Harris v Sycamore - [2022] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HARRIS -v- SYCAMORE [2022] WADC 4
CORAM:   TROY DCJ
HEARD:   2 DECEMBER 2021
DELIVERED          :   21 JANUARY 2022
FILE NO/S:   APP 52 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   JACOB RODNEY HARRIS
Appellant
AND
AMANDA JAYNE SYCAMORE
Respondent

FILE NO/S: APP 55 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: LECH EWARYST WEGLEWSKI
Appellant
AND
AMANDA JAYNE SYCAMORE
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 2658 of 2018

Catchwords:

Criminal injuries compensation - Assessment of compensation - Application for leave to cross appeal out of time - Admission of further evidence - Proved offences - Mental and nervous shock - Separate offence allegedly committed by respondent at time respondent injured as consequence of proved offence - Behaviour of respondent contributing to proved offence - Apportionment of award

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal of each appellant dismissed
Cross-appeal of respondent allowed
Compensation awarded increased to $75,000

Representation:

APP 52 of 2020

Counsel:

Appellant	:	In person
Respondent	:	Mr J N Trigg
Amicus Curiae	:	Ms A K Miller on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Not applicable
Respondent	:	Trewin Norman & Co
Amicus Curiae	:	State Solicitor for Western Australia

APP 55 of 2020

Counsel:

Appellant	:	In person
Respondent	:	Mr J N Trigg
Amicus Curiae	:	Ms A K Miller on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Not applicable
Respondent	:	Trewin Norman & Co
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

AA v ARW [2020] WADC 131
ATS v Williss [2021] WADC 58
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bacich v Blight [2019] WADC 94
Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377
Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41
Buiks v The State of Western Australia [2008] WASCA 194
Dimitrovska v Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407
Dos Santos v Dos Santos [2000] WADC 256
Edmonds v Juniper [2016] WADC 7
Guy v Hampson [2019] WADC 19
Hinchcliffe v Hinchcliffe [2010] WADC 78
Houlahan v Pitchen [2009] WASCA 104
Hutchings v Lachlan [2012] WADC 89
Kalbasi v The State of Western Australia [2016] WASCA 144
Kennedy v The State of Western Australia [2021] WASCA 55
Keys v Kitto (1996) 90 A Crim R 288
M and M [2014] FCWAM 75
Martin v Martin [2015] WADC 138
McDavitt v McDavitt [2013] WADC 22
Michael v Panetta (1994) 10 SR (WA) 323
Milburn-Thomas v Palmer [2020] WADC 158
Peterson v Fleay [2007] WASC 230; (2007) 176 A Crim R 148
R v Fraser [1975] 2 NSWLR 521
Re Hojetzki [2009] WADC 77
Re Puterangi [2017] WADC 168
Re Richardson [2009] WADC 93
Re Swinford [2021] WADC 82
Re Tilbury [2010] WADC 46
Re Warrek [2019] WADC 50
Reed v Reed [2002] WADC 11
Richardson v Lawford [2020] WADC 58
Savic v Duric [2021] WADC 53
Simonsen v Legge [2010] WASCA 238
SJR v JJC [2020] WADC 161
Sloane v The State of Western Australia [2006] WASCA 202
Sweetman v Lilley [2021] WADC 74
TAW v NJS [2011] WADC 187
Taylor v The State of Western Australia [2016] WASCA 210
The State of Western Australia v Harris & Weglewski [2018] WASCSR 246
Thomson v Francis [2016] WADC 154
Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173
Underwood v Underwood [2018] WADC 13
Weglewski v The State of Western Australia [2020] WASCA 28
Winiarczyk v Tsirigotis [2011] WASCA 97
Xavier v ROPS Engineering Australia Pty Ltd [2019] WADC 146

TROY DCJ:

Introduction

Very late on the evening of 23 March 2017, a car containing three men arrived at a semi-rural property on a dead-end road in the far northern suburbs of Perth. The driver is the second appellant in the matter before me, Lech Ewaryst Weglewski. One of the two males who got out and terrorised the occupants of the property is the first appellant in the matter before me, Jacob Rodney Harris. One of the occupants of the property is the respondent to this matter, Amanda Jayne Sycamore. At the time she lived at the property with her two children, aged 7 and 9 and her then partner Mr Eric Hansen and his two slightly older children. Very early in the incident, Mr Hansen ran off into the night, effectively abandoning Ms Sycamore.
Mr Harris concealed his face with a bandanna. He had with him a loaded pistol. The other man's face was also concealed with a bandanna. He was armed with a pole. Mr Harris dragged Ms Sycamore out onto the front porch by her hair and threw her down near the step leading down to the grassy area.
Mr Harris cocked the gun and pointed it at Ms Sycamore, saying, 'give me the money or I'll fucking kill you'. He then shot Ms Sycamore in the right ankle from point‑blank range.
Mr Harris went to cock the gun again. Ms Sycamore put her hands over her head and closed her eyes. The gun then misfired. Ms Sycamore laughed at him and said, 'is that all you've got?' Mr Harris then shot her left foot, grazing it.
Mr Harris then ran inside the house and yelled at her children, saying, 'where's all your mum's fucking money?' Her 7‑year‑old son replied, 'my mum doesn't have any money'.
Mr Harris then kicked Ms Sycamore straight to the face above the right eye. He kicked her again. This time Ms Sycamore put her right arm up to block the kick and the kick connected with her forearm, breaking her ulna. Mr Harris then kicked her to the back of the head. He was wearing steel capped boots.
The three men then drove away.
Mr Harris and Mr Weglewski were arrested almost immediately afterwards. They were found guilty after a trial in the Supreme Court before Fiannaca J and a jury. They are currently serving 9 years' imprisonment and 7 ½ years' imprisonment respectively. The identity of the third man with the pole has not been definitively established.[1]
[1] He was named by the State in a bail application before Corboy J on 25 January 2018 when it was said that he had fled to Queensland.
Neither Mr Harris nor Mr Weglewski sought to appeal against those sentences. It was not open to the sentencing judge to impose any lesser penalty on Mr Weglweski because of mandatory minimum sentence provisions. The State did not seek to appeal the sentence imposed on Mr Harris.
Mr Weglewski alone attempted to appeal against his convictions. The Court of Appeal dismissed the appeal.[2]
[2] Weglewski v The State of Western Australia [2020] WASCA 28.
Ms Sycamore applied for criminal injuries compensation. On 29 July 2020, the Chief Assessor of Criminal Injuries Compensation awarded her a total sum of $60,808.20. Under s 45(1)(b) of the Criminal Injuries Compensation Act 2003 (WA) (the Act), the assessor ordered that only $40,808.20 of the amount apportioned to the proved offences be subject to recovery from the appellant Mr Harris in proceedings under pt 6 of the Act and $20,000 in respect of Mr Weglewski.[3]
[3] As explained in the Assessor's Reasons for Decision at [15].
Mr Harris and Mr Weglewski have appealed against the award of compensation. Ms Sycamore seeks leave to cross-appeal out of time.

The grounds of appeal

Mr Harris and Mr Weglewski initially appealed against the award on the basis that the amount awarded was manifestly excessive and not supported by the evidence at trial.
In their joint written submissions of 18 November 2021, the appeal was broadened to one based on four grounds (ground 4 applying only to Mr Weglewski) which I summarise as follows:
Ground 1: Ms Sycamore was engaged in ongoing offending, so that, applying s 39(1) of the Act, she was ineligible for an award of compensation.
Ground 2: Section 41 of the Act applies. Regard must be had to the behaviour of the victim, including any behaviour, condition, attitude or disposition that may have contributed to her injury.
Ground 3: The award was manifestly excessive having regard to the circumstances surrounding the offences, the absence of medical evidence to sustain Ms Sycamore's claims and the inability to disentangle other factors in her life which contributed to her mental state.
Ground 4: In respect of the barring order under s 45(1)(b) of the Act, Mr Weglewski complains that proper consideration was not given to the comparatively minimal role that Mr Weglewski played and the fact that he did not actively encourage the degree of violence that was used.
By notice of respondent's intention dated 11 November 2020, Ms Sycamore indicated that she intended to take part in the appeal, only to the extent that the assessor's decision should be upheld on the grounds relied on by the assessor in her decision. Ms Sycamore did not at that time indicate a cross-appeal.
Subsequently, in a notice of respondent's intention dated 29 March 2021, Ms Sycamore indicated that she now also appeals against the assessor's decision, asserting that the award was inadequate. Such an appeal is out of time, although the court can, if it is just to do so, allow an appeal to be commenced after the 21 days have expired.[4]
[4] Section 55(3) and s 55(4).
The hearing of this matter took place before me on 2 December 2021. Both Mr Harris and Mr Weglewski were unrepresented, but they filed detailed written submissions. They each made oral submissions. Mr Trigg represented Ms Sycamore as he had on earlier occasions. The Chief Executive Officer of the Department of Justice was ably represented by Ms Miller who appeared as amicus curiae, and through her written and oral submissions greatly assisted the court. I reserved my decisions in the matter on that day.

Statement of Issues

I am required to resolve the following issues:
•Did Ms Sycamore suffer injury when she was committing a separate, disentitling offence or offences, thereby engaging s 39 of the Act?
•Alternatively, did any behaviour, condition, attitude, or disposition of Ms Sycamore contribute directly or indirectly to her injury thereby engaging s 41 of the Act?
•If it did, should any compensation award be refused or reduced?
•Alternatively, is the amount of the award nonetheless too high given the circumstances of the offending?
•Should it be reduced because of other factors that contributed to Ms Sycamore's psychological difficulties?
•Should Ms Sycamore be permitted to bring an appeal out of time?
•If Ms Sycamore is permitted to bring an appeal out of time, is the amount of the award too low?
•Is it open to me to make an order under s 45(1)(b) afresh?

Nature of this appeal

Section 56 provides that on an appeal under s 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision. The court must decide the application solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
I respectfully agree with the decision of Gething DCJ in Underwood v Underwood.[5] In an appeal in this area, the offender cannot re-litigate the facts which led to the proved offence. It is not a backdoor means by which to appeal the conviction.[6]
[5] Underwood v Underwood [2018] WADC 13 (Underwood).
[6] Underwood [56].
Proof of the fact of the convictions constitutes evidence of the material facts comprising the elements of the offences and necessarily means that all relevant defences are negated. Within those limits an appellant may introduce evidence and other material to support the contention that any award of compensation be reduced under s 41 of the Act. This is long established.
In deciding the appeal 'afresh' as directed by s 56(1), I must nonetheless be conscious to ensure that my decision is not based on factual material which is inconsistent with the material facts comprising the elements of the offences.

Did Ms Sycamore commit a separate, disentitling offence(s)?

The offences committed by Mr Hansen

There is no doubt that as of 23 March 2017 Mr Hansen committed a number of criminal offences. He pleaded guilty to a number of matters in the Magistrates Court and also in the District Court and was sentenced accordingly. The question is, whether Ms Sycamore jointly committed some or all of those offences with Mr Hansen.
An incident report (230317 2338 14405) reveals that the police investigation into the offences committed by Mr Harris and Mr Weglewski commenced at 23.38 hours on 23 March 2017. Mr Harris and Mr Weglewski were arrested at 00.55 hours on 24 March 2017.
An interim property receipt/physical material log reveals that, in the absence of the occupants, police conducted a separate search of the property at 19.05 hours on 24 March 2017. As a result of a number of items that were found, police charged Mr Hansen with a number of offences. Mr Hansen was interviewed at Joondalup police station on 28 March 2017 at 4.43 pm and made a number of admissions.

Possession of methylamphetamine with intent to sell or supply: IND 1298 of 2017

On 22 February 2018, Mr Hansen pleaded guilty in the District Court to the offence of possession of 8.73 g methylamphetamine with intent to sell or supply to another. The date of that offence was 24 March 2017. His Honour Judge Herron sentenced Mr Hansen to 14 months' imprisonment, conditionally suspended for 14 months.
Police found this methylamphetamine inside a glasses case that was inside a freezer in the laundry of the property.

Cultivation of cannabis: JOO 2017/0004229

In sentencing proceedings in the Drug Court before Magistrate E Langdon on 2 March 2018, the police prosecutor noted that police found a single cannabis plant growing under reticulation in a grow house at the rear of the property.
In his police interview on 28 March 2017, when asked about the cannabis plant Mr Hansen stated that he had totally forgotten about it. He said it should have been picked a long time ago. It had gone to seed. It was not really worth anything to anyone. He accepted that he must have planted it at one stage. It was on automatic reticulation but that was for all plants in the greenhouse not just for the cannabis.[7] It had been years since he used cannabis.[8] When he was asked if Amanda (Ms Sycamore) had smoked cannabis he said, 'not that I'm aware of'.[9]
[7] Record of interview with Mr Hansen, page 27.
[8] Record of interview with Mr Hansen, page 21.
[9] Record of interview with Mr Hansen, page 22.
Her Honour imposed a global fine of $1,000 for all matters, including this offence.

Possession of cannabis: JOO 2017/0004227

Police found 40.26 g of cannabis inside an esky in a shed in the rear yard.

Possession of cannabis seeds: JOO 2017/0004227

Also in the esky, police found 60 cannabis seeds. Mr Hansen said that they were old seeds and might not be viable because of their age.

Possession of MDMA: prosecution notice dated 4 December 2017

Police also found 0.24 g of MDMA in the same esky.

Possession of drugs paraphernalia: JOO 2017/0004230

Police found two glass smoking implements inside a glasses case that was inside a freezer in the laundry and one was found in open white drawers in the master bedroom. Police also found a set of digital scales inside the same glasses case.
In interview Mr Hansen said that he had one or two glass smoking implements and there was no one else at the house that he was aware of that had any.[10]

Possession of controlled weapon: charge number JOO 2017/0004228

[10] Record of interview with Mr Hansen, page 11.

Police found a compound bow in a cupboard in the master bedroom contrary to s 7(1) of the Weapons Act 1999 (WA).

Possession of a firearm: charge number JOO 2017/0004225

Police also found an unlicensed firearm, namely a model 61 air rifle, under a mattress in the master bedroom.
In interview Mr Hansen said the rifle was his and his sons (aged 15 and 9 at the time). They shoot cans with it. He did not know that they needed a licence. He had had the crossbow for so long that he could not remember when he acquired it. He grew up shooting things like rabbits.[11]
[11] Record of interview with Mr Hansen, pages 24 - 26.
It is uncontroversial that all of the drugs, weapons and other articles that might implicate Mr Hansen, and potentially Ms Sycamore, located by the police during the search warrant of 24 March 2017, would have been present at the time of the offences late on the evening of 23 March 2017.

Section 39 of the Act

Section 39 of the Act is entitled:
'No award if victim was engaged in criminal conduct'.
It provides as follows:
(1) If an assessor is satisfied -
(a)that a person (here, Ms Sycamore) was injured as a consequence of the commission of an offence; and
(b) that the injury was suffered when the person (Ms Sycamore) was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
Following an earlier case management hearing, on 26 July 2021 I provided a copy of the case of Attorney General for Western Australia v Her Honour Judge Schoombee[12] to Mr Harris and Mr Weglewski. This case is concerned with the proper construction of the phrase in s 39(1) of 'when the person was committing a separate offence'.
[12] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 (AG v Schoombee).
In that case the primary judge allowed the appeal on the basis that the word 'when' in s 39(1)(b) imposed a requirement that there be some degree of causal connection between the separate offence committed by the claimant and the injury suffered by the claimant as a consequence of the commission of an offence by another. That decision was quashed on judicial review.
Martin CJ, with whom Newnes and Murphy JJA agreed, construed the word 'when' as not requiring a causal connection between the offence committed by the claimant for compensation and the offence which gave rise to the claimant's injuries. Rather, it requires only a temporal connection.
The question of whether there is a sufficient temporal connection between the offending behaviour of the claimant, and the suffering of the injuries caused by the separate criminal offence so as to preclude compensation, will depend upon questions of fact and degree to be evaluated in all the circumstances of the case.
Martin CJ endorsed the earlier view of Yeats DCJ in Re Richardson[13] that [31]:[14]
Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.
[13] Re Richardson [2009] WADC 93 [31].
[14] AG v Schoombee [33].
I accept that if a disentitling offence and the offence that causes the victim's injuries are part of the one incident that is generally sufficient to show a temporal connection. That is not the case here. In cases where there is not a precise overlap between the disentitling offence and the offence that causes the victim's injuries, such as where the separate offence is complete before the compensable offence is committed, whether there is a sufficient temporal connection is determined by reference to all the facts and circumstances of the case.
I further accept that there is nothing in the text of s 39, or in the authorities that have considered it, to suggest that the settled principles are to be applied any differently if the disentitling offence(s) are continuous in nature, as is said to be the case here. In AG vSchoombee the Court of Appeal indicated that continuous offences would be a bar to compensation even on the narrowest view of the scope of s 39.[15]
[15] AG v Schoombee [55].

The cases of Martin v Martin[16] and Thomson v Francis[17] are examples of a person being barred from an award of compensation because of the operation of s 39.
[16] Martin v Martin [2015] WADC 138 (Martin v Martin).
[17] Thomson v Francis [2016] WADC 154 (Thomson v Francis).
In Martin v Martin, Derrick DCJ concluded that the only inference that was reasonably available to be drawn from the evidence that his Honour set out was that the respondent from late October 2012 through to sometime in February 2013 was involved in, and was at least a party to, the cultivation of cannabis at a house at Excalibur Circle. His Honour was therefore satisfied on the balance of probabilities that she did commit an offence of cultivating cannabis contrary to s 7(2) of the Misuse of Drugs Act 1981 (WA) (MDA).
That evidence consisted, in essence, of the respondent's own undisputed evidence before a magistrate exercising federal jurisdiction under the Family Law Act 1975 (Cth) in her reasons for decision in dealing with the competing property settlement claims of the appellant and the respondent.[18] No evidence of that sort is before me.
[18] M and M [2014] FCWAM 75, as set out at [126] - [127].
His Honour was satisfied that the mental and nervous shock suffered by the respondent as a consequence of the commission of offences on 1 and 2 November 2012 was suffered by her when she was committing the offence of cultivating cannabis.
It followed that the assessor was prohibited by s 39(1) from making a compensation award to the respondent in respect of any injury caused to her by the November 2012 offences.[19]
[19] Martin v Martin [131].
In Thomson v Francis, Eaton DCJ had no doubt that, firstly, the respondent, Mr Francis was injured in consequence of the commission of an offence and, secondly, that the injury was suffered when he was committing a separate offence, principally that of possession of a significant quantity of cocaine, and that he supplied it to another, namely Ms Thomson.
That evidence emerged partially from Mr Francis' evidence as the complainant at Ms Thompson's trial in the District Court when he sought the protection of a certificate under s 11 of the Evidence Act1906 (WA).[20] It comes also from his guilty plea to the offence of possession of cocaine with intent to sell or supply for which he was sentenced in this court to 2 ½ years' imprisonment.[21] Again, no evidence of that sort is before me.
[20] Thomson v Francis [55] - [59].
[21] Thomson v Francis [60] - [66].
His Honour was of the view that the temporal connection between the commission of the offences giving rise to his injuries for which Mr Francis sought compensation and the commission by him of the offence of being in possession of cocaine with intent to sell or supply it to another was well established.
It followed that, in such circumstances, the assessor was precluded from making an award in his favour in any amount.[22]

The appellants' arguments on s 39

[22] Thomson v Francis [75].

Mr Harris and Mr Weglweski rely upon his Honour Judge Herron's observations in sentencing Mr Hansen. Based on the comments Mr Hansen made in his pre-sentence report dated 11 July 2017, his Honour noted that at the time of this offending, Mr Hansen had been in a five‑year relationship with a woman (Ms Sycamore) who was also a methylamphetamine user and that they used methylamphetamine together.[23]
[23] ts 41 - ts 42.
His Honour also noted an observation in the pre-sentence report that if Mr Hansen continued to remain in a relationship with Ms Sycamore, he was at an increased risk of relapsing into methylamphetamine use, which in turn increased the risk of him reoffending.[24]
[24] ts 42.
Mr Harris and Mr Weglewski say that I should be inferentially satisfied that Ms Sycamore was a methylamphetamine user at the time.
It is important to remember, of course, that his Honour Judge Herron was dealing purely with Mr Hansen. It was necessary for counsel and his Honour to refer to Ms Sycamore, but no observation made by any party or his Honour during Mr Hansen's sentencing hearing is determinative of Ms Sycamore's alleged conduct.
Mr Harris and Mr Weglewski say that I should accept as accurate Mr Hansen's observations in his interview that any money in the master bedroom is either his or Ms Sycamore's, so that I should accept that anything else found in the master bedroom, specifically the compound bow, the model 61 air rifle, and a glass smoking implement is also jointly owned and therefore jointly possessed.
Alternatively, that Ms Sycamore must have been aware of the existence of the items that gave rise to the charges Mr Hansen pleaded guilty to. And that if she was so aware, she actively encouraged Mr Hansen's possession of such items and is therefore jointly culpable with him by virtue of s 7(b) or s 7(c) of the Criminal Code (WA).
Mr Harris and Mr Weglewski rely upon Ms Sycamore's observations in Dr Zandi's 19 May 2021 report (see below) that she had undertaken gardening and landscaping at Benara Nurseries (attached to Mr Hansen's property) for seven years so as to draw an inference that she must have been aware of the cannabis that was being cultivated in a grow house at the rear of the property.
That does not follow. The nurseries are attached but not part of the property. Further, the evidence does not suggest a proliferation of cannabis plants. Rather, it suggests a single plant amongst a number of legitimate plants, which Mr Hansen accepted he had planted but which he said he had forgotten about.
Mr Harris and Mr Weglewski further rely upon Ms Sycamore's conviction 11 years earlier on 24 April 2006 for cultivating cannabis. She was fined $400. Whilst in my view, s 31A of the Evidence Act does not apply in this hearing, I consider that I can take into account that past conviction as part of the overall matrix of evidence in determining whether or not Mr Harris and Mr Weglewski have discharged the burden that is on them.
Mr Harris and Mr Weglewski submit that, in circumstances where Ms Sycamore was not working at the time, if she did have, as they contend, a methylamphetamine habit, it is impossible that she could have sustained such a habit without engaging in offending. That increases the likelihood that she was a party to the continuing offences that Mr Hansen committed on 23 March 2017.
Mr Harris and Mr Weglewski draw my attention to a further portion of the transcript of this sentencing hearing. The state prosecutor stated that the relatively modest quantity did need to be considered in the context of Mr Hansen's drug dealing, based on his admissions to the police in interview.
In interview, having said that he would not 'dob' Ms Sycamore in concerning using drugs, Mr Hansen said that he would help a couple of mates out with their habit as well. The people he would sell to were just friends. He had half a dozen regular customers who would come round to acquire a couple of points at a time every couple of days. Perhaps weekly. He had been on the gear for too long. He was asked again whether Amanda had any involvement and he said, 'ask her I'm not gonna talk about anyone'.[25]
[25] ts 33 - ts 34, 22 February 2018.
Counsel for Mr Hansen had submitted that his voluntary admissions in his interview supplied the evidence that was otherwise lacking to the prosecution. It was in that context that the prosecutor had submitted that the fact that drugs were found in a glasses case in the master bedroom of this house, which the offender occupied, was fairly strong evidence that those drugs belonged to the offender as opposed to anyone else who might occupy the house.[26] In fact the prosecutor inadvertently mis-stated the facts because it is clear that the glasses case was in a freezer not the bedroom.
[26] ts 34.
Mr Harris and Mr Weglewski note that Mr Hansen claimed in his interview that he would keep his drugs on his person so as to ensure that his young children did not come across them. Concealing the drugs in a glasses case in a freezer would, it seems to me, achieve the same end. I am not satisfied that Mr Hansen would inevitably keep all his drugs solely on his person.
Mr Harris and Mr Weglewski point to Mr Hansen referring to the fact that 'we' had about half an ounce (of cannabis) there, probably.[27] That is what is recorded in the transcript. It is distinctly possible that Mr Hansen does use the word 'we' at the part of the interview transcribed at page 22. Having listened to the recording both in court and subsequently, I cannot be satisfied that it is more likely than not that he does use the word 'we'. In any event, even if Mr Hansen did talk in terms of 'we', I am not satisfied that it would be fair to use that reference as part of the appellants' case against the respondent. Obviously, in a criminal trial the answers provided by one accused are only evidence against him/her and a jury would be so directed. I appreciate that I am not so restrained. But Mr Hansen did not give evidence and so there was no ability to cross-examine him as to why he may have said 'we'. In my view, it would be unfair to use that answer as part of the evidence which suggests that Ms Sycamore was committing an offence at the relevant time.
[27] Record of interview with Mr Hansen, page 22.
Relying on the single judge decision of McKechnie J in Peterson v Fleay,[28] in particular at [17] - [18], Mr Harris and Mr Weglewski contend that on the materials I should find that Ms Sycamore had control over the property, but by failing to do anything, she allowed the continuation of all of Mr Hansen's illegal activity. And that she is accordingly criminally liable under s 7(b) and s 7(c) for all of the offences that Mr Hansen pleaded guilty to.
[28] Peterson v Fleay [2007] WASC 230; (2007) 176 A Crim R 148 (Peterson v Fleay).
They point to observations made by the prosecutor at trial, Mr Tooker, as to the motive, as the prosecution understood it, for the then alleged offences at earlier Supreme Court hearings and shortly before the trial. They also rely on some of the observations of the learned sentencing judge, Fiannaca J.
During Mr Harris' bail application before Archer J on 4 January 2018[29] Mr Tooker told her Honour:[30]
The police conducted a search warrant after the forensic examination had been conducted at Kiln Road, and they found drugs. Mr Harris has convictions for possession of methylamphetamine on his record. So, I mean, the State acknowledges that this offending is in the context of people who move in the drug world.
[29] Mr Harris was granted bail, promptly breached it, and his bail was revoked by Hall J on 19 January 2018.
[30] ts 20, 4 January 2018.
Later in the hearing there was the following exchange:[31]
ARCHER J:So is the State's case that he was enforcing someone else's drug debt?
TOOKER, MR: That's what I suspect on the evidence that I have.
There was a relationship between Eric Hansen and Mr Weglewski's brother, Murray.[32]
And so there's a relationship between the complainants and the Weglewskis, but Mr Harris I think he's a stranger to it, I think.
[31] ts 31, 4 January 2018.
[32] Actual name is Marios Weglewski.
During Mr Weglewski's bail application before Corboy J on 25 January 2018 Mr Tooker told his Honour:
They (Mr Hansen and Mr Marios Weglewski) had the pre-existing relationship. And the State suspects that it's a relationship based on drugs, and that it was because of that - or something led those men (Mr Harris and Mr Weglewski and the third man) to go to that house and commit this robbery looking for money.
Mr Tooker's observations on these occasions were very general. It is trite, in any event, that the prosecution at a criminal trial are not required to prove motive.
Mr Tooker sent an email on 27 August 2018 to defence counsel which disclosed what emerged in a proofing session he conducted with Mr Hansen on 5 July 2018. Based on this disclosure, I accept that Mr Hansen told Mr Tooker that he met Mr Weglewski's brother on two occasions and that on each of those occasions Mr Hansen sold drugs to Mr Weglewski's brother. I accept the truth of those assertions, on the basis that it seems to me there was no reason for Mr Hansen to falsely suggest that he had engaged in an unlawful activity, that is selling drugs to a person.
In sentencing Fiannaca J stated at [69]:[33]
You were both involved in planning an armed robbery to be committed on Ms Sycamore and Mr Hansen at their property, believing there was a substantial sum of money kept by them at the property. The basis for that belief is not known. There is no evidence that the victims had substantial cash at the property. Mistaken or otherwise, the belief is likely to have arisen as a result of the relationship between Mr Hansen and your brother, Mr Weglewski, in light of the message you sent him after the offending.
[33] The State of Western Australia v Harris & Weglewski [2018] WASCSR 246 (Sentencing Remarks).
I am satisfied that Mr Hansen sold drugs to Mr Weglewski's brother on two occasions. There is no information before me as to when that was. Mr Harris and Mr Weglewski say that I should also be satisfied that Ms Sycamore was criminally complicit in those transactions. And that there is a sufficient temporal connection to enliven s 39.
Mr Harris and Mr Weglewski also rely on an entry for 27 March 2017 at 12.26 pm in page 12/16 of the running sheet. This is an entry concerning Ms Sycamore's two sons being taken to a child interview unit on 24 March 2017 by a third party. A 'child first advocate' noted that the third party had said that:
Ms Sycamore is a methamphetamine user. She will deny this to outsiders when asked but [the third party] is aware of a long history with drugs. Amanda provided methamphetamine to her younger brother a few years ago and he died due to the drug in his system. [An] older brother also uses methamphetamine.

The relevant law in respect of Mr Hansen's offences

In respect of the element of possession of a drug, here as it applies to the 8.73 g of methylamphetamine, the 40.26 g of cannabis, the 60 cannabis seeds and the 0.24 g of MDMA, the settled principles are as follows.
A person can possess something if it is in their physical custody. But, 'to possess' also includes to control or have dominion over, and to have the order or disposition of.[34]
[34] MDA s 3(1).
Possession need not be exclusive. It is possible for two or more people to have joint possession.
A person does not need to own a prohibited drug to be in possession of it. A person may possess something which is hidden, provided that the person knows where it is hidden and has access to that place.[35]
[35] Direction by trial judge in Kalbasi v The State of Western Australia [2016] WASCA 144 as set out at [107] (Kalbasi).
Where a quantity of drugs is accessible by more than one person, it must be established that a particular person knew of the drugs and exercised control or dominion over them, whether or not others also did so. An intention to exercise control or dominion must also be proven.
Possession can be established by inference from circumstantial evidence.[36]
[36] Kennedy v The State of Western Australia [2021] WASCA 55 [49] (Kennedy).
An intention to possess the drugs must be established. One cannot possess a prohibited drug if you do not intend to possess it.
The State must establish either physical custody or control or dominion over the drug, accompanied, at the same time, by an intention to have that physical custody or control or dominion.
Knowledge is a necessary but not sufficient basis for possession. There may be some situations in which a person may know about a thing's existence, but still not intend to have physical custody of the thing or to exercise control or dominion over it.
In order for a person to intend to possess a prohibited drug by actual physical custody or by control or dominion, he or she must know of the prohibited drug's existence. A person cannot intend to have actual physical custody or to have control or dominion over a prohibited drug, if he or she does not know of its existence. Proof of knowledge of the existence of the prohibited drug is an essential prerequisite of proving an intention to possess.
Knowledge is established if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she had a prohibited drug in his or her physical possession or otherwise in his or her control or under his or her dominion.
Knowledge and intention are states of mind and can only be proved against a person by a process of inference.
It is not necessary to establish that the person knew that the prohibited drug that they were in possession of was in fact the particular drug as alleged, or that the drug as a matter of law is a prohibited drug[37] or that the person knew the precise quantity of the drug.
[37] On that point, see Kalbasi at [92].
But, what must be established are:
•Physical custody or control/dominion over the drugs;
•Knowledge, in that the person had an awareness or belief in the likelihood, in the sense that there was a real or significant chance that the prohibited drug was in the particular location; and
•That the person had a present intention to exercise control or dominion over the drugs.[38]
[38] Paragraphs [7] ‑ [14] reflect the trial judge's summing up in Kennedy, as set out at [29] and as approved at [54] ‑ [57]. See also Kalbasi [92].
In circumstances where drugs are located in premises owned or occupied by a particular person together with others, there may be a risk that knowledge of the presence of the drugs will be equated with possession: Possession, in such a case, is not established unless the possibility that the drugs were in the possession of another person with access to the premises, and that the particular person knew of the drugs but merely acquiesced to them being stored in that location without exercising any control or dominion over them, is excluded.[39]
[39] Kennedy [50].
Applying, as I must, the holding into the Kennedy issue of joint possession of the drugs found on 24 March 2017, the position is this. Mr Harris and Mr Weglewski must establish on the balance of probabilities that Ms Sycamore did not merely acquiesce to Mr Hansen storing the drugs at various locations in the house that they shared, but that, either solely or along with Mr Hansen, she exercised control or dominion over them.

Elements of cultivation

'To cultivate' is defined in s 3(1) of the MDA to include 'to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest, the prohibited plant'.
In its submissions, the amicus observed that there does not appear to be any appellate authority considering the definition of cultivation. There is, I think, some guidance to be drawn from the case of Buiks v The State of Western Australia[40] and the authorities considered therein.
[40] Buiks v The State of Western Australia [2008] WASCA 194 (Buiks).
Returning to Peterson v Fleay, McKechnie J considered that the Magistrate was correct in his decision that the appellant was guilty of the offence and the appeal must be dismissed. His Honour noted that the land on which the plants were grown belonged to the appellant. He had dominion and control over the land. The continuation of the cultivation on that land over which the appellant had control, after he became aware of the plants, can amount to a positive act of aiding on his part or a positive omission which results in liability. As the land belonged to him, cultivation after he had knowledge could not have continued without his acquiescence. Because the land was his, he had it in his control to refuse or decline to allow the continuation of the illegal activity, and he did not intervene: [17].
His Honour regarded this as a case of a positive omission in circumstances where the appellant had control over the land, but by failing to do anything allowed the continuation of the illegal activity of cultivation: [18].

That case is instructive as an example of a case where the single judge considered that the element of aiding in the particular circumstances of that case had properly been proved beyond reasonable doubt. There is, of course, a clear factual distinction in that Ms Sycamore did not own this land.
The fundamental principles concerning the concept of aiding under the criminal law are dealt with more expansively in binding decisions of the Court of Appeal.
In order for Ms Sycamore to be liable under s 7(b) or s 7(c) of the Criminal Code, for any of Mr Hansen's offences, Mr Harris and Mr Weglewski must prove on the balance of probabilities that:[41]
(a)Mr Hansen committed the offence;
(b)Ms Sycamore had actual knowledge of the facts amounting to the offence committed by Mr Hansen;
(c)Ms Sycamore did or omitted to do something with the intention of aiding or assisting in the acts which make up the offence; and
(d)what Ms Sycamore did or omitted to do actually aided or assisted the commission of the offence.

Elements of firearm/weapon offences

[41] Taylor v The State of Western Australia [2016] WASCA 210 [58] - [59] (Buss JA).

With respect to Mr Hansen's conviction of unlicensed possession of a firearm contrary to s 19(c) of the Firearms Act 1973 (WA), the concept of possession under that Act is somewhat broader[42] and extends to having and exercising access to the firearm. The latter concept is framed conjunctively.
[42] See Keys v Kitto (1996) 90 A Crim R 288, 293 - 295.
'Possession' is defined in that Act as follows:[43]
possession, in addition to actual physical possession of a firearm or ammunition, means the custody or control of it, or having and exercising access to it in any place either alone or in common with others;
[43] Firearms Act s 4.
On this extended definition, Mr Harris and Mr Weglewski would need to satisfy me that Ms Sycamore knew about the air rifle, and had custody or control of it, or had access to it and exercised access to it.
With respect to the compound bow, possession under the Weapons Act is defined as including control or dominion over and to have the order or disposition of.

The appropriate approach to ground (1)

Section 18 of the Act provides that an assessor must determine compensation applications expeditiously and informally having regard to the requirements of justice and this Act. In deciding a compensation application an assessor (and the court on an appeal hearing) is not bound by rules or practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit.
I consider it appropriate to proceed on the basis that the onus is on Mr Harris and Mr Weglewski to satisfy me that Ms Sycamore was injured when, in a temporal sense, she was committing a separate offence(s). The civil standard of proof applies.
I consider it appropriate to apply the principles I summarised in a different context in Xavier v ROPS Engineering Australia Pty Ltd:[44]
I must make a finding on the evidence and not assume the existence of a fact. The evidence must go beyond guesses and speculation. I am required to be actually persuaded as to the probability of a fact being true. 'The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which I may reasonably be satisfied'. I must have the appropriate degree of confidence in a particular fact's existence or correctness based on or judged according to reason. The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability.
(citations omitted)
[44] Xavier v ROPS Engineering Australia Pty Ltd [2019] WADC 146 [17].
I consider it appropriate to proceed on the basis that where criminal conduct is alleged, as is the case with s 39(1)(b), clear and cogent evidence is required: Hutchings v Lachlan;[45] McDavitt v McDavitt.[46]

Analysis

[45] Hutchings v Lachlan [2012] WADC 89 [36].

[46] McDavitt v McDavitt [2013] WADC 22 [30].

Ms Sycamore has a three‑page criminal record, primarily for stealing. The proved offences occurred on the night of 23 March 2017. The closest offence, which has resulted in a conviction, was an offence of theft committed on 8 February 2017 and for which Ms Sycamore was fined $750 on 9 June 2018. That, plainly, was an offence that had been completed some six weeks before the proved offences and cannot engage s 39.
Although not determinative, Ms Sycamore was never jointly charged with any of the offences committed by Mr Hansen. She was never interviewed, nor did she provide any witness statement, in respect of these offences. There is no forensic evidence linking her to any item that relates to any of the offences for which Mr Hansen pleaded guilty.
In her 12 August 2021 affidavit, Ms Sycamore states that Mr Hansen lived at the property for about 10 years prior to their relationship and that she then lived there on and off for about five years. She denied any knowledge of drugs on the property. Mr Harris and Mr Weglewski place reliance on the fact that her witness statement of 24 March 2017 does not suggest that she was living there sporadically. Mr Trigg broadly accepted that argument.
I consider Mr Hansen's answers in his interview to be broadly frank. He made a number of admissions, but did not fully and unequivocally accept his responsibility for all the offences he subsequently pleaded guilty to. That, of course, is not particularly unusual. The DVD of the interview was played at the hearing before me in its entirety. He said that he was 'off and on' with Ms Sycamore.[47]
[47] Record of interview with Mr Hansen, page 4.
I find the running sheet entry I referred to at [82] to be a contemporaneous account with limited scope for invention. And that this is a truthful expression of the third party's opinion. Whilst it is always difficult for a layperson to conclude that another person is a user of drugs purely based upon their appearance (as opposed to directly witnessing them using drugs), in my view the strong probability is that Ms Sycamore had been a user of methylamphetamine at some time prior to 23 March 2017. That is potentially relevant to the second ground of the appeal relying as it does on s 41 of the Act. It is also a step in the reasoning process relied upon by Mr Harris and Mr Weglewski in respect of ground (1).

Conclusion on ground (1)

At its highest, the material before the assessor, together with the additional material before me, reveals that Ms Sycamore was living with a man who was in possession of some drugs for his sole use, 8.73 g of methylamphetamine with intent to sell or supply at least some of it to another, a firearm and an offensive weapon.
And that there is strong possibility that Ms Sycamore had been a user of methylamphetamine at some time prior to 23 March 2017.
Ms Sycamore was never charged, still less convicted of any of these offences. She has made no admissions in relation to any of these offences. There is no direct evidence that she committed any of the offences that Mr Hansen was convicted of, nor any other offence as of 23 March 2017.
There is no information before me as to when Mr Hansen sold drugs to Mr Weglewski's brother. There is no basis to conclude that it occurred on 23 March 2017, or sufficiently proximate to that date to enliven s 39. It would, in any event, be no more than speculative to conclude that Ms Sycamore was criminally complicit in those transactions.
I am satisfied, having considered the discussion in Buiks, and the settled approach to s 7(b) and s 7(c) that merely being present at premises where a single cannabis plant was being grown is insufficient to constitute 'cultivation' for the purposes of the MDA.
Neither Mr Harris nor Mr Weglewski have satisfied me that there is clear cogent evidence that when Ms Sycamore was injured as a consequence of the commission of a proved offence, the injury was suffered when (in a temporal sense) she was committing a separate offence either as a joint principal or in aiding or enabling Mr Hansen to offend as he did.
Ground 1 is dismissed.

Did any behaviour, condition, attitude, or disposition of Ms Sycamore contribute directly or indirectly, to her injury?

Section 41 of the Act relevantly provides that:
Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
Any reduction made to an award of compensation under s 41 of the Act must be applied after the jurisdictional maximum is applied.[48]
[48] Reed v Reed [2002] WADC 11 [2] (Deane DCJ); Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381 (Sadleir DCJ).
Section 41 may be applicable in an appropriate case where the victim's conduct provoked an assault.[49]
[49] See Edmonds v Juniper [2016] WADC 7 [19] (Goetze DCJ).
Mr Harris relies on the fact that, as I have noted, after he shot Ms Sycamore in the leg, and attempted to fire a further shot which misfired, she laughed and said words to the effect of 'is that all you've got?'.[50] On the evidence proved against him at trial, Mr Harris then went into one of the bedrooms of the house, demanded that a young child tell him where his mother's money was, returned and kicked Ms Sycamore, resulting in the grievous bodily harm.[51]
[50] Sentencing Remarks [38] - [40].
[51] Sentencing Remarks [41] - [44].
This is a situation where Ms Sycamore had been abandoned by her partner Mr Hansen who ran off into the night. She was left facing two extremely violent men with a third person in a car. She had already been assaulted and threatened. In those circumstances her observation, 'is that all you've got' may well have been foolhardy. It may have been said in an irrational panic. It is only provocative in the sense that it might inspire Mr Harris, who had already shot her, to yet more violence. That was the conclusion that Mr Harris urged on me.[52]
[52] ts 114 - ts 115.
As Wheeler JA observed in a different context in Sloane v The State of Western Australia:[53]
… there is a variety of possible reactions to any particularly traumatic event, ranging from hysteria at one end, through to a 'stiff upper lip', and an attempt to carry on as normal, at the other. It is difficult to see any particular reaction to extreme events such as those alleged here as being more likely than another.
[53] Sloane v The State of Western Australia [2006] WASCA 202 [30].
I note in passing, that in his oral submissions Mr Weglewski demonstrated some remorse for his offending that night. Mr Harris demonstrated absolutely none.
Mr Harris and Mr Weglewski were each convicted of aggravated home burglary, aggravated assault with intent to rob, grievous bodily harm (in the course of an aggravated home burglary), stealing and aggravated unlicensed possession of a firearm.
Mr Harris was in the process of committing count 1 (aggravated burglary), count 2 (aggravated assault with intent to rob) and count 5 (aggravated unlicensed possession of a firearm) when Ms Sycamore made this observation.
Given that the extremely serious assault on Ms Sycamore had already begun at this stage, and that Mr Harris did not kick her immediately following her statement, I am entirely satisfied that Ms Sycamore's conduct in making this statement did not, either directly or indirectly, contribute to the offence of grievous bodily harm (count 3) which arose from her broken arm. Nor did it contribute to the offence of stealing two chainsaws and a jerry can: (count 4).
Given the longevity of their relationship and the entrenched nature of Mr Hansen's then drug habit, I am inferentially satisfied that Ms Sycamore was aware of the fact that her partner was a drug user. Such awareness is capable of characterisation as a behaviour, attitude or disposition of Ms Sycamore.
I am also satisfied that there is a strong probability that Ms Sycamore was a methylamphetamine user at some point prior to 23 March 2017.
I am not satisfied, however, that any such behaviour, attitude or disposition contributed directly or indirectly to her injury.
I do not consider that mere awareness of the fact that one's partner is a low-end user dealer in drugs, or that the person had used drugs herself, is an important factor in having three men arrive at one's home late at night and demonstrate this quite shocking brutality.
As I am not satisfied that any behaviour, attitude or disposition contributed directly or indirectly to Ms Sycamore's injury, it is not open to me to refuse to make a compensation award because of that contribution, or to reduce the amount that I would otherwise have awarded.
Before turning to the question of the quantum of the award and whether it is too high (Mr Harris and Mr Weglewski's position) or too low (Ms Sycamore's position), it is convenient to consider the fact that Ms Sycamore's proposed cross-appeal is out of time.

Should Ms Sycamore be permitted to bring an appeal out of time?

An appeal must be filed within 21 days of a decision: s 55(3). However, the District Court may allow an appeal to be commenced after the 21 days if it is just to do so: s 55(4). The last date for commencing an appeal against the decision of the assessor was 19 August 2020.[54] Accordingly, Ms Sycamore's cross-appeal was commenced over seven months out of time.
[54] Section 55(3).
In Bacich v Blight,[55] Levy DCJ took the view that where a Notice of Respondent's Intention commencing a cross-appeal has been filed within the time for filing the Notice, the cross-appeal will not be out of time.[56] His Honour considered that the respondent, Ms Blight's application for a variation of the decision and her cross-appeal were initiated by the filing of her notice of respondent's intention under r 53(4) of the District Court Rules 2005 (WA).
[55] Bacich v Blight [2019] WADC 94 (Bacich).
[56] Bacich [20].
However, even on this approach, Ms Sycamore's cross-appeal was commenced approximately 4 ½ months out of time.
On 9 September 2021, Ms Sycamore filed an affidavit in support of her application for an extension of time within which to commence her cross-appeal. Ms Sycamore stated that when she filed a Form 8 on 11 November 2020, she had erased a tick that she had initially made indicating that she intended to cross-appeal, because she had not obtained legal advice at that stage and was unclear what a cross-appeal meant. She did not seek legal advice until 15 March 2021. She attempted to file two further Form 8s (one for each appeal) on 29 March 2021 but that was rejected. The court accepted the filing of the Form 8s by letter on 6 April 2021. Ms Sycamore states that due to her psychological injuries arising from the incident, she puts off dealing with paperwork.
The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include those set out in Simonsen v Legge.[57]
[57] Simonsen v Legge [2010] WASCA 238 [8] (citations omitted).
On the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted. In my view that aspect does not apply to an out of time cross-appeal by a respondent.
The grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.
Nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion. Here, Ms Sycamore relies on her 12 August 2021 affidavit.
There are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay - here it is at least 4 ½ months and potentially 7 months;
(ii)the reasons for the delay - explained, albeit inadequately, in Ms Sycamore's affidavit;
(iii)the prospects of the applicant (here as a respondent on a cross‑appeal) succeeding in the appeal; and
(iv)the extent of any prejudice to (in this case) the appellants.
Other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled. I am satisfied that the delay was not intentional and that Ms Sycamore was unrepresented for some time.
The length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases. I accept that there has been a lengthy delay and that the explanation is not especially cogent.
In relation to the prospects of success, the time for appealing will not be extended unless the proposed appeal has some prospect of success. The converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors.
Similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted.
Ms Sycamore's affidavit does not adequately address why she did not consider commencing an appeal within 21 days of the assessor's decision, nor why she delayed more than four months after filing the respondent's intention in November 2020 before bringing a cross‑appeal. Nonetheless, applying the principles I have just recited, I am prepared to allow the extension of time. I necessarily need to consider the issue of the quantum of the award in these proceedings. There is no prejudice to Mr Harris or Mr Weglewski should the application for an extension of time be granted, given that the filing of the cross-appeal has not delayed the proceedings.
I also bear in mind that I may confirm, vary or reverse the assessor's decision either in whole or in part.[58] There is authority that it would have been open to me, upon hearing an appeal asserting that the award was too high, to increase the award of compensation even if there was no actual cross-appeal by the victim.[59]
[58] Section 56(2)(b) of the Act.
[59] Dos Santos v Dos Santos [2000] WADC 256 [3] (Jackson DCJ).
Accordingly, I allow an extension until 30 March 2021 for Ms Sycamore's cross-appeal to be brought.

Assessment of the quantum of the award to Ms Sycamore

The principles governing such an appeal are well settled. Neither Mr Harris, Mr Weglweski, nor Ms Sycamore on her cross‑appeal have to demonstrate that the assessor erred in order to succeed.
I concur with the view expressed by his Honour Judge Bowden, in Guy v Hampson[60] that:
… it is not appropriate to have regard to the assessment made by the assessor but rather to independently review the evidence. A hearing de novo requires that the Appeal Court consider the matter afresh without regard to any previous decision.
[60] Guy v Hampson [2019] WADC 19 [14].

The two primary issues I must determine are:
•whether an award of compensation can be made; and
•if so, the appropriate quantum of a compensation award.
Ms Sycamore claimed compensation, under s 12(1) of the Act for injury and loss suffered as a result of the five offences arising out of this single incident on 23 March 2017. As I have noted, the assessor awarded her $60,808.20. This award comprised $60,000 for her injuries with the balance for other items.[61]
[61] Assessor's Reasons for Decision dated 12 May 2021, [10] - [13] inclusive.
The compensation award was made under s 12(1) of the Act, in respect of those five proved offences.[62]
[62] The term 'proved offence' is defined in s 3 of the Act to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'.
Section 33 of the Act provides that two or more offences are related to one another if they were committed at approximately the same time, whether by one person or by two or more persons acting in concert; or that they are related for any other reason. If as a consequence of the commission of two or more related offences, a person suffers injury and loss, the amounts awarded in their favour must not in aggregate exceed the maximum amount that may be awarded for the last one of the offences to be committed.
Whilst even multiple offences which occur on the same day are not necessarily related offences, I am satisfied that the five offences in this matter are related to each other.[63]
[63] Re Puterangi [2017] WADC 168 [85] ‑ [86].
Compensation is payable where a person has suffered 'injury' in consequence of the commission of an alleged offence: s 17(2). For the reasons I have set out there can be no doubt about that. I turn, therefore, to the question of quantum.
The maximum amount of compensation that may be awarded for a single offence is $75,000: s 31(1). The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.
The correct approach in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and the jurisdictional limit. In assessing the amount of compensation which should be awarded, I must have regard solely to the injury suffered by Ms Sycamore in consequence of the commission of the offences, and not to the (obvious) seriousness of the offences.
I steadily bear in mind that the amount is not to be fixed as punishment of the offenders. The punishment is the sentences of imprisonment imposed by Fiannaca J. Nor should it represent an expression of sympathy for Ms Sycamore as the victim.
Clearly, the inarguable seriousness of the conduct towards Ms Sycamore has a bearing upon the impact it must have had upon her and is likely to continue to have. That is relevant to the quantum of the appropriate award of compensation.
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. The court will not generally rely on conclusions made by an unqualified person on the basis of medical records without such supporting evidence: Re Hojetzki.[64]
[64] Re Hojetzki [2009] WADC 77.

As Jackson QC DCJ set out in Blezard v Chief Executive Officer of the Ministry of Justice:[65]
15The phrase 'mental and nervous shock' as used in s 3 of the Act, comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence as those events impact on the mind or nervous system.
16In assessing mental and nervous shock the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention.
17The term 'mental and nervous shock' includes distress, horror, disgust and similar adverse mental reactions but excludes mere fright, humiliation or anguish.
18… what is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury.  It seems clear that conditions such as post-traumatic stress disorder and depression are compensable, subject to proof of causation regardless of remoteness or foreseeability.
(citations omitted)
[65] Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41 [15] - [18].
The material before the court regarding the bodily harm claimed by Ms Sycamore is as follows:
(a)Ms Sycamore's undated handwritten statement of injuries suffered;[66]
(b)Photographs of injuries;[67]
(c)X-rays of injuries;[68]
(d)Royal Perth Hospital Discharge Summary dated 26 March 2017;[69]
(e)Centrelink Medical Report dated 26 March 2017 completed by Dr Amy Bennett;[70]
(f)Statement and medical report of Dr Erasmia Christou dated 24 April 2017;[71]
(g)Ms Sycamore's evidence at trial relating to her injuries;[72]
(h)The evidence of Dr Christou at trial;[73]
(i)Justice Fiannaca's sentencing remarks;[74] and
(j)report of Dr Homan Zandi dated 19 May 2021.
[66] Assessor's Papers, page 22.
[67] Assessor's Papers, pages 31 - 51; DPP materials, volume 10, pages 34 - 44 (exhibit 5).
[68] Assessor's Papers, pages 31, 45 - 47; DPP materials, volume 10, page 92 (exhibit 17).
[69] Assessor's Papers, pages 25 - 28.
[70] Assessor's Papers, page 24.
[71] DPP materials, volume 7, pages 98 - 102.
[72] DPP materials, volume 11, pages 135 - 138 and ts 213 - ts 215 of the trial of Mr Harris and Mr Weglewski and photographs tendered as exhibit 5.
[73] DPP materials, volume 12, pages 26 - 31 and ts 370 - ts 374 and exhibit 17.
[74] Assessor's Papers, pages 377 - 380.
The material before the court regarding the psychiatric injury claimed by Ms Sycamore is as follows:
(a)Ms Sycamore's handwritten statement of injuries suffered;[75]
(b)Ms Sycamore's evidence as to her mental state during and immediately after the incident.[76] In cross-examination at ts 235 for example she agreed that it was 'quite a horrifying experience';
(c)Justice Fiannaca's finding that it was evident that Ms Sycamore was psychologically traumatised as a result of the incident;[77]
(d)letter and email from Mindful Life Psychology confirming attendance at the clinic;[78]
(e)psychiatric report of Dr Mathew Samuel dated 3 May 2021; and
(f)Ms Sycamore's affidavits dated 13 August 2021 and 9 September 2021.
[75] Assessor's Papers, page 22.
[76] DPP materials, volume 11, page 179.
[77] Sentencing Remarks [93].
[78] Assessor's Papers, pages 29 - 30.
I consider the reports in the context of the trial judge's findings that this was a particularly serious case of aggravated assault with intent to rob and aggravated home burglary. It involved a home invasion with the use of weapons and violence. One of the weapons, the loaded handgun, had the potential to cause a life-threatening injury. The weapons, disguises and aggressive behaviour were intended to intimidate the victims into submission. The offending, in fact, terrorised the family, including children.
The offences were committed at night-time on a relatively isolated, semi-rural property, making the victims particularly vulnerable. Ms Sycamore was confronted by the combined force of two large males, both of whom were armed. Mr Harris shot at her twice and attempted to do so a third time in between the other shots. Mr Harris' violent attack on Ms Sycamore was sustained, brutal and callous.[79]
[79] Sentencing Remarks [91].
Section 56(1) of the Act provides that the court may decide the appeal solely on the evidence that was before the assessor, or it may receive additional evidence and information. The court will permit fresh evidence to be admitted unless there is some reason why it would be unjust to do so.[80]
[80] Re Swinford [2021] WADC 82 [19] (Russell DCJ); Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ).
On an appeal, the court has a general discretion to receive and admit further evidence without the necessity for a formal application being made seeking to adduce fresh evidence.[81] The discretion to admit further evidence on an appeal ought to be exercised without undue restriction, particularly given the beneficial purpose of the Act, which is to provide compensation to victims of offences.[82]
[81] Re Swinford [19].
[82] Re Tilbury [2010] WADC 46 [3].
In applying s 18 of the Act, I consider it appropriate to grant leave to Ms Sycamore to rely upon the reports of Dr Samuel and Dr Zandi and her two affidavits. Mr Harris and Mr Weglewski's criticisms, particularly in relation to the alleged non-disclosure of matters to Dr Zandi, go to weight and not admissibility.
I accept as a general proposition that a victim cannot be expected to provide an objective and impartial account of an offence and its consequences in a victim impact statement provided to the court.[83] I further accept that at least part of the available evidence as to the extent of Ms Sycamore's psychiatric injury (including parts of Dr Samuel's report) is based on her own self-report.
[83] Dimitrovska v Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407 [74] (Martin CJ, McLure P & Hall J agreeing).
In that regard, Mr Harris and Mr Weglewski argue that I should draw adverse conclusions in respect of her credibility.
Mr Harris and Mr Weglewski contend that Ms Sycamore's conduct when the police attended, namely refusing to remain on the stretcher but going back into the house to get some cigarettes and talk to Mr Hansen,[84] suggests that her injuries were not as serious as she subsequently contends.
[84] Witness statement of Detective Senior Constable Borovina dated 17 October 2017.
Clearly, the best evidence of the extent of injuries are the medical reports that are before me as opposed to Ms Sycamore's behaviour immediately following what was, on any view, an extraordinarily stressful event.
Mr Harris and Mr Weglewski note that when Ms Sycamore gave a history of her injuries to Dr Zandi, she complained that her teeth had been knocked out, whereas that did not feature in any of her original statements, or indeed her evidence at trial. Also, that she did not disclose her criminal history.
The trial judge is a highly experienced criminal jurist. His Honour was well equipped to make an assessment of Ms Sycamore's credibility having watched her give evidence and be cross-examined by two defence counsel. His Honour observed as follows:[85]
[5]In general, it follows from the jury's verdicts that it found Ms Sycamore to be a truthful and reliable witness in relation to the essential facts necessary to establish the offences. My own assessment was that, while there were some aspects of her evidence that were inconsistent, she was honest in recounting the events of the night, and, in most respects, her evidence can be relied upon as an accurate account.
…
[61]Ms Sycamore described the handgun as having black tape wrapped around it. The handgun found in the car did not have tape wrapped around it. However, I am satisfied by the ballistics evidence, as was the jury, given its verdicts, that the handgun found in the car was the gun used to fire the spent cartridges found at the house. Having regard to the evidence given by Ms Sycamore, and the location in which the spent cartridges were found, they resulted from the shots fired by the offender with the handgun. It is obvious, therefore, that either Ms Sycamore was mistaken about the tape, or any tape that was on the gun was removed before the gun was secreted in the lining of the tailgate. It is not necessary to resolve that issue.
[85] Sentencing Remarks [5], [61].
It would be remarkable if criminal offending as serious as this had not left an enduring impact upon the victim. In the context of the trial judge's assessment of Ms Sycamore's credibility, I see no sufficiently compelling reason to doubt the veracity of her accounts as to the impact Mr Harris' offending in particular has had upon her.
I have had some regard to other assessments involving criminal injury compensation, in particular:
•Bacich, Levy DCJ;
•Richardson v Lawford [2020] WADC 58, Goetze DCJ;
•SJR v JJC [2020] WADC 161, Sharp DCJ;
•ATS v Williss [2021] WADC 58, Goetze DCJ;
•Sweetman v Lilley [2021] WADC 74, Troy DCJ;
•Re Swinford, Russell DCJ;
•An unpublished decision of my own, handed down on 23 August 2021.
In so doing I adopt the approach of his Honour Judge Jackson QC in Michael v Panetta,[86] cited with approval by his Honour Judge Bowden in TAW v NJS.[87] The task of assessing the appropriate amount of compensation can only be carried out by way of a broad and subjective assessment of what, according to community attitudes, would be regarded as reasonable compensation: R v Fraser.[88]
[86] Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324.
[87] TAW v NJS [2011] WADC 187 [24] (TAW).
[88] R v Fraser [1975] 2 NSWLR 521, 523 (Wootten J); Re Warrek [2019] WADC 50 [37] (Troy DCJ).
Mr Harris and Mr Weglewski argue that Dr Zandi's report shows that Ms Sycamore's claims of on-going physical injuries are not supported by any X-ray, ultrasound of the ulnar nerve or nerve study. Dr Zandi could not discern specific pins and needles or numbness of fingers. Mr Harris and Mr Weglewski ask me to conclude that the lack of physiotherapy appointments since the incident suggests that there are in fact no ongoing issues.
For my part, I accept that Ms Sycamore suffered a right isolated fracture to her ulna as a result of Mr Harris kicking her. She was required to undergo an open reduction internal fixation of that fracture at the Royal Perth Hospital. She has experienced some discernible swelling over the proximal part of the forearm, which is likely due to hernia within the fascial defect following the surgery. Ms Sycamore also had a bullet removed from her right ankle. She had soft tissue muscle damage to the right forearm, a gunshot wound to the right ankle/foot requiring removal of the ball-bearing bullet, bullet grazing to the leg, and bruising to the head.
Dr Zandi recommended that Ms Sycamore have the plate in her arm removed once adequate imaging has been formed to show that the fracture has united.
Dr Zandi considered that in normal circumstances he would have envisaged an isolated ulnar fracture to have been plated and to have recovered with no long-term issues. He suggests that she has herniation of the muscles in the area which is causing recurrent ongoing swelling. In the absence of the surgery, Dr Zandi estimates the residual disability in her right upper limb, based upon Ms Sycamore's self‑described symptoms at 20%. She had a full range of motion in the right elbow and shoulder with acceptable strength levels on each side.

Psychological impact

In terms of the psychological impact upon Ms Sycamore, in sentencing, Fiannaca J accepted the State's submission that it was evident from the way she gave her evidence at trial that she is psychologically traumatised as a result of the events of that night.[89]
[89] Sentencing remarks [93].
In his report, Dr Samuel diagnosed post-traumatic stress disorder and major depression. He considered that even with treatment, Ms Sycamore will have difficulty in making a full recovery, given the duration of the symptoms.
Dr Samuels considered that Ms Sycamore will require 10 ‑ 20 sessions of psychological treatment per year, psychiatric review every two or three months, multiple medications and monthly GP review. In his opinion, Ms Sycamore is currently unfit to work. It is unlikely that she will be fit to work anytime in the future.
Mr Harris and Mr Weglewski contend that Ms Sycamore spoke of her past heavy consumption of alcohol up to a year after the accident but deliberately withheld her past use of illicit drugs. And that she has worked more recently than the two years earlier that she claimed.
They also argue that any psychological trauma from the criminal offences of 23 March 2017 cannot be disentangled from other traumatic events such as domestic violence by Mr Hansen and the earlier event when she provided methylamphetamine to her younger brother causing, as noted, his death.
I do not consider there to be any acceptable evidence that Mr Hansen perpetrated domestic violence upon Ms Sycamore, still less that any such violence could have contributed to the post‑traumatic stress disorder which I am satisfied she suffers from.
I accept that there is a vagueness in the report of Dr Samuel that she attempted to study following the incident but was unable to concentrate and dropped out, but I do not consider that to be inherently implausible.
Mr Harris and Mr Weglewski argue that there is a contradiction between Ms Sycamore missing appointments because she was unable to drive following losing all her demerit points, as opposed to psychological trauma.
I note that Ms Sycamore attended nine appointments with Mindful Life Psychology between 20 April 2017 and 9 March 2018 but has not attended any psychological appointments since. The only exception being the interview with Dr Samuel on 3 May 2021 for the purposes of the report before the court.
I have already stated that I am satisfied that the proved offence occurred. I am satisfied that the claimed injury has occurred. I need to consider whether the claimed injury occurred as a consequence of the proved offences.[90]
[90] Section 12(1), s 12(3) read together with Underwood at [46] ('…the scheme of the [Act] is that the Assessor starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation').
The burden is on Ms Sycamore to establish, on the balance of probabilities, that following the proved offences, she has suffered the injury claimed, and that the injury was a consequence of the commission of the offence.[91]
[91] Section 12(3)(a).
I accept Dr Samuel's conclusions as set out at [190] - [191].

Contribution of other traumatic events

In the event that Ms Sycamore establishes on the balance of probabilities that the claimed injury is a consequence of the compensable offence, it is not necessary to establish that this was the sole cause of the injury.[92] However, the quantum may be reduced where there is a propensity for non-compensable events to have caused or contributed to the injury.[93]
[92] TAW [85] (Bowden DCJ).
[93] TAW [83].
If on the evidence it is impossible to disentangle the effects of the compensable acts from the non-compensable ones, Ms Sycamore will be entitled to the full award.[94]
[94] TAW [84].
I am satisfied that the injuries relied upon by Ms Sycamore exist and are solely a consequence of the compensable offence and not the contended domestic violence or any other factor such as grief and guilt arising from the death of her brother.
If I am wrong about that, in my view it is inarguable that the compensable offences did not contribute materially to Ms Sycamore's injury. As it is not possible to disentangle the consequences of the non‑compensable domestic violence or any prior traumatic exposure from the death of her brother from the consequences of the compensable offence, she is entitled to compensation for the full injury and loss suffered.

Conclusion on quantum of award

According to ordinary tortious principles, the amount of general damages must be fair and reasonable compensation for the injuries received by Ms Sycamore and the disabilities caused, having regard to current general ideas of fairness and moderation.[95] The amount must be proportionate to Ms Sycamore's particular situation.[96]
[95] Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed) (Houlahan); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court) (Winiarczyk).
[96] AA v ARW [2020] WADC 131[40] (Gething DCJ)[46]; Houlahan [107]; Winiarczyk [71].

I consider that any fair and reasonable award to compensate Ms Sycamore for pain and suffering and psychiatric injuries caused by Mr Harris and Mr Weglewski's proven offending, having regard to current general ideas of fairness and moderation, must exceed $75,000. And that accordingly the court should award compensation in the sum of $75,000.
It is accordingly unnecessary to consider the claim for the ambulance fee, travel expenses, damage to clothing, medication costs incurred, parking tickets for attendance at trial, report expenses, future treatment and loss of future earnings.
Accordingly I dismiss ground (3) relied upon by the appellants, and therefore Mr Harris' appeal; but allow Ms Sycamore's cross-appeal so as to vary the amount of compensation awarded to her.

Ground (4)

Section 45(1)(b) of the Act permits an assessor to limit the amount that may be recovered. Specifically:
45.Order about reimbursement order may be made
(1)When or after making a compensation award in respect of an application made under section 12, an assessor who thinks it is just to do so may make -
(a)an order barring proceedings under Part 6 in respect of the award; or
(b)an order that only a part of the award (specified in the order) may be the subject of proceedings under Part 6.
(2)At any time, on an application by the CEO, an assessor may cancel an order made under subsection (1).
As Gething DCJ noted in Nagel v Tahere,[97] pt 6 sets out the regime by which the CEO may recover amounts paid by way of compensation from an offender.  That regime commences with the CEO giving an offender a written notice requesting payment pursuant to s 49 of the Act.  Whether or not this notice is given, the CEO may apply to the Chief Assessor for a compensation order against the offender, subject to any order made under s 45(1).[98] There is then a process by which the Chief Assessor convenes a hearing to determine whether a compensation reimbursement order should be made.[99] In considering whether to make a compensation reimbursement order, there are a number of matters which the assessor must (relevant to this matter) have regard to:[100]
[97] Nagel v Tahere [2020] WADC 110 [21].
[98] Section 50.
[99] Section 51 and s 52.
[100] Section 52(2).
(2)  In deciding whether to make a compensation reimbursement order and the amount to be paid under the order an assessor must have regard to the following -
(a)  the extent to which the offender is responsible for the victim's injury;
(b)  whether the behaviour of the victim at the time of the offence in any way precipitated or provoked the offence;
(c)  whether any behaviour, condition, attitude, or disposition of the victim contributed, directly or indirectly, to the victim's injury;
(d)  the offender's means to satisfy any such order having regard to -
(i)the offender's income, assets and liabilities; and
(ii)the offender's current and prospective employment;
(e) the extent to which the offender is likely to be able to satisfy any such order within a reasonable time.
The CEO has not issued a notice to the appellants under s 49 of the Act. Nor has the CEO applied for a compensation reimbursement order against them under s 50.
Section 55(1) provides that an interested person may appeal to the District Court against an assessor's decision:
(a) to make or to refuse to make a compensation award;
(b) as to the amount of a compensation award (Ms Sycamore's proposed cross-appeal).
(2) The CEO or an offender may appeal to the District Court against an assessor's decision -
(a) to make or to refuse to make, or to cancel or amend or to refuse to cancel or amend, a compensation reimbursement order under section 52;
(b) as to the amount of a compensation reimbursement order made or amended under section 52.
Here no compensation reimbursement order has been made or considered, and so Mr Weglewski's appeal is against the decision to make a compensation award and the amount.
Section 56(2) relevantly provides that on an appeal under s 55 the District Court may do any or all of the following -
(a)exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
By ground (4), Mr Weglewski argues the distribution of compensation on face value does not appear to accurately reflect the findings of the sentencing judge in particular the contribution towards bodily harm or mental shock. It is correct that Fiannaca J sentenced him on the basis that the doing of grievous bodily harm was a probable consequence of the criminal enterprise, rather than something that was actually planned. There was no suggestion that he actually encouraged the degree of violence used. That placed his culpability at a lower level. His Honour was satisfied that he could regard Mr Weglewski's offending, in relation to count 3, as being in the least serious category for such offending to which the mandatory minimum penalty applies.
Accordingly his Honour did not exceed the mandatory minimum penalty of 7 ½ years in sentencing Mr Weglewski.
Almost certainly, the effect of the mandatory minimum sentence was that the gap between the total sentences imposed on Mr Weglewski and Mr Harris is less than it would have been if the sentencing judge's discretion was unfettered. If I am permitted to consider afresh what order should be made under s 45(1), I am not so constrained.
In written submissions, the amicus contends that based on decisions of this court to the extent that the appeals of Mr Harris and Mr Weglewski seek to alter the order made by the assessor under s 45(1)(b), that aspect of the appeal is incompetent. In oral submissions, however, Ms Miller drew my attention to other decisions of this court to the effect that in considering the appeal as a whole, I am permitted to consider afresh what order should be made under s 45.
There is a stream of authority beginning with Tidmarsh v The Assessor for Criminal Injuries Compensation,[101] and culminating in Martin v Martin (Derrick DCJ), to the effect that on an appeal against a decision of an assessor under s 55(1) of the Act, the court does not have the jurisdiction to vary an order made by an assessor under s 45(1)(b) of the Act. An order made under s 45(1)(b) is not a decision to make or refuse to make a compensation award or a decision as to the amount of a compensation award within the meaning of s 55(1).
[101] Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173 (Bowden DCJ).
As Derrick DCJ held in Martin v Martin at [155] - [156] in an appeal under s 55(1) of the Act, s 56(1)(f) does not empower the court to make an order varying a barring order made by an assessor under s 45(1)(b) even if the appeal results in the compensation award the subject of the appeal being varied. The making of an order varying a barring order in these circumstances could not be said to be a 'necessary consequential order'; that is, an order which follows logically or of necessity from the substantive order on the appeal.
Other judges of this court, however, namely Gething DCJ in Nagel v Tahere and Savic v Duric[102] and Lonsdale DCJ in Milburn‑Thomas v Palmer,[103] have taken a slightly different view.
[102] Savic v Duric [2021] WADC 53 (Savic).
[103] Milburn-Thomas v Palmer [2020] WADC 158.
In Nagel Gething DCJ held at [30] as follows:
An order pursuant to [the Act] s 45(1)(b) is not a decision 'to make or refuse to make a compensation award … [or] as to the amount of a compensation award'. So it is not open to the beneficiary of such a barring order (in this case the Appellant) to appeal solely based on the order made pursuant to [the Act] s 45(1). The amount received by the claimant for compensation (in this case the Respondent) is not affected by the order pursuant to [the Act] s 45(1), so there is no justification for the claimant to have a right to appeal from this aspect of the decision to award compensation. For completeness sake, I add that should a compensation reimbursement order be made pursuant to [the Act] s 52, there is a separate right of appeal. No such order has been made yet against the Appellant. However, once there is an appeal the powers given to the appellate court include the power to 'make any order that an assessor could make under' [the Act]. This would include an order pursuant to [the Act] s 45(1). This is a common sense outcome. If an award of compensation is varied in the appeal the appropriateness of an order pursuant to [the Act] s 45(1) must be reconsidered.
(citations omitted)
So, Gething DCJ considered that it accords with common sense to construe s 56(2) so as to permit a court on appeal to vary an order under s 45(1)(b). Even though such an order could not itself be the subject of an appeal. I agree, having had the benefit of considering his Honour's further observations in Savic.[104]
[104] [90] and [94] - [100].
In Milburn-Thomas v Palmer, Lonsdale DCJ concurred with Gething DCJ on this point.
Her Honour stated at [99] that Tidmarsh stands for the proposition that an order made under s 45(1)(b) of the Act cannot form the basis of an appeal. In Martin v Martin, Derrick DCJ did not specifically address the power of this court to vary an award under s 56(2)(b) of the Act on an appeal under s 55 of the Act.
Her Honour considered that the present case is therefore distinguishable from Tidmarsh and Martin, because here the appellant has challenged the amount of compensation on the appeal under s 55 of the Act.
Gething DCJ agreed with this approach in Savic at [90], as do I.

Conclusion on ground (4)

I have determined that it is appropriate to make an order increasing the amount of compensation payable to Ms Sycamore.
Because an order made under s 45(1)(b) of the Act cannot form the basis of an appeal, ground (4) and therefore Mr Weglewski's appeal is dismissed. However, for the reasons stated, I consider that I do have the power to reduce (or increase) by a proportionate amount the maximum amount that can, by reason of the assessor's order made under s 45(1)(b), be the subject of recovery proceedings under pt 6 of the Act.

Conclusion having considered s 45(1)(b) afresh

I have concluded that it is open for me on appeal to consider afresh what order should be made under s 45(1), in respect of both Mr Weglewski and Mr Harris.
Given that I have increased the total amount of compensation to $75,000, and reflecting upon their respective culpability for Ms Sycamore's injuries, I will limit the amount able to be recovered by the CEO from Mr Weglewski to $15,000 and from Mr Harris to $60,000.

Orders

1.The time within which Ms Sycamore may appeal the decision of the assessor be extended to 30 March 2021.
2.In each case the appeals of Mr Harris and Mr Weglewski are dismissed.
3.Ms Sycamore's appeal is allowed to the extent that the decision of the assessor on 29 July 2020 is set aside.
4.I award compensation of $75,000 to Ms Sycamore for the injuries she sustained.
5.Under s 45(1)(b), only the amount of $15,000 be subject to pt 6 in respect of Mr Weglewski and $60,000 in respect of Mr Harris.
6.I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CP
Court Officer
20 JANUARY 2022