H.G. v Pryse

[2020] VCC 240

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-16-01034

H.G.	Applicant
v
PETER GLENN PRYSE	Respondent

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JUDGE:	Lacava
WHERE HELD:	Melbourne
DATE OF HEARING:	27th August 2019
DATE OF RULING:	13th March 2020
CASE MAY BE CITED AS:	H.G. v Pryse
MEDIUM NEUTRAL CITATION:	[2020] VCC 240

REASONS FOR RULING
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Subject:         85B  Application      

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Willshire	Robinson Gill
For the Respondent	In Person

HIS HONOUR:

1 This is an application for compensation pursuant to section 85B of the Sentencing Act 1991 (“the Act”). The application was issued on the 18^th October 2017.  Such an application must be made within twelve (12) months after an offender is found guilty, or convicted, of the offence.

2       On 20^th February 2017, the Respondent pleaded guilty to four representative charges of sexual penetration of a child under the age of 16 years.  The offending in the charges spanned a period of about two-and-a-half years between 22 March 1994 and 5 October 1996.  The Applicant was the victim of the offending in each of the charges.

3       I sentenced the Respondent in respect of the charges on the 9^th March 2017.  I convicted the Respondent of each of the charges and allowing for a measure of accumulation and concurrency sentenced the Respondent to a total effective sentence of three years.  He has now served that sentence. 

4 Section 85B(1) of the Act empowers the court to order an offender to pay compensation to a person who has suffered injury “as a direct result of the offence”. The power is discretionary and must be exercised judicially.

5 Section 85B(2) of the Act prescribes the kinds of expenses that may form part of the compensation order, including for “pain and suffering experienced by the victim as a direct result of the offence”.

6 Section 85A of the Act defines “injury” for the purposes of section 85B(1) and relevantly includes “mental illness or disorder or an exacerbation of a mental illness or disorder”.

7 Section 85H of the Act empowers a Court on such an application to take into account so far as practicable, the financial circumstances of the Respondent. Also, by operation of section 85I of the Act, on entertaining an application for compensation under section 85B, the court must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 (“VOCAT”).

8       The application has had somewhat of a protracted history.  The various transcripts of mentions will show that the final hearing of the application was delayed on a number of occasions whilst attempts were made by the respondent to arrange and fund legal representation on the application.  As it finally transpired he was unable to do so and the application proceeded without him being legally represented.  The Respondent did not seek to challenge the evidence put forward by the Applicant.  He did say that he would be effectively penniless when finally released from custody which the court understands to have been in February 2020, the Respondent not having been admitted to parole.

9       The circumstances leading to the pleas of guilty of the Respondent to the four charges of sexual penetration of the applicant, then a child under 16 are long and complex.  On the 20^th February 2017 I ruled on an application made pre-trial on behalf of the Respondent permanently staying the trial of charges of other offending, some involving the applicant as the complainant and some involving other women as complainants.  I ordered that several charges of sexual penetration of the applicant as complainant proceed and that lead to the Respondent pleading guilty to the four representative charges for which I sentenced him to a term of imprisonment.  My revised ruling is available and should be read in conjunction with this ruling where relevant.  It is not necessary that I again set out those reasons for ruling here save that one point arises.

10 I ruled that because the prosecution had filed over a new presentment some years earlier it would be unfair for the proposed new indictment to proceed. My ruling was not the subject of an interlocutory appeal. I was advised that as a result of the way the prosecution had handled the charges which included the Applicant’s complaints the Office of Public Prosecutions has paid to her an ex gratia payment of $30,000. In my judgement that sum needs to be taken into account in assessing the amount of compensation which the applicant ought be entitled to receive and in arriving at a final figure for compensation for the Applicant on this application I have taken that sum into account. I have also taken into account two payments from VOCAT of $4000 and $10,000 received respectively by the applicant in 2013 and 2016.

11      The circumstances of the offending by the Respondent giving rise to this application are set out in my revised reasons for sentence dated the 9^th March 2017.  It is therefore not repeat them here save that this ruling must necessarily be read in conjunction with my revised reasons for sentence.  In my reasons for sentencing the Respondent I said when referring to the Victim Impact Statement then filed on behalf of the Applicant, “It is suffice to say what you did to her has had a profound effect upon her and it may be lasting”.

12      The application is supported by two affidavits filed by the Applicant.  The first is dated 15^th December 2017 (“the first affidavit”), and the second is dated 1^st February 2019 (“the second affidavit”).  The content of these affidavits was not challenged.

13      The Applicant was born in March 1981.  She is now approaching 39 years of age.  Much of what is contained in the first affidavit is in my opinion irrelevant to this application.  That is in part because it refers to matters not directly related to the charges for which the Respondent was convicted.

14      As a young woman the Applicant had wanted to study as a social worker or psychologist but did not have the academic achievements at that time to be admitted to such study.  She commenced an apprenticeship as a hairdresser which did not last long. There after she had various jobs at David Jones and the Leader newspaper.  She eventually travelled overseas and married in 2005.  There are two children of the marriage born in 2006 and 2009 respectively.

15      The Applicant was later employed by the ANZ Banking Group but her position was later made redundant and she was retrenched around the time of pre-trial argument in February 2017.  In that job she was earning a package of around $130,00 per annum.

16      Thereafter the Applicant was studying social work which was always her chosen career path.  That career pays much less than what the applicant was earning at the ANZ Bank.  In my judgement the loss of work by the Applicant at the higher paid job at the ANZ Bank is not as a direct result of the Respondent’s offending and is non compensable.

17      The Applicant suffered from a nervous breakdown in 2012 and was diagnosed as suffering a Post-Traumatic Stress Disorder (“PTSD”).  A report of psychologist Matthew Staios dated 26^th October 2016 which I accept, confirms this diagnosis.

18      The Applicant has been married for 15 years and cannot sleep in the same bed as her husband.  She awakes with nightmares and flashbacks to being assaulted sexually by the respondent.  She says, and I accept, that there are many aspects of being intimate that bring back memories and feelings from her childhood experiences with the Respondent.  She suffers ongoing panic and anxiety attacks.  The Applicant deposes that as a result of the conduct of the Respondent in the offending for which he has now been convicted she remains affected on a daily basis and this has had a lifelong impact on her.

19      A report from a treating psychologist Associate Professor Paoletti dated 12^th October 2017 opines that the Applicant suffers from an Unspecified Anxiety Disorder (DSM 5 300.0) with strong features of residual post-traumatic stress disorder/generalised anxiety/some social anxiety associated with issues of trust/ a need to be busy/ sometimes emotional lability associated with intercourse despite a supportive and understanding husband.  Associate Professor Paoletti is also of the opinion the Applicant suffers from an Unspecified Depressive Disorder (DSM-5 311) which appears to have reached levels of Major Depressive Disorder in the past.  Associate Professor Paoletti added that the events in question in the relationship with the Respondent are a significant factor and the most salient factor in the Applicant’s current emotional state.  He thought the prognosis for the Applicant’s future and overall was uncertain. I accept and act on this evidence.

20      The Respondent is the registered proprietor of three properties in the Bendigo area as set out in paragraph 11 of the Applicant’s submissions.  The properties are each subject to mortgage and the values uncertain.  I have concluded he has the financial means to meet the award of compensation that I will make.

21      In all of the circumstances I have concluded that the Applicant has suffered an injury as a direct result of the Respondent’s offending against her.  That injury I am satisfied on the evidence is in the nature of an Unspecified Anxiety Disorder (DSM 5 300.0) with strong features of residual post-traumatic stress disorder and generalised anxiety together with Unspecified Depressive Disorder (DSM-5 311).  These injuries I find to be ongoing with the prognosis for the Applicant’s mental Health to be uncertain. 

22 In all of the circumstances I have concluded that she is entitled to an award of compensation pursuant to section 85B of the Act in the sum of seventy-five thousand dollars ($75,000).

23      The Respondent is ordered to pay compensation to the Applicant in the sum of $75,000.

24 Pursuant to section 85K of the Act each party must bear its own costs of such an application “unless the Court otherwise determines”. In my judgment there is no reason why the court should make an order for costs in the Applicant’s favour in all of the circumstances.