assessment made by the assessor on 16 September 2009 should be confirmed except for his allowance of $500 added to his assessment for the applicant's injury and associated suffering by reason of her claimed humiliation arising out of the appellant's breach of injunction as to materials provided to her. I consider that the additional amount allowed was wrongly allowed having regard to both the factual circumstances and the law. I would, therefore, vary the award reducing the total sum to $14,577.50.