Jackson (a pseudonym) v Tetley

[2020] VCC 799

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
 Not Restricted
 Suitable for Publication

ALICIA JACKSON (A Pseudonym)	First Applicant
and
CANDICE JACKSON (by her litigation guardian Alicia Jackson) (A Pseudonym)	Second Applicant
and
FELIX JACKSON (by his litigation guardian Alicia Jackson) (A Pseudonym)	Third Applicant
v
MICHAEL TETLEY	Respondent

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2020
DATE OF JUDGMENT:	10 June 2020
CASE MAY BE CITED AS:	Jackson (A Pseudonym) v Tetley
MEDIUM NEUTRAL CITATION:	[2020] VCC 799

REASONS FOR JUDGMENT
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Subject:  CRIMINAL LAW

Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1985

Legislation Cited:     Sentencing Act 1986, s85B; s85H, s85I; Victims. of Crime Assistance Act 1996

Cases Cited:DPP v Tetley (2020) VCC 1543; Director of Public Prosecutions v Hood [2017] VCC 1347; Stevens v Baxter [2009] VSC 257; RK v Mirik and Mirik (2009) 21 VR 623

Judgment: Judgment for the applicant, Alicia Jackson in the sum of $25,000, as an award of compensation pursuant to provisions under s85B of the Sentencing Act 1991. Judgment for the applicant, Candice Jackson, in the sum of $6,750 as an award of compensation pursuant to provisions under s85B of the Sentencing Act 1991 and judgment for Felix Jackson, in the sum of $6,750 as an award of compensation pursuant to provisions of s85B of the Sentencing Act 1991.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms. A C Ryan	Johnstone & Reimer
For the Respondent	Mr M Hume	Sarah Tricarico Lawyers Pty Ltd

HIS HONOUR:

1       The applicant, Alicia Jackson[1], seeks an order for compensation from the respondent, Michael Tetley, pursuant to s85B of the Sentencing Act 1991 as amended (“the Act”). Ms. Jackson, acting as the litigation guardian, also seeks an order for compensation from the respondent, Michael Tetley, in respect of her children, Candice Jackson[2] and Felix Jackson[3]. 

[1] A pseudonym

[2] A pseudonym

[3] A pseudonym

2       The applicant issued her applications on 19 March 2019.  The respondent had been sentenced by her Honour Judge Wilmoth on 19 September and 4 October 2018.[4]

[4]DPP v Tetley (2020) VCC 1543

3       The applicant was represented by Ms. A Ryan of counsel.  The respondent was represented by Mr M Hume of counsel.  Both counsels made oral submissions in the course of the applications which took place on 1 June 2020.  The only viva voce evidence given on the day of the application was from Alicia Jackson.  The applicant parties relied upon the following exhibits in this application:

(a)Exhibit “A1”, affidavit of Alicia Jackson, dated 6 June 2019, and its exhibits;

(b)Exhibit “A2”, affidavit of Alicia Jackson, dated 28 May 2020, and its exhibits;

(c)the Reasons for Sentence by her Honour Judge Wilmoth were not formally tendered but were referred to during the course of oral submissions.

4       The applicant, Alicia Jackson, gave brief evidence in Court.  She formally adopted the affidavit that she had previously sworn.  She went on to state that she required some closure for the offending for both herself and her children.  This application was part of that closure process for her.

Relevant provisions of the Sentencing Act 1991

5 The applicant brings this proceeding pursuant to s85B of the Act. Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from the offender. In this case, Alicia Jackson, the applicant, is a victim within the meaning of the Act. In this case, Candice Jackson, the applicant, is a victim within the meaning of the Act. Felix Jackson, the applicant, is a victim within the meaning of the Act. The respondent, Michael Tetley, was convicted and sentenced on 4 October 2018 as the offender by Judge Wilmoth of the County Court.

6       A legislative provision set out in the Sentencing Act relating to s85B compensation claims. has been considered by Bell J in RK v Mirik and Mirik[5] and J Forrest J in Stevens v Baxter.[6]  Bell J, with whom J Forrest J agreed, set out the following relevant principles applicable for claims. for compensation under the Act:

[5](2009) 21 VR 623

[6][2009] VSC 257

·The determination of the amount of the compensation to be paid to an applicant is entirely within the discretion of the Court provided the claims. fall within categories set out under s85B(2).

·An award of compensation is determined by the application, where relevant, of the common law principles, however the Order itself is one for compensation, not damages.

·Where a claim for pain and suffering is maintained, it must be a direct result of the offence. 

·The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim. 

·Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred, may be the subject of a compensation order.

·Unlike a common law claim for damages, the financial circumstances of the offender are relevant.

·The Court is not obliged to reduce the amount of compensation payable on the basis of the offender’s financial circumstances:  It is relevant, but not a controlling consideration.[7]

[7]Stevens v Baxter (supra) at paragraph [5]

7       Alicia Jackson is an applicant in her personal capacity and litigation guardian for her children, Felix Jackson and Candice Jackson.  I will deal with the claims by the children separately.  Ms. Jackson gave brief evidence in this proceeding.  She adopted and confirmed the matters set out in her two affidavits, dated 6 June 2019 and 28 May 2020. 

8       Ms. Jackson is thirty-six years old.  She has the custody of her two children, but she shares the parenting of the children with their father on a week-about basis.  In the six years prior to the offending, Ms. Jackson was not employed and was engaged in full-time care for her children. 

9       In approximately September 2019, Ms. Jackson obtained full-time employment as a retail assistant.  The work situation has been interrupted by COVID-19 restrictions, but otherwise Ms. Jackson has re-joined the workforce and continues to care for her children on a parent-sharing arrangement with her former husband.  The fact that Ms. Jackson has been has been able to engage in the workplace after the offending is an indicator that she has commenced a road to recovery and the conclusion of this proceeding will provide some “closure” for her.

Background to the application by Ms. Jackson

10      Judge Wilmoth sentenced the respondent, Michael Tetley, on 19 September 2018 and 4 October 2018 for three charges of sexual activity in the presence of a child under sixteen years and one charge of sexual assault of a child under sixteen years.  The two children offended against directly were Felix and Candice Jackson.  The offending occurred on 19 November 2017. 

11      The full context of the respondent’s offending is set out in Judge Wilmoth’s Reasons for Sentence and I will not repeat them in this judgment.  The respondent was convicted and sentenced to serve a two-year Community Correction Order, with conditions of mental-health treatment and Offender Reduction Programs.  The respondent was also placed on the Sex Offenders’ Register for fifteen years.

12      The offending against the two children was opportunistic and over a short period of time.  The two children were sitting on a couch under a carport which was proximate to the units occupied by the applicants and the respondent. 

13      Ms. Jackson had been supervising the children prior to the offending.  Mr Tetley was on the couch with the children under the carport.  Ms. Jackson went into her unit to use the toilet.  Upon her return to the carport, she observed the respondent pulling up his pants.  She asked the children what was going on.  Ms. Jackson was told by Felix that Candice had asked the respondent to pull his pants down and the respondent masturbated in the presence of both of them.  Candice then masturbated the respondent’s penis.  Felix was present and saw his sister masturbating the respondent’s penis.  At the time of the offending, Felix was seven years old and Candice was four years old.

14      Ms. Jackson confronted the respondent about the offending there and then.  The respondent stated, “my father did it to me”.  Ms. Jackson took her children to the local police station to make a complaint about the offending.  The respondent was arrested on that day and made full admissions to the police.  The respondent pleaded guilty at an early stage, which meant the children did not have to give evidence and their court contact has been limited.

Injury to the applicant, Alicia Jackson

15      Ms. Jackson swore two affidavits, dated 6 June 2019 and 28 May 2020.  In the affidavit, she set out the emotional stress and anxiety she has suffered due to the offending by the respondent.  The respondent and the applicant were neighbours.  Ms. Jackson has become fearful for the safety of her children.  She has moved residence so as not to be near, or have any reminders of, the respondent.  Ms. Jackson outlines the changes in the children’s behaviour, stating they were more clingy and emotional.  Ms. Jackson says she has become overprotective of her children and has flashbacks to the offending event.

16      Ms. Jackson was examined and assessed by Dr David Weissman, psychiatrist, for the purposes of this proceeding.  Dr Weissman’s report was dated 3 March 2020.  Dr Weissman noted that a medical history of a blood clotting disorder and sleep apnoea requiring CPAP machine for the applicant.  Relevantly, he took a history from Ms. Jackson that she had been diagnosed with Post-Natal Depression after the birth of her daughter Candice.  Ms. Jackson was prescribed Lexapro, 20 milligrams. daily, for that condition.  Ms. Jackson continued to take the same medication regime from 2013 until the present time.  Ms. Jackson expressed anger and grief to Dr Weissman as a result of the offending against her children.

17      Dr Weissman diagnosed Ms. Jackson as suffering from:

(a)pre-existing chronic dysthymia with anxious distress and possible pre-existing chronic, recurrent Major Depressive Disorder with anxious distress;

(b)cross-sectionally, incident-related Chronic Adjustment Disorder with Anxious and Depressed Mood associated with traumatisation features of moderate intensity or severity; and

(c)       an aggravation of the pre-existing psychiatric condition.

18      Dr Weissman was of the opinion Ms. Jackson may benefit from a higher dose of Lexapro, but recommended regular treatment by her general practitioner. 

19      Ms. Jackson gave evidence at the hearing of this matter.  The evidence was short.  In essence, she stated she just wanted closure of this event involving the offending against her children.  After a consideration of all the factors in this case and taking into account the principles set out in the authorities set out earlier in these reasons, I find that the appropriate award for compensation for pain and suffering for the applicant, Alicia Jackson, is $25,000.

Felix Jackson

20      Felix Jackson is now nine years old.  At the time of the offending he was seven years old.  Felix was diagnosed with Autism Spectrum Disorder when he was three years old.  Felix has been undergoing both speech and occupational therapy since his diagnosis.  Felix has been examined by Maria Romano, psychologist, for the VOCAT application.  Her report is dated 9 August 2018.  He was also examined by Dr Antony Milch, child psychiatrist, for the purposes of this proceeding.  Dr Milch’s report is dated 30 April 2020.

21      Ms. Romano’s report was based predominantly on the report of Felix’s reaction from the history taken from Ms. Jackson.  Some of the observations were of Felix pulling his pants down at school and drawing penises on his work at school.  Ms. Romano recommended psychological sessions for Felix be paid for under the VOCAT legislation. 

22      Dr Milch’s opinion was he was uncertain as to what impact the offending had on Felix’s psychosocial or psychosexual development.  Dr Milch noted that neither Felix nor Ms. Jackson identified any sexualised behaviour or preoccupation regarding sexual matters at the time of his assessment.  This opinion lead to the conclusion that there was a period of time up to August 2018 where Felix was “acting out sexual responses to the offending”, but more recently this has resolved.  Dr Milch states, in his report, as follows:

“The nature and extent of the injuries sustained by [Felix]

[Felix] was not identified to have experienced any significant injuries as a result of the incident. He did, however, have an underlying Autistic Spectrum Disorder (ASD) which had been associated with emotional regulation difficulties in the context of his impaired social skills and difficulty coping with change. He had previously been exposed to bullying, resulting in a change of school. He had successfully negotiated this relocation. There had also been a significant change in his living circumstances as the incident was associated with a relocation of his mother's place of residence. There had also been a shift to a week about shared care parenting arrangement. Despite [Felix’s] difficulties in coping with change, it was his reported experience that he had enjoyed the opportunity to spend greater time with his father. He enjoyed a good relationship with his stepmother and her children.”

23      After consideration of all the factors in this case and taking into account the principles set out in the authorities referred to earlier in these reasons, I find the appropriate award of damages and pain and suffering for Felix Jackson is $10,000.

Candice Jackson

24      Candice is now seven years old, but at the time of the offending was four years of age.  Ms. Romano, psychologist, assessed Candice for the purposes of the VOCAT application.  Her report was dated 9 August 2018.  Ms. Romano administered the “parent version of the Spence Children’s Anxiety Scale” to assess the severity of Candice’s anxiety symptoms.  The results did not indicate any elevated anxiety symptoms in Candice as a result of the offending.  In her report, Ms. Romano states:

“[Alicia] reported that after the incident [Candice] was suddenly focused on wanting privacy and needed to have the door closed when she was changing.  She explained that [Candice] became unusually clingy and kept needing reassuring hugs.  [Alicia] advised that she was concerned when [Candice’s] behaviour began to regress and she wanted to be treated like a baby.  Including wanting to be spoon fed.” [not checked]

25      Ms. Romano’s recommendation was for sessions with counselling and possibly a play therapist.  No counselling has been undertaken by Candice as a result of that opinion.

26      Dr Antony Milch, child psychiatrist, examined Candice for the purposes of this application.  Dr Milch’s report is dated 3 April 2020.  In his opinion, it was unlikely that Candice’s psychological, social or physical development will be substantively affected by the single episode of offending against her.  Dr Milch noted there was no history of subsequent sexualised behaviour or emotional or behavioural problems. related to the sexual assault by the respondent.  I accept there was some change in the behaviour and reaction by Candice to the offending, but time has allowed this problem to resolve substantially.  In Dr Milch’s opinion, Candice’s prognosis is good.  He added the proviso that further episodes of sexual assault may have a traumatic impact on her psychosocial development. 

27      After a consideration of all the factors in this case and taking into account the principles set out in the authorities, I find that the appropriate award for compensation for pain and suffering from the applicant, Candice Jackson, is $10,000.

Financial circumstances of the respondent

28 Pursuant to the provisions of s85H of the Sentencing Act, I am required to take into account the financial circumstances of the respondent in the proceeding for compensation brought against him.  Mr Hume, on behalf of the respondent, submitted there was no material before the Court in respect of the respondent’s financial circumstances.  Mr Hume declined the opportunity to make any submissions concerning the financial circumstances of the respondent at the hearing.

29      I note in the Reasons for Sentence by Judge Wilmoth that the respondent was described as a disability pensioner who had suffered from Schizophrenia in the past.  I also note in the report of Dr Weissman that he took a history from Alicia Jackson that the respondent owned his unit where the offending occurred.  Beyond those two factors, I have no appropriate evidence before me to make a proper assessment of the financial circumstances of the respondent. 

30      The fact that I have no evidence, or am unable on the current state of the evidence to make a proper assessment of the respondent’s financial circumstances, does not preclude me from making an Order for Compensation.

Orders

31      I order that:

1.The respondent pay Alicia Jackson the sum of $25,000 pursuant to s85B of the Sentencing Act.

2.The award of compensation for Candice Jackson was assessed at $10,000. The parties agreed that pursuant to s85I of the Sentencing Act 1986, that the sum of $3,250 should be deducted from that award. I order that the respondent pay Candice Jackson the sum of $6,750 pursuant to s85B of the Sentencing Act. Further, I order pursuant to s39C of the County Court Act 1958, that the sum of $6,750 be paid to the Senior Master of the Supreme Court to be held by that Court on behalf of Candice Jackson.

3.The award of compensation for Felix Jackson was assessed at $10,000. The parties agreed that pursuant to s85I of the Sentencing Act 1997, that the sum of $3,250 should be deducted from that award. I order that the respondent pay Felix Jackson the sum of $6,750 pursuant to s85B of the Sentencing Act. Further, I order pursuant to s39C of the County Court Act 1958, the sum of $6,750 be paid to the Senior Master of the Supreme Court to be held by that Court on behalf of Felix Jackson.

4.Pursuant to s85K of the Sentencing Act, I order that the parties to these applications bear their own costs.