Bell (a pseudonym) v Cooper (a pseudonym) (Ruling)
[2025] VCC 997
•25 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
| MARY BELL (a pseudonym) | Applicant |
| v | |
| DAVID COOPER (a pseudonym) | Respondent |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 April 2025 | |
DATE OF RULING: | 25 July 2025 | |
CASE MAY BE CITED AS: | Bell (a pseudonym) v Cooper (a pseudonym) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 997 | |
RULING
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Subject:CRIMES COMPENSATION
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act (Vic) 1991
Legislation Cited: Sentencing Act 1991 (Vic); Judicial Proceedings Act 1958 (Vic)
Cases Cited:DPP v Cooper (a pseudonym) [2022] VCC 1867; Moresco & Ors v Budimir [2015] VSC 51; RK v Mirik and Mirik (2009) 21 VR 623; Kelley (a pseudonym) v R1 (a pseudonym) & Ors [2016] VSCA 90; Kaplan v Lee-Archer (2007) 15 VR 405; Peterson v Peterson (a pseudonym) [2021] VCC 434; Lawson(a pseudonym) v Bain (a pseudonym) (Ruling) [2024] VCC 1865; V1 & Ors v Xydias [2009] VSC 616; Cousins (a pseudonym) v White [2024] VCC 1264
Ruling: Award the sum of $115,000 as an award of compensation, less the sum of $10,580, and the sum of $75,800 for future medical expenses – total award $180,220. No order as to costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Dhanji | Arnold Thomas & Becker Lawyers |
| For the Respondent | Mr M Latham | Grey Legal |
HER HONOUR:
Introduction
1Ms Bell (“the applicant”)[1] makes an application for compensation from David Cooper (“the respondent”)[2] pursuant to s85B of the Sentencing Act 1991 (“the Act”) for injuries suffered as a direct result of offending for which the respondent was sentenced on 26 October 2022.
[1] A pseudonym
[2] A pseudonym
2The names of the parties have been substituted with pseudonyms in accordance with s4(1A) of the Judicial Proceedings Act 1958. For the sake of convenience, I have added a first name to the applicant’s name as a party to the proceedings as she was referred to as “Ms Bell” by his Honour Judge McInerney.
3His Honour Judge McInerney sentenced the respondent on 26 October 2022 in relation to one charge of sexual penetration of a child under the age of 16 or 17 while under his care, supervision and authority.[3] This was not a “rolled up” charge.
[3]DPP v Cooper (a pseudonym) [2022] VCC 1867
4The respondent pleaded guilty to the charge. The respondent was sentenced to two years and six months’ imprisonment, wholly suspended. The respondent was also placed on the Sex Offender Register for life.
5I acknowledge that the respondent has been punished through the criminal justice system for the offending. This proceeding is an application for a compensation order and is not the criminal trial.
6The full context of the respondent’s offending is set out in Judge McInerney’s Reasons for Sentence, and I will not repeat them in this judgment. The sentencing remarks include contextual information relating to the wider relationship between the applicant and respondent.
7In summary, the applicant had approached the respondent looking for work and he subsequently employed her to carry out various jobs, including looking after horses, some mail delivery and babysitting his children.
8The respondent was aged between 39 and 40 at the time of the offending and the applicant was aged between 16 and 17.
9The offending occurred whilst the applicant was babysitting the respondent’s children. The respondent called the applicant into the room where his children were sleeping and began to touch her. The applicant told him to stop and tried to leave but he held her down and ejaculated into the applicant’s vagina without a condom.
10The applicant said that the respondent told her if she told anyone what happened he would hurt her dog and horse and that he knew all the police in their town and she would not be believed.
11It was accepted by the respondent during the sentencing hearing before Judge McInerney that he continued a relationship with the applicant until she turned 18 and moved interstate.
12Pursuant to the Act, I am bound to consider only the charge for which the respondent was sentenced (“the offending”).
The hearing
13The application was heard on 7 and 8 April 2025. Ms Sheeana Dhanji of Counsel appeared for the applicant. Mr Mitchell Latham of Counsel appeared for the respondent.
14The applicant and Dr Ahmed, the applicant’s medico-legal psychiatrist, gave evidence via videolink and were cross-examined. Dr Jager, the respondent’s medico-legal psychiatrist, gave evidence and was cross examined.
Legal principles
15Section 85B of the Act provides that if a court finds a person guilty or convicts a person of an offence, and on the application of a person who has suffered an injury as a direct result of an offence, it may order the offender to pay compensation of such amount as it thinks fit (“a compensation order”).
16This application is a civil proceeding and the civil standard of proof, on the balance of probabilities, applies.
17The definition of “injury” under the Act is broad and more extensive than that found at common law.
18As well as actual physical bodily harm, “injury” is defined to include mental illness or disorder, or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock. It also includes grief, distress or trauma, or other significant adverse effects, or any combination of those matters.[4]
[4] See s85A of the Act
19A compensation order is designed to avoid the complex technical rules of procedure that may properly apply to a civil application for damages at common law.[5]
[5]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [17]
20The rationale behind compensation orders is that they should provide a convenient mechanism for the recovery of compensation by victims. The applications are intended to be quick, cheap and built upon the criminal proceedings.
21Given that rationale, it is ironic that in this case, the parties produced a Joint Court Book of more than 1,900 pages and four sets of written submissions. The applicant and two medico-legal witnesses gave oral evidence and were cross-examined.
22If there is an entitlement to compensation, the quantum is within the discretion of the Court and such assessment is undertaken by application of common law principles, subject to any necessary modification.
23This task requires a synthesis of all the material circumstances of the case, including the seriousness of the offending, the relationship between the victim and the offender, the degree of injury suffered by the victim, the offender’s financial circumstances and the effect of an order on the offender’s prospects for rehabilitation.[6]
[6] Ibid at paragraph [25]
24The compensation order may include amounts for pain and suffering, medical expenses, expenses relating to counselling services and other related expenses.[7]
[7] Ibid at paragraphs [18]-[20]
25Section 85H of the Act allows the Court to take into account the financial circumstances of the offender and the nature of the burden that its payment will impose.
26Consequently, unlike a common law claim for damages, the financial circumstances of the respondent are a relevant but not a controlling factor.[8]
[8] RK v Mirik and Mirik (2009) 21 VR 623 at paragraph [135]
27Section 85I of the Act stipulates that where an award has been made to the victim under the Victims of Crime Assistance Act 1996, the Court must reduce the amount of compensation for the expense or other matter for which compensation is sought in the application.
Relevant materials
28The applicant filed two affidavits affirmed on 13 August 2024 and 27 March 2025.[9] At the hearing, the applicant affirmed that the contents of her affidavits were true and correct.
[9]Exhibits A1 and A2
29The applicant also tendered the following:
· medico-legal reports of Dr Tanya Ahmed (consultant psychiatrist) dated 21 October 2023 and 19 December 2024;[10]
· sentencing remarks of Judge McInerney dated 26 October 2022;[11]
· material from the applicant’s school – comprising extracts of school reports for the applicant.[12]
[10]Exhibits A3 and A4
[11]Supra; Exhibit A5
[12]Exhibit A6
30The respondent tendered the following:
· extracts from the clinical notes of Ms Sutcliffe (psychologist);[13]
· report of Ms Carli (treating psychologist) dated 28 March 2023;[14]
· letter of instruction from the respondent’s solicitors to Dr Alan Jager (forensic psychiatrist) dated 21 June 2024;[15]
· medico-legal report of Dr Alan Jager dated 6 September 2024.[16]
[13]Exhibit R1
[14]Exhibit R2
[15]Exhibit R3
[16]Exhibit R4
31The applicant filed written submissions dated 28 March 2025 and 14 April 2025. The respondent filed written submissions dated 25 March 2025 and 11 April 2025.
32I have considered all the tendered evidence, the applicant’s oral evidence, the oral evidence of Dr Ahmed and Dr Jager and the written and oral submissions of counsel, but shall only refer to the materials to the extent necessary in these reasons.
The applicant’s evidence
33The applicant is 37 years old and has two children, aged 9 and 10.
34I had the opportunity to see and hear the applicant give evidence by videolink. Even though she was not in the same room as the respondent, her resentment and anger towards him was palpable.
35In her affidavit dated 13 August 2024, the applicant outlined the impact the offending has had on her.
36The applicant deposed she felt unworthy and damaged as a result of the offending. The offending affected her relationship with males, particularly her ability to be intimate and to trust men.
37The offending impacted upon the applicant’s relationship with her children, as she was fearful of the same thing happening to them. She was over-protective and prevented her children from establishing relationships with uncles and older people.
38The applicant currently works in disability aged care services and at times has had contact with aggressive male clients, resulting in flashbacks. The applicant also suffers panic attacks whenever she hears the first or last name of the respondent.
39The applicant attended a number of counselling sessions but did not find them helpful, as she was required to relive events and her symptoms worsened. She has not attended a counselling session since 2022.
40The applicant consulted hypnotherapists who provided some limited assistance, mainly with nightmares.
41The applicant has taken anti-depressants but found the side effects difficult to manage.
42In her second affidavit dated 27 March 2025, the applicant detailed a number of unrelated life events, including physical injuries sustained in a horse-riding accident in 2019. The applicant acknowledged this was a serious accident and that she spent some time recovering but deposed she did not dwell on the accident and continued to ride horses nearly every day.
43In 2021, the applicant had some time off work after dealing with an aggressive male client. The applicant attended three sessions with a psychologist and then returned to work with no ongoing issues. The applicant said such incidents were an unavoidable part of her role and that she did not dwell on them.
44The applicant confirmed her brother and father were violent towards her when she was growing up. She acknowledged this impacted upon her, but reported those relationships had improved and that she now regularly spoke to her father and brother. She said both her father and brother were now supportive of her.
45The applicant was briefly cross-examined.
46She agreed that she was opposed to the COVID-19 vaccine mandate and confirmed that at times she was so distressed about getting the vaccine that she felt suicidal. She said she felt the government was trying to force something into her body and that she did not want to be “penetrated” by something she did not want to have. She had concerns about potential adverse reactions to the vaccine and reported her belief that some friends and family members had suffered such reactions after getting the vaccine. The applicant gave evidence that she lived as a hermit during the COVID-19 pandemic.
47When her father and brother were physically and emotionally abusive towards her, she left the family home at 15 years old but later returned home. When out of home, she was smoking cannabis and drinking. The applicant denied the memories of such events were still distressing to her and could not recall becoming upset when reporting such events to Dr Jager.
48When asked about the history recorded by Dr Jager in August 2024 that she rarely talked to her father and avoided her brother because he was still abusive towards her, she said that there was a period where she and her father stopped speaking due to her views on the COVID-19 vaccine, but was unsure whether this was at the time of her examination with Dr Jager. She did not respond to the question regarding her brother.
49The applicant maintained steadfast in her evidence that she currently has a positive relationship with her father and brother. She asserted she could produce phone records to prove that she spoke to them regularly.
50The applicant was cross-examined about her hobbies. She has six horses which she rides with her children. She entered showing and jumping competitions. She had recently travelled to Japan and Bali with her children for a holiday.
51I find that the applicant was a truthful witness overall taking into account her attitude towards the respondent.
Dr Tanya Ahmed (consultant psychiatrist)
52Dr Ahmed examined the applicant via Telehealth on 19 October 2023 and 19 December 2024. She adopted both of her reports as true and correct during her evidence.
53Dr Ahmed took a detailed history from the applicant about her childhood, including the domestic violence perpetrated by both her father and brother towards her. Dr Ahmed recorded the applicant became emotional whilst recounting these events. The applicant told Dr Ahmed that she left the family home at 15 years of age, before returning some months later.
54Dr Ahmed accepted the childhood abuse and trauma suffered by the applicant caused vulnerabilities such as dysregulation and impulsivity. It was around this time that the offending occurred. Dr Ahmed recorded the applicant was a victim of multiple sexual assaults by the respondent, as well as physical and emotional abuse for a two-year period.
55Dr Ahmed reported the applicant developed acute onset traumatic stress around the time the abuse started and that such emotional symptoms continued and had become entrenched. The symptoms fluctuated over the years. The applicant continued to experience hyperarousal, a startle reflex, fear, paranoia and hypervigilance.
56Dr Ahmed opined that the offending had a profound impact on the applicant’s developmental trajectory and functioning. This resulted in low self-esteem, shame and guilt, and caused ongoing difficulties with sexuality, intimate relationships and identity. In addition, it impacted on the applicant’s career opportunities, noting the applicant was working as a disability support worker.
57Dr Ahmed was told that the applicant experienced nightmares for 13 years after the offending. The nightmares reduced with hypnotherapy and she now only experienced occasional nightmares.
58Dr Ahmed recorded the applicant had been prescribed sleeping tablets and an anti-depressant, but she did not have any further details of such medication.
59Dr Ahmed was told that the applicant experienced suicidal thoughts and significant emotional dysregulation at times of heightened distress. When this occurred, she was easily provoked into anger and rage.
60Dr Ahmed diagnosed the applicant with Post-Traumatic Stress Disorder (“PTSD”) with dissociative symptoms. Dr Ahmed opined this condition was directly caused by the offending, on the basis there was a strong temporal relationship between the offending and development of the applicant’s symptoms.
61Dr Ahmed confirmed the applicant has not undergone any targeted treatment for her PTSD and recommended a comprehensive management plan, including intensive inpatient treatment and outpatient referrals to a psychiatrist and psychologist, with pharmacological options and psychoeducation, as well as treatment such as CBT, DBT and EDMR.
62Dr Ahmed considered that whilst the applicant’s symptoms were chronic and entrenched, there would be a gradual reduction of her PTSD symptoms with appropriate support. Even if this occurred, Dr Ahmed considered that the applicant would remain vulnerable to relapses and triggers.
63Dr Ahmed opined that the applicant has also suffered a “moral injury”, referring to feelings of anger about the outcome of the legal proceedings and the applicant needing to move away from Victoria to feel safe, thereby leaving her friends and family. Dr Ahmed commented that this moral injury and loss of faith in a just world might be a barrier to the applicant recovering from her PTSD.
64In her second report, Dr Ahmed confirmed the applicant had experienced unrelated stressors, including childhood abuse and events post-dating the offending, such as the incident at work with an aggressive male client and the horse-riding accident.
65Dr Ahmed confirmed she was aware of such events at the time of preparing her earlier report and they did not change her opinion regarding the causal relationship between the offending and the applicant’s injury.
66Dr Ahmed accepted the events post-dating the offending may have caused temporary feelings of upset or anxiety.
67Dr Ahmed agreed with Dr Jager that the applicant had suffered early development and attachment trauma due to her exposure to family violence and that this likely impacted her emotional and social development, causing mild affective dysregulation and one episode of self-harm.
68Dr Ahmed maintained this did not amount to a pre-existing condition and disputed that it contributed to the occurrence of the PTSD. Rather, Dr Ahmed maintained the PTSD was purely the result of the offending, as per the strong temporal relationship discussed earlier.
69Dr Ahmed disagreed with Dr Jager’s diagnosis of mild borderline personality disorder. It was Dr Ahmed’s opinion that the symptoms Dr Jager ascribed to such a condition (including unstable work and living situations and relationship issues) were in fact the result of the PTSD.
70Dr Ahmed was briefly cross-examined. She accepted the proposition that someone who had been sexually abused multiple times as a child would generally have a more severe reaction than someone who only experienced abuse on one occasion. Dr Ahmed said that any sexual abuse during childhood had significant psychiatric impact and the severity of the reaction to such abuse could be affected by a range of factors including the nature of the abuse, where the abuse occurred and the identity of the perpetrator. Dr Ahmed said, given these variables, an individual approach to assessing the impact of abuse was therefore required.
71The history provided to Dr Ahmed was of multiple instances of abuse over a two-year period. Dr Ahmed confirmed her opinion was that the PTSD arose as a result of both the length of time over which the abuse was perpetrated, as well as the nature of the abuse, which she described as intimidating, violent and controlling.
72Dr Ahmed confirmed that the applicant had briefly mentioned a delay in her receiving the COVID-19 vaccine. Dr Ahmed said that the applicant had not reported the vaccine mandate left her with suicidal thoughts or feelings of being raped again. Dr Ahmed denied her diagnosis would have changed if she had been informed of such a reaction. Dr Ahmed maintained the applicant’s response to the vaccine mandate and her social isolation was entirely consistent with her PTSD diagnosis. Dr Ahmed commented it was not abnormal for people with past trauma and PTSD to become paranoid or fearful about the things occurring around them.
73Dr Ahmed accepted the applicant had experienced a violent childhood and had self-harmed on one occasion in that context. There was evidence of emotional dysregulation prior to the offending and that such dysregulation had been persistent over the course of the applicant’s life. Dr Ahmed further accepted the applicant’s distrust in men was likely in part contributed to by her childhood experiences with her father and brother.
74Dr Ahmed considered that the applicant’s relationship with her horses was a dominant protective factor in her life.
Dr Alan Jager (forensic psychiatrist)
75Dr Jager examined the applicant via Telehealth on 6 Augst 2024.
76Dr Jager recorded a consistent history regarding the applicant’s childhood, her leaving the family home and the offending committed against her by the respondent. Dr Jager also recorded a consistent history regarding events post-dating the offending, including the applicant’s response to the COVID-19 pandemic and vaccination and workplace incidents.
77Dr Jager recorded:
“She has a good relationship with her mother but rarely talks to her father. She said, ‘he’s done a lot of work and is not the man he used to be’. Her brother is still abusive and so she avoids him.”[17]
[17] Joint Court Book 190
78Dr Jager recorded the applicant felt depressed some of the time, anxious some of the time and was easily angered. Dr Jager recorded she had suicidal thoughts a few years ago but these had ceased. Dr Jager recorded the applicant experienced flashbacks if she heard the respondent’s first name and that she avoided sex and had a low libido. The applicant experienced nightmares for a number of years which abated with treatment from a hypnotherapist and now slept well.
79The applicant told Dr Jager that she had recently been to Japan and had a Bali trip scheduled.
80Dr Jager noted that the applicant’s relationship history was characterised by domestic difficulties and that she maintained no intimate relationships beyond two years. Her occupational history had been patchy with multiple changes of jobs. He confirmed she was currently the primary carer for two children whilst also working. He noted that the applicant was a victim of serious domestic violence during her childhood, causing her to leave her home, before then meeting the respondent.
81Dr Jager concluded the applicant had mild personality disorder with borderline pattern and chronic PTSD. Dr Jager commented that:
“If the plaintiff was the victim of the alleged rapes and she does re-experience that trauma (in the past through nightmares and now by intermittent flashbacks) and that she has relevant avoidance behaviours, the Chronic PTSD was caused by the alleged offences in total.
The Mild Personality Disorder with Borderline Pattern and Chronic PTSD is equally a function of genetic factors and very early (pre-school) developmental factors arising from her abusive upbringing, unrelated to the offence.”[18]
(emphasis in original)
[18] Exhibit R4, Joint Court Book 195
82Dr Jager considered the plaintiff’s condition was permanent but in partial remission. Dr Jager recommended management by a consultant psychiatrist to consider pharmaceutical options, including a high dose of anti-depressants, a short-acting sedative for any flashbacks and nightmares, as well therapy including eye movement desensitisation and reprocessing, prolonged exposure therapy and transcranial magnetic stimulation. He considered such treatment would be required for two years with monthly psychiatric sessions.
83Dr Jager was briefly cross-examined.
84It was put to Dr Jager that contrary to the comments in his report, the applicant had a good relationship with her father and brother. Dr Jager maintained his recollection was as per his report.
85Dr Jager confirmed his opinion was that the mild borderline personality disorder had been present since adolescence and had continued throughout the applicant’s life and would be present forever. He commented that such a condition was partly genetic and partly the result of her early childhood trauma.
Financial circumstances of the respondent: Section 85H
86Pursuant to s85H of the Act, I am required to take into account the financial circumstances of the respondent in the proceeding for compensation brought against him.
87There was no material before the Court in respect of the respondent’s financial circumstances and no submissions were made on behalf of the respondent in that regard.
88The absence of evidence about the respondent’s financial circumstances does not preclude the Court from making an Order for compensation.
VOCAT Award: Section 85I
89The Court was informed that a VOCAT award was made in the applicant’s favour in the sum of $10,580. No other particulars were provided.
90The applicant accepted that if the Court made a Compensation Order, it must be reduced by the sum of $10,580.
Submissions on causation
Applicant
91The applicant submitted there was no disentangling exercise required by the Court, as Dr Ahmed and Dr Jager agreed that the offending caused the applicant’s PTSD. Ms Dhanji submitted other events, including the childhood abuse and any ongoing abuse by the respondent, had not contributed to her injuries and were rather matters which provided context.
92It was not conceded that disentangling was required. It was submitted that if it was required, this process had been sufficiently undertaken by the medico-legal experts and the applicant herself in her evidence. The Court could be satisfied the unrelated events were not causative of the applicant’s injury.
93There was no evidence from Dr Jager or Dr Ahmed to suggest dealing with an aggressive client at work or paranoia and upset regarding the COVID-19 vaccine were at all causative of the applicant’s injury.
94It was conceded the “moral injury” referred to by Dr Ahmed was not compensable. It was relevant only because Dr Ahmed had expressed the opinion that this issue may be a barrier to the applicant’s recovery.
95The offending has had a significant, ongoing and devastating effect on the applicant.
Respondent
96The respondent conceded the offending was a contributing factor to the applicant’s chronic PTSD and served to aggravate the pre-existing personality disorder.
97The respondent submitted the applicant’s injury had been contributed to by non-compensable factors. This proposition was supported by both Dr Jager and Dr Ahmed, who agreed the early exposure to family violence likely impacted on the applicant’s emotional and social development.
98The applicant’s injury had been impacted by what was described by Dr Ahmed as a “moral injury”, referring to her feelings of anger as to the outcome of the criminal proceedings against the respondent. Such feelings were not compensable in the current application.
99The applicant had reported to both Dr Ahmed and Dr Jager that she had experienced multiple instances of abuse perpetrated by the respondent over an extended period of time for which the respondent had not been charged or sentenced. Such matters had contributed to her injury but were not compensable.
100As other factors contributed to the applicant’s injury, a disentangling process must occur to reduce the award of compensation by reference to any such non-compensable factors. Where there was doubt concerning issues of causation, the Court had a discretion to apply a reduction to any award of compensation.[19]
[19] Kelley (a pseudonym) v R1 (a pseudonym) & Ors [2016] VSCA 90 [21] (Beach and Ferguson JJA)
Findings on causation
101Whilst the respondent did not dispute that the applicant was entitled to appropriate compensation, he heavily emphasised the potential impact of other difficult life events on the applicant’s psychiatric state.
102The Court notes the comments in the case of Kaplan v Lee-Archer:[20]
“… the addition of the requirement that the result be ‘direct’ does not mean that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause … .”
(footnotes omitted)
[20] (2007) 15 VR 405 at 410, paragraph [24]
103See also:
“… An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective ‘direct’ is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.”[21]
(emphasis added)
[21] Ibid at 410-411, paragraph [25]
104In this case, there have been a number of unrelated stressors in the applicant’s life, the impact of which were considered by Dr Ahmed and Dr Jager, as discussed previously.
105I accept the evidence of Dr Ahmed and Dr Jager that the offending caused the applicant’s PTSD. I find accordingly. As such, I do not intend to apply any reduction or discount to the award of compensation.
Submissions on quantum
Applicant
106The applicant submitted it would be a mischaracterisation to suggest her consequences fell within the low to moderate range. The applicant has ongoing difficulties trusting men, difficulties with her sexuality, low self-confidence and self-esteem. She has continued impacts upon her relationship with her children, daily distress and pervasive symptoms flowing from the offending.
107The applicant’s future is uncertain. Dr Ahmed expressed the opinion that even with further treatment, the applicant’s prognosis was guarded and Dr Jager opined that treatment was likely to ameliorate but not extinguish her symptoms.
108No reduction should be applied to an award of compensation.
109No particular figure was suggested for an award. It was submitted that the Court was not precluded from making an award of $120,000 to $200,000 or more.
Respondent
110By reference to other decisions of this Court, it was noted that significant injuries arising from childhood sexual offending received awards between $100,000 to $200,000. The respondent submitted the range of $200,000 to $250,000 should be reserved for the most severe injuries.
111In this application, the respondent submitted the applicant had maintained full-time employment since 2020, had sustained an intimate relationship for a prolonged period, continued to care for her two children and had recently enjoyed two overseas holidays. It was said this suggested a quality of life greater than many other applicants in similar cases and that the consequences reported by the applicant fell within the low to moderate range of seriousness.
112The applicant had been affected by non-compensable factors, as discussed above.
113In written closing submissions, Mr Latham submitted the current application shared parallels with the injury suffered by the applicant in Peterson v Peterson (a pseudonym),[22] where the applicant was awarded $120,000. The respondent submitted an award of $120,000 for pain and suffering and $30,984 for future medical expenses would represent full compensation in this case.
[22] [2021] VCC 434
114The respondent maintained that a reduction of 50 per cent to the award of full compensation for pain and suffering and future medical expenses should apply due to causation issues and the risk of overshooting.
115The respondent ultimately submitted a figure of $75,492, less the VOCAT award of $10,580, was appropriate – that is $63,912.
Pain and suffering award
116As I said in Lawson (a pseudonym) v Bain (a pseudonym) (Ruling),[23] caution should be exercised when comparing other compensation awards and I repeat the warning given by her Honour Warren CJ in V1 & Ors v Xydias[24] when she said:
“… comparisons between compensation awards under the Act and other legislation, or damages at common law, may not be useful due to the difficulty identifying with any precision the various considerations and weight attributed to them, and the differing awards and factual circumstances between cases. ... This reflects the principle that the compensation is not intended to reflect the respondent’s criminal liability, rather it is directed to compensating the victim for the effects of the offences.”[25]
[23] [2024] VCC 1865 at paragraph [111]
[24] [2009] VSC 616
[25] Ibid at paragraph [9]
117At the time of the offence, the respondent was the applicant’s employer. He was also senior to her by a number of years.
118The respondent threatened the applicant. Their “relationship” continued for a number of years.
119The offending has had a profound impact upon the applicant. I accept the submissions made on her behalf on this point.
120The amount to be awarded for pain and suffering in this case calls for an instinctive synthesis. The task is an exercise of discretion based on the evidence which is sometimes incomplete.[26]
[26] Cousins (a pseudonym) v White [2024] VCC 1264 at paragraph [89]
121Having performed the synthesis, I award the sum of $115,000 which will be reduced by the VOCAT award of $10,580.
122I will not discount the award.
Medical expenses
123No claim was made for past medical expenses.
124The sum of $75,800 for future medical expenses was claimed by the applicant consisting of:
· the cost of four weeks’ inpatient treatment ($20,000), as recommended by Dr Ahmed
· six psychiatric reviews per year for a period of three years ($500 per session = $3,000 per year x three years = $9,000)
· weekly psychological treatment for three years ($300 per session = $15,600 per year x three years =$46,800).
125The respondent submitted that the sum of $30,984 was the appropriate figure for future medical expenses based on Dr Jager’s recommendations for future treatment. It was then submitted that this figure should be discounted by 50 per cent to take causation issues into account, that is, that the Court should award $15,492.
126There is no reason to discount any awards for future medical expenses. I reject the respondent’s submission that the applicant would not take up the inpatient treatment recommendation. I will allow the full amount claimed by the applicant.
Costs
127Consistent with the stated objective of s 85B applications being quick and low cost, s85K of the Act provides that each party must bear their own costs in s85B applications unless the Court otherwise determines.
128No order as to costs will be made in this proceeding.
Conclusion
129The applicant is awarded the following:
Pain and suffering $115,000
Future medical expenses $75,800
________
Subtotal $190,800
Less VOCAT award $10,580
________
Total $180,220
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