Lawson (a pseudonym) v Bain (a pseudonym) (Ruling)
[2024] VCC 1865
•29 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| ANNA LAWSON (A PSEUDONYM) | Applicant |
| v | |
| MICHAEL BAIN (A PSEUDONYM) | Respondent |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20 and 27 June 2024 | |
DATE OF RULING: | 29 November 2024 | |
CASE MAY BE CITED AS: | Lawson (a pseudonym) v Bain (a pseudonym) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1865 | |
RULING
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Subject:CRIMES COMPENSATION
Catchwords: Application for a compensation order pursuant to s85B of the Sentencing Act 1991 – sexual assaults
Legislation Cited: Judicial Proceedings Reports Act 1958; Sentencing Act 1991, s85B, s85H, s85I, s85K; Victims of Crime Assistance Act 1996
Cases Cited:Moresco & Ors v Budimir [2015] VSC 51; Kaplan v Lee-Archer (2007) 15 VR 405; V1 & Ors v Xydias [2009] VSC 616; Hird (a pseudonym) v Demasi [2023] VCC 1228; AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233
Ruling: Judgment in favour of the applicant in the sum of $90,000 as an award of compensation. Order that the respondent pay the applicant’s costs of the application.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms I Braun | Schembri McCluskys Pty Ltd |
| For the Respondent | Mr J Petras | Taylor Rose Australia |
HER HONOUR:
Introduction
1The names of the parties have been substituted with pseudonyms in accordance with the Schedule of Substitution dated 20 August 2021 made by Her Honour Judge Gwynn and in accordance with s4(1A) of the Judicial Proceedings Reports Act1958. For the sake of convenience I have added a first name to the applicant’s name as she was referred to as “Ms Lawson” by Her Honour Judge Gwynn.
2This application is made pursuant to s85C(b)(i) of the Sentencing Act 1991 (Vic) (“the Act”) and was filed with the Court on 13 December 2022.
3The applicant and the respondent are cousins. The applicant seeks compensation pursuant to s85B(1) and s85B(2) of the Act for pain and suffering occasioned by the offending. No claim was made for treatment costs in this application.
4The application was heard on 19, 20 and 27 June 2024. Ms Braun of Counsel appeared on behalf of the applicant and Mr Petras of Counsel appeared on behalf of the respondent.
Legal principles
5Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from an offender.
6This application is a civil proceeding and the civil standard of proof, the balance of probabilities, applies.
7As well as actual physical bodily harm, “injury” is defined in the Act to include mental illness or disorder, or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock. It also includes grief, distress or trauma, or other significant adverse effects, or any combination of those matters.[1]
[1]See s85A
8The definition of injury under the Act is broad and more extensive than found at common law.
9The rationale behind compensation orders are that they should provide a convenient mechanism for the recovery of compensation by victims. The applications are intended to be quick, cheap and built upon the criminal proceedings. A compensation order is designed to avoid the complex technical rules of procedure that may properly apply to a civil application for damages at common law.[2]
[2]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [17]
10In summary, the relevant principles are:
·The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the Court, provided that the claim falls within the category set out in s85B(2) of the Act.
·An order for compensation is determined by the application, where relevant, of common law principles. However, the order is one for compensation, not damages.
·Where there is a claim for pain and suffering, the pain and suffering must be a direct result of the offence or offending.[3]
·Unlike a common law claim for damages, the financial circumstances of the respondent are a relevant consideration. The Court is not obliged to reduce the amount of compensation payable based on the offender’s financial circumstance. A respondent’s financial circumstances are relevant, but not a controlling factor.
[3]See s85B(2)(a)
11In this case, it is not disputed that the applicant was a victim, nor was it disputed that her claim properly falls under s85B(2)(a) of the Act.
Background
12The applicant is now aged 66. The offending was perpetrated by the respondent in late 1972, when the applicant was aged 14.
13The respondent is now aged 77. He was 25 years old when the offending occurred.
14On 30 July 2021, the respondent pleaded guilty on indictment to one charge of carnal knowledge of a girl between ten and sixteen years. The charge was a “rolled-up” charge which captured more than one instance of offending.
15On 20 August 2021, the respondent was sentenced by Her Honour Judge Gwynn of this court to two-years-and-nine months’ imprisonment, wholly suspended for two years.
16The circumstances of the offending are set out in detail in the Sentencing Remarks of Her Honour Judge Gwynn dated 20 August 2021.[4] I do not propose to restate the circumstances, but summarise them as follows:
·The applicant resided in the Victorian countryside. She had a teenage pregnancy. During the last trimester of that pregnancy, she was sent by her family to stay at her aunt’s house in suburban Melbourne, which was where the respondent lived.
·In October 1972, the applicant went into labour and the respondent drove her to the Royal Women’s Hospital, where she gave birth. The child was put up for adoption. The applicant returned to her family home in the Victorian countryside.
·Approximately six weeks after giving birth, the applicant returned to Melbourne for a medical appointment. She stayed at the respondent’s family home.
·While at the respondent’s family home, she and the respondent went on a social outing and sexual intercourse took place. According to the Sentencing Remarks, the applicant experienced pain during the sexual act and requested the respondent to stop. The respondent continued the sexual act.
·Following the sexual act, the respondent threatened the applicant and told her not to disclose what had occurred.
·In December 1972, the applicant and respondent went to another social outing and sexual intercourse occurred at the end of that social outing. The respondent repeated the threat which was made on the previous occasion.
[4]Applicant Exhibit 6
The hearing
17The hearing was emotionally charged with palpable anger and bitterness displayed by both the applicant and respondent.
18The hearing began on 19 June 2024 and proceeded on 20 June 2024. It was then adjourned to 27 June 2024, as a result of an issue which arose from the evidence of the respondent’s expert witness, Dr Russell Pratt, psychologist. It became apparent during the cross-examination of Dr Pratt that not all his reports had been served or produced.
19The Court ordered the respondent to file and serve all further material, including all reports of Dr Pratt, together with any case notes, conference notes and emails relating to Dr Pratt’s reports.
20Further material was filed in accordance with the Court’s order.
21On 27 June 2024, Dr Pratt was cross-examined further and the parties made submissions.
The issues in dispute
22The respondent’s position was summarised as follows:
·He did not deny a compensation order should be made.
·He did not deny his offending has caused considerable grief to the applicant.
·He disputed the applicant’s expert material and the level of severity of the applicant’s complaints or symptoms.
·He relied on his personal circumstances and the nature of any financial burden which would be imposed by any compensation order made.
The material
23The following material was tendered:
·Exhibit A1: Application for Compensation, dated 13 December 2022;
·Exhibit A2: Affidavit sworn by the applicant’s solicitor, Anita Plesa, on 13 December 2022;
·Exhibit A3: Three police statements of the applicant, dated 9 February 2018, 14 June 2018 and 4 October 2019;
·Exhibit A4: Victim Impact Statement of the applicant, dated 14 July 2021;
·Exhibit A5: Affidavit of the applicant, sworn 13 June 2023;
·Exhibit A6: Sentencing Remarks of Her Honour Judge Gwynn, dated 20 August 2021;
·Exhibit A7: Restraining Order made by Her Honour Judge Hinchey, dated 8 November 2022;
·Exhibit A8: Report of Geraldine Maibani-Michie, social worker, dated 28 October 2021;
·Exhibit A9: Reports of Ms Gina Cidoni, psychologist, dated 10 August 2023 and 9 November 2023;
·Exhibit A10: Victims Of Crime Assistance Tribunal (“VOCAT”) Award, dated 2 June 2022;
·Exhibit A11: List of applicant’s medication as at 26 June 2024;
·Exhibit A12: Report of Dr Russell Pratt, psychologist, dated 23 October 2023;
·Exhibit A13: Email from respondent’s solicitors addressed to Dr Pratt, dated 27 September 2023;
·Exhibit A14: Email from respondent solicitors to Dr Pratt, dated 13 September 2023;
·Exhibit A15: Email from Dr Pratt to respondent’s solicitors, dated 24 October 2023;
·Exhibit R1: Affidavit of respondent, sworn 13 September 2023;
·Exhibit R2: Affidavit of respondent’s wife, sworn 11 September 2023;
·Exhibit R3: Reports of Dr Pratt, dated 23 October 2023 and 5 February 2024;
·Exhibit R4: Mercy Health e-Discharge Summary relating to respondent, undated;
·Exhibit R5: Letter from Dr Pratt addressed to the respondent’s solicitors, dated 18 September 2023;
·Exhibit R6: Email from Dr Pratt to respondent’s solicitors, dated 24 October 2023; and
·Exhibit R7: Email from Dr Pratt to respondent’s solicitors, dated 24 October 2023.
24In addition, the parties produced the following documents to summarise their positions:
·Outline of the applicant’s submissions;
·Outline of the respondent’s submissions, dated 26 October 2023;
·Outline of the applicant’s submissions regarding extension of time dated 14 August 2023; and
·Outline of the respondent’s submissions regarding extension of time dated 10 July 2023.
25I have considered all the tendered evidence, the oral evidence, the oral and written submissions of the parties and all documents handed up, but I shall only refer to the materials to the extent necessary to understand these reasons.
The applicant
26The applicant’s Victim Impact Statement dated 14 July 2021[5] speaks eloquently of the effect the offending has had upon her. I have adopted the same approach as Her Honour Judge Gwynn to this document in that, insofar as it may contain inadmissible portions, I have not paid attention to those portions.
[5]Applicant Exhibit 4
27The Victim Impact Statement highlighted the applicant’s sense of loss, fear, abandonment, isolation and grief, as well as the betrayal perpetrated by the respondent.
28In addition to the Victim Impact Statement, I have read and considered the applicant’s police statements and her Affidavit sworn on 8 June 2023, which was an Affidavit in support of her application for extension of time, but also included a description of the impact of the offending upon her.
29The applicant experiences flashbacks, anxiety, insomnia and panic attacks in response to exposures that remind her of the offending, such as hearing particular music and seeing a particular type of dress or motor vehicle. She has engaged in self-destructive behaviour, particularly alcohol abuse.
The applicant as a witness
30I have had the opportunity to see and hear the applicant give evidence. It is clear that the offending continues to impact upon the applicant.
31The applicant’s resentment towards the respondent, who was seated in the Court, was obvious. She gave evidence that the respondent had made her “hate men”.
32The applicant was challenged about the extent to which the respondent’s offending contributed to her current psychological issues.
33She was cross-examined about a number of other matters which it was suggested had the potential to impact upon her mental state. The cross-examination covered areas which were obviously distressing to the applicant, including her early marriage, her teen pregnancy and her upbringing.
34She appeared to downplay the difficult circumstances surrounding her teenage pregnancy.
35In contrast, her descriptions of how various sensory stimuli could remind her of the offending which then triggered physical responses such as sweaty hands and upper lip were compelling.
36The applicant is not attending a psychiatrist. She said that a counsellor attends her home every 4 weeks.[6]
[6]No material was produced to support this assertion.
37She said she was taking anti-depressants – this is dealt with in more detail later in this judgment.
38The applicant has had a difficult life, both before and after the offending which occurred just over 50 years ago when she was 14 years old.
39I have formed the view that she downplayed how difficult and distressing it would have been to have a teenage pregnancy at age 14-15, to be sent to live away from her parental guardians during the third trimester of that pregnancy and to ultimately surrender the child for adoption.
40I have taken into account her obvious antipathy towards the respondent and her tendency to downplay the impacts of other life stressors on her current psychological issues/trauma.
41I have taken into account how her anger may have impacted upon her evidence. This may or may not be part of her elevated response style.[7] I make no specific finding on this point.
[7]Whilst Ms Cidoni referred to the applicant’s “elevated response style” in her oral evidence, she was not asked to comment on the applicant’s presentation to the Court.
42I find that the applicant was overall a truthful witness, noting that some of her evidence was unreliable, as it appeared to be motivated by her current feelings towards the respondent.
43As Her Honour Judge Gwynn noted, it was accurate to describe the impact of the offending upon the applicant as “profound”[8] and I adopt that description.
[8]Applicant Exhibit 6 at paragraph [45]
The respondent
44Despite his plea of guilty, the respondent disputed certain circumstances of this application. In particular, he denied he had made threats to the applicant.[9]
[9] Respondent Exhibit 1, Joint Court Book (“JCB”) 120 at paragraph [51]
The respondent as a witness
45The respondent presented to the Court as resentful and angry.
46The respondent was vigorously cross-examined. He became argumentative with Counsel and was not prepared to make concessions.
47The respondent said the applicant wore provocative clothes, that he was unaware she was underage and that her allegations caused marital disharmony for him. These comments were inconsistent with the guilty plea and showed a lack of remorse, and can properly be described as “victim blaming”.
48He was not an impressive witness and appeared more focused on the harm which he perceived had been done to him, rather than the harm to the applicant.
The respondent’s wife
49The respondent tendered an Affidavit from his wife dated 11 September 2023, but later advised the Court he would not call her as a witness and did not intend to rely on her Affidavit.
50The Court has therefore paid no regard to the contents of her Affidavit.
The applicant’s medical material
51The applicant did not tender any material from her treating general practitioner other than a list of medication. She did not produce any up-to-date material from a counsellor.
Treating practitioners
Ms Geraldine Maibani-Michie
52The applicant tendered a report from her social worker, Ms Maibani-Michie, dated 28 October 2021.[10] The report was obtained for the applicant’s Victims Of Crime Assistance Tribunal application.
[10] Applicant’s Exhibit A8 at JCB 58-63
53The applicant attended 3 one-hour counselling sessions with Ms Maibani-Mitchie, which commenced on 2 September 2021.
54Ms Maibani-Mitchie recorded an array of Post-Traumatic Stress Disorder (“PTSD”) symptoms including re-experiencing the trauma, avoidance of external reminders of the offending, hypervigilance, difficulties sleeping, strong feelings of horror, fear and anger, difficulties with concentration, heart pounding, difficulties breathing, headaches and flashbacks. Similar symptoms were recorded as manifestations of her experiences of stress, anxiety and depression.
55Ms Maibani-Mitchie noted that the applicant experienced flashbacks from time to time.
56Ms Maibani-Mitchie recommended a further 20 counselling sessions. The applicant had previously accessed 6 CASA (Centre Against Sexual Assault) counselling sessions.
Medication summary as at 24 June 2024
57As mentioned above, the applicant tendered a medication summary.[11] The applicant submitted the 8 medications in the list were prescribed by her general practitioner, Dr Ken Mulligan.
[11] Applicant’s Exhibit A11
58The applicant did not produce any material from Dr Mulligan. Nor was there any other evidence before the Court from any other treating doctor explaining the purposes of each medication.
59In the absence of any evidence from a treating doctor, I am not prepared to infer why any of the above medication has been prescribed.
Medico-legal evidence
Ms Gina Cidoni
60The applicant tendered two reports from psychologist, Ms Cidoni, dated 10 August 2021 and 9 November 2023.[12] Ms Cidoni gave evidence and was cross-examined.
[12]Applicant’s Exhibit A9 at JCB 134-141 and JCB 145-146
61In her reports, Ms Cidoni diagnosed Complex Post-Traumatic Stress Disorder (C-PTSD) and Major Depressive Disorder. In her oral evidence, she explained that C-PTSD incorporated symptoms of traditional PTSD, but extended to encompass difficulties with emotional regulation, negative self-concept and persistent challenges in interpersonal relationships.
62Ms Cidoni noted that the applicant’s complex history which had been “marked by abandonment by her biological parents, being raised by her grandmother and uncle, and experiencing teenage pregnancy” had resulted in “a level of vulnerability”.[13]
[13] (Ibid) at JCB 140
63Ms Cidoni recorded symptoms consistent with those in the Victim Impact Statement, the applicant’s Affidavit and her police statements. Additionally, the applicant told her that she contemplated suicide in 2017 by stepping in front of a moving truck, but stopped herself before taking any harmful action, and also that she had overdosed twice.
64Ms Cidoni opined the applicant’s intrusive memories, nightmares and hypervigilance have caused her to relive the trauma and remain on edge, even in seemingly safe environments. Ms Cidoni opined that such symptoms were characteristic of PTSD arising from the offending.
65It was Ms Cidoni’s opinion that the applicant’s Major Depressive Disorder contributed to persistent feelings of sadness, hopelessness and diminished interest in activities she once enjoyed.
66In addition, Ms Cidoni said the applicant experienced emotional instability, impulsive behaviour, self-image issues and periods of dissociation from reality. According to Ms Cidoni, these symptoms made it difficult for the applicant to engage in everyday activities and could result in physical and emotional exhaustion. Ms Cidoni opined the trauma had disrupted the applicant’s social relationships and hindered her ability to form and maintain stable connections.
67The psychological testing she employed was the Trauma Symptom Inventory Test (“TSI-2 test”) and the Miller Forensic Assessment of Symptom Test (“M-FAST”).
68The M-FAST was a structured interview consisting of twenty-five items. The TSI-2 test includes two validity scales (Response Level “RL” and Atypical Response “ATR”) .
69Ms Cidoni reported in her initial report that the M-FAST in the applicant’s case produced no indications or suggestions of exaggeration of clinical conditions or malingering. In her initial report, she made no comment regarding the results of the validity scales in the TSI-2 test.
70In her oral evidence, Ms Cidoni confirmed she took four things into account when reaching her diagnostic conclusion:
·The contextual information – which included documents provided to her;
·The information provided by the applicant during interview;
·The psychological testing; and
·The applicant’s presentation, and Ms Cidoni’s own observations of the applicant.
The Respondent’s medico-legal evidence
Dr Russell Pratt
71Dr Pratt was not retained to assess the applicant or provide an opinion about the applicant on the papers. He was retained for the specific purpose of challenging Ms Cidoni’s methodology in applying the M-FAST and TSI-2 test.
72As mentioned above, at the commencement of the hearing, the respondent tendered two reports of Dr Pratt dated 23 October 2023 and 5 February 2024.
73Dr Pratt had an earlier version of his October 2023 report which was formatted differently from the version tendered to the Court. The earlier version of his October 2023 report expressed different opinions regarding Ms Cidoni’s test results.
74In the earlier version of the report, Dr Pratt expressed the opinion that there were “obvious” flaws in Ms Cidoni’s testing. He changed this to “significant” flaws in the final version.
75Further, it became apparent that Dr Pratt had prepared a document entitled “Initial Opinion”, which was a letter dated 18 September 2023. This document was prepared by Dr Pratt after he spent two hours reviewing material sent to him by the respondent’s solicitors. It does not appear he was sent the Expert Witness Code of Conduct for the purposes of preparing this document.
76In cross-examination, he described the report as a provisional report. He explained it was prepared for the purposes of providing a way forward to the respondent’s solicitors. It also recorded matters which he may need to revisit in preparing a report in reply if he was commissioned to do so.
77In his 18 September 2023 report, Dr Pratt accepted that the account provided by the applicant to Ms Cidoni could be reasonably viewed as consistent with psychological trauma resulting from a series of sexual assaults.[14]
[14] Respondent Exhibit 5, page 41 of Exhibit ENJ-1 of the Affidavit of Eduan Jordaan, affirmed 21 June 2024 at paragraph [19]
78Dr Pratt recommended to the respondent’s solicitors that he interview the applicant and conduct MMPI-2 testing. Other options were identified by Dr Pratt as interviewing the applicant without undertaking testing, or completing a desktop report. Dr Pratt did not strongly recommend these options, as he said that they would yield very little potential to gain any variation on the information already available.
79In both his 18 September 2023 report and the first version of the 23 October 2023 report, Dr Pratt noted he did not have a copy of Her Honour Judge Gwynn’s Sentencing Remarks.
80The Sentencing Remarks were emailed to Dr Pratt on 24 October 2023 along with the Form 44A Expert Code of Conduct. Dr Pratt was asked to “adjust your opinion accordingly”.[15]
[15] Respondent Exhibit 7, page 121 of Exhibit ENJ-1 of the Affidavit of Eduan Jordaan, affirmed 21 June 2024
81Dr Pratt responded:
“…I will adjust the statement re the correct court and read the judges sentencing comments however my main critique will stand: that Ms. Cidoni has no basis to form opinions except [the applicant’s] self-report, as the testing is invalid, and suggests the potential for either over exaggeration, through to potential falsification of symptoms by the applicant.
In terms of an opinion on what may have ‘caused’ the present issues, I cannot comment as I have not examined her nor used testing with her. My report suggests the potential for the other issues she has faced throughout her life not being considered in the appropriate way by Ms. Cidoni. That’s [sic] as far as I can go with the format of the approach we agreed on.”[16]
[16] Respondent Exhibit 7, page 120 of Exhibit ENJ-1 of the Affidavit of Eduan Jordaan, affirmed 21 June 2024
Summary of the dispute between the experts
82A total of six medico-legal reports were tendered in this proceeding.
83There is a crucial difference between Ms Cidoni and Dr Pratt. Ms Cidoni interviewed and examined the applicant for over three hours prior to the preparation of her initial report on 10 August 2023.
84Dr Pratt was given a limited brief. He did not interview or examine the applicant and was not retained to provide a report on the papers generally. He was specifically retained to challenge Ms Cidoni’s methodology. Dr Pratt criticised Ms Cidoni’s use of the M-FAST results and the TSI-2 test results. He also considered that Ms Cidoni did not properly take into account other life stressors experienced by the applicant. He did not make a positive assessment of the applicant’s psychological state and injuries.
Resolution of dispute
85The applicant was forthcoming about other negative life events, as can be seen from Ms Cidoni’s initial report.
86In her second report, Ms Cidoni noted that her initial report:
“… does not dismiss the relevance of other life events but underscores that the sexual assaults had a profound and lasting impact, making them the primary focus of her PTSD diagnosis.”[17]
[17] Exhibit A9 at JCB 146
87The question of whether Ms Cidoni properly took into account other unrelated negative impacts in her assessment of the applicant was an area of concern for Dr Pratt when he wrote his reports. Dr Pratt conceded under cross-examination that having read Ms Cidoni’s second report, he accepted Ms Cidoni had taken into account the other negative life events.
88The respondent submitted that Dr Pratt’s evidence should be accepted as diminishing the probative value of Ms Cidoni’s evidence. I do not accept that submission.
89I prefer the opinion of Ms Cidoni, as Ms Cidoni made it clear she used the test results as a part of her overall assessment of the applicant. She also considered her interview of the applicant, the unrelated negative life events and all the material provided. She then exercised her clinical judgement to form her opinions.
Financial circumstances of the Respondent: Section 85H
90The respondent submitted the Court should take into account the following:
·His age (76 years old);
·His state of health;
·His interest in the marital home (“the joint property”) had been transferred to his wife; and
·His marital breakdown.
91The respondent tendered a discharge summary of Mercy Health which confirmed he was admitted to hospital on 25 August 2023 and discharged on 12 September 2023.[18] The discharge summary records he was admitted due to dehydration as a result of diarrhoea. The discharge summary also recorded the applicant had chronic pulmonary disease and chronic kidney disease.
[18] Exhibit R4
92The discharge summary is undated and the respondent did not produce any current medical evidence. As such, the Court cannot make any findings about the respondent’s current health status and how this may impact upon his capacity to meet a compensation order.
93On 15 March 2021, the respondent transferred by gift his interest in the joint property to his wife in the context of their separation. He said in his Affidavit that the matrimonial separation occurred 2-3 years ago and was the result of serious relationship problems caused by the applicant’s allegations against him.[19] He said the transfer was because he wanted to ensure his wife was “well looked after” and he said his wife had agreed to let him live in the property as long as he wished.[20]
[19] Exhibit R1 at JCB 119
[20] Ibid
94In her Sentencing Remarks dated 20 August 2021, Her Honour Judge Gwynn noted the following:
“…your wife, Robyn,[21] has provided a written reference and was present for your plea hearing on 31 July 2021 and is present outside the courtroom today. She describes herself as being happily married to you for a period in excess of 45 years … She suffers from a range of serious health issues and you are her carer. … .”[22]
[21] A pseudonym
[22] Exhibit A6, JCB 44 at paragraph [75]
95There is a discrepancy between the evidence given by the respondent in this proceeding about the status of his marriage and home ownership and the submissions made as part of his sentencing for the criminal offending. The respondent would not, or could not, explain this discrepancy. He simply insisted that at the time of the sentencing he was separated and had no proprietary interest in the family home.
96The respondent did not produce any documentary evidence relating to the transfer of land in this application. A Restraining Order on the joint property was made by Her Honour Judge Hinchey on 8 November 2022. It is not clear whether a document was produced to Her Honour Judge Hinchey but the Court notes that Her Honour referred to an Instrument of Transfer of Land dated 15 March 2021.
97The circumstances of the transfer of the respondent’s interest in the joint property were not adequately explained to the Court.
98In submissions, Counsel for the applicant said it was open to the Court to find that the transfer was a “sham”, which I took to mean an attempt to avoid paying any compensation to the applicant. The evidence, as it stands, is insufficient for the Court to form a concluded view on this point. Whilst the circumstances surrounding the transfer were concerning and questionable, it is not appropriate or necessary in this application for the Court to make a finding on this point.
99In his Affidavit, the respondent listed a number of assets, including bank accounts, a car and a number of smaller personal possessions, with valuations ascribed by himself. He also disclosed a government pension of $802 per fortnight. Without any corroborating evidence, including recent bank statements, these depositions are of little assistance to the Court.
100Counsel for the respondent said in final submissions that he did not wish to press the issue of the respondent’s limited assets.
101Pursuant to the provisions of s85H of the Act, I am required to take into account the financial circumstances of the respondent in the proceedings for compensation brought against him. I have done so.
Payments under the Victim of Crimes Assistance Act 1996: Section 85I
102On 31 May 2022, a VOCAT award was made in the applicant’s favour in the total sum of $13,417.50.
103The VOCAT award was broken down as follows:
·Special financial assistance ꟷ $10,000;
·20 sessions of counselling ꟷ $2,762;
·Reimbursement of travel expenses ꟷ $417.30; and
·Reimbursement of medication ꟷ $238.20.
104The parties agreed that s85I of the Act was engaged insofar as the VOCAT award of $10,000 for special financial assistance.
Submissions
105Ms Braun, on behalf of the applicant, in oral and later in written submissions, specified a sum of upwards of $100,000 would be an appropriate sum for pain and suffering.
106Whilst the respondent did not dispute that the applicant was entitled to appropriate compensation, he heavily emphasised the potential impact of other difficult life events on the applicant’s injury.
107The Court notes the comments in the case of Kaplan v Lee-Archer:[23]
“… the addition of the requirement that the result be ‘direct’ does not mean that there can be no step between the cause and the consequence, or that the consequence must be solely due to the cause. … .”
(Footnotes omitted.)
[23] (2007) 15 VR 405 at 410, paragraph [24]
108See also:
“… An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective ‘direct’ is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.”[24]
(Emphasis added.)
[24] (Ibid) at 410-11, paragraph [25]
109Mr Petras asserted that a sum of less than $75,000 was an appropriate figure.
Analysis
110Both the parties, in making submissions on quantum referred the Court to a number of s85B rulings which were said to be within the range of what was appropriate to be awarded in the current application.
111I have reviewed each of these rulings but note that the approach contended by the parties has been cautioned against by Her Honour Warren CJ in V1 & Ors v Xydias[25] (picked up recently by Her Honour Judge English in Hird (a pseudonym) v Demasi):[26]
“…comparisons between compensation awards under the Act and other legislation, or damages at common law, may not be useful due to the difficulty identifying with any precision the various considerations and weight attributed to them, and the differing awards and factual circumstances between cases … This reflects the principle that the compensation is not intended to reflect the respondent’s criminal liability, rather it is directed to compensating the victim for the effects of the offences.”
[25] [2009] VSC 616 at paragraph [9]
[26] [2023] VCC 1228 at paragraph [67]
112It was relevant that at all times the applicant was the respondent’s younger cousin. As Her Honour Judge Gwynn noted, the respondent abused her trust. He threatened the applicant. The conduct all occurred in secret. The gravity of the offending was high.[27]
[27] Exhibit A6 at paragraph [52]
113There was no doubt the offending has had a profound effect on the applicant. I accept the submissions made on her behalf as to its impact.
114The amount to be awarded for pain and suffering requires an instinctive synthesis of the matters referred to above.
115Having performed that synthesis, I award the sum of $100,000, given the applicant’s age at which the offending occurred, the circumstances in which the offending occurred and the impact of the offending upon the applicant. The sum is reduced in accordance with s85I of the Act to $90,000.
Costs: Section 85K
116Section 85K of the Act states:
“Costs of proceeding
Despite any rule of law or practice to the contrary or any provision to the contrary made by or under any other Act, each party to a proceeding under this Subdivision must bear their own costs of the proceeding unless the court otherwise determines.”
117Section 85K of the Act is consistent with the objective of a quick low-cost way to seek an award of compensation.
118The starting point is that each party ought to bear their own costs but the Court retains a discretion regarding costs, which is to be informed by the facts of each particular application.
119In the case of AA (a pseudonym) v Cooper (Ruling),[28] His Honour Judge O’Neill considered s85K of the Act and canvassed the various authorities.
[28][2015] VCC 233
120In summary, His Honour Judge O’Neill identified the following factors (which I adopt in this case):
“(a)The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category;
(b) Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded;
(c)Circumstances which may justify the award of costs include the following:
(i) the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;
(ii)the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;
(iii)the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;
(iv)the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.”[29]
[29](Ibid) at paragraph [17]
121The parties made submissions on costs which I have considered.
122It was submitted by the applicant that the Court should exercise its discretion in the applicant’s favour and make an award of costs, as there were exceptional circumstances in this case. The exceptional circumstances included the fact that the applicant and respondent gave evidence and were cross-examined, as well as the two medico-legal experts. In addition, a total of six medico-legal reports were produced. The applicant also submitted the hearing went longer than it should have because of the approach taken by the respondent and because of the issue with Dr Pratt’s reports.
123Mr Petras said there was no basis for a costs order, as there were no special exceptional circumstances.
124Whilst the respondent is entitled to test the evidence without a costs penalty, the way in which the respondent approached this litigation was inconsistent with the rationales underpinning s85B applications.
125Dr Pratt was not instructed to either assess the applicant or provide an opinion about the applicant on the papers. He was retained for the specific purpose of challenging Ms Cidoni’s methodology in applying the M-FAST and TSI-2 test. The challenge was unsuccessful and did not assist the Court.
126I find that the respondent prolonged the hearing. Both medico-legal witnesses had to give evidence. In addition, given Dr Pratt’s previous reports had not been disclosed, the matter had to be adjourned, and Dr Pratt recalled and cross-examined further.
127The application itself was not particularly complex. The application became complex because of the way the respondent chose to contest the matter.
128Exercising my discretion, I am persuaded there are sufficient “exceptional circumstances” to justify an award for costs and will order accordingly.
Conclusion
129Pursuant to s85B(1) of the Act, I order that the respondent pay compensation in the sum of $90,000 to the applicant.
130I order that the respondent pay the applicant’s costs of the proceeding.
131I will hear from the parties on the form of formal orders consistent with my findings.
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