Lyndsay v Hermanus
[2016] VCC 569
•12 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01881
| CARLA LYNDSAY (a pseudonym) | Applicant |
| v | |
| MARTIN HERMANUS (a pseudonym) | Respondent |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2016 | |
DATE OF JUDGMENT: | 12 May 2016 | |
CASE MAY BE CITED AS: | Lyndsay v Hermanus | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 569 | |
REASONS FOR JUDGMENT
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Subject:Application for compensation pursuant to s. 85B of the Sentencing Act 1991.
Legislation Cited: Sentencing Act 1991, Victims of Crime Assistance Act 1996, Confiscation Act 1977
Cases Cited:DPP v Hermanus [2014] VCC 2018, Hermanus v The Queen [2015] VSCA 304, Kaplan v Lee-Archer [2007] VSCA 42, Stevens v Baxter [2009] VSC 257
Judgment: Compensation Order made in favour of the Applicant in the sum of $152,500.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S. Roglic | Ryan Carlisle Thomas |
| For the Respondent | Self-represented |
HER HONOUR:
1 On 21 November 2014 I convicted Mr Hermanus[1] of two charges of what was then called buggery, and one of indecent assault, and sentenced him to a term of imprisonment of nine years, with a non-parole period of six years [2]. The recording of the convictions followed the delivery of verdicts of guilty by a jury on these two charges of buggery and one of indecent assault. The sentence was reduced by the Court of Appeal to a term of seven years imprisonment with a non-parole period of four years and six months.[3]
[1] A pseudonym.
[2]DPP v Hermanus [2014] VCC 2018.
[3]Hermanus v The Queen [2015] VSCA 304.
2 The charges related to two separate episodes of anal penetration by Mr Hermanus of his daughter Carla Lyndsay[4] in 1975 or 1976 when she was 8 years old. On the second occasion, the jury was also satisfied that he had indecently assaulted her by rubbing Vaseline on her cheeks and anus before penetrating her.
[4] A pseudonym.
3 By application dated 5 November 2015 Ms Lyndsay has applied for compensation pursuant to s. 85B of the Sentencing Act 1991 (the Act).
4 By s. 85B(1) a court, having found a person guilty or convicted them of an offence, may order the offender to pay compensation to a person who has suffered any injury as a direct result of the offence.
5 Section 85B(2) sets out the matters in respect of which a compensation order may be made. Included in that is, in subparagraph (a), compensation for pain and suffering experienced by the victim as a direct result of the offence.
6 The amount of compensation payable is in the discretion of the court. By s. 85B(1), the court is authorised to order the offender to pay compensation of such amount as it thinks fit for any of the matters prescribed in s. 85B(2). By s. 85H(1) the court 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.
7 Ms Lyndsay is entitled to make an application under s. 85B, as, by s. 85C(1)(b)(i) she falls within the class of persons permitted to make application under this provision. That is she is the victim of the offending. Her application was filed within the 12 month period after conviction stipulated by s. 85C(1)(a).
8 In support of her application she has filed the following material:
(a) the prosecution opening relied on for the purposes of the trial and dated 14 August 2014;
(b) the reasons for sentence delivered by me on 21 November 2014;
(c) her victim impact statement filed for the purposes of sentencing hearing and dated 19 November 2014;
(d) an affidavit sworn by her on 25 February 2016;
(e) a report prepared by the psychologist Diana Aruzman for the purposes of a Victims of Crime Assistance Tribunal (VOCAT) claim dated 30 October 2012;
(f) a VOCAT award in the amount of $7500 dated 19 May 2015;
(g) a report from the psychologist Joan Callaghan dated 28 December 2015;
(h) a copy of a restraining order made by this Court under the Confiscation Act 1977 on 30 July 2013, in respect of a property at 149 Jacksons Road Noble Park North, jointly owned by Mr Hermanus and his wife, and accompanying land titles office certificate; and
(i) an outline of submissions prepared by her legal advisers and dated 28 April 2016.
9 All of these materials were filed and served upon Mr Hermanus. He has not been legally represented for the purposes of this application. A number of mentions or directions hearings have been held, and he has attended each of them by video link from the prison where he is serving his sentence. He indicated that he wished to be legally represented, but was unable to afford to retain private solicitors, and VLA, which had represented him for the purposes of the trial, had declined to represent him on this application. As I understand it, that is in accordance with the usual VLA guidelines. Mr Hermanus has however received legal advice from lawyers at VLA in respect of the application.
10 Mr Hermanus has been given the opportunity to file and serve any materials upon which he sought to rely, but has indicated he did not wish to file any material himself. He has been given the opportunity to request the attendance of any witness for cross-examination, and has indicated he did not wish to cross-examine any witnesses.
11 It is not necessary for the purposes of this application to set out circumstances of the offending in any great detail. There were two discrete acts of anal penetration, the second only days after the first. They occurred in the family home when Ms Lyndsay was home alone with her father and who was supposed to be looking after her. Even at trial, close to 40 years later, Ms Lyndsay was able to describe vividly the conduct itself, the physical pain and injury that she suffered, and the emotional distress she experienced.
12 In her victim impact statement, Ms Lyndsay described a change from an outgoing high-spirited child who was full of energy and having a keen sense of fun to a child who underwent which she described as a complete personality change. She said she became withdrawn and introverted and that her grades at school suffered, that she could not concentrate or stay focused in class as her mind was preoccupied with what had happened to her or might happen again.
13 In her affidavit Ms Lyndsay said that from the time of the abuse she began to lose confidence in herself and could not concentrate at school. She had to repeat at least one level at school and never concentrated enough to obtain a satisfactory level of education. She found it difficult to obtain work and could not settle to work when she did obtain it, leading to a very poor work history. She said she felt as if she did not belong or fit in well with her immediate or extended family, was not comfortable in relationships and had a history of unsuccessful relationships.
14 When seen by Ms Aruzuman in 2012 Ms Lyndsay was exhibiting elevated levels of depression, anxiety and distress. She reported an inability to enjoy intimacy with her partners. She was experiencing flashbacks, and constant intrusive memories. Often, when with her children, she would be preoccupied with memories or thoughts about how a parent could do such a thing to a child. Vaseline, if encountered when shopping, would bring back bad memories and prevented her from completing even such a simple task as family shopping.
15 Ms Aruzman recommended an initial course of treatment of ten sessions over three month period, to be reviewed thereafter.
16 Ms Joan Callaghan assessed Ms Lyndsay in December 2015. The account Ms Lyndsay gave Ms Callaghan was consistent with her evidence at trial, her affidavit and her victim impact statement.
17 Of particular relevance here is not only the offending itself but the history recounted by Ms Lyndsay of her relationship with her father her mother and her extended family. Ms Lyndsay’s account to Ms Callaghan, consistently with the evidence at trial was that there had been disclosure to family members including her mother as early as 1984, of her father’s abuse. It would appear some family members believed her, whilst others did not and the family became polarised. In particular Ms Lyndsay recounts, and again this is consistent with the evidence at trial, that initially her mother did not believe her, supported her father, and accused her of lying. It would appear that later Ms Lyndsay’s mother did accept that Ms Lyndsay was telling the truth, but still sought to prevail upon Ms Lyndsay to keep it secret or keep it within the family. Ms Lyndsay first made a report to the police in 2008, but it was not pursued. It was not until 2012 that Ms Lyndsay pursued her complaint to the police and charges were ultimately laid against her father.
18 Ms Lyndsay left home and married young. She has had a history of unsuccessful relationships, marred by family violence. She had two children from her first marriage. Her life remained intertwined with that of her parents, who played a significant role assisting her in the rearing of those children. Ultimately the marriage broke up and her husband obtained custody of the children. Ms Lyndsay attributes that to her mother’s domineering and destructive influence on her life. Ms Lyndsay attributes the breakup of her second relationship also to her parents’ interference. With her third partner, she had another five children. That relationship came to an end again in the context of family violence. She then formed a new relationship. Her oldest daughter alleged the new partner had sexually assaulted her. Ms Lyndsay did not believe her daughter. DHHS became involved, and the children were removed from Ms Lyndsay’s care because she did not believe her daughter and was determined to maintain her relationship with this partner.
19 Ultimately Ms Lyndsay’s mother obtained custody of the children. By this time Mr Hermanus had been charged with sexually abusing Ms Lyndsay. There is, as Ms Callaghan noted, a sad irony about the fact that Ms Lyndsay, who so resented her mother’s failure to believe her support her and protect her, did not believe her own daughter when allegations were made by her against her mother’s partner. It is an even sadder irony that Ms Lyndsay’s mother, having not initially believed Ms Lyndsay, prevailed upon Mr Hermanus to move out of the family home so that she could have custody of Ms Lyndsay’s children. It was clear on the evidence at the trial that this was a decision foist on Mr Hermanus by his wife, and one about which he was unhappy. Ms Lyndsay gave evidence at trial that her mother had dominated her life and that of her children, and that she had always believed her mother was trying to take her children from her.
20 In Ms Callaghan’s opinion Ms Lyndsay’s family history is complex and wrought with hypocrisy and denial. In Ms Callaghan’s view her current condition may well be influenced or compounded by numerous stressors. She lost custody of her two older children to their father, and has now lost custody of her five younger children to her mother. She was described by Ms Callaghan as unloved, allegedly unloving and un-trusted by Ms Lyndsay. Ms Callaghan reported what she described as an alarming absence of any emotional connection compassion or empathy between Ms Lyndsay and her mother.
21 Ms Callaghan did not conduct any psychological tests on Ms Lyndsay but noted she impressed as of below average intelligence, possibly just within one standard deviation of the mean. She reports having always felt alone, depressed and anxious throughout her life. She noted Ms Lyndsay had been diagnosed with depression on a number of occasions but had not been compliant with antidepressant medication when it had been prescribed. In her opinion Ms Lyndsay had a number of features of several disorders in several of the clusters, but did not fulfil any single diagnosis of personality disorder. Accepting Ms Lyndsay’s account of pervasive sexual abuse over her developmental years, Ms Callaghan concluded it had influenced her development, and that there was an element of chaos, instability in comprehension and overall confusion that dominated her presentation and suggested the presence of a personality disorder.
22 She noted her adjustment was poor and her anger sustained, which supported a diagnosis of chronic unaddressed and unresolved adjustment disorder with depressed mood. However she noted a longer diagnostic period was necessary to be more definitive.
23 Ms Callaghan noted that Ms Lyndsay had reported that she had friends as a child, prior to the abuse, but that her parents had driven them away. If this is to be accepted, as Ms Callaghan said:
“[Ms Lyndsay]’s social and recreational activities would have been profoundly impacted on. The absence of any extended family support, and indeed the apparent condemnation of many family members of both sides, means that the impact on her domestic life over many years has been significant if not profound.”
24 Ms Callaghan said that given her age and her current circumstances she appears to be almost entirely alone in the world with nothing much other than visits arranged, apparently weekly by DHHS and her mother with the children.
25 In Ms Callaghan’s opinion Ms Lyndsay may never have been provided with even the most basic level of skills to parent her children which would have helped her to gain insight and to develop the skills and strategies needed for the monumental task of parenting.
26 Ms Lyndsay’s relationship with both her parents was described by Ms Callaghan as abysmal, her relationship with her mother being at least as vitriolic as that with her father. Her relationships with men have been almost universally unsuccessful and peppered with severe violence, aggression or indolence.
27 In her opinion, unless or until Ms Lyndsay is able to participate in psychiatric or psychological interventions there is little hope for change. She says that on Ms Lyndsay’s account she has been subjected to intolerable abuse from her father coupled with collusion, contempt and indifference from her mother. This, combined with the myriad other problems identified by Ms Callaghan and coupled with the possibility that she faces intellectual challenges, predicts in her opinion a very sad life journey.
28 Addressing specifically the link between the offending behaviour and Ms Lyndsay’s state Ms Callaghan said:
“The absence of appropriate love, guidance, and nurturing in her childhood, her probable low intelligence, her history of dysfunctional relationships, her inability to meet the challenges of parenting, and her difficulty finding stable and satisfying employment might all be considered contributors to her poor overall adjustment.”
29 She concluded:
“However even taking all of this into account, she was preoccupied at assessment, and clearly for a significant part of her life, with repeated sexual abuse at the hands of her own father which so clearly shaped this overall poor development pattern.”
30 Ms Callaghan was not provided with the transcript of the evidence at trial, or the depositional material. As I said at the time of sentencing Mr Hermanus I was satisfied that the jury verdicts were consistent with an acceptance of Ms Lyndsay’s evidence that the abuse at the hands of her father continued for many years, until she left home. Having seen and heard the evidence of Ms Lyndsay and her mother at trial, and that of the other family members who gave evidence before me, I am satisfied that the relationship between Ms Lyndsay and her mother is as described by Ms Lyndsay to Ms Callaghan. I accept therefore the opinions of Ms Callaghan based upon the accounts given by Ms Lyndsay of her treatment at the hands of her mother and father.
31 When I sentenced Mr Hermanus I said this:
19 …this is serious offending. Carla was only eight. And you as her father owed her a responsibility, a duty, to care for her and protect her, not to debase her, to subject her to the degrading and extremely painful abuse that she suffered.
20 Your conduct denied her the safe, and happy childhood she should have had. In her evidence at trial, and in her victim impact statement, she referred to the happy confident child she was before the abuse, and the quiet, withdrawn and low achieving child she became. …
21 That Carla continued to have contact with you and her mother after the abuse stopped, and into her adulthood just demonstrates the confusion and ambivalence she, like so many victims of sexual abuse we see in the court, feel towards an abusive parent. … although you and your wife were actively involved in the care of all of Carla’s children, the continued contact, even after her mother found out and apparently accepted the truth of what Carla had said you had done, only serves to demonstrate your sense of impunity, and her continued powerlessness in the parent adult child relationship.[5]
[5]DPP v Hermanus [2014] VCC 2018 [19]–[21].
32 It is not necessary that the criminal offences of which the jury found Mr Hermanus guilty and in respect of which I convicted him are the sole cause of Ms Lyndsay’s past or current condition. It is sufficient if her past and current condition is in part a direct result of his offending behaviour, that is in respect of the charges of which I have convicted him.[6]
[6]Kaplan v Lee-Archer [2007] VSCA 42.
33 Having regard to the report of Ms Callaghan and the evidence at trial I am satisfied that Ms Lyndsay’s current condition, and her past condition is a direct result of the abuse that she suffered at her father’s hands. Specifically I am satisfied that Ms Lyndsay’s current condition and past condition is a direct result of the two acts of anal penetration of which the jury found Mr Hermanus guilty.
34 In his submissions on the application Mr Hermanus said he had no money and no assets apart from his interest in the family home which he co-owns with his wife Ms Lyndsay’s mother.
35 He said that Ms Lyndsay is their only child, and next of kin and was named as their heir in their wills. In other words that she would inherit whatever assets he owned upon his death. In effect as I understood it he queried the need for compensation to be paid if Ms Lyndsay were to ultimately benefit from the estates of her parents.
36 Next Mr Hermanus raised concerns as to what would happen to Ms Lyndsay’s five children if compensation were awarded to Ms Lyndsay and the house had to be sold. He pointed out that his wife had custody of the children, that they lived in the house with her, and that they were settled at school in the area. He said that if the house went, the children would have to go into foster homes.
37 I note that Mr Hermanus is, according to the restraining order and accompanying title search, the registered joint proprietor of the property at 149 Jacksons Road Noble Park North. Although the title search reveals the existence of mortgages, I was told the mortgages have been discharged, and the property is unencumbered. I have no other evidence about his financial circumstances, save that presented on the plea which was that he was long retired from his work as a tram conductor, and had been living in a retirement home since he was required to leave the family home so that his wife could have custody of the children.
38 I am satisfied that Mr Hermanus has an asset namely a half interest in the family home, which is unencumbered. What steps are taken to seek to have the amount ordered to be paid under a compensation order are a matter for Ms Lyndsay and her legal advisers. Satisfaction of a judgement debt, which is by s. 85M of the Act the way a compensation order can be enforced can only lie against the father’s half interest.
39 Given the correlation between the effect on Ms Lyndsay of the offending, and her inability to properly parent her own children, I do not consider that I should refuse to order compensation to avoid the risk (if indeed there is such a risk) of Ms Lyndsay’s mother having the move out of the house. There is no evidence before me to suggest Ms Lyndsay’s mother would relinquish the children, if the house were sold to allow Mr Hermanus’ share to be realised and applied to discharge his obligation to pay compensation ordered under s. 85B. The mother’s interest in the house cannot be claimed in satisfaction of an order made against Mr Hermanus.
40 I do not consider the fact that Ms Lyndsay is the only child of Mr Hermanus and her mother, and their closest next of kin is a bar, or should be a bar to making a compensation order. Section 85B provides a right to compensation for a victim of proven offending, consequent on proof of the offending. That is a present right, not one which can only pass a benefit following the death of the offender. Mr Hermanus’s assertion Ms Lyndsay will inherit the house is contingent on many things, all of them outside Ms Lyndsay’s control. No order made under s. 85B can compel an offender to make a will in favour of the claimant, or not to change a will already in existence and which benefits a claimant. Nor is a person’s interest in jointly owned real property able to be bequeathed to anyone, if they are the first of the joint tenants to die. The surviving joint tenant succeeds to their share by operation of law. If Mr Hermanus predeceases his wife, she will succeed to his share of the property. No order under this s. 85B application can bind Ms Lyndsay’s mother to leave the property to Ms Lyndsay. She too is free to change her will at any time. The asserted present intention to leave the house to Ms Lyndsay does not deny her the right to seek the compensation to which she is entitled under s. 85B.
41 In any event, the submission conflates the right to compensation with the known means to satisfy a compensation order. If Mr Hermanus chooses not to take steps to pay any amount of compensation ordered by me, by s. 85M the order is to be treated as a judgment debt, and enforceable as such. His half interest in the property is a known current asset, and as such, available to meet the judgment debt.
42 Mr Hermanus’s concern about the fate of Ms Lyndsay’s children if a compensation order is made is similarly, one which conflates the entitlement to compensation with the consequences of enforcement of the judgment debt. That is not, in my view, a matter which operates as a bar to an order for compensation.
43 So far as the nature of any burden an order for compensation would have on Mr Hermanus having regard to his financial circumstances, I take into account the fact that he had agreed to move out, or accepted a direction to move out in order to allow his wife to occupy it with Ms Lyndsay’s children, and had apparently accepted he would not therefore have the use and enjoyment of the house. He had been able to find, and pay for alternative accommodation, and no doubt will be able to do so on his release after serving his sentence.
44 He maintains his innocence, and has expressed no remorse or desire to rehabilitate himself. There is no suggestion that the making of a compensation order, or any financial hardship consequent upon its satisfaction, would deny him the means of advancing his rehabilitation. In Stevens v Baxter,[7] Forrest J held that the financial circumstances of an offender may appropriately be taken into account in assessing the amount to order as compensation under s 85B, if for example, the offender was youthful, and his rehabilitation could be assisted by having resources available to him or her upon release from custody. That is not the case here.
[7][2009] VSC 257.
45 As the unchallenged evidence before me reveals, the effect on Ms Lyndsay of Mr Hermanus’s offending has been profound, and is likely to continue to be so. It has, I am satisfied, greatly compounded the other significant factors which have made her life so difficult, and her prognosis so poor. She is entitled to a substantial award of compensation for the pain and suffering she has experienced as a direct result of his offending. I do not consider it appropriate to fix or reduce the amount justified by her level of pain and suffering by reference to the value of his current known assets.
46 I order Mr Hermanus pay compensation to Ms Lyndsay for the pain and suffering experienced by her as a direct result of the three offences of which he has been convicted in the amount of $160,000.
47 Pursuant to s. 85I, I reduce that amount by the $7,500 compensation paid to her by VOCAT.
48 Pursuant to s 85K, each party bears their own costs for the proceeding.
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