Curtis (a pseudonym) v Patton (a pseudonym) and Anor (a pseudonym)

[2018] VCC 91

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

IN THE MATTER of an application under s85B of the Sentencing Act 1991.

BETWEEN

GENEVIEVE CURTIS (a pseudonym)	Applicant
v
EARL PATTON  (a pseudonym)	First Respondent
and
LIBBIE PATTON (a pseudonym)	Second Respondent

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2017
DATE OF RULING:	7 February 2018
CASE MAY BE CITED AS:	Curtis (a pseudonym) v Patton  (a pseudonym) & Anor (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 91

RULING
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Subject:  
Catchwords:            
Legislation Cited:     Sentencing Act 1991

Cases Cited:RK v Mirik [2009] VSC 14; Stevens v Baxter [2009] VSC 257; VI v Xydias [2009] VSC 616

Ruling:  

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. Hammill	Schembri & Co Lawyers
For the Respondents	Ms N. Spicer	Stary Norton & Halphen Criminal Law Specialists

HER HONOUR:

1       Ms Curtis[1] is the daughter of Mrs Patton,[2] and stepdaughter of Mr Patton.[3]  Between 1 July 1969 and 16 August 1972, Ms Curtis, who was then aged between 12 and 15 years, was sexually penetrated on a penile/vaginal basis on a monthly basis by Mr Patton. That offending occurred because Mrs Patton felt unable to satisfy the sexual demands of Mr Patton and therefore required her daughter to assist.  Essentially, Ms Curtis was sent into the Patton’s bedroom, where Mr Patton had sexual intercourse with her while Mrs Patton waited in the lounge room.  This occurred despite Ms Curtis’s pleas and entreaties, Mrs Patton cajoling her into continuing, and giving her alcohol, such as cooking sherry or brandy, to allay her anxiety before she went in.  Ultimately, at the age of 16½, Ms Curtis fell pregnant to Mr Patton.  A son was born, and Ms Curtis was ejected from the family home after developing drug, alcohol and mental health issues, with the child adopted by the Pattons.

[1] Ms Curtis is a pseudonym.

[2] Mrs Patton is a pseudonym.

[3] Mr Patton is a pseudonym.

2       Mr Patton pleaded guilty to two representative charges of having carnal knowledge of a girl aged between 10 and 16 years, the first of those charges relating to Ms Curtis, the second relating to her sister.  On 15 September 2015 I sentenced him to a total effective sentence of 4 years, with a minimum term of 2 years. 

3 Mrs Patton pleaded guilty to one charge of carnal knowledge of a girl aged between 10 and 16 years, relating to her complicity in the sexual offending against Ms Curtis, and on 11 November 2015 was sentenced, by me, to a term of imprisonment of 2 years and 6 months, with 2 years of that sentence being wholly suspended for a period of 3 years. Ms Curtis now seeks a compensation order pursuant to s85B of the Sentencing Act 1991 for pain and suffering experienced by her as a direct result of the offence.

4       At a hearing of the application on 8 December 2017, no issue was taken by counsel for the Pattons that Ms Curtis had suffered a compensable injury pursuant to the legislation, or with the contents of psychiatric material tendered on behalf of Ms Curtis in support of her application.  That essentially comprised of a report from psychiatrist, Dr Fiona Hawker, dated 30 August 2017.  Dr Hawker has been treating Ms Curtis since February 2006, that is, for a period of 12 years, seeing her approximately every one to two months to “provide psychiatric assessment and oversight and psychological support.” It was Dr Hawker’s opinion Ms Curtis now suffers a Complex Post-Traumatic Stress Disorder, which she said was “resulting from abuse, psychological, physical and sexual that she had been subjected to as a child and adolescent.”  It was also her opinion that:

“Closely associated with a complex PTSD is a major depressive disorder and longstanding difficulties with severe anxiety disorder, with panic attacks which lead her to become agoraphobic.  She also experiences psychotic symptoms with times of thought disorder and auditory hallucinations.”

5       Ms Curtis is medicated with an antidepressant, an antipsychotic, a mood stabiliser and Valium.  She described Ms Curtis as suffering chronically high levels of anxiety and panic attacks, chronic sleep disturbances with nightmares, in addition to the Complex Post-Traumatic Stress Disorder and Major Depressive Disorder with Psychotic Symptoms.  Dr Hawker also noted that throughout her life Ms Curtis had experienced significant relationship problems, had been recurrently victimised, unable to maintain gainful employment, suffered multiple medical problems and was unable to parent her own children effectively.  It was her view that the abuse suffered by Ms Curtis had continued to impair her “in multiple ways”.  These difficulties, she said:

“… can be understood as stemming from her experience of being abused as a child.  Although Mr Patton was the direct perpetrator of the sexual abuse, Mrs Patton failed in her role as a care giver and protector of her daughter, she was not only fully aware that this abuse was occurring and didn’t protect Ms Curtis, but she specifically directed Ms Curtis to comply with the abuse.  Thus this recurrent and protracted abuse conducted by the adults on whom Ms Curtis, as a child, was dependent on for her safety and protection, leaving her totally helpless.  This continued over many years … .”

6       It was also Dr Hawker’s view that Ms Curtis’ prognosis was poor, she stating:

“The formal legal recognition that has already occurred of these offences and the acknowledgement of the damage it has caused Ms Curtis has and will help to some extent however she will remain highly vulnerable for the rest of her life to extreme stress reactions to difficulties in relationships and to the triggering of PTSD symptoms.” 

7       She stated:

“I recommend Ms Curtis remain on maintenance doses of an antidepressant, a mood stabiliser and an antipsychotic for the rest of her life, in addition to medication required for her various chronic physical/medical problems.  She will benefit from ongoing psychological support into the long-term, whether it be by a psychiatrist or psychologist to support her in her stress responses.”

8       It was Dr Hawker’s view that, in time:

“As long as she is not subjected to any further abuse situations she may be able to better control her anxiety reactions to enable her to leave her house more freely.  However, she is unlikely to ever be able to cope with social situations involving more than a small number of people and thus limit her recreational opportunities.  With the chronic psychological and physical limitations, she will be unable to undertake any further paid employment.”

9       In her Victim Impact Statement, Ms Curtis detailed an extremely difficult life, whereby at the age of 17 she turned to drugs and alcohol, going on to develop panic attacks, a series of failed marriages and her current situation, where she is unable to leave her home without two to three hours mental preparation, an inability to drive for fear of panic attacks, a fear of crowds, continual nightmares, continual sadness, depression, fearfulness, anxiety and bouts of extreme anger.  She has a fear of intruders.  Her house has security lighting, she needs a guard dog to feel secure, and finds relief from her overwhelming negative emotional state in her animals.  She lives in a small town as there are few people around, and to which any shopping she can undertake is confined.  I am satisfied that Ms Curtis has suffered, and continues to suffer, extreme psychiatric and psychological conditions, as described by Dr Hawker, and that they are a direct result of the offending against her by the Pattons.

10      The position of the Pattons is a difficult one.  Mr Patton, who is now more than 80 years old, remains in jail.  Mrs Patton, who has served the sentence imposed upon her, is also more than 80 years old.  She suffers a number of serious medical conditions, primarily severe arthritis, including osteoarthritis of the spine and shoulders, requiring assistance to dress and undress, and is unable to raise her arms over her head.  She has a history of strokes, for which she takes blood-thinning medication, and has a past history of pulmonary embolism, asthma, gastro-oesophageal reflux, diverticula disease, psoriasis, has undergone bilateral knee replacements and suffers from hypercholesterolaemia. 

11      The Pattons adopted the child born to Ms Curtis, Erik[4] who, as an infant developed a series of tumours, surgery for which left him brain-damaged, and he is unable to live independently.  He still resides with Mrs Patton in their house in Mildura, which was purchased in 2015 in the hope that family in the area, primarily Mr Patton’s son, Tom[5]; Blake[6], the son of Mrs Patton and Mr Patton’s stepson; and Blake’s adult daughter, would be able to assist in the care of Erik which, however, appears not to have been fulfilled.  That property at Mildura, was purchased jointly in the names of Erik and Mr and Mrs Patton, is un-encumbered and has a valuation of between $265,000 to $275,000, that valuation being made on 6 September 2017 on behalf of Ray White Real Estate Agents.  The Pattons have a car worth $12,000 and personal effects.  Their only income is the Aged Pension.  As was pointed out by their counsel, given their ages employment is not a possibility in the future, nor do they have the prospect of obtaining a lump sum via a loan.  Sale of their home would render them homeless, their disabled son needs housing and care, and they, themselves, need aged care services.

[4] Erik is a pseudonym.

[5] Tom is a pseudonym.

[6] Blake is a pseudonym.

12      There is no doubt that a compensation order of any magnitude would have dire effects upon the Pattons and Erik.

13      The relevant principles to an application of this kind were outlined in RK v Mirik [2009] VSC 14, and set out in “nutshell” version by his Honour Justice J Forrest in the matter of Stevens v Baxter, which judgment was delivered on 31 July 2009, the citation being [2009] VSC 257.

14      There being no dispute as to the compensable nature of the injuries suffered by Ms Curtis as a result of the offending against her, and which I am satisfied are a direct result of such offending, I will not repeat all those principles, but refer only to those which, in my view, are relevant to the catered hand.  They are that:

(i)the determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court, provided the claim falls within the categories set out under s85B(2);

(ii)       the order is one for compensation and not damages;

(iii)the Act does not permit an award for either aggravated or exemplary damages, which may be sought in a separate civil claim;

(iv)expenses, medical or otherwise, actually incurred and reasonably likely to be incurred, may be the subject of a compensation order;

(v)the financial circumstances of the offender are relevant;

(vi)a court is not obliged to reduce the amount of a compensation payable on the basis of the offenders financial circumstances.  It is a relevant, but not controlling consideration.

15      In my view, the offending against Ms Curtis was a serious example of a serious crime and the effects upon her have been lifelong and devastating.  The unchallenged opinion of Dr Hawker is that those effects are likely to be ongoing.  In all the circumstances, notwithstanding the parlous financial condition of the Pattons and the requirements for Erik, I am of the view that the order of compensation appropriate in this case should not be made with regard to those financial circumstances.  Based on a two-third calculation of a market value of $265,000 being $176,666.67 less an amount of $7,500 awarded to Ms Curtis by the Victims of Crime Compensation Tribunal, I order that compensation of $169,166.68 be paid to Ms Curtis by the Pattons.  Pursuant to s85K of the Act, parties to applications for compensation should bear their own costs unless otherwise directed by the Court.  It was submitted on behalf of Ms Curtis that this section left the Court with the residual discretion to make an award for costs, particularly in circumstances where to not do so would be to substantially erode the financial award being made to a successful application.  It was submitted that I should grant an order for costs against the Pattons.  Counsel for Ms Curtis referred to the case of VI v Xydias [2009] VSC 616, an unreported decision of the then Chief Justice Warren, delivered on 22 December 2009. Her Honour the Chief Justice, in that case, observed that while award of costs turned on the facts of the case, there were matters for courts to consider in the exercise of the discretion, including:

(i)        the impact of the crime on a particular victim;

(ii)       the complexity of the matter requiring representation;

(iii)      the number of offences committed against an applicant;

(iv)      the length of time between offending and award of compensation;

(v)       the need for proper representation; and

(vi)      the need for specialist medical opinions to be provided.

16      It was submitted on behalf of Ms Curtis that this matter did involve the proper engagement of legal and medical services to found the compensation application before the Court and that not to award her costs would reduce the benefit of the award to her through no fault of her own.  In relation to this issue, Justice J Forrest in Stevens v Baxter stated at paragraph 37:

“… Although counsel advised me that in applications in the County Court there have, on occasions, been orders for costs against the offender, the clear tenor of the section is that the costs should lie where they fall, absent unusual or special circumstances. Such circumstances, it seems to me, cannot be the events surrounding the crime as one would imagine that in many, if not all, cases in which applications under s 85B are made the circumstances are such that a court would (absent legislative direction) be readily disposed to order costs in favour of the victim or victims.”

17      It is my view that while, undoubtedly, legal representation and accompanying expert opinion were required in this case, that could be said to be so in most such applications.  Moreover, in this case, while the effects upon Ms Curtis of the offending against her have been serious, varied and complex in themselves, proof of them was not, in my view, complex, and required only the opinion of one expert.  This is not a case, in my view, where unusual or special circumstances prevail, and I do not propose to order legal costs against the Pattons in this matter.

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