Lowe (a pseudonym) v Monsoon (a pseudonym)
[2024] VCC 763
•30 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL LAW DIVISION | Revised Suitable for Publication |
| Kate Lowe (a pseudonym) | Applicant |
| v | |
| Jacob Monsoon (a pseudonym) | Respondent |
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| JUDGE: | HER HONOUR JUDGE TSIKARIS |
| WHEREHELD: | Melbourne |
| DATE OFHEARING: | 22 January 2023 |
| DATE OFJUDGMENT: | 30 May 2024 |
| CASEMAYBECITEDAS: | Lowe (a pseudonym) v Monsoon (a pseudonym) |
| MEDIUMNEUTRAL CITATION: | [2024] VCC 763 |
REASONS FOR JUDGMENT
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Subject: Section 85B Sentencing Act Application
Catchwords: Crimes Compensation – application by victim of sexual assault – pain and suffering
LegislationCited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic);
Cases Cited:Marks & Ors v Bolton (2002) VCC 565; G.S v Pryse [2020] VCC 240; Checuti & Ors v Cardamone [2021] VSC 194; Crespo v Kelson [2021] VSC 264; Kelley (a pseudonym) v R1 (a pseudonym) & Ors [2016] VSCA 90; Hird (a pseudonym) v Demasi [2023] VCC 1228; Jackson (a pseudonym) v Tetley [2020] VCC 799; AA (a pseudonym) v Cooper [2015] VCC 185; Shelton v Shelton [2023] VCC 801; St Clair and Homes v Jamieson [2019] VSC 57
Judgment:Application granted. Compensation Order made in favour of the applicant in the sum of $95,000. No Order as to Costs.
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| APPEARANCES: | Counsel | Solicitors |
FortheApplicant | Mr L McPhie of counsel | Slater & Gordon |
FortheRespondent | Mr B Newton of counsel | Randles Cooper Lawyers |
HER HONOUR:
1Ms Kate Lowe (“the applicant”),[1] is seeking compensation orders pursuant to s85B of the Sentencing Act 1991 (“the Act”) against Mr Jacob Monsoon (“the respondent”).[2] The applicant’s mother Miranda Lowe[3] brings the application on her behalf pursuant to s85C(b)(ii) of the Act as the applicant is a child. The applicant is the victim of indecent assaults committed by the respondent.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
2The respondent was convicted on 15 August 2017 by a jury in the County Court of Victoria at Melbourne of two charges (Charge 1 and Charge 2) of committing an indecent act with a child under 16 against the applicant. He was sentenced on 6 March 2018 by Her Honour Judge Sexton on those charges together with other charges unrelated to this application, to a total effective sentence of 5 years 3 months’ imprisonment. On Charge 1 he was sentenced to a term of imprisonment of 3 months (2 months cumulative on other charges) and on Charge 2 a term of imprisonment of 8 months (5 months cumulative with other charges). Due to prior appeals, the respondent ran three trials challenging the charges regarding the offending against the applicant and other victims.
3The applicant is seeking compensation in relation to:
a.Pain and suffering pursuant to s85B(2)(a);
b.Expenses reasonably likely to be incurred for counselling services pursuant to s85B(2)(b); and
c.Medical expenses reasonably likely to be incurred pursuant to s85(2)(c).
4The question for determination is what amount compensation the Court should award to the applicant in accordance with s85B.
5The applicant did not give viva voce evidence and was not cross examined, nor were any witnesses called or cross examined.
6I have before me the following material tendered by the parties:
(a)The Application for a Restraining Order and the Affidavit in Support dated 9 September 2013;[4]
[4] Court Book (“CB”) 4-18
(b)Section 85B Sentencing Act Application dated 15 April 2014;[5]
[5] Exhibit A, CB 19-31
(c)Orders of Judge Campton Adjourning Section 85B Sentencing Act Application Sine Die;[6]
[6] Exhibit A, CB 32
(d)Affidavit of Jacob Monsoon sworn on 20 November 2023;[7]
(e)Brief Outline of Submissions on Behalf of the Applicant;[8]
(f)Brief Outline of Submissions on Behalf of the Respondent;[9]
(g)Medico-legal Report of Consulting Psychiatrist Associate Professor SB;[10]
(h)Letter from VOCAT – Right of Reinstatement;[11]
(i)Sentencing Remarks of Her Honour Judge Hampel [2015] and of Her Honour Judge Sexton [2021];[12]
(j)Victim Impact Statement of Ms Miranda Lowe dated 21 May 2013;[13]
(k)Children’s Protection Society (CPS) Sexual Abuse Counselling and Prevention Program (SACPP) records of Kate Lowe;[14]
(l)VARE Transcript;[15]
[7] Exhibit A, CB 345-346
[8] Exhibit A, CB 347-353
[9] Exhibit A, CB 356-368
[10] Exhibit A, CB 377-394; A pseudonym
[11] Exhibit A, CB 540
[12] Exhibit A, CB 541-662
[13] Exhibit 2, CB 369-374
[14] Exhibit 3, CB 395-512
[15] Exhibit 4
Legal Principles
7Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from an offender.
8Pursuant to s85B(1), a Court may make a compensation order in favour of a person who has suffered “injury” as a direct result of an offence. “Injury” is broadly defined in s85A(1)(d) and includes:
Definitions
(a)grief, distress or trauma or other significant adverse effect; or
Compensation order
(a)for pain and suffering experienced by the victim as a direct result of the offence;
(b)for some or all of any expenses actually incurred, or reasonably likely to be incurred by the victim for reasonable counselling services as a direct result of the offence;
(c)for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(d)for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss or damage to property.
9The Supreme Court, on numerous occasions, has set out the relevant principles to be applied in applications of this kind.
10In summary, the relevant principles are:[16]
[16]See RK v Mirik and Mirik (2009) 21 VR 623; Director of Public Prosecutions v Esso Australia Pty Ltd (2001) 126 A Crim R 13; Stevens v Baxter [2009] VSC 257
(a)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.
(b)An order for compensation is determined by the application, where relevant, or common law principles, however the order, itself, is one for compensation, not damages.
(c)Unlike a common law claim for damages, the financial circumstances of the respondent are a relevant, but not controlling, consideration.
11In determining an appropriate award of compensation in respect to this matter and the issues that have arisen in this proceeding, I have considered the material relied upon by each of the parties, and the submissions, both written and oral, which were made on their behalf.
12In this case, it is not disputed that the applicant was a victim, nor was it disputed that the claim properly falls under s85B(2)(a) of the Act. It was conceded by the respondent that for the purposes of the application, that the applicant suffered injury as defined in the Act which arose from the convicted offending as opined by Consulting Psychiatrist Associate Professor SB (“A/P SB”).[17]
[17] Outline of Submissions on Behalf of the Respondent at para 20
Background
13The circumstances of the offending are set out in detail in the sentencing remarks of Her Honour Judge Sexton dated 6 March 2018.[18]
[18] Exhibit 1, CB 541-662
14The respondent’s wife, Martina Monsoon, conducted a family day care center in Thornbury at their home, under the registration and monitoring of the local council. The respondent’s wife was a registered carer but the respondent was not working in paid employment at the time and was often at the home when the children were being cared for. Although the respondent was not strictly responsible for the care of the children, he was in such a position of authority in respect of the children that it was the expectation of the council that he have a Working with Children Check.
15The applicant was approximately 1 years old when she began attending the family day care center in approximately February 2008. In October 2011, when she was around four years of age, the respondent committed the following offences against her:
a.The respondent showed her his penis (Charge 1).
b.The respondent told her to touch his penis, which she did (Charge 2).
16The applicant told her parents about the offences which they reported to the police. This led to an investigation and ultimately to the trials for offences relating to four children.
17In sentencing the respondent Her Honour Judge Sexton observed that the offences committed by the respondent were serious and committed in a brazen manner in disregard of the risk of detection by his wife or other children for his own perverted sexual gratification. His offending was all the more serious because:[19]
a.It constituted a gross breach of trust the children and their parents had in the respondent;
b.The children were all aged under 10 at the time of offending, while the respondent was a man of mature years in his late 50’s;
c.There was physical force in respect of one of the victims (not the applicant);
d.The respondent made the victims touch him using fear and or his authority; and
e.The offending against each child was not an isolated incident but was part of a pattern of behavior.
[19] Ibid
18A claim under the Victims of Crime Assistance Act 1996 (Vic) was made by the applicant but ultimately withdrawn and the applicant did not receive any compensation as a victim of crime.
The Applicant
19The applicant was born in July 2007 and was 4 years old when the offending took place. The VARE transcript dated 13 October 2011[20] describes the incidents as do the sentencing remarks of Her Honour Judge Sexton.
[20] Exhibit 4
20Following the disclosure of the offending, the applicant was referred to the Children’s Protection Society (“CPS”) Sexual Abuse Counselling and Prevention Program. She underwent 8 individual sessions and one family session in 2012. It was observed in the CPS’s records that as a child the applicant presented with ADHD symptoms but became well-regulated after she ceased attending the day care center and with counselling.[21] She did not require further therapeutic intervention at the time, but it was recognized that she may require additional support in the future. Further contact was made with CPS in November 2015 in the context of the ongoing criminal proceedings and the potential to retrigger her trauma. It was noted after one session that although the applicant was impacted she was coping and that the applicant’s parents did not wish to pursue counselling for her at that time.[22]
[21] Exhibit 3, CB 395-512
[22] Ibid
A/P SB
21The applicant was examined by A/P SB, a child and adolescent psychiatrist, on 4 October 2023 and he prepared a report of the same date.
22A/P SB was of the opinion that it is clear the impact of the offending on her is far reaching and still impacts her presently. The applicant presented with features of anxiety, particularly so in social situations.[23] She is self-conscious, hypervigilant around older men and tries to avoid being in their proximity.
[23] CB 381
23Although the applicant does not have any proper coherent recollections of the traumatic events and does not understand why she does not have many childhood memories, now in puberty, she is often affected by thoughts of her trauma and claims that certain memories and conversations can trigger those thoughts and she becomes a bit distractable.[24] This occurs on a regular basis.
[24] CB 384
24She often clashed with her mother because her mother is very strict and is always worried about her safety and does not give her the freedom she wants.
25Despite her trauma, the applicant is functioning at a high level. She has active symptoms of anxiety but remains ambivalent about seeking help because of the cost of therapy.
26A/P SB diagnosed the applicant with a generalised anxiety disorder and major depressive disorder in full remission. He observed the following symptoms:[25]
[25] CB 386-387
·Excessive anxiety and worry for at least 6 months;
·Difficulty controlling the worrying;
·Anxiety resulting in significant distress but she is not yet impaired in social and occupational areas;
·Restlessness, feeling keyed up or on edge;
·Being easily fatigued;
·Difficulty in concentrating or mind going blank;
·Sleep disturbance; and
·Irritability.
27A/P SB noted that the traumatic incident certainly influenced the environment in which the applicant was raised and even though it did not severely impact her as a child, it was having an impact on her as an adolescent.
28He considered the prognosis to be good if she received adequate help. The applicant is apparently blocking a lot of her memories and developing a personality trait where she does not share her emotions with close family members and she requires immediate psychological help.
29A/P SB concluded that the psychological condition that the applicant is suffering from is directly caused by the exposure to the trauma experience of her early childhood.
30He recommended that she have psychotherapy sessions with a clinical psychologist, weekly sessions for 3 months and then fortnightly sessions for the next 6 months, a total of 25-30 sessions to address her difficulties.[26] He estimated the cost of this to be approximately $9,000 to $10,000. Without help, he considered that the applicant will likely continue to suffer the consequences of the trauma and that due to early exposure to trauma, she is more vulnerable to have severe mental illness if she were to suffer any form of trauma in the future.
[26] CB 390
Respondent’s Financial Position
31The respondent was born in January 1953 and is 71 years of age. His health has been impacted by a back injury he sustained in the early 1990’s and a series of heart attacks he had around that time. He suffers from hearing loss and had eye surgery in 2013. Shortly prior to being sentenced by Her Honour Judge Sexton, he underwent back surgery which restricted his mobility and he was reliant on a wheeled walker.
32His affidavit sworn on 20 November 2023 attested to his financial position. He has a half interest in the home he lives in with his wife in Thornbury estimated to be worth $1.5 million and a half interest in another property in Rye estimated to be worth $800,000.[27] Both properties are unencumbered. He deposed that he and his wife have no savings and they received a combined Centrelink pension of approximately $920.00 per fortnight.
[27] Affidavit of the Respondent sworn 20 November 2023, CB 345-346
Discussion
33The respondent conceded that the applicant has suffered injury as defined in the Act which directly arises from the convicted offending as opined by A/P SB. His counsel submitted that the respondent had not sought to complicate the subject compensation application. Consistent with that overarching approach to the litigation, he did not subject the applicant to examination by an independent psychiatrist, did not require her for cross examination and did not seek to cross examine A/P SB in respect of his opinions.[28]
[28] Outline of Submissions of the Respondent at para 19
34I was referred to a number of decisions of this Court and the Supreme Court by both parties. I have had regard to awards of compensation made in other cases including Marks & Ors v Bolton (a pseudonym) [2022] VCC 565, G.S v Pryse [2020] VCC 240, Jackson (a pseudonym) v Tetley [2020] VCC 799, Kelley (a Pseudonym) v R1 (a Pseudonym) & Ors [2016] VSCA 90 and Hird (a pseudonym) v Demasi [2023] VCC 1228.
35Whilst it is entirely appropriate to have regard to compensation orders made in other like cases “…in order to get a sense of how best to go about calculating the amounts that would be fair and just”[29]… each case must be determined on its own facts and circumstances as observed by Her Honour Warren CJ in V1 & Ors v Xydias[2009] VSC 616 at paragraph [9]:[30]
“...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. In addition, the number of offences is not of itself pertinent, rather it is their effect on the victim that is relevant. 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.”
[29] Brookes v Meade [2017] VSC 172 per Weinberg JA at [28]
[30] [2009] VCC 616
36The respondent submitted that the level of seriousness of the convicted offending perpetrated by the respondent was at the lesser end of the spectrum of the cases referred to and that the injury sustained is towards the lower (if not lowest) end of the range seen in reported child sexual abuse compensation.
37Whilst the offending may be regarded at the lower end of the spectrum, I do not accept that the injury falls in the lower range. Moreover, it is not the respondent’s criminal liability that is in issue but the effect of the offending on the applicant. As Bell J said in St Clair and Homes v Jamieson [2019] VSC 57 at paragraph [22]:
“In the context of crimes compensation, what is required is an assessment of compensation for pain and suffering resulting from criminal conduct that has a particular impact upon the victim, which is typically experienced at a deeply personal level (see above). Therefore, the focus is upon ‘the actual impact’ of the (criminal) acts of the offender upon the victim, about which it is proper for judges ‘to draw inferences from human experience’, not upon the compensability of the (tortious) acts of the offender at common law.”
38The respondent further submitted that as part of a broad brush approach it is appropriate to take a somewhat conservative view of the amounts that should be paid having regard to the following observations in respect of A/P SB opinion:
a.He proceeded on an incorrect factual basis of the convicted offending as he recorded a history that the respondent exposed his genitals and asked her touch his penis on at least two occasions;
b.Before the assessment and opinion, no diagnosis had been made;
c.The diagnosis relied on the applicant’s account of episodic low mood which spontaneously recovered without treatment;
d.In the context of the reported symptomatology, the applicant is socially adjusted and she is at an age and stage in life where conflict with parental figures is common. The traumatic incident influenced her parents’ parenting style which was reported as strict and over protective in response to the offending. This in turn has led to clashes.
39The respondent submitted that “the diagnosis opined by Mr SB is in full remission and overall there is a good prognosis”[31], taking into account the observations that the evaluation of the applicant did not warrant a diagnosis of PTSD, that the CPS counselling notes recorded in 2015 that further therapeutic intervention was not warranted, she had not received further counselling until the assessment by Mr SB, that the applicant’s hypervigilance was reported to be age appropriate, that she was doing well socially and academically and that she was in a heterosexual relationship at the time of the assessment.
[31] Outline of Submissions of the Respondent at para 22
40In addition to interviewing the applicant, A/P SB was provided with among other things, the CPS medical records and Her Honour Judge Sexton’s sentencing remarks. I do not accept that he proceeded on an incorrect factual basis of the convicted offending when he made his diagnosis. He had in his possession relevant information, including the sentencing remarks and he acknowledged that the applicant did not have a proper coherent recollection of the traumatic events. Even though she did not have exact memories of the events, she had knowledge of the events and memories of the consequences. With the onset of puberty, and as she has grown older, he observed that the applicant has become affected by thoughts of the trauma in the context of certain memories and triggers. The applicant exhibited the described symptoms of excessive worry and anxiety, as set out in paragraph 27 above which gave rise to his diagnosis of a Generalised Anxiety Disorder. She still presented with active symptoms of anxiety and symptoms consistent with a diagnosable psychiatric injury, namely a generalised anxiety disorder. A/P SB diagnosed the presenting symptomology which was a consequence of the convicted offending. I accept that the applicant’s psychiatric injury arose as a result of the convicted offending.
41A/P SB noted that the applicant had suffered from depression in the past which met the criteria of a major depressive disorder but at the time of assessment she was in full remission.[32] A feature of her presentation is that she had developed the personality trait of not sharing her emotions with her family and she suffered the episode of depression alone. I accept that the major depressive disorder also arose as a direct result of the convicted offending.
[32] Report of A/P SB, CB 51-52
42That a diagnosis had not been made until the psychiatric evaluation of A/P SB, does not diminish the applicant’s experience of the past episode of depression nor the persisting anxiety symptoms.
Conclusions
43I am satisfied that the applicant has suffered injury as a direct result of the convicted offending. I only take into account those offences as described by Her Honour Judge Sexton. Her Honour makes it clear in her sentencing remarks that there was no other or additional offending by the respondent against the applicant and she sentenced the respondent in respect of two charges committed on the one day.
44Although there were significant delays occasioned by the appeals process which led to five trials proceeding to verdict before three different judges the applicant was spared the ordeal of giving evidence more than once as her evidence was recorded and the recording was produced as evidence. A/P SB relates his diagnosis to the exposure to the trauma and its consequence and not to the trial process.
45The nature and extent of the injury is outlined in A/P SB’s report. I accept that the applicant has been diagnosed with a generalised anxiety disorder and major depressive disorder in full remission. I accept that she continues to experience active symptoms of the generalised anxiety disorder and that she requires immediate treatment. I further accept that due to the early exposure to trauma the applicant is more vulnerable to severe mental illness if she were to suffer any form of trauma in the future.
46The applicant was a young child at the time of the offending, the respondent was in a position of trust and his offending conduct was a breach of that trust. In making my assessment for compensation for the applicant’s injury, I take into account all of the matters referred to in these reasons. I have taken into account that despite having the appearance of being well adjusted she still is suffering from a diagnosable psychiatric disorder which remains untreated. I also take into account that she is vulnerable to experiencing depressive episodes in the future.
47In taking into account the respondent’s financial circumstances, I take into account the burden that an award of compensation will have as one of the properties may have to be sold to satisfy the award. Nevertheless, the respondent will still retain a property in which to live in and he has a source of income, namely the pension.
48In assessing quantum of the entitlement to compensation, I intuitively synthesise all of the material circumstances of the case. Compensation for pain and suffering is for the applicant’s pain, suffering and loss of enjoyment of life. I make an award of compensation for pain and suffering for the applicant of $85,000.
49I accept as recommended by A/P SB that the applicant have immediate psychological help. He recommended psychotherapy with a clinical psychologist with a total of 25 to 30 session over an approximate 9-month period with the approximate cost of $9,000 to $10,000.
50It was submitted by the applicant’s counsel that psychological counselling may attract a Medicare Rebate. I was referred to the decision of His Honour Judge O’Neil in AA (a pseudonym) v Cooper (Ruling)[33] in which His Honour made an award net of the rebate. I make no deduction for any Medicare Rebate because I have no evidence before me that the applicant will be eligible for such a rebate and A/P SB makes no reference to the applicant’s eligibility for such rebate in his report.
[33] [2015] VCC 185
51A/P SB did not at the time of assessment recommend medication, although he noted the applicant may require medication in the future. Given the uncertainty as to the requirement for medication, I do not make any award for future medication expenses.
Costs
52It was submitted on behalf of the applicant that the Court should exercise its discretion in the applicant’s favour and make an award of costs, because it was submitted that the nature of the case warranted detailed preparation and to engage independent counsel for the applicant.[34] It was further put that this application was not ready to be made at the time of the plea because all of the psychological injuries had not yet been documented and had been delayed by the appeals of the respondent.
[34] Outline of Submissions of the Applicant at para 42
53Section 85K of the Act makes it clear that each party should bear their own costs, unless the Court otherwise determines.
54In the case of AA (a pseudonym) v Cooper (Ruling), Judge O’Neill considered s85K of the Act and canvassed the various authorities.[35]
[35] [2015] VCC 185
55In summary, Judge O’Neill identified the following factors (which Judge Magee referred to in Shelton v Shelton, and which I adopt in this case):[36]
“(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.”[36] [2023] VCC 801
56I am not of the view a departure from s85K is warranted. Section 85K states in clear terms each party ‘must’ bear their own costs of the proceeding ‘unless the Court otherwise determines’. This case is not complex. There was no cross examination of witnesses and proceeded by way of submissions. In this case the respondent attempted to curtail any unnecessary arguments and properly conceded the injury was sustained as a direct result of the offending and did not arrange a psychiatric evaluation of the applicant.
57I refuse the application for costs.
Conclusion
58Pursuant to s85B(1) of the Act, I order that the respondent pay compensation in the sum of $95,000, comprising the amount of $85,000 under s85B(2)(a) and $10,000 under s85B(2)(b).
59No order as to costs.
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