Mallard v Mallard
[2022] WADC 71
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MALLARD -v- MALLARD [2022] WADC 71
CORAM: GILLAN DCJ
HEARD: 22 JULY 2022
DELIVERED : 12 AUGUST 2022
FILE NO/S: APP 63 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: VERONICA MALLARD
Appellant
AND
TIMOTHY KEITH MALLARD
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION CHIEF ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 565/2019
Catchwords:
Criminal injuries compensation - Appeal - Approved offence - Mental and nervous shock - PTSD - Admission of additional evidence - Turns on its own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Firearms Act 1973 (WA)
Result:
Appeal allowed
Compensation increased
Representation:
Counsel:
| Appellant | : | Mr N F Morrissey |
| Respondent | : | No Appearance |
| Amicus Curiae | : | Ms K E Ellson on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Patrick J Cannon Coburn & Associates |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
EB v Ramljak [2021] WADC 134
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hansen v Bolton [2017] WADC 25
Harris v Sycamore [2021] WADC 4
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
Re Farmer [2015] WADC 91
Re Robinson [2017] WADC 18
Re Sunderland [2011] WADC 97
Re Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Selimoski [2012] WADC 30
Sweetman v Lilley [2021] WADC 74
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13
GILLAN DCJ:
On 19 March 2016 the appellant was 60 years of age. She was at her home in the Barrel Well Community in Ajana.
At about 5.30 am that day the respondent was also at his home address in the Barrel Well Community. He was intoxicated.
The respondent became agitated over some community disagreement and went to his firearms cabinet and removed his Weatherby .38 bolt repeating rifle. He walked to the front of his property where he started to shout at and about other community members. He said words, inter alia, to the effect of 'I'm going to bury you all today'. I will come back later to what the respondent said. The respondent fired several shots from the rifle into the air causing community members to fear for their safety and call the police.
The respondent then left the community in his Toyota Hilux. The police attended the community and commenced an investigation.
On 15 April 2016 the respondent pleaded guilty before the Magistrates Court at Geraldton to two relevant offences, of being in actual physical possession a firearm while affected by alcohol contrary to s 23(2) of the Firearms Act 1973 (WA) (the FA) and to discharging a firearm in a manner to cause fear to the public contrary to s 23(9A) of the FA. The facts at [2] ‑ [4] above are the facts accepted by the respondent by his pleas.
In a document headed Statement of Events Victim Impact Statement dated 4 February 2021, with respect to those events, the appellant describes waking early in the morning hearing gunshots.
She went straight away to check on her four grandchildren who were staying with her. Her son, Greg, was there too.
The appellant said she was frightened for her life and the lives of her son and grandchildren. Greg went outside to have a look. She was screaming at him to stay inside where it was a bit safer.
She could hear the respondent yelling and screaming and was scared. To her it felt like the gunshots were going on forever.
On 6 March 2019 the appellant made an application for compensation (the original application) pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
On 12 August 2021 the Chief Assessor of Criminal Injuries Compensation (the Assessor) ordered that the appellant be paid:
(a)$5,000; and
(b)up to $1,458 to be paid pursuant to the provisions of s 48 of the Act for psychological treatment.
The original application
Originally the application was initially unsupported by any documentation but before her assessment the Assessor was provided with Statement of Events Victim Impact Statement dated 4 February 2021 and with a report dated 12 August 2021 of Mr Gary Bresland, a psychologist with the Geraldton Regional Aboriginal Medical Service. On 12 August 2021 when the Assessor ordered the appellant was entitled to compensation of $6,458 ($5,000 to be paid immediately and $1,458 when incurred) the Assessor did not provide reasons for the award.
On 2 September 2021 the appellant filed a notice of appeal against the decision of the Assessor on the grounds that the Assessor failed to give enough weight to her evidence of psychological trauma.
The respondent was served with the notice of appeal in accordance with orders for substituted service. The respondent has not filed an appearance in the appeal and did not appear at the hearing. The court was assisted by the written and oral submissions of the appellant and the amicus curiae (amicus).
The appeal to the District Court
The appeal is brought pursuant to s 55 of the Act. In hearing the appeal, the court must 'decide the application in which the decision relates afresh, without being fettered by the Assessor's decision': s 56(1) of the Act. An appeal under the Act is a hearing de novo: Gullelo v Halloran.[1]
[1] Gullelo v Halloran [2008] WADC 145 [5].
The court may determine the appeal solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information: s 56(1) of the Act.
The discretion to admit further evidence on appeal should be exercised without under restriction because of the beneficial purpose of the Act, the Assessor is not bound by the rules of evidence and the Assessor's determination is informal: Re Tilbury;[2] Re Sunderland.[3]
[2] Re Tilbury [2010] WADC 46 [3].
[3] Re Sunderland [2011] WADC 97.
On the hearing of the appeal, the court may exercise any power of an assessor under the Act (except for powers excluded under specifically nominated sections), it is open to the court to confirm, vary or reverse the Assessor's decision either in whole or in part and the court may make any order that an assessor could make under the Act: s 56(2)(a), s 56(2)(b) and s 56(2)(c) of the Act.
The appellant relied upon the following material in support of the appeal:
Material before the Assessor
(a)Statement of Events Victim Impact Statement dated 4 February 2021;
(b)the psychological report of Mr Gary Bresland of the Geraldton Aboriginal Medical Service dated 12 August 2020;
Additional material
(c)the supplementary psychological report of Mr Bresland of the Geraldton Aboriginal Medical Service dated 4 July 2022;
(d)the supplementary statement of Veronica Mallard dated 7 July 2022;
(e)the statement of Carleen Dingo dated 7 July 2022;
(f)from the police file, the witness statement of Gregory Clarence Mallard dated 19 March 2016: Exhibit 1;
(g)from the police file, the witness statement of Gary Robert Taylor dated 19 March 2016: Exhibit 2; and
(h)from the Magistrates Court, the transcript of the hearing before Magistrate Webb at Geraldton on 15 April 2016.
The documents referred to at [19(c)] - [19(h)], are additional to the evidence which was before the Assessor. I grant leave pursuant to s 56(1) of the Act for the appellant to rely upon the additional material being satisfied that it is not unjust to do so because:
(a)The documents at [19(c)] - [19(e)] provide additional information, including updated medical evidence, about the effect of the proven offences on the appellant; and
(b)the documents at [19(f)] - [19(h)] are not inconsistent with the material before the Assessor and provide additional important background information relevant to the circumstances of the proven offences.
The authorities in this court differ as to whether it is appropriate to give weight to the Assessor's assessment of the amount of compensation, given the assessment is made by specialist tribunal in the field.[4]
[4] See for example Re Robinson [2017] WADC 18 [9] and Underwood v Underwood [2018] WADC 13 [19] as authority for the view that regard should be had to the assessment as opposed to Sweetman v Lilley [2021] WADC 74 [9] and Guy v Hampson [2019] WADC 19 [14] as authority for the view that it is not appropriate to have regard to the assessment.
I am of the view that given this is a hearing de novo, the Act requires me to consider this appeal without regard to the prior decision of the Assessor but, in any event, the Assessor did not have before her the additional materials sought to be relied on by the appellant and so her prior decision could only be of limited, if any, relevance in the circumstances of this appeal.
Issues
Having decided in the affirmative the question of whether additional material should be taken into account on the appeal, the following issues arise for determination in the appeal:
(a)What are the legal principles governing the application for compensation?
(b)What injuries did the appellant suffer as a consequence of approved offence?
(c)What award of compensation is appropriate?
(d)What final orders are appropriate, including whether a barring order should be made under s 45 of the Act?
What are the legal principles governing the application for compensation?
The original application was brought pursuant to s 12 of the Act which provides that a person who suffers an injury as a consequence of commission of a proved offence may apply for compensation for the injury and any loss so suffered.
Section 3 of the Act defines the term 'proved offence' as being a crime, a misdemeanour or simple offence of which a person has been convicted.
The offences to which the respondent pleaded guilty, of being in actual physical possession a firearm while affected by alcohol contrary to s 23(2) of the Firearms Act 1973 (WA) (the FA) and to discharging a firearm in a manner to cause fear to the public contrary to s 23(9A) of the FA, are proved offences for the purposes of the Act. I will come back to an issue raised by the amicus about whether it was necessary for the appellant fall within the 'public' to whom fear was caused before she could be paid compensation.
Compensation is payable where a person has suffered injury in consequence of commission of a proved offence: s 12(a) of the Act. Injury is defined in s 3 of the Act to mean, relevantly, bodily harm and mental and nervous shock.
The phrase 'mental and nervous shock' is of a composite character which refers to mental or emotional harm and includes 'distress, horror, disgust and other similar adverse mental reactions similar but excludes fright, humiliation or anguish'. In other words, in order to constitute mental and nervous shock the injury must be more than a mere emotional reaction it must have an enduring quality which impacts on the mental state or the nervous system of the person injured: M v J and J v J; B v S; S v Neumann and Martin v Martin.[5]
[5] M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992); B v S (Unreported, WASC, Library No 950223, 10 May 1995); S v Neumann (1995) 14 WAR 452, 461and Martin v Martin [2015] WADC 138 [85].
A compensation order cannot be made unless I am satisfied that the claimed injury and any claimed loss has occurred and did so 'as a consequence' of the commission of the proved offence: s 12(3) of the Act. Section 3 of the Act says that 'satisfied' means being satisfied on the balance of probabilities.
The term 'as a consequence of' requires a causal relationship or connection between the injury and the commission of any offence. The question of whether the prerequisite causal connection exists is a question of fact to be resolved as a matter of common sense.[6] That test will be met whereas a matter of ordinary common sense and experience the offences are regarded as having materially contributed to the injuries.[7]
[6] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 and Underwood v Underwood.
[7] Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620; March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515.
The right to criminal injuries compensation for mental and nervous shock is limited by s 35 of the Act. Section 35(2) requires an assessor not to make a compensation award for mental or nervous shock suffered by a victim as a consequence of a commission of an offence or for any loss in respect of such shock unless the Assessor is satisfied (relevantly):
(a)'that the victim was the person against whom, or against whose property, the offence was committed': s 35(2)(b) of the Act; or
(b)'that a person other than the victim … suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed': s 35(2)(c) of the Act.
The amicus raised an issue which I understood to be that I should turn my mind to as to whether in order to be 'a person against whom, or against whose property, the offence was committed' the appellant would have to be in public or a member of the public to whom fear was caused. The evidence disclosed that she did not leave her home, so could she be so described as being in public or a member of the public.
The offence of discharging a firearm in a manner to causing fear to the public contrary to s 23(9A) of the FA is in these terms:
(9A)A person commits a crime if the person discharges from any place a firearm, or any shot, bullet, missile or other projectile from a firearm, to the danger of, or in a manner to cause fear to, the public or any person.
To the extent that the amicus's submission might be taken to require any person who experiences fear to be 'in public' as opposed to being a member of 'the public' that would not seem to be an element of or contemplated by the offence under the FA.
'The public' is not a defined term within the FA. It is used as a noun and as such has its usual meaning which includes 'People collectively; the members of the community'.[8] The charge referred to fear being caused to 'the public' and the facts read at the hearing of the Magistrates Court on 15 April 2016 which the respondent accepted by his plea of guilty were to the effect that by discharging his firearm that he caused 'community members' to fear for their safety.
[8] Shorter Oxford English Dictionary, 6th ed.
I have the benefit of the police statements of Gregory Clarence Mallard, the appellant's son, and Gary Robert Taylor each of whom were present at the community that morning. In his statement Mr Gregory Mallard who lives with the appellant at her house describes that the respondent lives across the creek up on the hill. Mr Mallard could see the respondent's house from the front of his house. In his statement, Mr Gregory Mallard says he was woken that morning by the appellant in a panic who said that the respondent was shooting 'at us' and that the respondent was going to shoot Gregory Mallard. Mr Gregory Mallard contacted the police and during his conversation (with police) he could hear the sounds of rounds coming past the house. Mr Gregory Mallard thinks that the respondent fired off about 10 rounds of ammunition. Gregory Mallard said that he could hear the respondent shouting 'I'm going to shoot all you black cunts out here. I'm going to bury you all today'.
Mr Gary Robert Taylor describes in his statement that there are six houses in the Barrel Well Community. He was there at the community that morning and he recounts that initially he heard a number of gunshots. Mr Taylor states that the respondent was shouting out 'I'm going to kill you all', 'I'm going to shoot you', 'I'm going to shoot all you mob down there, this is my home' and 'I'm going to bury you all today'.
After deciding that some of those shots were coming in the direction of his home, Mr Taylor went inside his house but then realised his sons were outside. He went outside to see where they were and while standing at his house he could see his sons standing near the appellant's house. He heard another gunshot that whizzed past the front of the boys into some bushland. Mr Taylor's sons were standing behind a building (which I infer was the appellant's house) but the bullets seemed to be aimed in their general direction. Mr Taylor's sons then ran into the appellant's house.
That evidence combined with the respondent's admission to the facts read to the Magistrates Court on 15 April 2016, that the respondent walked to the front of his property where he began to 'shout at and abuse other community members' stating words to the effect 'I'm going to bury you all today' and that he shot several shots from the rifle into the air, 'causing community members to fear for their safety' and call the police satisfies me to the required standard that the appellant was a community member, that the offending was directed to members of the community generally and therefore she was a member of the public and one of the persons against whom the offence was committed and her property was property against whom the offence was committed within the meaning s 35(2)(b) of the Act.
I am not so satisfied that the criteria under s 35(2)(c) of the Act is met there being no or no sufficient evidence that anyone else at the community as a consequence of this offending has suffered injury, physical or otherwise, while the appellant was present.
What injuries did the appellant suffer as a consequence of the proven offence?
The appellant provided Statement of Events Victim Impact Statement dated 4 February 2021 and a supplementary statement dated 7 July 2022.
In those statements the appellant describes her feelings as follows:
Statement of Events Victim Impact Statement dated 4 February 2021
1.'It felt like the gunshots were going on forever';
2.'I've never really gotten over what happened';
3.'I'm always scared to leave the house in case I run into Tim';
4.'It's real hard now because Tim lives up the hill. I'm always very nervous';
5.'I'm not really close with my family anymore because of what Tim did';
6.'I find it hard to sleep at night because I get scared that something is going to happen again. I only sleep about three to four hours a night';
7.'I keep the gates shut every night';
8.'Any noise I hear day or night scares me. I am always on edge that something is going to happen';
9.'I still get frightened for my life and my son Greg and his four kids';
The supplementary statement dated 7 July 2022
10.After speaking of the work, both paid and unpaid, she had undertaken in her life and her enjoyment of her home life and the peace and quiet of the community, the appellant said 'This was all shattered by that business where my nephew was shooting up the place. I really don't like to talk about it. My nerves are gone. I'm scared to sleep';
11.'I'm scared they'll come the back way because I'm up the top of the community, 100 yards from anyone else and I live on my own. I get really nervous but I can't handle living with anyone. I need my own space. I lock up my house and make sure by sunset no‑one can come in. My immediate family don't come there';
12.'It's really hard to talk about how this community was where the best years of my life were spent with my husband who died six years ago. It used to be my special place. I always felt safe here but after the incident I don't have that feeling anymore';
13.'I thought I was the richest person in the world because I lived in all that beauty. It kept my spirit good. I thought I would never have any trouble like that business';
14.'The wildflowers have bloomed early and I still see that beauty but it just isn't the same. I can't relax like I used to when I go past the house where Timothy used to live. I lock my car doors and I get really nervous. I am basically a prisoner of my own mind. He has taken my freedom, my peace and enjoyment of life'; and
15.'Its really twisted me inside out all that business'.
In summary the two psychological reports of Mr Bresland provided in support of the appellant's application for compensation conclude:
Report dated 12 August 2020
(a)The appellant described symptoms are consistent with chronic post‑traumatic stress disorder as later referred to as (PTSD).
(b)The appellant had no prior mental health history of note. Mr Bresland believes the proved offences are the causal factor for her PTSD.
(c) The appellant has to date suffered in silence and not sought help either from her general practitioner or mental health professional but some psychological assistance could prove to be of assistance.
(d)The shooting had a massive effect on her sense of home and safety. She remains hypervigilant for her nephew and the car he drives. That hypervigilance extends not just to the community grounds but also to Geraldton and built‑up areas.
(e)Even while the respondent was not allowed onto the property the appellant stayed home and did not venture far for fear of seeing him. She stopped attending family‑related events and has found it difficult to relate to her sister who is the mother of the respondent. There are also stress on other relationships with other elders within her family.
(f)The appellant's sleep has been disturbed chronically since the incident. She fears at nights and in early mornings, she fears for the safety of her son and her grandchildren and her level of fear is outside the normal range. She loves her home and her community and is torn between staying and hoping her feelings will change or leaving and missing her home and country.
(g)The appellant struggles daily with her symptoms. Her prognosis is guarded and she needs considerable treatment input.
Supplementary Report dated 4 July 2022
(h)Mr Bresland confirmed that the appellant's chronic PTSD and associated anxiety has not changed in severity. She still suffers from ongoing sleep problems and is hypervigilant both day and night. Even with the respondent moving to Broome the appellant still locks and bolts her house at sunset and hunkers down at night and many of those behaviours have become compulsive.
(i)The appellant underreports and underplays her symptoms and the effect it has had on her. Mr Bresland indicated that was quite typical in older generations of indigenous clients that he sees. In the appellant's case she feels the need to be strong and in control however this episode and resultant PTSD has meant she cannot fulfil her role as a strong grandmother figure. She is ashamed that when she leaves her home the PTSD travels with her. She has been, since the incident, more timid and housebound when she does travel to see her grandchildren.
(j)She struggles with the guilt of staying at Barrel Well Community in the house her husband built by hand and not leaving after the incident but she remains emotionally torn and troubled by the incident.
In addition to those materials, it is of note the information the appellant gave about her background. She says in her supplementary statement that she had a good childhood. Her parents both worked, her father as a shearer and her mother in the laundry in the Mount Magnet Hospital and she did meals as well. Her mother raised her and her 12 siblings and 'used to grow up other children' as well.
The appellant herself went to school in Meekatharra and then the high school at Mount Lawley's ladies' school through to Year 10.
The appellant then went and worked in Kalgoorlie at the hospital where her mum was then working and she also did aged care. That was for about three years. After that she went to Mullewa in around 1978 or 1979 and became the first Aboriginal teacher's aid at the school, an achievement that she was very proud of.
Later she moved to Geraldton and married her husband.
Mr Mallard, the appellant's husband, also worked. He worked on Mains Roads and as a station roustabout while the appellant was working in community care with the Geraldton Hospital.
When she was about 24 in about 1980, they moved the Barrel Well Community.
In her time in the community the appellant has done a lot of cooking and a lot of care for the old people. She used to do a homecare service in the community it was all voluntary.
In addition, the appellant used to work harvest time working with the unloading of wheat in the area. Apart from that she would stay at home and be a homemaker looking after her children and grandchildren.
The statement of Ms Carlleen Dingo, the appellant's daughter, confirms that her mother has not been the same since the offending. She has lost her 'self-worth, strength, and dignity'. She uses animals to provide a degree of security and as her immediate family work in Geraldton they are reliant on other extended family members to keep an eye on their mother. Ms Dingo confirms the appellant suffers symptoms consistent with PTSD.
Taking all of those matters into account I am satisfied that prior to the incident the appellant was a very well‑functioning member of her community, a hard worker and that there are no suggestions that her mental health issues were caused by other events in her life. I am satisfied on the balance of probabilities based on her own evidence, the evidence of Ms Dingo and on the psychological evidence that the commission of the proved offences materially contributed to the mental and nervous shock in the form of PTSD and anxiety that has been suffered by the appellant since the incident.
What award of compensation is appropriate?
The maximum amount of compensation which might be awarded for injury and loss is $75,000: s 31(1) of the Act.
The maximum compensation payable under the Act is the jurisdictional limit and is not an amount that is reserved for the worst cases. In fixing the appropriate amount of compensation I must apply the ordinary tortious principles for the assessment of damages subject to the limitations imposed by the definition 'injury' and 'loss' in the Act in the jurisdictional limit imposed by the Act.[9]
[9] Underwood [112] ‑ [113].
In assessing the amount of compensation, it is the injury that is suffered as the consequence of the commission of the approved offences which I must turn my mind not the seriousness of the offences. That said I must not fix the amount of any compensation in order to punish the respondent or to display sympathy for the appellant.[10]
[10] Underwood [115].
Loss includes expenses that the appellant has actually and reasonably incurred as a result of obtaining a report from a health professional in addition to the injuries and expenses that are likely to be reasonably incurred by her for treatment that she is likely to need as a result of her injuries: see s 6(2)(a) of the Act. There is no claim for past loss in this case but there is a claim for ongoing treatment needs including for travel from the community to Geraldton to access that treatment.
Loss of earnings and loss of earning capacity are also compensable but not claimed in this case.
Non‑pecuniary loss
In relation to the psychological injury, I find that the proved offence materially contributed to the appellant's PTSD and anxiety and intend to award the appellant, in respect of her psychological injuries, the sum of $25,000.
In reaching this figure I have taken into guidance from a number of decisions of this court to which I was referred by the parties in which awards of compensation for mental and nervous shock have been made acknowledging that some of those decisions are now somewhat aged and that all awards are particular to the claimant and their own circumstances. The authorities include EB v Ramljak; Townend v McAlindon; Hansen v Bolton; Re Farmer and Selimoski.[11]
[11] EB v Ramljak [2021] WADC 134; Townend v McAlindon [2017] WADC 63; Hansen v Bolton [2017] WADC 25; Re Farmer [2015] WADC 91 and Selimoski [2012] WADC 30.
Pecuniary loss
The appellant claims for future treatment expenses.
In his supplementary report dated 4 July 2022 Mr Bresland indicates that the appellant would benefit from 12 sessions of psychological assistance at a cost close to $3,000 together with travel expenses for 8 of those sessions on a face-to-face basis estimated by him to be approximately $2,200 (a 300 km round trip at 86 cents a kilometre). Those sums seem reasonable. Mr Bresland also indicates that the appellant may benefit from a prescription for an SSRI or SNRI medication. No estimate of the cost of that medication is given. Given the appellant's age it is likely that the cost of medication will not amount to a considerable out of pocket cost.
I am satisfied that the future treatment expenses claimed will be incurred by the appellant as a direct consequence of psychological injuries she has sustained as a result of the proven offences. I award the total amount of $5,200 for future treatment expenses, travel expenses and medication subject to the operation of s 48 of the Act.
'Barring order'
The Assessor did not make a barring order pursuant to s 45 of the Act. There has been some difference in opinion between members of this court as to whether, on appeal, the court has the power to modify a barring order.
The authorities were comprehensively reviewed by Troy DCJ in Harris v Sycamore[12] and his Honour came to the view consistent with the more recent authority of the court that while an order under s 45(1) of the Act could not form the basis of an appeal, the preponderance of authority was to the effect that where, on an appeal, a change is made to the award that would carry with it the associated power to make an order as to how much of the award on appeal might be barred from recovery from the offender.
[12] Harris v Sycamore [2021] WADC 4.
Where, as here, the award is being increased substantially, I hold the view that it is appropriate to turn my mind to whether it would be just to make a barring order barring recovery from the respondent either wholly, under s 45(1)(a), or partly, under s 45(1)(b) of the Act.
The appellant did not seek to be heard on the question of a barring order and the respondent took no part in the appeal.
A barring order can be made whenever an assessor 'thinks it just to do so'. Unlike Part 6 of the Act which contains other provisions which deal with the recovery of compensation ordered from an offender,[13] s 45 of the Act places no limitation on or gives any guidance to the factors which might be taken into account when considering whether a barring order is just.
[13] See in particular s 52(2) of the Act
The amicus did not make submissions as to what factors should be taken into account in the determination of whether it is 'just' to make a barring order. Supplementary submissions filed by the amicus referred to many recent decisions of the court on the power to make or alter a barring order on appeal but none of those authorities threw any light on the factors which might be taken into account.
It appears to me that, in those circumstances, the discretion is at large subject only to it being exercised judicially.
Without limiting the discretion, it appears that matters that might reasonably be taken into account would include evidence pertinent to the current financial position of an offender, factors relevant to the offender's reformed character and other personal circumstances. No such information was before the Assessor or the court.
Regardless of whether there will be any recovery from the offender, a successful applicant for relief under the Act will receive the compensation ordered by the Assessor or, on appeal, by the court. That might suggest that it would be rare for the victim's circumstances to be relevant to the exercise of the discretion.
In this case, however, the materials in support of the appeal show that because the offender is the appellant's nephew, the appellant's PTSD has caused her, to a degree, to withdraw from her extended family and she has not felt able to take part in her usual family relationships. This has contributed to the impact on the appellant's mental health. With treatment it is hoped that the appellant will recover and, it is hoped, be able to return taking a more active role with respect to those family relationships.
There is every reason to believe that returning to her family relationships will remain difficult for the appellant should the offender be obliged to pay towards a greatly increased amount of compensation.
Taking that matter into account, my view is it would be just to make a barring order pursuant to s 45(1)(a) of the Act with respect to the award of compensation as a further means of supporting the appellant's recovery.
The orders are as follows:
1.The appeal is allowed.
2.Veronica Mallard, born on 17 February 1956, has made an application under s 12(1) of the Act as a consequence of Timothy Keith Mallard injuring her on 19 March 2016 at Barrel Well Community, Ajana, for which he was convicted in the Magistrates Court at Geraldton on 15 April 2016 of being in actual physical possession of a firearm while affected by alcohol and to discharging a firearm in a manner to cause fear to the public and proved offences as defined in the Act were constituted.
3.I am satisfied as to the relevant matters as required by s 12(3)(a) of the Act and award Veronica Mallard $30,200 compensation in respect to those proved offences and order that:
(a)Veronica Mallard be paid $25,000;
(b)Up to $5,200 be paid subject to the provisions of s 48 of the Act for psychological treatment, travelling expenses to access said treatment and necessary medication; and
(c)Pursuant to s 45(1)(a) of the Act there be an order barring proceedings under pt 6 of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to her Honour Judge Gillan
12 AUGUST 2022
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