Knox (a pseudonym) v Frecker (Ruling)
[2021] VCC 1548
•1 October 2021
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| IN THE MATTER OF AN APPLICATION FOR COMPENSATION PURSUANT TO SECTION 85B OF THE SENTENCING ACT 1991 (VIC) | ||
| BETWEEN: | ||
| LARA MICHAELA KNOX (a pseudonym) | Applicant | |
| v | ||
| JAKE SAMUEL FRECKER | Respondent | |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | via e-hearing | |
DATE OF HEARING: | September 2021 | |
DATE OF RULING: | October 2021 | |
CASE MAY BE CITED AS: | Knox (a pseudonym) v Frecker (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1548 | |
RULING
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Subject:CRIMES COMPENSATION
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991 – injury to left side of face and left hip and psychological injuries following an assault
Legislation Cited: Sentencing Act 1991 (Vic), s85B; Victims of Crime Assistance Act 1996
Cases Cited:DPP v Frecker [2020] VCC 834; Stevens v Baxter [2009] VSC 257; RK v Mirik[2009] VSC 14; V1 v Xydias [2009] VSC 616
Ruling: Compensation Order made in favour of the applicant in the sum of $137,032.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms I Braun | Solicitors for the Applicant |
| For the Respondent | Mr T Lock | Solicitors for the Respondent |
HIS HONOUR:
Introduction
1By an application lodged 21 June 2021, Lara Knox (a pseudonym) seeks compensation from Jake Frecker under s85B of the Sentencing Act 1991 (Vic) (“the Act”).[1]
[1]Although the application is made out of time, the respondent takes no issue. I will extend the time in which the application is made for it is in the interests of justice to do so.
2On 19 January 2019, Mr Frecker assaulted Ms Knox. She suffered injuries, mainly to her face. She required surgery. Prior to this assault, the parties were in an intimate relationship.
3On 16 June 2020, a judge of this Court sentenced Mr Frecker on four charges to a total of six years’ imprisonment with a non-parole period of three years and eight months’ imprisonment.[2] The most significant charge was intentionally causing serious injury, for which the sentence was five years’ imprisonment. The other charges were a charge of persistently contravening a family violence intervention order and two charges of contravening a family violence intervention order. Two of those charges related to another woman.
[2]DPP v Frecker [2020] VCC 834
4The circumstances of the assault are set out in the sentencing remarks of the judge. With minor alterations, I will quote paragraphs 9 to 14 of those remarks.
Circumstances
5Mr Frecker met the second victim, Ms Knox, in February 2018. She was then thirty-five years of age. They began a relationship shortly afterwards. She told investigators that from about April or so of that year, she noticed that Mr Frecker would become angry at times for no apparent reason. Over time, his behaviour became more controlling and by October 2018, he had become physically violent towards her by pushing her.
6On 16 January 2019, Mr Frecker and Ms Knox visited her cousin. There were a number of people present, all drinking alcohol. Ms Knox received a group message from an ex-boyfriend with whom she had remained in contact for the purposes of her work. After seeing the message, Mr Frecker became angry and went outside and got into his car.
7Ms Knox and her cousin followed him and tried to grab the car keys from him because they believed he had drunk too much alcohol to safely drive. He pushed Ms Knox away and drove off. She then followed in her car back to his home. When he got out of his car, Ms Knox approached him and asked him whether he was okay. He told her to “fuck off cunt”. He then grabbed her and threw her to the ground and put his hand to her chest to hold her down as he stood over her. He was swearing and yelling at her and proceeded to grab her around the neck and continued to push her down as she tried to get up. He then punched her to the left side of her face.
8Eventually, he let her up and she began walking to the front door, however, without warning, he again punched her to the left eye. Ms Knox was understandably very upset and crying, and went inside to the bathroom to look at her face. Her cheek was swollen. She turned to him and said, “it’s not okay that you did that”. This made him become even angrier. He took her car keys, then grabbed her arm and dragged her outside whilst she struggled with him. He yelled at her, “get the fuck out”.
9Once outside, he pushed her against the wall of the house and told her to calm down. He said “do you want me to give you another one?”. Ms Knox said “no”, and tried to push him away but he would not let her go. He then punched her again to the left side of her face, which caused her to fall back onto the ground and lose consciousness. He then began dragging her by the arm inside the house.
10Ms Knox’s next memory was of her lying on the tiles in the front doorway. He yelled at her “you still have a pulse so you can get up”. By this stage, she was unable to open her eye and she could not feel the side of her face. She said, “I need you to call an ambulance please”. He told Ms Knox that he would call her mum and dad and an ambulance if she needed one. He got something cold and put it on her face and told her that it was going to be all right and that it was not that bad.
Injuries
11Ms Knox was taken to the local hospital by ambulance. CT scans were taken of her brain, spine and facial bones. The scans of the brain and spine did not reveal any abnormalities. However, the scans of the facial bones revealed a comminuted, depressed left orbital floor fracture extending through the posterior third. There was no entrapment of inferior rectus but there was a small fleck of air immediately inferior to the left optic nerve and inferior rectus muscle secondary to the fracture.
12Her left eye was swollen and closed. She had severe pain in the left side of her jaw. She suffered soft tissue injuries, comprising scratches and bruises to her arms, neck and chest. She suffered grazes to her left leg after being dragged along the ground. Three of her teeth were cracked and required dental treatment.
13The facial injuries have left Ms Knox disfigured. In her words:[3]
“… The shape of my left eye is now smaller than my right eye and my smile is lopsided on the left side of my face. I need regular Botox injections to the side of my left eye to correct my displaced eye and to my lips to correct my crooked smile. I have limited left eye movement and cannot look upwards directly. I have no feeling in the entire left side of my cheek or in the left side of my gums. … .”
[3] Affidavit sworn on 22 July 2021 at paragraph [8]
14As a result of being dragged along the ground during the assault, she suffered an injury to her left hip. She experiences constant discomfort. She needs help with high steps. She uses a handrail to climb stairs. She limps. She cannot walk for long. She has difficulty getting into and out of a motor vehicle. She has had five corticosteroid injections into the hip. These injections relieve the pain. The last occurred recently. This was to enable her to resume bicycling. For the bursitis, she has used anti-inflammatory medicines but they do not help. She is treated by a chiropractor monthly for her hip and lower back. She also attends her general practitioner regularly.
15Ms Knox is very conscious of her disfigurement. She cannot bear to look at herself in a mirror. In her words, she hates the scar under her left eye and the round lump, the shape of her left eye and her crooked smile.
16Psychologically, Ms Knox has been diagnosed as suffering from Post-Traumatic Stress Disorder. She attempted suicide following a flashback of part of the assault. Her description is:[4]
“… the Offender left me injured on the cold tiles and when I asked for the ambulance he felt my pulse and told me ‘you still have a pulse you can get up yourself’. I have recurring nightmares about that exact moment.”
[4] Affidavit sworn on 22 July 2021 at paragraph [11]
17She feels nervous and vulnerable in public. She avoids crowds. When she does venture in public, it is with a small group of people she trusts. As an example of her ongoing anxiety, if in a restaurant, she will sit with her back against the wall. This ensures there is no one behind her and she can see those in front.
18Even in the company of friends, her concentration lapses so that she loses track of the conversation. The issue with concentration sees her avoiding driving. She relies now on family and friends to drive her.
19She tries hard to appear normal. This pretence takes its toll. After a few weeks of pretending, she will crash. She wants to stay in bed. She cries uncontrollably.
20Ms Knox attended counselling sessions with Ms Jane Dee (a pseudonym), a mental health clinician, and now with a psychologist.
21Ms Knox has claimed assistance under the Victims of Crime Assistance Act 1996. The Victims of Crime Assistance Tribunal (“the Tribunal”) has awarded assistance comprising the following items:
(a) Special financial assistance – $10,000;
(b) Clothing – $79.90;
(c) Loss of earnings – $3,750.00;
(d) Medical expenses – $4,760.79;
(e) Travelling expenses and accommodation – $1,128.19;
(f) Travelling expenses relating to car use – $1,077.70.
22The Tribunal authorised eight Botox injections over two years at a cost of $150 each.
23Earlier, the Tribunal made a series of interim awards:
(a) On 10 May 2019, for 20 sessions of counselling in the amount of $2,700.00;
(b) On 23 May 2019, for physiotherapy in the amount of $630.00 and personal training in the amount of $880.00;
(c) On 11 September 2019, for health and fitness in the amount of $1,280; and
(d) On 5 December 2019, for an additional 20 sessions of counselling in the amount of $2,600.00.
24Ms Knox’s application for EMDR treatment and further Botox treatment was rejected by the Tribunal.
25As part of her application, Ms Knox submitted the reports of several medical and other practitioners.
Dr Kenneth Jones
26Dr Kenneth Jones (a pseudonym) is Ms Knox’s general practitioner. Relying on scans, he diagnosed the injury to her left hip as gluteal tendinopathy and trochanteric bursitis. He noted a Trendelenburg gait. Despite corticosteroid injections in July and September 2019, she still suffers pain. He anticipated ongoing treatment without saying what precisely and for how long.
Mr Brett Archer
27Mr Brett Archer is a surgeon. Dr Barton, a plastic and reconstructive surgeon, referred Ms Knox to him. Dr Barton reconstructed the blow-out fracture of the left orbital floor. Her face was further injured by nerve synkinesis due to aberrant reinnervation of the damaged facial nerve. This causes irregular and uneven tone and spasm of her periocular muscles.
28Mr Archer treats the condition with regular, three-monthly injections of Botox. His prognosis is pessimistic and expects the need for three-monthly injections of Botox. In late 2020, the cost of each injection was $150.
Jane Dee
29Jane Dee is a mental health clinician. She is neither a psychologist nor psychiatrist. However, she has worked with Ms Knox on the symptoms of her Post-Traumatic Stress Disorder with little success.
30On 24 April 2019, Ms Dee prepared an initial report in support of the applicant’s Victims of Crime Assistance Application.
31Ms Dee stated, at s5.1 of the initial report, that Ms Knox suffered from:
“Insomnia
Heightened anxiety
Significant depressive symptoms
Avoidance of conflict
Hyper vigilance
Persistent intrusive negative self-talk and thoughts
Ca[ta]strophizing of situations and intrusive irrational fears
Difficulty in forming intimate connections to others
Flashbacks/ nightmares
DASS Scores indicate moderate to severe rating on stress, anxiety and depression indicators.”
32At section 5.3, she said:
“Ms … [Knox] presented after the incident and her symptoms were congruent of an individual suffering with post traumatic stress (GP AND Psyc[hi]atrist … have confirmed diagnosis). Ms … [Knox] reports that these symptoms were not present before the incident occurred.”
33On 2 December 2019, Ms Dee prepared another report in support of Ms Knox’s application to the Victims of Crime Assistance Tribunal. At section 4.1, she said:
“…
DASS Scores indicate moderate to severe rating on stress, anxiety and depression indicators, which has continued to fluctuate prior, during and post court appearances, this has created significant difficulty in Ms … [Knox’s] recovery as she is often experiencing significant distress during these periods, with symptoms taking a number of weeks to stabilise.”
34Ms Dee supported the recommendation of Ms Knox’s psychiatrist at the hospital that she undertake Eye Movement Desensitisation and Reprocessing therapy (EMDR) at The Melbourne Clinic.
The Melbourne Clinic
35The Melbourne Clinic (“the Clinic”) provides a 28-day inpatient EMDR therapy. In a letter dated 19 July 2019, the Clinic described the nature of the treatment, details of the programme and an assertion that it is effective in treating Post-Traumatic Stress Disorder. The estimated cost of the therapy was then $34,400. It is now $36,232.00.
Financial position
36This is one of those rarer cases where the respondent does possess assets.
37First, Mr Frecker is the sole registered proprietor of a property in Victoria. Recently, an estate agent estimated its value at between $470,000 and $500,000.[5] The property is encumbered by:
(a) a registered mortgage to the Commonwealth Bank. As at 30 June 2021, the amount outstanding under the mortgage was about $298,000;
(b) a debt to a builder. In February 2019, the amount of the debt was $3,859.23. The debt still exists and the amount outstanding remains about the same;
(c) a debt to Tradelink Pty Ltd, of which about $16,000 is still owing.
[5] Letter dated 24 May 2021
38Second, Mr Frecker has other assets: a motor vehicle, worth about $26,000, and superannuation with a current balance of $32,059.43.
39He has liabilities: a loan for the purchase of the motor vehicle of which about $29,700 is owing; and a bank credit card and Mastercard debts totalling about $13,700.
40While in prison, Mr Frecker has commenced a bachelor’s degree in business. He has completed one unit of the 24 units in the degree. Normally, the degree takes four years to complete. On completion, Mr Frecker will have incurred a HECS debt of $33,000.
Legal considerations
41Section 85B(1) of the Act provides that if a court finds a person guilty, or convicts a person, of an offence, it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit.
42Section 85B(2) provides that a compensation order may be made up of amounts derived from four categories. In this application, the relevant categories are pain and suffering and for the expenses actually incurred, or reasonably likely to be incurred, by the victim for medical and counselling services.
43In sub-section (1) and the paragraphs of sub-section (2), Parliament emphasises the type of causal relationship required between the injury or the consequences of the injury and the offence by using the expression “as a direct result of the offence”.
44This requirement presents no issue in this application. The physical and psychological injuries suffered by Ms Knox were a direct result of the offences committed by Mr Frecker upon her. The submission that the Post-Traumatic Stress Disorder is not entirely attributable to the assault is without merit, for there is no evidence supporting the proposition.
45In s85A(1), the word “injury” is defined to include mental illness and disorder and the words “medical expenses” are expanded beyond its usual meaning to include dental, optometry, physiotherapy, psychology treatment, hospital and ambulance expenses.
46Section 85H of the Act reflects the fact that this proceeding is part of a criminal process. It provides:
“(1) If a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose.
(2)A court is not prevented from making a compensation order only because it has been unable to find out the financial circumstances of the offender.”
47In Stevens v Baxter,[6] J Forrest J summarised some of the principles applicable to these applications. His Honour derived those principles from the earlier judgment of Bell J in RK v Mirik:[7]
(a) in general, the principles that relate to an assessment of damages at common law are applicable to the assessment of compensation. However, the order is for compensation, not for damages. In Stevens’ case, the applicants claimed compensation for grief and trauma which are compensable under s85B but not at common law. Another example of the difference between damages at common law and compensation under s85B is that an order cannot include the equivalent of aggravated or exemplary damages;
(b) Section 85H reflects a concern by Parliament as to the potential adverse effect on an offender’s rehabilitation of an award of compensation against him or her. It is relevant to consider the prospects for the offender’s rehabilitation, and the extent to which, if any, an award of compensation might adversely impact on the offender’s rehabilitation;
(c) that consideration does not necessarily require that the Court moderate the amount of compensation awarded to cater for the offender’s rehabilitation. It has been described as a “relevant but not controlling consideration”;
(d) there are cases where the Court could exercise its discretion to order compensation despite the offender’s lack of means and the burden that payment of compensation would impose. In such cases, the interests of giving the victim just civil compensation will have priority over the interests of the offender in avoiding that result in criminal proceedings.
[6] [2009] VSC 257 at paragraph [5]
[7] [2009] VSC 14
48Section 85I of the Act provides:
“If a court decides to make a compensation order, it must reduce the amount of the compensation by the amount of any award made to the victim under the Victims of Crime Assistance Act 1996 for the expense or other matter for which compensation is being sought under this Subdivision.”
Discussion
49Ms Knox suffered injuries as a direct result of Mr Frecker’s assaults. The injuries are physical and psychological.
50The physical injuries are to the left side of her face and left hip. The former required surgery to repair the fracture of her left eye socket. But she has been left with permanent damage in the form of symptoms and disfigurement. The symptoms are the lack of feeling on the entire side of her left cheek and the left side of her gums. Her ability to move her left eye is restricted. After more than thirty months from the assaults, these symptoms can be considered permanent.
51The condition of her left hip has been diagnosed by Dr Jones. It remains painful at times. It has left her with an abnormal gait, described as a Trendelenburg gait. It restricts her activities. However, she intends to undertake a 518-kilometre bike ride over a week. The injections in 2019 did not resolve the condition. Whether they helped, I do not know. Dr Jones’ report does not speak of future treatment, if any, or give a prognosis. I cannot say as to the future of this injury except that it still affects Ms Knox now.
52Ms Knox has been diagnosed with Post-Traumatic Stress Disorder. My experience in dealing with cases of this disorder in the courts shows that it can be difficult to treat successfully. It is clear Ms Knox remains affected by some of its symptoms. In the past, after experiencing a flashback of an episode in Mr Frecker’s assault upon her, she attempted suicide. It goes without saying, that this is a most serious consequence of a psychological disorder. She remains anxious in public and takes steps to reduce her anxiety.
53The disorder has not prevented her from returning to work. She is employed in a significant role. I daresay she is very capable, for she has a boss who understands her psychological problems and will make allowances.
54Part of her claim is the expense of EMDR therapy. This can be successful in treating this disorder. Ms Knox has not incurred the expense. I am satisfied the expense is reasonably likely to be incurred. It is recommended by those treating her as a means of resolving the symptoms of her disorder. She is keen to undertake the treatment as she feels she has made no progress in the last two years. The fact that the Tribunal rejected the claim is immaterial. I would include the costs of the proposed treatment in my order. In assessing the pain and suffering component, I will assume the treatment will achieve a measure of success in resolving her symptoms of the disorder. Her existing treatment has had little impact on her symptoms. Given the severity of her symptoms, a recommended and proven method of treatment should be pursued.
55The respondent’s counsel submitted Ms Knox had waived her counselling expenses in this application. Even though I doubt one can waive a statutory entitlement, as opposed to simply not claiming it as part of an application, there is no evidence of waiver in this application.
56In relation to s85I and in its recent award, the Tribunal awarded $10,000 for special financial assistance and authorised $1,200 of Botox treatment. Special financial assistance is a statutory form of financial assistance bearing some of the hallmarks of compensation for pain and suffering. However, the respondent submitted the compensation order should be reduced by the entirety of the amount awarded recently, that is, $21,796.58, if one includes the authorised amount.
57Section 85I is aimed at avoiding a double payment. Only two aspects of the recent award and none of the earlier interim awards are duplicated. They are the award of $10,000 for special financial circumstances and the authorised payments for the Botox treatment. I will reduce the compensation order by $11,200 and not by the larger amount, because those other amounts are not duplicated.
58The applicant submitted I should be guided by the amount awarded for special financial assistance in determining the pain and suffering component of the compensation order.
59The amount awarded provides no guidance. Special financial assistance is a simple, modest form of assistance. The amounts achievable for injuries are always modest and, in some cases, extremely so.
Mr Frecker
60Mr Frecker is now twenty-eight. My order will largely eliminate his equity in his property but will leave him with his motor vehicle and his contingent entitlement to superannuation. He has several debts over and above those attaching to the property.
61Apparently, he is a capable person. He achieved much while employed by Trade Link. He has been studying in prison. He wishes to return to the area after his release from prison. The fact that Ms Knox’s ordeal has generated considerable publicity in that area and it is adverse to him has little relevance to my task. It may inhibit his rehabilitation in that community but the financial impact of my order will not inhibit his rehabilitation to the extent that it would cause me to moderate the amount.
62His counsel submitted the compensation order represented a form of finality, enabling both victim and offender to move on with their lives. However, a compensation order does not necessarily bring civil litigation between the parties to an end, for whatever happens in this application does not detract or affect the ability of Ms Knox to sue for damages (see s85L).
63His counsel also cast doubt upon the value of the property. He submitted if the property was placed for sale, the fact of Mr Frecker’s crime would need to be disclosed to potential buyers. Even if there was such a need, there is no reason to suppose that an assault, as opposed to say, a homicide, would make any difference to a price achievable on a sale.
Conclusion
64I will order Mr Frecker to pay Ms Knox compensation comprising:
(a) pain and suffering – $100,000;
(b) Botox treatment – $12,000;
(c) EMDR therapy – $36,232.00.
65After deducting $11,200, I will order Mr Frecker to pay Ms Knox the sum of $137,032.
Costs
66Ms Knox’s counsel foreshadowed an application for costs if Ms Knox was successful in her application. If such an application is made, I draw the parties’ attention to this passage in Stevens v Baxter:[8]
“… Section 85K of the Sentencing Act mandates that each party ‘must bear their own costs of the proceeding’ unless the Court otherwise determines. Although counsel advised me that in applications in the County Court there have, on occasions, been orders for costs against the offender, the clear tenor of the section is that the costs should lie where they fall, absent unusual or special circumstances. Such circumstances, it seems to me, cannot be the events surrounding the crime as one would imagine that in many, if not all, cases in which applications under s 85B are made the circumstances are such that a Court would (absent legislative direction) be readily disposed to order costs in favour of the victim or victims.”
[8] (Supra) at paragraph [37]
67Ms Knox’s counsel referred to V1 v Xydias[9] and the factors set out by Warren CJ. The question of costs was considered in paragraphs 124 to 127 of the judgment. Although her Honour did not refer to unusual or special circumstances, it is plain that the case contained them. There were five applicants, each of whom had been subjected to rape and indecent assault by the respondent. The circumstances of the offending was such that Warren CJ described them as unprecedented in this state.
[9][2009] VSC 616
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