Cousins (a pseudonym) v White
[2024] VCC 1264
•21 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00995
| EMILY COUSINS (a pseudonym) | Applicant |
| v | |
| LES ALFRED WHITE | Respondent |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2024 | |
DATE OF JUDGMENT: | 21 August 2024 | |
CASE MAY BE CITED AS: | Cousins (a pseudonym) v White | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1264 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW
Catchwords: Crimes compensation – application by victim of childhood sexual assault – entitlement to compensation – costs
Legislation Cited: Sentencing Act 1991
Cases Cited:RK v Mirik and Mirik (2009) VR 623; V1 & Ors v Xydias (unreported) [2009] VSC 616; Moresco & Ors. v Budimir [2015] VSC 51; Brooks v Meade [2017] VSC 172; AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233
Judgment: Compensation awarded to the applicant in the sum of $452,200
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Vallins | Angela Sdrinis Legal |
| For the Respondent | Mr J Chandramohan | JT Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1The proceeding before the Court is an application for compensation orders pursuant to s85B of the Sentencing Act 1991 (“the Act”).
2The issue to be resolved in this proceeding is the amount of compensation to be awarded. There is no dispute that an award should be made.
3The making of a compensation order arises from sexual offending by an adult against a little girl.
4The assessment of an appropriate award of compensation is complicated by the evidence of neglect that the applicant experienced as a child, as well as the impact of subsequent, unrelated sexual abuse.
Background
5Mr Les White (“the respondent”) is now 79 years of age. He was sentenced by her Honour Judge Gaynor on 7 July 2021, after he was found guilty by a jury of 13 charges of: committing an indecent act with a child under 16; three charges of sexually penetrating a child under 16; and one charge of attempted sexual penetration of a child under 16 (“the offending”).
6Ms Emily Cousins (“the applicant”)[1] is now 27 years of age. The offending was perpetrated by the respondent against her when she was aged between 8 and 13 years.
[1]A pseudonym
7In her Reasons for Sentence, Judge Gaynor set out the nature of the offending, which I do not propose to repeat. But, as her Honour observed, it was offending when the applicant was then aged between 8 and 13 years, where the respondent was an adult and a friend of the applicant’s mother and took advantage of that relationship to groom the applicant and then sexually abuse her.
8The age of the applicant and the nature of the offending provides context to not only this application but, as the evidence revealed, other unpleasant events that have happened in the applicant’s life, relevant to the compensation order.
9But at the outset, I acknowledge that the respondent has been punished through the criminal justice system for the offending. He is currently in jail because of the sentence imposed on him and he is likely to remain in jail until he is aged in his mid-eighties, or perhaps until the end of his life, as he is in poor health. In that context, despite my opening remarks, I am conscious that the proceeding before the Court is an application for a compensation order pursuant to s85B(1) of the Act and not the criminal trial for the offending.
10My task is not to punish the respondent a second time. But the offending cannot be ignored, as the starting point and for context to the claim now before the Court. In that regard, Judge Gaynor described the offending as classic predatory, paedophilic behaviour involving “the remorseless exploitation of a vulnerable little girl for a period of years”. Judge Gaynor said that the applicant’s life had been rendered, in many ways, an emotional agony because of what the respondent did to her.
11The conclusions of Judge Gaynor, in my view, are consistent with the evidence now before me and my assessment of it, for the purpose of this application.
This proceeding
12The applicant now seeks compensation for her:
· pain and suffering pursuant to s85B(2)(a);
· expenses reasonably likely to be incurred for counselling services pursuant to s85B(2)(b);
· medical expenses reasonably likely to be incurred pursuant to s85B(2)(c).
13In addition, the applicant seeks her costs, in the sum of $45,000, because of what her counsel submitted was the unreasonable delay, attitude and behaviour of the respondent in respect to the current application.
14The question for determination is the appropriate amount of compensation that the Court should award the applicant in accordance with s85B. In that regard, the respondent, through his counsel, accepts that a compensation order is appropriate. The dispute is the magnitude of that order.
The evidence for the application
15The applicant tendered affidavits sworn by her on 16 March 2023[2] and 9 April 2022,[3] together with relevant exhibits. In addition, she tendered affidavits from Ms Nina Vallins, solicitor (as she then was), sworn 6 July 2022,[4] and her current solicitor, Ms Ellen Fitzgerald, sworn 11 April 2024.[5] Amongst the exhibits was a document prepared by Ms Caryn Anderson, counsellor/mental health social worker, on 2 January 2022,[6] as part of a recommendation for counselling after the applicant had made an application to the Victims of Crime Assistance Tribunal (“VOCAT”). Further, amongst the exhibits was a confidential psychology report from Ms Carla Ferrari, forensic psychologist, dated 4 February 2023.
[2]Exhibit 1
[3]Exhibit 2
[4]Exhibit 3
[5]Exhibit 4
[6]Court Book dated 15 July 2024 (“CB”) 188
16The applicant also provided an Outline of Submissions dated 2 May 2024.
17The respondent relied upon affidavits sworn by him on 16 April 2024[7] and 24 May 2024.[8] In addition, the Court had available the respondent’s Outline of Submissions dated 24 May 2024.
[7]Exhibit A
[8]Exhibit B
18In addition to the tendered evidence and the written submissions, the parties each made oral submissions. Ms Ferrari was required for cross-examination and gave oral evidence. The respondent was also required for cross-examination and gave oral evidence.
19I have considered all the tendered affidavits, exhibits, submissions and the transcript of the oral evidence, to which I shall refer to the extent necessary to explain my reasons.
Legal principles
20In this proceeding, broadly the legal principles are well-known and agreed.
21The Act provides that a victim may obtain a compensation order from an offender. Section 85B(1) of the Act provides that the court may make such an order in favour of a person who has suffered “injury” as a direct result of an offence.
22The relevant principles are:
(a) The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court.
(b) An order for compensation is determined by the application or, where relevant, by general common law principles[9]. However, the order itself is for compensation and not for damages.
(c) Unlike a common law claim for damages, the financial circumstances of the respondent are a relevant, but not controlling, consideration.[10]
[9] Moresco & Ors. v Budimir [2015] VSC 51, per t Forrest J
[10] As an example of the relevant principles, see RK v Mirik and Mirik (2009) 21 VR 623 (“Mirik”)
Respondent’s contentions
23As mentioned, in this application it is not disputed that the applicant had suffered injury or that she was entitled to a compensation order because of the offending.
24Much of the submissions of the respondent were directed to the fact that, as this was a compensation order proceeding and not a damages trial, the Court should take a conservative approach and be alert to the risk of “overshooting”[11].
[11] Brooks v Meade [2017] VSC 172, per Weinberg JA
25The “overshooting” issue was raised because of events in the applicant’s life that could be said to be attributable to neglect by her mother, both before and after the offending, as well as the subsequent sexual abuse.
26Counsel for the respondent submitted, appropriately, that it was important to remember that the compensation order must reflect the entitlement to compensation because of the offending, and exclude from such compensation unrelated events, which have also caused pain and distress to the applicant and continue to do so.
27Further, on behalf of the respondent it was submitted that a compensation application had a limitation in that the full evidence that might be expected to be presented in a damages trial is not available, which may mean that a full and forensic examination of the claim is not available at this stage.
28I accept that I must not “overshoot” when making the compensation order. I accept that the Court should take a conservative approach, where the claim is not capable of being tested as fully as may be possible in a common law proceeding, consistent with the comments of Bell J in Mirik.[12]
[12]Ibid
29But equally, the compensation order must be appropriate, based on the evidence in this application, in the exercise of the discretion vested in the court. The need to avoid “overshooting” does not mean that the Court should not award a sum as appropriate for the application.
30In addition, the respondent highlighted relevant issues to do with his financial circumstances. It was submitted, again appropriately, that this is a relevant consideration when the Court assesses the quantum of the claim.
31Next, the respondent contended that, pursuant to s85I of the Act, an award that the applicant had received from VOCAT should be reduced from any compensation order made.
32Finally, the respondent submitted that an order for costs against him was not appropriate in this proceeding, in circumstances where there is a statutory provision that provides for an ordinary rule as to costs.
Applicant’s evidence
33The applicant swore two affidavits in support of her application for a compensation order. The respondent did not seek to cross-examine the applicant.
34I am conscious that I must consider the whole of the evidence but, on my assessment, the applicant’s affidavit evidence is broadly consistent with the balance of the evidence relied on by her. Therefore, I am comfortable that I can accept her sworn evidence and that her credit is not a relevant consideration.
35In her first affidavit, sworn 16 March 2023, she acknowledged that her childhood was unstable and that she was neglected and physically and emotionally abused by her mother.
36The applicant then set out in some detail the circumstances of the offending against her by the respondent. She described how the offending had caused her severe stress and fear, and how she felt unable to trust anyone. She described ongoing flashbacks and intrusive thoughts every single day, difficulty with sleeping, and the development of an eating disorder. She noted that she has self-harmed. She described difficulties in relationships. She described being overprotective towards her own children. She described significant ongoing psychological and mental health symptoms, and poignantly described how she had come to terms with the fact that her life will never be good, safe, normal, or enjoyable.
37As mentioned, the applicant deposed in her affidavit of her unstable childhood and neglect from her mother. But in my opinion, that does not detract from her evidence about ongoing symptoms and consequences from the abuse perpetrated by the respondent. In fact, what it provides is the context for how the respondent was able to gain her trust and then perpetrate the offending on her, and how that breach of trust as a young girl has continued to plague her.
38The applicant gave evidence about a payment of $10,000 received through VOCAT for “special assistance” because of the respondent’s offending against her. There is disagreement between the parties as to whether that payment should be deducted from the compensation order.
39The applicant did not give evidence in her affidavit about the subsequent, unrelated sexual abuse. But I make no criticism of her for that. First, her affidavit was directed to the consequences of the respondent’s abuse against her. Second, she exhibited to her affidavits various documents and the reports from Ms Anderson and Ms Ferrari, in which the subsequent episodes of sexual abuse were set out and discussed in detail by the authors of those reports.
40Next, in an affidavit sworn 9 April 2024, the applicant set out a timeline of events relevant to this application. She described delays in the proceeding said to have been caused by the respondent and attempts by her solicitors to encourage him to obtain legal representation. She set out the impact the delay in this proceeding had on her mental health. She gave evidence of ongoing interactions with the respondent as part of the court process and how he had behaved inappropriately towards her.
Caryn Anderson
41Ms Caryn Anderson is a counsellor/mental health social worker who completed an “Initial Report – Recommendation for more than five hours of counselling” as part of the VOCAT claim. That report is dated 2 October 2020.[13]
[13]CB 188
42In her report, Ms Anderson described how the applicant had been the victim of sexual abuse by different individuals, starting when she was a young child in her mother’s care, which is a reference to the offending.
43Much of Ms Anderson’s report is otherwise directed broadly to symptoms experienced by the applicant because of the combined effects of sexual abuse.
44Ms Anderson recorded the applicant as having overwhelming anger specifically after the sexual abuse by the respondent when she was younger and how she felt that there was no one to help her cope, nor did she know what to do or who to turn to.
45Ms Anderson described the applicant’s self-esteem as damaged to the point where she did not see any positives about herself. Ms Anderson recorded the applicant as having seen many counsellors, psychologists, and medical professionals, and having various diagnosed psychological conditions.
46Regarding the abuse by the respondent, Ms Anderson set out in considerable detail the ongoing recollection the applicant had of that abuse and the consequences from it, and how it had caused her to not feel human.[14]
[14]CB 191
47Ms Anderson then went on to describe three periods of sexual abuse perpetrated by other persons, all of that post-dating the abuse by the respondent. Ms Anderson then said:
“It is difficult to separate Ms [Cousins’] emotional and psychological injuries from each individual alleged sexual assault”,
before going on to say that she was:
“of the opinion that Ms [Cousins] is suffering from complex post-traumatic stress disorder (CPTSD) due to alleged having major trauma perpetrated against her as a child.”[15]
[15]CB 193
48Ms Anderson then made recommendations about ongoing treatment.
49I consider that Ms Anderson appropriately identified the difficulty in separating out the consequences from each of the described periods of abuse. But a fair reading of her report highlights the significant impact that the abuse by the respondent had on the applicant as a young child. Ms Anderson’s opinions regarding the consequences of the offending provides context to the later events in the plaintiff’s life.
Carla Ferrari
50Ms Carla Ferrari is a forensic psychologist who examined the applicant and provided a report dated 4 February 2023. In addition, Ms Ferrari gave oral evidence and was cross-examined about the opinions in her report.
51The task of attempting to separate out the consequences from each documented episode of abuse was discussed by Ms Ferrari in her report dated 4 February 2023.[16] Ms Ferrari obtained a detailed history from the applicant, including of the relevant abuse and what she described as “other abuse”. Having done so, she then diagnosed the applicant’s ongoing psychological condition. She diagnosed clinical disorders of post-traumatic stress disorder, generalised anxiety disorder, persistent depression, and major depressive disorder, recurrent and moderate. She diagnosed traits of borderline personality; however, described those as more reflective of complex trauma.[17]
[16]Incorrectly dated 4 February 2022
[17]CB 215
52Regarding the abuse by the respondent, she said in her oral evidence that:
“Ms [Cousins] is a 26-year-old female with a history of trauma which has led to the development of depression, anxiety, and PTSD, which are consistent with the abuse she endured.
Her abuse by Mr White occurred during a particularly critical period of her childhood, which has adversely affected her overall development, identity formation, self-esteem and personality development, general functioning, and interpersonal relationships. Research identifies a dose-dependent relationship in which the more traumatic events an individual experiences in childhood and adolescence, the higher likelihood of later health issues, and impairments to their attachment, attention, learning, memory, executive functioning, and social skill capabilities, as is evident in Ms [Cousins’] historical functioning.”[18]
[18]CB 215
53Relevant to submission of the respondent regarding the “overshooting” issue, Ms Ferrari was asked to opine whether the applicant had a recognisable psychiatric condition directly because of the respondent’s offending, as well as addressing any pre-existing mental health or subsequent mental health issues. Ms Ferrari answered that question as follows:
“Ms [Cousins] described a history of maternal abuse and neglect which both preceded and followed the abuse by Mr White. It appears that following her disclosure to her mother around age 14-15 of Mr White abusing her during her childhood, her mother confronted him but ultimately accepted his denial, subsequently reprimanding Ms [Cousins] for making false allegations, and sent her to live with her grandparents. There was also a period during Ms [Cousins’] adolescence (post abuse) where she left Ms [Cousins] to live alone and care for her younger brother for approximately two years, having moved in with a partner.
It is considered that these adverse childhood experiences contributed to the onset of Ms [Cousins’] mental health issues as she was not nurtured or cared for, had limited guidance and support, and was not provided a stable home environment. It is likely she developed a predisposition to depression and anxiety as a child in response to her home life, however her reported functioning at school prior to the abuse suggest that these symptoms if they were present, were not of significant concern as she described being an above average student despite her attention problems and dislike of completing her schoolwork. She also described having positive social interactions prior to the abuse.
Ms [Cousins] specifically describes the onset of her PTSD symptoms as commencing following the abuse by Mr White, explaining she was highly distressed, struggled with nightmares and flashbacks which persist to date, and experienced a severe deterioration in her mental health and functioning, suggesting that her PTSD is directly related to the abuse she endured by Mr White. She indicated she does not have intrusive memories of physical abuse by her mother or exposure to violence by her mother’s partners. It is therefore my professional opinion that Ms [Cousins’] PTSD developed a [sic] direct result of the offence(s) against her by Mr White. It is also my opinion that her depression and anxiety symptoms became amplified as a result of her abuse by Mr White and it appears reached a clinical level at that point, with Ms [Cousins] starting to engage in deliberate self-harm from age eight when the abuse commenced, and having numerous suicide attempts.
Understandably, the sexual abuse was the most damaging and distressing traumatic event to Ms [Cousins], and she has consequently struggled with intimacy since which has significantly impacted her relationships. Her conditions have been exacerbated by other abuse she endured as an adult within other interpersonal relationships and have contributed to her being unable to defend herself against other attackers due to crippling fear and anxiety, particularly that they would hurt her children as some have threatened.
It is conceded that Ms [Cousins’] pre-existing mental health conditions would have been exacerbated by additional stressors and life events she has faced, particularly her involvement in difficult and sometimes abusive relationships. These experiences would have particularly aggravated her PTSD, as it reinforced beliefs that she was to comply with the demands of males as she was nothing more than an object to them, and further contributed to negative beliefs about herself resulting in low self-esteem, and worsened depression and anxiety symptoms.
Research indicates individuals who experience multi-type maltreatment or poly-victimization are more likely to experience high levels of trauma symptoms and worse outcomes than those who are exposed to no maltreatment or only one type consistent with Ms [Cousins’] experiences.”[19]
[19]CB 217-218
54Ms Ferrari then said:
“Ms [Cousins] has suffered from her conditions since childhood when she was abused by Mr White from approximately age eight to age 12, and her symptoms have persisted into adulthood. Her conditions are both persistent and episodic; the conditions themselves are chronic, however, symptoms fluctuate in severity and episodes can be triggered by internal or external stressors, even after periods of being asymptomatic or in remission of an episode.
As outlined above, Ms [Cousins’] psychometric testing results on the PCL-5 and ITQ indicate that her PTSD symptoms are within the severe range. Her PHQ and GAD-7 scores reflect severe depression and anxiety, and from the clinical interview and results on the MCMI-IV, there is evidence to support the presence of PTSD, MDD, PDD, GAD, and underlying personality traits.
Further, there is evidence of Ms [Cousins’] abuse history having significant implications on her personality formation, functioning, interpersonal relationships, and her mental health. Her quality of life has been lower than it otherwise would have been had she not endured such trauma.”[20]
[20]CB 218-219
55Ms Ferrari was then subject to cross-examination that was appropriately concise and directed towards this issue of disentangling the consequences of the offending, as opposed to other stressful events in the applicant’s life.
56The cross-examination sought to highlight the impact of (or injury caused by) the neglect or abuse from her mother, as well as the subsequent sexual assaults that the applicant had experienced.
57During cross-examination, Ms Ferrari adhered to the opinions expressed in her report. She accepted that the abuse by the applicant’s mother and the subsequent sexual abuse would have contributed or exacerbated the applicant’s psychological condition.
58Ms Ferrari’s response to the cross-examination is best summed up by setting out the following transcript of her evidence:
Q:“Again if I can again I'll take you back to Ms Anderson's report and again for the court's benefit this is at p192 of the court book. And she states, and this is what she was told by the applicant, Ms [Cousins] felt helpless and felt there was no way out due to having nowhere else to live especially with an infant. So along the same vein of those previous questions I asked you in relation to Mr Drinkwater's abuse, would the applicant's abuse at the hands of Mr Braybrook have impacted on her psychologically, and I guess it's (indistinct) related question which I can ask you separately if it would assist, but do you agree the use of the infant to keep the applicant in line would have exacerbated the psychological impact?---
A:Yes. So I guess similar to what I was saying in the previous response that ultimately there's no dispute the subsequent sexual assaults and different types of abuse that Ms [Cousins] has experienced within her relationships, there's no dispute that that certainly exacerbated her conditions and would have been extremely distressing. The ultimate issue though is that she already had this pre-existing post-traumatic stress disorder which started at the point of the abuse by Mr White.
So anything after that completely compounds the symptoms and her experience of those conditions and I suppose those feelings of helplessness and disempowerment, being unable to escape from these conflictual dynamics that she found herself in certainly would have amplified her PTSD symptoms, particularly hyperarousal, anxiety, fear, negative alterations of her mood, so exacerbating her depression. And I think the thing that's really important to understand is that the childhood sexual abuse that she experienced and started developing at the, sorry, core beliefs that she started developing from the index abuse by Mr White, that really affected her view of herself.
She started to see herself as an object for males and that you know she must comply with their demands and that was then reinforced by in these subsequent relationships you know threats that were made against her like you said the weaponising the child, she mentioned being kidnapped by his maternal grandmother and his mother. So all of those things definitely exacerbated her mental health but the core of it is that she developed these beliefs about herself and became conditioned to responding in such a way that almost perpetuated that subsequent re-traumatisation.
Q:Ms Ferrari, there is another incident but look I think the court can make its own assessment about the impact of that and you've given some insights into those circumstances. I'm just going to take you to again to Ms Anderson's report and something you said earlier in your examination in chief, effectively that there's no means of, and I'm paraphrasing so correct me if I'm wrong, but effectively there's no empirically validated measure to apportion how all these different incidents and circumstances of abuse contributed to the injuries at this point in time as we now can see them.
Now again, Ms Anderson says, at p192, sorry, for the court's benefit, ‘It is difficult to separate Ms [Cousins’] emotional and psychological injuries from each individual sexual assault. Ms [Cousins] disassociated from each alleged trauma she was allegedly subjected. Dissociation is a common response to trauma which leaves the alleged victim less likely to fight back. Therefore it is difficult to pinpoint different traumatic psychological symptoms from each traumatic experience’?---
A:M'hmm.
Q:Now the abuse by the applicant's mother, Mr Drinkwater, Mr Braybrook and Mr Hodgkin, which sorry I haven't taken you to but is in your report at 41 ‑ ‑ ‑ ?---
A:Yes.
Q:‑ ‑ ‑ have all had a psychological impact upon the applicant?---
A:They have.
Q:And you agree as a conclusion that it's difficult to separate the psychological injury that is caused by each of those incidents?---
A:It is but as I said in the first part of my evidence is that when we look at when the symptoms actually onset there's clear evidence that from age eight she began engaging in self-harm, her educational, academic performance started to deteriorate, she required remedial support in her final year of primary school. So there's a number of things, suicide attempts, et cetera and then her grandparents started to seek professional help for her, that all occurred prior to the subsequent abuse by Mr Drinkwater.
So in fairness on the balance of probabilities it would suggest that you know her, her symptoms, her condition developed initially in response to Mr White and have been exacerbated by the subsequent traumas. So that's why I suggest that even though there's no way, no empirical way to apportion that that first incident had the most significant effect because it has had long‑term consequences to her functioning.”[21]
[21]Transcript (“T”) 24, Lines (“L”) 16 ꟷ T 27, L 15
59In my opinion, Ms Ferrari gave balanced, considered and compelling evidence. She appropriately acknowledged there was no empirical way to apportion the consequences of the abuse by the respondent from other traumatic or stressful events in the applicant’s life. She appropriately conceded that unrelated and subsequently traumatic events and sexual assaults would have exacerbated the applicant’s psychological conditions and would have been extremely distressing. But, as she noted, the applicant already had pre-existing psychological difficulties because of the abuse by the respondent and that the childhood sexual abuse really affected her view of herself.
60But, while Ms Ferrari acknowledged in her report and oral evidence the difficulty in separating out the consequences from the various traumatic episodes that the applicant has experienced, what was striking about her oral evidence was the significance that she attached to the impact on the applicant’s current psychological state because of the offending.
61Ms Ferrari described in her oral evidence how the offending had impacted the applicant as a little girl, causing her to develop psychological symptoms and conditions that continue to this day and continue to have a significant impact on the applicant’s long-term ability to function.
62I consider that Ms Ferrari’s evidence is consistent with the applicant’s evidence. I accept her opinions.
Conclusions drawn from the evidence
63The following conclusions are drawn from the evidence.
64First, the applicant was subjected to neglect by her mother before and after the offending. That neglect extended to how her mother reacted to the applicant’s disclosure of the offending.
65Second, the respondent committed serious, callous offending against the applicant when she was a young girl, which continued over a period of approximately five years.
66The applicant’s evidence of the impact and injury suffered by her directly because of the offending is evidence that I accept, after a consideration of the whole of the available evidence.
67I accept the applicant’s evidence that the offending caused her severe stress and fear and caused her to develop a lack of trust. I accept she still experiences flashbacks and intrusive thoughts daily about the offending. I accept she has had ongoing nightmares since she was thirteen years old. I accept she has developed related disorders and had resorted to self-harm. I accept she has found it difficult to maintain personal and intimate relationships because of the offending.
68Third, I also accept the applicant suffered further injury or the exacerbation of pre-existing psychological injury because of subsequent abuse and other, unrelated sexual abuse. The subsequent abuse can be termed as often opportunistic, serious, repeated sexual abuse of the applicant by several people throughout her teenage and early adult years.
69Therefore, I accept there is an overshooting issue or disentangling issue between the injury caused by the respondent, as opposed to injury caused by other events. I accept that I should not minimise the damage caused by the unrelated abuse.
70Fourth, and relevant to the last point, I accept the evidence from Ms Anderson and Ms Ferrari that the assessment of the consequences of the offending is complicated by the unrelated abuse.
71Fifth, I also accept the evidence from Ms Ferrari that the applicant was significantly damaged by the abuse from the respondent and had an entrenched underlying condition because of that abuse.
72Ms Ferrari’s oral evidence was compelling for a conclusion that it is the offending that continues to mostly affect the applicant and, further, the abuse towards her as a young child in effect put the applicant at risk of further abuse because of the destruction of her self-esteem, and because of the lack of support she had following the disclosure of the offending.
73The evidence disclosed that the offending caused the applicant to have developed permanent psychological injury and ongoing symptoms. Her mood, self-esteem, schooling, childhood and entire life have been dominated by her experience of the offending, with ongoing self-harm, interference with her relationships, interference with sleep, an inability to trust other people and a vulnerability to further abuse.
74But, the evidence also disclosed that the applicant has suffered further injury or psychological harm because of other events in her life. As Ms Ferrari said, it is not possible in an empirical way to apportion the contribution from unrelated events, but equally it is the offending that has had the most significant effect on the applicant.
Other awards
75The parties each referred to decisions of other judges in respect to the awarding of compensation in an application under s85B of the Act, or in a common law assessment by a judge or jury.
76I have considered the authorities that the parties referred to. Those authorities are of some assistance in a consideration as to the appropriate award of compensation to make in this proceeding, but ultimately, they are not of particular assistance.
77Each case essentially turns on its own facts and the evidence then available to the judge. I consider the proceeding before the Court to be a quintessential example of how each case turns on its own facts, in the context of the extraordinarily difficult and complicated life that the applicant has had, with multiple episodes of sexual abuse.
78I also consider that there is a particular limitation in the consideration of common law assessments where there has been, in some cases, a lengthy trial and a vastly different body of evidence available to the tribunal of fact. I am conscious this is a compensation application and not a damages trial. As Warren CJ said in V1 & Ors v Xydias:[22]
“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 different awards and factual circumstances between cases. In addition, the number of offences is not of itself pertinent, rather it is their effect on the victim that is relevant. 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.”[23]
[22](unreported), [2009] VSC 616
[23]Ibid at paragraph [9]
What is an appropriate compensation award?
79The offending in this proceeding was by an adult, on multiple occasions, against a child aged between the age of eight and thirteen years. It is difficult to imagine the impact five years of offending by an adult would have on a child during what are meant to be some of the happiest years of a person’s life. The innocence of childhood was taken away and that can never be restored.
80But there is no need to imagine the impact on the applicant in this proceeding because I have her own evidence, in combination with the evidence from Ms Anderson and Ms Ferrari.
81Rather than use my own imagination, the actual evidence paints a vivid picture of devastation to the applicant, directly caused by the respondent’s offending against her. The evidence describes the impact of that, past, present and ongoing, despite the evidence also describing further injury, or aggravation injury, from other events. She is still only 27 years old and the evidence is that she will have lifelong damage because of the offending.
82It could be said that no amount of money can adequately compensate the applicant for the injury directly caused by the respondent during her young life. Equally, it could be said that the task of assessing an appropriate figure for compensation would be a lot easier had the applicant not had the misfortune to be subject to abuse and neglect by her mother, as well as subsequent serious sexual abuse.
83But, in my view, the difficulty in separating out the injury directly caused by the respondent should not detract from the evidence that tends to the conclusion that it has had a significant, ongoing and devastating effect on her.
84The task of assessing damages for pain, suffering and loss of enjoyment of life is one that common law judges have done for centuries. That is often to be done on a body of incomplete or conflicting evidence, and where the losses are not readily measurable in money.[24] As juries are often told, the task is to award fair and reasonable compensation for the injury, loss or damage caused by the perpetrator. The task is to compensate and not to punish.
[24] Assessment of Damages for Personal Injury and Death, 5th Ed., Luntz and Harder page 421
85Unlike a common law proceeding, the Act provides that the financial circumstances of the respondent are a relevant, but not controlling, consideration.
86In this proceeding, I have considered his financial circumstances. I have considered his affidavit and oral evidence about that. I note his age, poor health and probability he will have very little time in the community after his sentence expires, or after he becomes available for parole, if he lives that long at all.
87I accept the respondent may have some limited financial needs while in prison, but then again, they are likely to largely disappear once his house is sold, which he accepts will be the inevitable result of any compensation order against him. But I accept that should he survive long enough to live again in the community, he will have a financial need, which may not be met from social security or age pension.
88Next, while this is not a common law trial, there was a reasonable amount of evidence before the Court, namely the applicant’s sworn evidence and the evidence from Ms Anderson and Ms Ferrari. True it is that, at a common law trial, there may have been a need for further evidence, or the applicant may have been cross-examined about the unrelated events. But this is not an example of an application under the Act where there is no relevant medical or other evidence.
89As the authorities referred to by the parties demonstrate, the assessment of an appropriate compensation order is quintessentially an example of an exercise of discretion based on the available evidence, and, at times, incomplete evidence.
90In that context, I have considered the available evidence, together with the parties’ submissions. I have taken into consideration the financial needs of the respondent. I have considered the fact that this is not a common law trial and that I should be mindful of the risk of “overshooting”.
91Having synthesised all relevant considerations and evidence, I consider an appropriate compensation award to be $450,000. That figure fairly reflects the compensation that the applicant is entitled to, excluding damage or loss from other events in her life, for the purposes of an award of compensation under the Act.
Is the VOCAT award deducted?
92Next is the consideration of whether the special assistance payment of $10,000 by VOCAT is one that should be deducted from the award of compensation because of s85I of the Act.
93The parties each made submissions about this issue. The applicant submitted that a special assistance payment was not required to be deducted because it is not a payment for pain and suffering and so there was no doubling up if it was not deducted.
94On the other hand, the respondent submitted that it was effectively an award for pain and suffering and so it should be deducted from the award, but appropriately acknowledged some divergent case law on this topic.[25]
[25] T 72, L 11-18
95In my opinion, it would be incongruous if an offender and against whom an award was to be made was effectively given a reduction in the compensation that had to be paid to a victim of her or his offending because of a statutory payment by VOCAT.
96On a plain reading of the Act, I prefer the construction advanced by the applicant. The special assistance award is not deducted from the award of compensation.
Medical expenses
97Next is the issue of the appropriate award to cover medical expenses.
98First, it is agreed that an amount of $2,800 awarded by VOCAT for counselling, but not actually accessed by the applicant, must be deducted.
99Next, counsel for the applicant conceded a limitation in the evidence as to the award, if any, to be made for medical expenses beyond that already awarded by VOCAT.[26] It was accepted that the applicant had not availed herself to much by way of counselling or psychiatric treatment, because of her particular difficulties in accessing such treatment.
[26] T 49, L 18-31
100The evidence is that an initial psychiatric assessment would cost $428. Subsequent sessions would be at the rate of $228. Her counsel submitted that the applicant would need that type of treatment at least one a year for a ten-year period.
101The respondent noted that the applicant had not used any of the award by VOCAT and the uncertainty of the evidence about whether she would access psychiatric treatment or the frequency or cost of it.
102For a compensation award, I consider that a modest allowance should be made for future medical expenses. I consider that $5,000 is appropriate.
Costs
103Finally, the issue of costs.
104The starting point is s85K of the Act, which provides that each party must bear their own costs unless the Court otherwise determines. That is consistent with the objective of a quick and low-cost way to seek an award of compensation.
105But that does not mean that costs will never be awarded. Ultimately the issue of costs involves an exercise of a discretion, informed by the facts of the application, but in the context of the starting point that each party ought bear their own costs unless otherwise determined.
106In AA (a pseudonym) v Cooper (Ruling)[27] Judge O’Neill discussed a list of factors that may be relevant to the Court’s exercise of a discretion to award costs. As that Ruling demonstrates, unless there are sufficient exceptional circumstances, the court should not make an award of costs.
[27] [2015] VCC 233
107The parties each made submissions about costs, which I have considered. The applicant, with some force, pointed to the delays caused by the respondent, and how that had forced her to incur costs. She also pointed to alleged behaviour by him during the criminal trial and during this application, as relevant to the discretion to award costs.
108I have considered the parties contentions about costs. First, the issue of delay is complicated. Some of that was an unavoidable result of the respondent being sent to jail and his limited access to resources to enable him to properly engage with this application. For a significant period, he was without lawyers to assist him. The applicant submitted that he could have engaged private lawyers, but by the same token, he had the right to be self-represented, if he so chose, until there was an application to restrain his property. Some of the delays also related to the Court process and inherent delays in the proceeding being ready for a hearing.
109So, I accept that there was conduct by the respondent that may have added to the delay and may have been disrespectful towards the applicant, but that does not automatically translate into an entitlement to costs.
110Having considered the parties’ contentions, in the exercise of a discretion, I am not persuaded that there are sufficient “exceptional circumstances” to justify an award of costs, especially considering the financial impact that the order I am going to make in this proceeding will have on the respondent.
Conclusion
111Therefore, for the reasons expressed, I conclude that the applicant is entitled to an award of compensation as follows:
· pain and suffering pursuant to s85B(2)(a) of the Act at $450,000;
· expenses likely to be incurred pursuant to s85B(2)(b) of the Act at $5,000;
· less expenses awarded by VOCAT for counselling at $2,800.
Total: $452,200
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