Kelley (a pseudonym) v R1 (a pseudonym) & Ors
[2016] VSCA 90
•6 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0244
| RODNEY KELLEY (A PSEUDONYM) | Applicant |
| v | |
| R1 (A PSEUDONYM)[1] & ORS | Respondents |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the applicant’s and the respondents’ names. The respondents will be known by the pseudonyms R1, R2, R3 and R4.
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| JUDGES: | BEACH AND FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2016 |
| DATE OF JUDGMENT: | 6 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 90 |
| JUDGMENT APPEALED FROM: | Kelley (a pseudonym) v R1 & Ors (a pseudonym) (Ex Tempore Ruling, County Court of Victoria, Judge Stuart, 2 November 2015) |
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CRIMINAL LAW – Application for leave to appeal against compensation order – Child sexual abuse over sustained period in family situation – Multiple victims – Discount of 25 per cent applied to compensation that would otherwise have been ordered – Total compensation ordered approximately $376,000 leaving applicant with residual assets of approximately $300,000 – Amount ordered in excess of amounts claimed by two claimants – Whether sufficient regard had to applicant’s circumstances including his age (over 60), prospect of future employment and financial circumstances – Amount of compensation ordered not excessive – Any practice of routinely applying discount of 25 per cent (or any other figure) should cease – Each case to be considered on its own facts – Application for leave dismissed – RK v Mirik and Mirik (2009) 21 VR 623 considered,
Sentencing Act 1991 s 85B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Doogue O’Brien George |
| For the Respondents | Mr J P Gorton QC with Mr A E Hill | Slater and Gordon |
BEACH JA
FERGUSON JA:
The applicant was convicted of sexual offences committed against two of his nieces and two of his great nieces. Each of the victims (who are the respondents to this application) sought a compensation order under s 85B of the Sentencing Act for pain and suffering. The judge made a compensation order in favour of each respondent. The individual amounts that he awarded were $95,000, $135,872, $64,408 and $80,000. The applicant seeks leave to appeal.[2] He submits that the compensation orders were disproportionate and excessive and were outside the range of compensation orders reasonably open in the circumstances of this offence and this offender and these victims.
[2]Criminal Procedure Act 2009 s 278.
The offences
The offences were committed over 18 years between 1975 and 1993 when the applicant was aged between 22 and 40. The respondents were aged between four and 14 when the offences were committed against them. The abuse took place in family homes. In sentencing the applicant, the judge described the offending in the following terms:
Typically, your offending involved touching on the breast area followed by asking them to come to your bedroom or not and then engaged in the sexual activity that involved you rubbing yourself against your victim’s bottom, your penis becoming erect and your victim feeling that fact.[3]
[3][R1] v Rodney Kelley (a pseudonym) (Unreported County Court, Judge Stuart, 2 November 2015) (‘Reasons’) [6].
The judge’s reasons
Having described the offences that had been committed, the judge noted that the applications were based on historical sexual abuse.[4] Based on an unchallenged psychiatric report of Dr Michael Epstein, the judge was satisfied that the consequences of the offences were related directly to the offending.[5] The only question for determination was the amount of compensation to be ordered.
[4]Ibid [12].
[5]Ibid [13].
In respect of the first applicant (‘R1’), the judge noted that the offending had occurred from when she was five to 13 years old. She is now 40. She is on maternity leave from her job as a legal secretary. She has two children. The judge referred to her police statement in which she described suffering from depression, anxiety, bulimia and mutism. In her victim impact statement, R1 described the effect of the abuse on her development as a child, her negative feelings, her emotional struggles and her difficulties in coping with motherhood.
The judge recorded Dr Epstein’s opinion that R1 has post-traumatic stress disorder, a persistent depressive disorder, panic attacks and a heightened level of anxiety.
In respect of R1, the judge concluded:
The offending in question occurred some three decades ago and still such is her plight. The effect of the offending has been profound. She has been denied a childhood. She continues to suffer to a traumatic level from that offending and her prognosis, for improvement, is limited. Whilst the effects upon her have been grave and continue to ripple through like a wave, the whole of her life, those waves will continue.[6]
[6]Ibid [27].
The judge then turned to the second applicant (‘R2’). He described the impact of the offences committed against her between the ages of four and 11 as catastrophic. R2 is now 44. The judge referred to a passage from her police statement in which she described suffering both at school and socially leading to an eating disorder and living a life of fear and lack of trust.
The judge set out passages from R2’s victim impact statement. They describe the truly horrible effects on her. She believes that for the remainder of her life she will remember her childhood as a ‘life-altering, dark and frightening time’ fearing that she will never regain the innocence of childhood. R2 also described the effect on her family and on all aspects of her relationship with her husband, the impact of the nightmares she suffers, the depression, anxiety, anger, shame, fear and sadness she endures.
The judge recorded Dr Epstein’s opinion that R2 struggles with anorexia nervosa, bulimia nervosa, an obsessive compulsive disorder, chronic post-traumatic stress disorder, panic disorder, frequent panic attacks and persistent depressive disorder.
The judge next considered the third applicant (‘R3’). She was between nine and 12 when the offences were committed against her. She is now 36 and is caring for her two children having previously been employed as a receptionist.
Again the judge referred to the victim impact statement. R3 referred to her depression, anxiety and panic attacks, her struggle to maintain friendships, her low self-esteem and her negative thoughts about herself. She also mentioned her mistrust of others and how the effect that the offending has had on her manifests itself in her relationship with her husband. Dr Epstein’s opinion is that R3 does not have the full features of post-traumatic stress disorder but does have a mild generalised anxiety associated disorder, with past panic attacks, frequent headaches, heightened levels of anxiety and phobic anxiety, in particular about the safety of her children.
Finally, the judge considered the position of the fourth applicant (‘R4’). She was between four and nine when the offences were committed against her. She is now 42. The judge referred to her victim impact statement. In that, she recorded her feelings of annoyance and anger that she has been robbed of her childhood and has lost control of her life. She has blocked out memories of her childhood and teenage years. She finds it difficult to trust men and is terrified of committing to a relationship. She described her difficulty sleeping and the headaches she suffers. She also expressed her feelings about presenting as a ‘confident normal woman’ so as to disguise that she is ‘fragile and broken and battles days’ where she hides her ‘sad depressing feelings by faking happiness or disconnecting [herself] from the world.’ She summed up her feelings by saying:
I didn’t ask for this to happen to me and yet I have to live with this for the rest of my life and honestly, that isn’t fair. I will never be able to live a normal life, and everyone I am close to will always be thinking ‘is she okay.’
Dr Epstein opined that R4 ‘appears to lead a very bleak existence, with little in her life outside her work and family.’ He continued to say that R4 has a persistent depressive disorder and some manifestations of a chronic post-traumatic stress disorder together with symptoms of traumatisation.
In respect of the respondents, the judge concluded:
It is plain from all those materials the consequences for each of these applicants has been grave, in the case of R2 catastrophic, somewhat less so in relation to R1 and R3 seems to have borne best, with the consequences of the offending but R4 less so.[7]
[7]Ibid [67] (NB: pseudonyms changed from those used at first instance).
The judge next considered whether the amount of compensation that he considered appropriate should be discounted by 25 per cent. It was the position adopted by all parties before the judge that such a discount should be applied. They based that on their interpretation of what was said in RK v Mirik and Mirik.[8]In that case, Bell J contrasted the scrutiny that claims in civil proceedings are subject to with the less rigorous process involved in a s 85B claim for compensation.[9] He continued:
For want of the kind of detailed forensic and judicial examination that is available in civil proceedings, there exists a potential for compensation orders to be made against offenders when they shouldn’t or in amounts that exceed the victim’s correct entitlement. That potential exists in practically every case, and I should guard against it happening here. The offenders have not had the opportunity to test the claims of the victim as fully as they could in ordinary civil proceedings. It is important that injustice is not done to offenders by making assessments of compensation that overshoot the mark. Doing justice by victims can’t be at the expense of doing injustice to offenders. The victim’s right to bring civil proceedings for “any expense or other matter” not satisfied by an order of compensation is not affected by an order under s 85B(1), so any undershoot can be recovered. The offender is in the obverse position.
The court has a discretion under s 85B(1) to order the offender to pay compensation “of such amount as the court thinks fit”. This encompasses a discretion to determine that the amount of compensation will be less than full compensation. By this means the courts can give the victim an appropriate measure of justice without running the risk of doing injustice to the offender. This is a different discretion to the one specified in s 85H(1) to take the financial circumstances of the offender into account. In deciding to order less than full compensation, the court can take into account the limited extent to which the offender has been able to test the claims of the victim in the proceedings under ss 85A–85M. It can reduce the amount that it may have ordered had those claims been fully tested to avoid over-compensating the victim. Of course, the court can order what it considers to be full compensation if it thinks it has a satisfactory evidentiary basis for doing so.
The offenders in the present case have not had the opportunity, by civil trial procedures, fully to test the victim’s claim. But the evidence and admissible materials satisfy me that the victim has substantially established his claim. To avoid overshooting, however, I will reduce the compensation down to 75% of my general assessment of what full compensation might conceivably have been.[10]
[8](2009) 21 VR 623 (‘Mirik’).
[9]Ibid [153].
[10]Ibid [153]–[155]. See also [178] where Bell J repeated these observations in his conclusion to his reasons.
The judge in the present case was critical of any approach that required a blanket 25 per cent reduction to be applied in all cases regardless of the circumstances.[11] However, due to the position taken by the parties before him, he applied a 25 per cent reduction to the figures for compensation that he would otherwise have awarded.[12]
[11]Reasons [63]–[71], [83].
[12]Ibid [62], [72].
Having dealt with that matter, the judge next addressed the financial position of the applicant. At the time that the compensation orders were made, the applicant was 59. He was in prison but the judge recognised that he would need accommodation upon his release.[13] The judge noted that the applicant had assets totalling $677,000 comprised of a house valued at $450,000, cash of $128,000 and superannuation of about $99,000. The total amount of compensation that the judge determined he would award would leave the applicant with assets of about $300,000. The judge said:
Having regard to the pool left of some $300,000, the gravity of the offending and the consequences of the offending, each are reasons why I do not intend to reduce those sums by [dint] of the financial circumstances of Mr Kelley. In particular, not only individually do those three reasons speak against any such deduction, the combination of them provide an overwhelming case for no such deduction or adjustment to be made.[14]
[13]Ibid [73].
[14]Ibid [77].
The judge made compensation orders totalling $375,872 calculated as follows:
Respondent Gross compensation Net compensation[15] Future medical expenses Expenses already received Compensation awarded R1 $120,000 $90,000 $5,000 $95,000 R2 $170,000 $127,500 $10,000 $1,628 $135,872 R3 $80,000 $60,000 $5,000 $592 $64,408 R4 $100,000 $75,000 $5,000 $80,000 [15]After 25 per cent reduction.
Is the compensation awarded too much?
Courts have a discretion as to the amount of compensation to be awarded under s 85B. This Court will not disturb an award unless an error of the House v The King[16] type is identified. The applicant must show that the judge made his decision based upon a wrong legal principle or made a mistake as to the facts or took into account an irrelevant matter or omitted to take into account a relevant matter when weighing the various considerations to arrive at his decision, or he must show that the decision is so unreasonable or plainly unjust that the appellate court can infer a failure to properly exercise the discretion occurred. This last kind of error in cases of the current kind is usually described as manifest excess.
[16](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
The applicant submitted that the compensation orders were disproportionate and excessive. He noted that in the case of R2 and R4, the amounts awarded exceeded the amounts which they had sought by way of compensation. In the case of R1 and R3, the amounts awarded were very close to what they sought. The applicant submitted that this was indicative of the little (if any) weight that the judge had placed on the risk of ‘overshooting’ the order for compensation about which Bell J had spoken in Mirik. In our view, this submission has no substance. The amounts awarded were within the range of compensation that might be awarded. The judge carefully considered the claims, the circumstances of the victims and the circumstances of the applicant and he arrived at figures which he discounted in favour of the applicant.
We would add that Mirik is not authority for the proposition that in all cases a discount of 25 per cent or any other figure should be applied before settling on a final figure for compensation. Nor could such a proposition be correct and indeed it would be wrong to apply a rigid discount in every case. The discretion must be exercised judicially and that requires that all relevant matters and no irrelevant matters be taken into account in the circumstances of the case. In some situations, there may be some doubt about the reliability of the evidence before the court as to the amount of compensation which is sought. Taking that into account, a judge may choose to exercise the discretion by reducing the amount of compensation to be paid. But that will not always be justified. What Bell J did in Mirik was to consider the circumstances in the case before him. He then exercised the discretion to discount the compensation figure. So much is clear from the passage that we have set out above. Bell J also made it clear that he was only concerned with the facts before him when he made his concluding remarks:
When a victim applies to a criminal court for compensation, the court and the offenders are not usually able to examine the victim’s claim as fully as could a civil court in fully contested proceedings. For want of a full forensic and judicial examination of the claim, there is a potential for the court to overshoot in determining the amount of compensation. To avoid doing so, the court can order compensation in a reduced amount of which it is comfortably satisfied, remembering the victim’s rights to obtain full compensation in civil proceedings are not affected. In this case, for that reason, I have decided to reduce the amount of compensation that I might conceivably have ordered by 25%.[17] (emphasis added)
[17]Mirik (2009) 21 VR 623, 660 [178].
In this case, the judge referred to the application of a 25 per cent discount being common in the County Court. If such a practice exists, it should cease. Each case must be considered by reference to its own facts and circumstances, and not by reference to some rigid rule or formula that forms no part of the statutory text.
The applicant’s second criticism of the compensation orders made is that, in his submission, in effect the judge did not have regard to his circumstances, including his financial circumstances. He pointed to the fact that he did not challenge the respondents’ use of the streamlined compensation provisions under the Sentencing Act. Nor did he challenge the respondents or the experts who examined them, nor did he require that the respondents be examined by his own experts. He submitted that his ability to earn an income is extremely marginal. He directed attention to the fact that he is 60, is registered as a sex offender, lacks formal qualifications and had previously been employed in the textile and footwear industry which is a dying industry. In those circumstances, he submitted that the loss of 60 per cent of his assets is ‘simply crushing and beyond the pale.’
We would reject the submission. Again, the judge carefully considered the applicant’s circumstances, including his age and need for accommodation upon release from prison. In particular, the judge gave careful consideration to the assets available to the applicant to pay compensation. We would endorse the reasons of the judge that the gravity of the offending, its effects and the $300,000 pool of assets left over for the applicant are each good reasons why the amount of compensation to be paid should not be reduced because of the applicant’s financial circumstances. We agree with the judge that in combination they provide an overwhelming case against adjusting the level of compensation to be paid. This is not a case where the applicant will be left with a debt that is greater than his assets. Rather it is the reverse as he will be left with a sizeable asset pool. The compensation order will not inhibit his rehabilitation.
Conclusion
It follows from what is set out above that we would dismiss the application for leave to appeal.
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