Bosch v Loeper
[1999] WASC 255
BOSCH -v- LOEPER [1999] WASC 255
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 255 | |
| Case No: | MCS:62/1999 | 25 NOVEMBER 1999 | |
| Coram: | SCOTT J | 15/12/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Applicant awarded maximum allowable under the Act | ||
| PDF Version |
| Parties: | ERIC EUGENE BOSCH PETER JOHN LOEPER |
Catchwords: | Application for compensation under provisions of the Criminal Injuries Compensation Act 1970 Maximum award available under the Act Indecent dealings with child under the age of 14 years |
Legislation: | Criminal Injuries Compensation Act 1970 |
Case References: | BMW v RLW, unreported; SCt of WA (Kennedy J); Library No 4614; 23 August 1995 KLH v Dennison, unreported; SCt of WA (Burt CJ); Library No 5172; 6 December 1983 M v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992 P v C, unreported; SCt of WA; Library No 920055; 23 January 1992 A v D (19911 WAR 481 The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199 B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995 B v W (1989) 6 SR(WA) 79 Bonovich v Radovanovic [1981] WAR 291 Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666 Glover v Van Den Ancker, unreported; DCt of WA (Muller DCJ); Library No 4962; 20 June 1996 Maher, unreported; DCt of WA; Library No 5124; 1996 MLB v Wilkinson, unreported; SCt of WA; Library No 4738; 1982 O v J, unreported; SCt of WA (Wallwork J); Library No 920027; 13 February 1992 Patorniti v Silvestro, unreported; SCt of WA; Library No 970325; 1997 R v Fraser (1975) 2 NSWLR 521 R vWright [1971] Qd R 153 RJE v Bandy, unreported; SCt of WA (Burt CJ); Library No 5489; 31 May 1974 S v Neumann (1995) 14 WAR 452 Sideris v Censori [1983] WAR 17 Wootton, unreported; SCt of WA; Library No 4172; 1981 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
PETER JOHN LOEPER
Respondent
Catchwords:
Application for compensation under provisions of the Criminal Injuries Compensation Act 1970 - Maximum award available under the Act - Indecent dealings with child under the age of 14 years
Legislation:
Criminal Injuries Compensation Act 1970
Result:
Applicant awarded maximum allowable under the Act
(Page 2)
Representation:
Counsel:
Applicant : Mr J J Scudds
Respondent : Mr R F C Ioppolo
Solicitors:
Applicant : J J Scudds & Associates
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
BMW v RLW, unreported; SCt of WA (Kennedy J); Library No 4614; 23 August 1995
KLH v Dennison, unreported; SCt of WA (Burt CJ); Library No 5172; 6 December 1983
M v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992
P v C, unreported; SCt of WA; Library No 920055; 23 January 1992
Case(s) also cited:
A v D (19911 WAR 481
The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199
B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995
B v W (1989) 6 SR(WA) 79
Bonovich v Radovanovic [1981] WAR 291
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Glover v Van Den Ancker, unreported; DCt of WA (Muller DCJ); Library No 4962; 20 June 1996
Maher, unreported; DCt of WA; Library No 5124; 1996
MLB v Wilkinson, unreported; SCt of WA; Library No 4738; 1982
O v J, unreported; SCt of WA (Wallwork J); Library No 920027; 13 February 1992
Patorniti v Silvestro, unreported; SCt of WA; Library No 970325; 1997
R v Fraser (1975) 2 NSWLR 521
R vWright [1971] Qd R 153
RJE v Bandy, unreported; SCt of WA (Burt CJ); Library No 5489; 31 May 1974
(Page 3)
S v Neumann (1995) 14 WAR 452
Sideris v Censori [1983] WAR 17
Wootton, unreported; SCt of WA; Library No 4172; 1981
(Page 4)
1 SCOTT J: The applicant has applied for compensation under the provisions of the Criminal Injuries Compensation Act 1970 ("the Criminal Injuries Compensation Act"). The respondent pleaded guilty to an indictment containing 105 counts, four of which related to the applicant. Those four counts were:
"1 On a date unknown between 1 April 1979 and 31 December 1979 at Toodyay Peter John Loeper unlawfully and indecently dealt with Eric Eugene Bosch a child under the age of 14 years.
2 And further on a date unknown between 1 April 1979 and 31 December 1979 at Toodyay Peter John Loeper procured Eric Eugene Bosch a child under the age of 14 years to unlawfully and indecently deal with him.
3 And further on a date unknown between 1 April 1979 and 31 August 1981 at Toodyay Peter John Loeper unlawfully and indecently dealt with Eric Eugene Bosch a child under the age of 14 years.
4 And further on a date unknown between 1 April 1979 and 31 August 1981 at Toodyay Peter John Loeper procured Eric Eugene Bosch a child under the age of 14 years to unlawfully and indecently deal with him."
2 It was said by the Crown prosecutor that the indictment was a representative indictment reflecting only four particularised incidents out of a number of incidents between applicant and the respondent.
3 The facts relating to the indictment were particularly serious as revealed in the sentencing remarks of the trial Judge, Pidgeon J, who said when sentencing the respondent:
"There would be no point again outlining the details of the offences. They are almost too sordid to behold. The account in respect of each boy reveals a tragedy in the life of that boy. In many cases it shows that there was a trust in you by that boy and in a number of cases by the parents of the boy. You had an appearance of respectability. The boys went to your various properties where it was thought that they would be engaged in outdoor work on your property and participate in healthy activity. In a number of cases it commenced that way. You
(Page 5)
- took boys as a group to remote locations, allowing them much freedom, riding motorcycles and driving motor vehicles."
4 His Honour went on to describe the sexual activities between the particular boys and the respondent. He told of the manner in which the boys were sexually molested. His Honour went on to say:
"In respect of all your offences, it would be impossible to determine the full effects on the victims. I have read the victim impact statements which satisfy me that many are still affected by their experience and it will take much understanding and assistance from family friends and counsellors to assist them in the future.
This is amongst the worst cases of a paedophile which I have seen and I have no hesitation in coming to the view that the sentences I must impose must be the maximum sentence on each count."
5 For the purposes of these proceedings, it is unnecessary to detail the sexual misconduct to which the applicant was subjected. The conduct is described in detail in the applicant's affidavit sworn 29 September 1999. That affidavit exhibits a number of reports which detailed the effect that the respondent's behaviour has had upon the applicant throughout his life. The offences occurred at a time when the applicant was aged between 6 and 9 years.
6 It is common ground that the maximum award available under the Criminal Injuries Compensation Act, applicable to each of these applications, is a sum of $7,500 or a maximum of $30,000.
7 The applicant exhibits several medical reports showing the various ways in which the respondent's criminal conduct has affected his life. In a report from Lindy Gleeson of 19 January 1999, Ms Gleeson traces the applicant's history and refers to the effect of conduct such as that inflicted by the respondent in the following way:
"Long term effects on adults who were assaulted as children have been documented and include depression, self destructive or suicidal behaviour, anxiety, feelings of isolation and alienation, negative self concept, impaired interpersonal relationships, vulnerability to victimisation, a propensity to choose abusive mates, problems with sexual adjustments, and/or substance or alcohol abuse."
(Page 6)
8 Other reports provided by experts indicate that the applicant has suffered from each of those symptoms since the abuse ceased.
9 A further report from Helen Byles Drage, dated 14 September 1997 concludes:
"While no amount of money can recreate Mr Bosch's world I see his application for compensation as part of the healing process. It is one of the ways of bringing home how seriously childhood sexual abuse affects children. It is a measure and an acknowledgment that Mr Bosch was profoundly damaged by being sexually assaulted and will enable him to afford further therapist support in Perth when released, and to re-establish himself in the community."
10 In a more comprehensive report of 20 September 1999, a clinical and forensic psychologist, Bruce Beaton summarises the effects of the respondent's conduct on the applicant in the following way:
"The sexual assault Eric experienced over several years from 1979 had a profound effect on his psychological and physical wellbeing, an effect that continues to distress him today. His PAI profile gives clear indications of continued extreme distress evoked as episodes of compensatory antisocial behaviour and hyper activity coupled with high levels of risk taking and grandiosity. This is coupled with severe difficulties he has had in making and keeping important love relationships in his life.
In his early teens his post trauma symptoms included uncontrollable anger linked to Loeper and his actions, anxiety that he may be abused again, negative ideas about his own body and sex, significant disturbance of mood and poor self-image, low self esteem and lack of self worth. In his late teens and twenties these have changed to dreams and feelings that are 'horrendous', intense shame, feeling physically sick at the thought of what has happened to him, fear of sex and distress during it and premature ejaculation."
11 Mr Beaton concludes that the applicant will require at least another twenty five more sessions of therapy to assist his rehabilitation.
12 Mr Beaton has already forwarded an account for treatment in the sum of $980, giving some indication of the out of pocket expenses which
(Page 7)
- the applicant has incurred in seeking to overcome the psychological disabilities inflicted upon him by the conduct of the respondent.
13 In assessing an application such as this, it is important to bear in mind that the maximum compensation prescribed by the Act is a jurisdictional limit and not one reserved for the worst case: KLH v Dennison, unreported; SCt of WA (Burt CJ); Library No 5172; 6 December 1983: BMW v RLW, unreported; SCt of WA (Kennedy J); Library No 4614; 23 August 1995.
14 It is now accepted that the correct approach to such an award is to determine the appropriate compensation on the basis of ordinary tortious principles of assessment of damages and then, if the figure arrived at is greater than the maximum allowable under the Act, the maximum should be awarded; M v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992; P v C, unreported; SCt of WA; Library No 920055; 23 January 1992; and BMW v RLW(supra).
15 The calculation of damages in a case such as this is not capable of precision. It can only be assessed by bringing to bear on the primary facts which the Judge accepts a fair judgment as to what in all the circumstances is thought to be reasonable: KLH v Dennison (supra).
16 In this case there is, in my opinion, another factor to be evaluated. As these reasons reveal, the criminal conduct of the respondent, the subject of the indictment, occurred between 1 April 1979 and 31 August 1981. The matter did not come to light for many years and the respondent was not sentenced until 1994. There is no allowance in the legislation for inflation so that no account can be taken of the depreciation in the value of an award of compensation over the period of time between the commission of the offence and the making of the award. I would add that there is also no provision for a separate award of out of pocket expenses, which in this case have been considerable.
17 Taking all of those factors into account, in my opinion, the applicant has demonstrated that he is entitled to the maximum allowable under the Act. I award him the sum of $30,000, which in my opinion is well below the appropriate assessment of damages on proper tortious principles.
18 I will hear the parties as to any other consequential orders, particularly as to costs.
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