"L" v "L"
[1999] WASC 262
•1 NOVEMBER 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: "L" -v- "L" [1999] WASC 262
CORAM: McKECHNIE J
HEARD: 1 NOVEMBER 1999
DELIVERED : 1 NOVEMBER 1999
FILE NO/S: MCS 65 of 1999
BETWEEN: "L"
Applicant
AND
"L"
Respondent
Catchwords:
Criminal injuries compensation - Case turns on own facts - No new principles
Legislation:
Criminal Injuries Compensation Act 1970 (WA)
Result:
Application allowed
Representation:
Counsel:
Applicant: Ms R M Parks
Respondent: No appearance
Amicus Curiae : Ms C L Bathurst for Chief Executive Officer, Ministry of Justice
Solicitors:
Applicant: Edward John Myers
Respondent: No appearance
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
M v J and J v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992
The Applicant v Larkin and Others [1976] WAR 199
Case(s) also cited:
B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995
B v W (1989) 6 SR (WA) 79
BMW v RLW, unreported; DCt of WA (Kennedy DCJ); Library No 4614; 12 September 1995
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Glover v Van Den Ancker, unreported, DCt of WA (Muller J); Library No 4962; 20 June 1996
KLH v Dennison, unreported; SCt of WA (Burt J); Library No 5172; 6 December 1983
O v J, unreported; SCt of WA (Wallwork J); Library No 920027; 13 February 1992
RJE v Bandy, unreported; SCt of WA (Burt J); Library No 1365; 31 May 1974
Sideris v Censori [1983] WAR 17
The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199
McKECHNIE J: This is an application for compensation for injuries sustained by the applicant arising from an indecent assault and two rapes committed upon her by her father in 1982 when she was but 9-years-old.
The application is made under the Criminal Injuries Compensation Act 1970 (WA) an Act since repealed, although the Act continues to apply in respect of injuries suffered from offences prior to 1 January 1983. The Director General of the Ministry of Justice has been represented by leave and I am satisfied that the respondent father had knowledge of the application but chose not to appear.
The facts giving rise to the claim
I have granted leave to the applicant to adduce evidence by way of affidavit. The facts can be taken from an annexure to the affidavit, being the applicant's statement made to the police in 1989 which described the first event thus:
"I was just about asleep when I was woken up by Dad. He was touching my breasts. He had his hand up my nightie, underneath my singlet and was touching my breasts.
He told me not to be scared, he wasn't going to hurt me.
I was so petrified of him that I couldn't look him in the face. I was also crying.
Dad placed his hand inside my underpants and started touching my vagina. He put his finger inside my vagina and moved it around.
I told him to stop because it was hurting but he didn't.
Dad then stripped me naked, I was crying and he told me to stop being a sook.
He lay on top of me. He's [sic] underpants were off. I don't know when he took them off.
He put his penis at my vagina and pushed it inside. Dad had intercourse with me for about 15 minutes, but it seemed to take forever.
I remember Dad's penis was stiff and hard. I think he ejaculated inside me because when I woke up the next morning I was all sticky between my legs.
When Dad had finished he got off me and said, 'I love you more than your Mum, I didn't mean to hurt you, I'm sorry, Don't tell anyone because I can get into trouble and Mum will leave me and I won't see you kids again and it will be all your fault.'
In the morning I found that I was bleeding from my vagina. I thought I had got my periods, but I later found out I hadn't. I think it was the result of what Dad had done to me that night."
In relation to the second act of rape she describes it this way:
"About 1 week later, Dad came into my bedroom after everyone had gone to sleep. Dad woke me up and did the same thing to me. This time he licked my vagina before having intercourse with me. Dad told me not to tell anyone again."
On 13 November 1989 the respondent pleaded guilty to the offences, together with other offences of a sexual nature against the applicant and her sister which covered a later period of time. For these offences he was sentenced to 2 years imprisonment for the indecent assault and 6 years imprisonment for each count of rape. The sentences for each rape were made concurrent, one with the other, but cumulative upon the sentence for indecent assault.
The Criminal Injuries Compensation Act 1970 to 1976
The Act provides for the payment of a modest amount of compensation for injuries and loss sustained as a result of the offences committed upon a person, injuries to which they did not contribute directly or indirectly. In 1982 the maximum amount for compensation payable was $7500 for an offence.
It was not suggested of course that the applicant in any way contributed to the offences. The Act also provided that where offences were committed at approximately the same time or are otherwise related to each other, the aggregate of an award shall not exceed $7500.
The first two offences occurred at approximately the same time and are related to each other, in that the indecent assault was an immediate precursor to the rape. The second offence happened approximately one week later. Although the three offences fell within the Criminal Code s 585 and were therefore able to be joined on the one indictment, I do not consider that the second act of rape was "otherwise related" to the first two offences. Therefore I consider the maximum allowable award I may make is for $15,000.
The principles to be applied in assessing injury
The Court applies the normal principles for assessing damages for wrongs caused by one person to another without regard to the jurisdictional limit. On that approach, if the jurisdictional limit is exceeded, then the maximum allowable under the Act will be ordered.
"Injury" is defined under the Act as meaning bodily harm and includes mental shock and nervous shock. This definition was discussed by Wickham J in The Applicant v Larkin and Others [1976] WAR 199 at 201 and later authorities have been gathered together by Scott J. In M v J and J v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992 at 10 ‑ 12.
This Court is therefore confined in its award to the terms of the statute and those terms do not include damages for such things as humiliation or for punishment for the offence.
The effect of a prior award
In this case the applicant has previously obtained a total award of $50,000 in respect of injuries sustained by reason of sexual assaults committed by her father upon her after the three offences the subject of this action. The award distributed in respect of the 1982 and 1985 Acts, the various amounts, and in each case were for three‑quarters of the maximum allowable.
In her reasons for the award the learned Compensation Assessor correctly excluded these offences from consideration. Nonetheless, some of the consequences of the offences now under consideration must inevitably be intermixed with the consequences of the offences the subject of the award by the criminal injuries assessor. As the assessor commented in her reasons:
"It is inescapable that the applicant has suffered significant injury arising from the long term sexual abuse to which she was subjected as a young child and adolescent. As Mr Taylor notes in his report, it has effected [sic] her psychological adjustment and has severely compromised all areas of her life with an accompanying chronic pattern of disturbance of emotion and depressed mood."
In making an award in respect of this application I consider that the applicant has already been compensated for much but not all of the sequelae associated with the mental shock as injury caused by these offences. The applicant is not entitled to be compensated twice for the same injury.
Injuries
The two offences which occurred together were the first two offences. The mental shock occasioned to a 9‑year‑old girl arising from an assault by her father must be significant. When the father inserted his finger into the applicant's vagina she described it as hurting. I doubt though this physical act constitutes bodily harm. However, following the act of rape, the next morning, as I have described, the applicant was bleeding from the vagina. This injury does constitute bodily harm of a significant kind.
I make that finding notwithstanding the lack of a medical report. The applicant was only 9-years-old and the probabilities are that the insertion of an adult penis into a young child would cause serious harm to her. Having regard to the bodily harm I have described, together with the particular mental shock occasioned by the first act of sexual assault by her father upon the applicant, on ordinary principles of liabilities, the damages which would be awarded would exceed to a considerable degree the maximum allowable under the Act. I therefore make an order of $7500 in respect of those.
The second act occurred one week later. The applicant does not depose to any bodily harm on that occasion and I cannot speculate that there may have been some harm of a bodily kind. The principal head of injury is therefore mental shock. For this act of rape I take account of the previous award. At this distance in time, having regard to the history of the applicant from 1982 to present, it is very difficult to separate any one event as leading to the mental shock undoubtedly ultimately suffered by her and in respect of which much compensation has been awarded.
In her statement the applicant does refer to a further rape or sexual assault shortly after and then over the next 4 years until she was 13 she refers to subsequent indecent assaults. The mental shock of a rape occurring within a week of the first rape upon a 9‑year‑old girl must have been significant. Its long-term effects, however, would in all probability have merged with the previous and subsequent acts of assault, whether indecent or sexual, to cause the injury by way of mental and nervous shock for which compensation has already been ordered and which is detailed in the report of Mr Taylor. I therefore largely exclude those consequences from consideration and I make an award of $4000 for the second act of rape.
The order is that the applicant be paid compensation in the sum $11,500 out of the property of the respondent for injuries suffered by the applicant by reason of the commission of one count of indecent assault and two counts of rape, being counts 1 to 3 respectively on an indictment in respect of which the respondent was convicted on 16 November 1989.
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