BT v BT
[2014] WADC 166
•5 DECEMBER 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BT -v- BT [2014] WADC 166
CORAM: WAGER DCJ
HEARD: 1 DECEMBER 2014
DELIVERED : 5 DECEMBER 2014
FILE NO/S: APP 85 of 2014
BETWEEN: BT
Appellant
AND
BT
Respondent
ON APPEAL FROM:
For File No : APP 85 of 2014
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H C PORTER
File No :CI 001967 of 2013
Catchwords:
Criminal injuries compensation - Appeal by offender against award - Whether award for economic loss should be made - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Amicus Curiae : Mr J M Carroll appeared on behalf of Chief Executiver 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):
A v D (1994) 11 WAR 481
Hogben v Darcy [2009] WADC 63
MW v CW [2001] WADC 234
WAGER DCJ: This is an appeal by the appellant offender against a decision of the chief assessor of Criminal Injuries Compensation made on 6 August 2014 awarding the respondent the sum of $34,702 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (the Act). The award was made in respect of the following:
(i)Section 16(1)(b) of the Act in respect of injuries and losses suffered by the respondent as a consequence of the appellant injuring her on 3 April 2011 at Atwell for which incident he was charged with an offence of breach of a violence restraining order and on 27 August 2012 the charge was dismissed without a finding whether the appellant was guilty or not guilty and thereby an alleged offence as defined in the Act was constituted.
(ii)Section 17(2) of the Act in respect of injuries and losses suffered by the respondent as a consequence of alleged offences which occurred on 21 April 2011, 20 July 2011 and 19 December 2011 at Atwell and no person has been charged with the commission of those alleged offences; and
(iii)Section 12(1) of the Act in respect of injuries and losses suffered by the respondent as a consequence of the appellant injuring her on 9 February 2012 at Atwell for which incident he was convicted in the District Court at Perth on 19 November 2012 of aggravated burglary and thereby a proved offence as defined in the Act was constituted.
The award was in the total sum of $34,702 being:
Claim
$
Injuries
$21,000
Report
$2,000
Loss of income
$10,000
Future psychological counselling to a maximum of:
$1,502
Subtotal
$34,702
Less future treatment not yet incurred
($1,502)
Balance payable
$33,200
Pursuant to s 45(1)(b) of the Act, the assessor also ordered a limit on the sum of money that may be the subject of reimbursement proceedings under pt 6 of the Act to prevent the CEO from recovering any more than $19,000 from the appellant.
The assessor prohibited publication of any particular of the award that was likely to lead members of the public to identify the appellant in relation to the alleged offences pursuant to s 64(3)(c) of the Act. Given the nature of the offences, I order that the appellant and the respondent be referred to by initials only in the transcript of proceedings to ensure neither the appellant nor the respondent is identified.
The appellant appeals only the part of the award that provides $10,000 to the respondent for loss of income because he submits that the loss of income occasioned was due to the respondent losing her job rather than as a result of the injury suffered by her. However, given that the appeal is a hearing de novo and the court may confirm, vary or reverse the assessor's decision, either in whole or in part, pursuant to s 56(2)(b) of the Act, I need to consider the evidence that was before the assessor, mindful that the court is not fettered by the assessor's decision but that it is nonetheless appropriate to have regard to the assessment made by the assessor as a specialist tribunal in the field: Hogben v Darcy [2009] WADC 63 [13].
The background to the offending is that the respondent who was born in the former Republic of Yugoslavia married the appellant in 1997 and migrated to Australia soon after. They have two children who are now teenagers. The respondent made the decision to leave the appellant and with the assistance of police and Legal Aid, she obtained a violence restraining order against him. Once protected by the violence restraining order, the respondent returned to live in the family home.
The appellant was charged with breaching the violence restraining order. This charge was withdrawn without proceeding to verdict by Magistrate Langdon in the Fremantle Magistrates Court on 27 August 2012 (5553 of 2011, ts 3). This charge is the subject of the s 16(1)(b) finding.
The respondent's police statement dated 21 September 2012 sets out that the respondent made reports to police alleging the appellant was in breach of the violence restraining order. There were a number of complaints including that she received numerous phone calls and text messages from the respondent. The police reference numbers relevant to the texts received and sighted were 200711 1518 99386 and 210411 0940 13535 consistent with 21 April 2011 and 20 July 2011. Police report 191211 0750 13843 was made because the respondent received a note with an offensive message written in Serbian. The note was shown to police on 19 December 2011. These reports relate to the application pursuant to s 17(2) of the Act.
The appellant entered a plea of guilty to an offence that on 9 February 2012 at Atwell, while in the place of the respondent without her consent, he committed the offence of assault and did bodily harm to her and detained her and the place was ordinarily used for human habitation contrary to s 340(1)(ii) of the Criminal Code. This offence relates to the s 12(2) application. In his sentencing remarks on 28 February 2013, Curthoys DCJ said (ts 136 – 138):
The facts of this case are that you were determined to speak to the complainant, your former wife, and to do whatever was necessary to do that, including breaking a violence restraining order relating to her that you were subject to.
You initially violated that order by climbing over the back fence of the house and then waiting in your son's bedroom for somewhere between 20 minutes and an hour. Prior to that, you'd parked your car in that back of the house so that your ex‑wife wouldn't see you. Your explanation in the video record of interview was that if your ex‑wife saw him [sic] she would have driven away.
Leaving aside the breach of the violence restraining order – and I acknowledge that that was subsequently set aside, but nevertheless, you were subject to it – you could have waited until she entered the house and approached her. Instead, you waited in the house. You were wearing gloves.
Your explanation for that was that it was a big fence, about 2.6 metres, and you were wearing gloves to avoid injuring your hands. No reason was offered for the gloves remaining on while you were in the house, waiting for your ex‑wife.
I accept that your ex‑wife unlocked the front door, went into the house and put her keys and her bag on the kitchen bench. I accept that she saw you entering the kitchen from the hallway and that she started backing up against the kitchen bench.
I accept her evidence about the events that then followed, namely, that you grabbed her neck with both your hands. And the medical evidence is there were three main bruises on the left side of the neck, in front of the ear; that the bruising was fresh; that there were injuries to both sides of the neck; and that there were injuries to the back of the neck; and she was also very tender on the upper neck and under the hairline, at the centre. Also, the photographs of her in exhibit 5 established that there were injuries to the neck.
I accept the evidence of your ex‑wife that after the first incident, when you grabbed her round the neck, that she fought back and you let go. But she then moved her position and was approached again. You grabbed her neck with both hands. She then knocked a pot of oil, which spilt on the floor, and you let go of her and she slipped on the oil and fell to the floor.
She got up and you grabbed her again with both hands first and, at one stage, she couldn't breathe anymore. And then she tried to reach for something and she reached in her left hand for something which she later realised was a knife, and that she grabbed that from the bench with her left hand.
And your evidence was consistent with her grabbing it with her left hand. The grabbing of the knife happened quickly and you quickly removed it from her. I accept her evidence that it was pointed at her stomach for a minute or two and that, after that, while you were holding her throat with your left hand and holding the knife with your right hand, you put it under her throat.
I accept that after she said, 'I'm not feeling well. Can I go and sit in the lounge?' after you'd initially declined that, you permitted her to do so and followed her in with the knife, which you were still holding in her hand. And it wasn't until the children were returning from school – sorry, you followed her into the lounge with the knife. You subsequently put it into the sink. And that you detained her in the lounge room until the children returned from school, and even after they had returned from, school for a short period of time.
His Honour accepted that the appellant had provided well for his family, had a good employment history and did not have any prior criminal record. At ts 141, however his Honour said 'it's totally inappropriate to lie, to enter the house of an ex‑partner, surreptitiously to wait in hiding for her and then to approach her and to assault her, as occurred in this case, then to detain her for a period of time'.
The appellant was sentenced to two years' imprisonment with eligibility for parole.
The respondent's application to the assessor was supported by the report of Ms Kaye Houghton, psychologist, dated 2 October 2013. Ms Houghton concluded in her report that the respondent had been affected by the violence of her husband's assault upon her. Ms Houghton diagnosed that the respondent was suffering from post‑traumatic stress disorder, depression and anxiety and that these conditions would have continuing effects upon her. Ms Houghton assessed that the respondent met the diagnostic criteria for post‑traumatic stress disorder (DSM‑5) because of the following:
(a)exposure to actual threat and death, serious injury or sexual violence;
(b)recurrent involuntary and intrusive distressing memories of the traumatic events including;
(ii)recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic events;
(iii)dissociative reactions (eg flashbacks) in which the individual feels or acts as if the traumatic event were occurring;
(iv)intense or prolonged psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic events;
(v)marked physiological reactions to internal or external cues that symbolise or resemble an aspect of the traumatic events;
(c)persistent avoidance of stimuli associated with the traumatic events, beginning after the traumatic event, including distressing memories, thoughts, feelings, people, places, conversations, activities, objects and situations,
(d)negative alterations in cognitive and mood associated with the traumatic events beginning or worsening after the traumatic events occurred, including:
(ii)persistent and exaggerated negative beliefs or expectations about oneself, others or the world;
(iii)persistent distorted cognitions about the cause or consequences of the traumatic events that led the individual to blame herself;
(iv)persistent negative emotional state;
(v)markedly diminished interest or participation in significant activities; and
(vi)persistent inability to experience positive emotions.
Ms Houghton determined it was not possible to predict exactly how long it might take for the respondent's current symptoms to dissipate. She was of the opinion that the respondent required counselling to continue in order to begin to ameliorate her current symptomology and that the respondent will remain vulnerable to specific triggers relating to the appellant.
I find that compensation was properly awarded under s 12(1), s 16(1)(b) and s 17(2) of the Act and that the respondent suffered injury and loss as a consequence of the matters for which compensation was sought. The order of $21,000 together with the cost of the report and provision for future psychological counselling is an appropriate order.
I will now deal with the appellant's appeal against the award for economic loss. In her submissions to the assessor in support of her application, it was stated on behalf of the respondent:
Loss of earning capacity
The respondent was working as a receptionist/clerical assistant in February 2012. She has been very grateful for the support of her then‑employer which has enabled her to continue her employment during this very trying period, including during the period of the criminal proceedings against the appellant.
Her take home pay was around $859 to $1,186 per fortnight.
Unfortunately this company where she has been employed for 6 1/2 years declared bankruptcy earlier this year and she is now unemployed. As Ms Houghton noted at p 9 of her report:
She … is finding it difficult to find employment and it is possible her current symptoms related to post‑traumatic stress disorder, depression and anxiety will inhibit her ability to begin new employment in the immediate future.
This is particularly problematic as she fears being out in strange places, driving around by herself and attending interviews. She even has difficulty turning on her computer because of her ex‑husband having sent her many abusive emails in the past. The continuing psychological effects are impacting negatively on the respondent's ability to search and find employment.
It is unlikely that she would be able to obtain employment until her psychological status is more stabilised.
I received evidence from the appellant during the course of the appeal pursuant to s 56(1) of the Act. I also consider the appellant's signed statement provided to the assessor dated 14 March 2014. He said the reason why the respondent was not in work was because she lost her job when her employer went bankrupt and that prospective employers from her ethnic background would not employ the respondent because they were aware of the circumstances of the separation and of the appellant's imprisonment. He stated he had never sent the respondent emails because he was not proficient on the computer. She should have no concerns about turning on the computer.
Compensation is payable where a person has suffered loss as defined in s 6, s 12(1), s 16(2) and s 17(2) of the Act.
In order to maintain a claim for compensation for economic loss, an applicant must establish a loss of earnings by reason of the offence, and the loss must be a direct consequence of the injury. Loss of earnings includes loss of earning capacity pursuant to s 6(2)(c) of the Act: A v D (1994) 11 WAR 481, 489.
When a loss of earning is proved, the damages to be assessed are essentially a matter of judgment and often cannot be proved by precise figures: A v D, 489.
In cases where the applicant is not physically disabled and obviously could obtain employment and earn income, albeit at a lesser level than her intellectual capacity, there are too many imponderables to pretend any calculated assessment: MW v CW [2001] WADC 234. What is being assessed is the loss of a chance that the applicant could have worked unaffected by injury but for the commission of the offence.
I take into account the appellant's evidence in relation to not using his computer, however, the overwhelming impact of the post‑traumatic stress disorder suffered by the respondent is such that I accept the respondent would have difficulties finding employment. I find it is likely that her symptoms related to post‑traumatic stress disorder, depression and anxiety will inhibit her ability to find employment in the immediate future.
I accept as accurate the income tax return of the respondent dated 30 June 2010 with a gross income of $20,233 and for 30 June 2011 with a gross income of $24,383. The sum of $10,000 is significantly lower than the sum that the respondent submitted the assessor should consider. I find however that $10,000 is an appropriate sum because it reflects the chance that the respondent could have worked unaffected by injury but for the commission of the offences.
The appellant gave evidence pursuant to s 56(1) of the Act at the hearing of the appeal in relation to his current personal circumstances. I accept he was a person of good character prior to the commission of these offences and that he was an excellent provider financially for his family. The appellant purchased houses for the family to live in and by way of investment and paid the school fees in order to send his children to private school. He also financed overseas holidays to ensure that his family maintained contact with his parents. The appellant lost his taxi driver's licence on being charged by police. Since being released from prison the appellant has not had employment. He has borrowed over $20,000 from a friend to meet a monthly mortgage payment of $1,200. He has also borrowed money to pay outstanding school fees. He has outstanding council rates and legal fees to pay, together with other outstanding debts. The appellant has also experienced health problems including psychiatric problems and difficulties with his vision since being released from prison. He is presently in receipt of a disability pension (exhibits 1 ‑ 12).
I accept the appellant's financial situation is very tight and that he now has limited opportunities for future employment. I cannot however deal with the assessor's order under s 45(1)(b) of the Act.
Section 55(1) of the Act provides that an interested person may appeal to the District Court against an assessor's decision to make or to refuse to make a compensation award or the amount of the compensation award. The assessor's order under s 45(1)(b) of the Act is not appealable because it is not a decision in respect of the amount of a compensation award.
The ground of appeal is unsuccessful. The appeal is dismissed.
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