Marks & Ors v Bolton (a pseudonym)
[2022] VCC 565
•4 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
APPEALS AND POST SENTENCE APPLICATIONS
| JOANNE MARKS (a pseudonym) & Ors |
| v |
| CLYDE BOLTON (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 March 2022 |
| DATE OF RULING: | 4 May 2022 |
| CASE MAY BE CITED AS: | Marks & Ors v Bolton (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 565 |
REASONS FOR RULING
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Subject: CRIMES COMPENSATION
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991 – three applicants – psychological injury following sexual abuse perpetrated on each Applicant by the Respondent
Legislation Cited: Sentencing Act 1991 (Vic), s85B; Victims of Crime Assistance Act 1996
Cases Cited:DPP v Bolton [2019] VCC 1247; Athian v Pang [2019] VCC 477; Moresco & Ors v Budimir [2015] VSC 51; Adkins v Kimberley [2019] VCC 2093; Lyndsay v Hermanus [2016] VCC 569; Curtis v Patton [2018] VCC 91; Peterson v Peterson [2021] VCC 434; V3 v Hewitt [2020] VCC 280; AA v Cooper [2015] VCC 185; RK v Mirik [2009] VSC 14
Ruling: Compensation Order made in favour of the applicants for $190,000, $140,000 and $115,000 respectively.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr M. White | Vasilaras & Co Lawyers |
| For the Respondent | The Respondent appeared in person | - |
HIS HONOUR:
1On 2 June 2020, each of Joanne Marks[1], Gemma Harrison[2] and Willow Harrison[3] applied for compensation from Clyde Bolton[4], under s85B of the Sentencing Act 1991 (“the Act”).
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
2Mr Bolton is the father of Ms Marks and the grandfather of her children, Gemma and Willow. Gemma is now an adult but Willow is 17.
3After a trial lasting 15 days, Mr Bolton was found guilty of one charge of gross indecency, six charges of incest and one charge of committing an indecent act with a child under 16. He was acquitted of four charges. On 9 August 2019, he was sentenced to a total effective sentence of 12 years and three months imprisonment with a non-parole period of nine years and six months imprisonment.
4Mr Bolton appealed against his conviction on Charge 2 being a charge of incest with Ms Marks. On 31 August 2021, he was granted leave to appeal the conviction against Charge 2. The result of the appeal is unknown. However, the applicants are prepared to adopt the position that the conviction will be set aside on appeal and that Mr Bolton will be found guilty of the offence of attempted incest.
5The circumstances of the offending appear in the sentencing remarks of Her Honour Judge Gaynor, delivered on 9 August 2019.[5] I will deal with each charge using Her Honour's description of the circumstances.
[5]DPP v Bolton [2019] VCC 1247.
Circumstances
6For Charge 1, a charge of gross indecency, while in her room, Mr Bolton made Ms Marks put vaseline on his penis.
7For Charge 2, a charge of incest, Ms Marks was naked. Mr Bolton made her kneel on the bed and tried to insert his penis into her anus. He stopped because she told him it hurt.
8For Charge 3, a charge of incest encompassing events occurring between 1 January 1984 and 31 December 1987. Mr Bolton regularly required Ms Marks to masturbate him and suck his penis until he ejaculated in her mouth. This last occurred frequently.
9For Charge 8, a charge of incest involving Gemma Harrison, after his wife died and when Gemma was five or six, Mr Bolton tricked her into sucking his penis. He gave her sweets and told her not to tell anyone.
10For Charge 9, a charge of incest, when Gemma was six or seven, Mr Bolton penetrated her mouth with his penis. She sucked it until ejaculation. He made her swallow the semen and gave her sweets afterwards.
11For Charge 10, another charge of incest involving Gemma when she was in Grade 2. Mr Bolton was in the garage of his home. He was lying on his back. Gemma was sitting on his knees. She was sucking his penis. It stopped when her sister knocked on the garage door.
12For Charge 11, a charge of committing an indecent act with a child under 16 which relates to Willow. When she was in Grade 2 or 3, both of she and Mr Bolton went to a shed, at his request she took hold of his penis. He told her this was a special way that he and his late wife “used to do it”. He told her it was a secret and not to tell anyone.
13For Charge 12, another charge of incest involving Gemma and her sucking his penis. He ejaculated and rewarded her with lollies.
Psychologist
14Each of the applicants have been interviewed by a forensic psychologist, Carla Ferrari, for the purposes of these applications.
Joanne Marks
15Ms Marks is now 50. Ms Ferrari interviewed her on 2 September 2020.[6]
[6]Report dated 12 September 2020.
16During her three hour interview with Ms Ferrari, Ms Marks became tearful a few times. Her mood was depressed, angry and anxious. She told Ms Ferrari, of her difficulty sleeping, poor appetite, difficulty in concentrating, poor energy and motivation and, at times, an inability to feel pleasure or happiness in response to experiences that are ordinarily pleasurable. This is called anhedonia. Her trauma symptoms affect her mood and functioning and increase the level of anxiety. She described what Ms Ferrari calls 'chronic suicidality' but denied any plan or intent to commit suicide because of the existence of her family. By that, I understand Ms Marks thinks regularly about suicide.
17Ms Marks attends a psychologist monthly. As at September 2020, she had undergone 20 counselling sessions. Since the birth of Gemma, Ms Marks has taken Zoloft, an anti-depressant, to stabilise her mood. She also takes Mobic and is on Humira injections due to psoriatic arthritis in her back.
18Ms Ferrari took a detailed history. She administered psychometric tests of Ms Marks: Depression/Anxiety Stress Scale, Post-Traumatic Stress Disorder Checklist; and the Milton Clinical Multiaxial Inventory. Based on the results of these tests and clinical considerations including her mental state examination, Ms Ferrari diagnosed Ms Marks as suffering from post-traumatic stress disorder, persistent depressed disorder and major depressive disorder, describing the last as severe.
19In relation to post-traumatic stress disorder, Ms Ferrari relied on the existence of the intrusive symptoms of memories, dissociative flashbacks and nightmares. There were negative changes to her mood and cognition through detachment and estrangement. There were marked alterations in her arousal and reactivity. Under that symptom, Ms Ferrari pointed to hypervigilance, reckless behaviour, irritability and anger, outbursts, poor concentration, sleep disturbance and heightened startled response. Finally, there were avoidant strategies adopted by Ms Marks.
20The diagnosis of persistent depressive disorder involves, principally, a very long period of depressed mood. Sitting over this disorder are episodes of more severe depression, justifying the diagnosis for major depressive disorder.
21The combination of these depressive disorders results in symptoms which tend to be more severe than those due to the individual disorders.
22Ms Ferrari considered the three disorders developed in Ms Marks’ formative years as a result of sexual, physical and emotional abuse she endured by Mr Bolton.
23Ms Ferrari did not give a formal prognosis, but she did recommend forms of treatment. She recommended a continued engagement with a psychologist specialising in trauma to address her abuse history and reduce the impact of this on her functioning. This is treatment aimed at her post-traumatic stress disorder. Such treatment may improve her depression and anxiety.
24It is unclear whether Ms Ferrari considers Ms Marks’ current psychologist is one specialising in trauma. Nevertheless, she recommended treatment which is more intensive than that which she presently receives. First, counselling sessions every week or fortnight for at least a year to reduce her symptoms which are severe now and help her manage those symptoms. Followed by sessions each fortnight or month to consolidate the gains. Finally, she will need from time to time, further sessions in relation to episodes or periods of stress. The need for these further sessions is due to Ms Marks’ vulnerability.[7]
[7]Report at paragraph 121.
25Paragraph 121 of her report:
“Any major life events or stressors are likely to impact Ms Marks’ conditions more intensely than an individual without her psychological profile, and thus she is at an elevated risk for future relapses of her mental health; treatment will reduce but not fully eliminate this vulnerability and it is likely that she will continue to manage her symptoms for the remainder of her life.”
26As to Ms Marks and her children, Ms Ferrari recommended an extensive number of sessions of fortnightly or monthly frequency with a family therapist to overcome the effect of the court proceedings and the longer term impact of the unresolved trauma on the relationship between Ms Marks and, at least, her daughters.
Gemma Harrison
27Gemma Harrison is now 19. Ms Ferrari interviewed her on 3 September 2020.[8]
[8]Report dated 13 September 2020.
28Under the heading 'Mental State Examination', Ms Harrison described symptoms, somewhat paralleling those described by her mother: significantly anxious, often irritable and depressed, difficulty sleeping, poor appetite, difficulty concentrating, poor energy and motivation and anhedonia. There are trauma symptoms which affect her mood and functioning and cause her anxiety to become exacerbated.
29Ms Ferrari administered three standardised tests: the Depression/Anxiety Stress Scale; the Post-Traumatic Stress Disorder Checklist; and the Milton Adolescent Clinical Inventory. Based on the history she received, the mental state examination and the results of these tests, Ms Ferrari diagnosed Ms Harrison as something from the same disorders as her mother together with generalised anxiety disorder. She adopted an earlier diagnosis of Attention Deficit Hyperactivity Disorder and identified traits of Autism Spectrum Disorder without formally diagnosing it.
30As to causation, Ms Ferrari said:[9]
“Miss Harrison presents with severe Generalized Anxiety Disorder, Major and Persistent Depressive Disorders, related to Post-Traumatic Stress Disorder stemming from sexual abuse by her maternal grandfather between ages six to 10.”
[9]Report at paragraph 95.
31Ms Ferrari recommended continued psychological treatment with a psychologist specialising in trauma. This treatment needs to be intensive, weekly or fortnightly sessions, for several years. Then, fortnightly to monthly sessions to consolidate her gains and then ad hoc sessions to support her for future episodes or periods of stress.
32She noted Ms Harrison's elevated risk of relapses in her mental health and the inability of treatment to eliminate the risk. On a somewhat positive note, she said:[10]
“Her prognosis however is considered to be relatively good however due to the severe nature of the abuse and her symptoms, she will continue to manage her symptoms for the remainder of her life.”
[10]Report at paragraph 109.
33Understandably, Ms Ferrari made the same recommendations that she did with Ms Harrison’s mother of treatment by a family therapist.
Willow Harrison
34Willow Harrison is almost 17. Ms Ferrari interviewed her on 3 September 2020.[11]
[11]Report dated 14 September 2020.
35During a two hour interview, Ms Ferrari considered Willow demonstrated a high level of maturity and understanding of her situation and its effects on herself and her family. Willow told Ms Ferrari that her mood was predominantly anxious and, at times her mood is flat and she is sad. She has difficulty sleeping, has poor energy and motivation. She experiences trauma symptoms which increased the level of her anxiety and adversely affect her mood and functioning.
36Ms Ferrari administered the same three psychometric tests as she did with her sister, Gemma. Based on the history she obtained, her clinical examination and the results of those tests, Ms Ferrari diagnosed Willow as suffering from three recognised psychological disorders: persistent depressive disorder, generalised anxiety disorder and social anxiety disorder. She did not diagnose post-traumatic stress disorder even though noting there were a number of symptoms of that disorder present but were mild.
37With the depressive disorders there is some overlap of symptoms even though not diagnosing post-traumatic stress disorder, there are trauma symptoms present. The overall effect is:[12]
“The abuse that Miss Harrison endured has caused her severe anxiety, social anxiety, and depressive symptoms. There have also been symptoms of trauma which have affected her functioning. These issues have contributed to problems in her interpersonal relationships, self-esteem, and severely affected her education. Her abuse has also contributed to how Miss Harrison perceives herself, responds to others and the world around her, and there is evidence of several underlying cognitive schemas which have developed including dependent traits, self-sacrificing and approval-seeking behaviours, and defectiveness.”
[12]Report at paragraph 93.
38Ms Ferrari attributed the existence of these disorders and the trauma symptoms to the sexual abuse committed by Mr Bolton upon her when she was six.
39Ms Ferrari recommended treatment by a trauma specialising psychologist, weekly or fortnightly sessions, for at least two years. Followed by fortnightly to monthly sessions to consolidate and monitor and ad hoc sessions to deal with future episodes or periods of stress. As with her mother and sister, she also recommended counselling by a family therapist.
40Her prognosis for Willow was the most positive of the three:[13]
“Her prognosis however is considered to be positive as she is insightful and psychologically minded, however due to the severe nature of the abuse and her symptoms, she may experience episodes for the remainder of her life.”
[13]Report at paragraph 103.
Financial Circumstances
41Mr Bolton is now about 72. He has been in custody since about June 2019. There are at least another six years before he reaches his non-parole date. If released on or about that date, he will be about 78. His earning capacity would be negligible. However he does own the former matrimonial home which is unencumbered except for the restraining order.
42On 10 March 2022, a valuer, Jarod Collins conducted an external inspection of that property. He valued it at $1,600,000.[14] The property contained what he described as a dilapidated, single storey weatherboard dwelling. Since he did not inspect the interior of the house, Mr Collins made several assumptions, including the number and types of rooms. I am satisfied the value of the property was about $1,600,000 on 10 March 2022 and remains about that figure now.
[14]Report, undated.
43Each of the applicants has received awards of assistance from the Victims of Crime Assistance Tribunal. Each has received $10,000 in respect of special financial assistance. They have received other forms of financial assistance in respect of treatment and like-expenses.
Legal Considerations
44Section 85B of the Act provides that if a court finds a person guilty or convicts a person of an offence, and on the application of a person who has suffered an injury as a direct result of the offence, it may order the offender to pay compensation of such amount as it thinks fit.
45A compensation order may include an amount for pain and suffering as a direct result of the offence and for expenses reasonably likely to be incurred by the victim for reasonable counselling services as a result of the offence.
46“Injury” is defined or include mental illness or disorder. It also includes grief, distress or trauma or other significant adverse effects. The definition allows for the combination of those two aspects of the definition to constitute an injury.
47In determining the amount of compensation and the method of its payment, the court may take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. If a court is unable to find out the financial circumstances of the offender, it is not prevented from making a compensation order.
48If an award has been made to the victim under the Victims of Crime Assistance Act 1996, the court must reduce the amount of compensation for the expense or other matter for which the compensation is sought in the application. In the case of Athian v Pang[15], His Honour Judge Gamble said:[16]
“In my view, the legislative award scheme brought about by the relevant provisions of the two Acts is clearly designed to avoid double dipping; that is, the obtaining of two separate awards by the applicant victim for the very same type of consequence of the offending on that victim. As s85I states, the deduction in respect of the VOCAT award is to be ‘for the expense or other matter for which compensation is being sought under this Subdivision’.”
[15][2019] VCC 477.
[16]At paragraph 55.
49I am satisfied that an award of special financial assistance to each of the applicants is such a matter contemplated by the legislation.
50In Moresco & Ors v Budimir[17] T Forrest J said:[18]
“If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification.[22] The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender’s financial circumstances and the effect of an order on the offender’s prospects for rehabilitation.”
[17][2015] VSC 51.
[18]At paragraph 25.
51In the written submission, the applicants relied upon six rulings of the judges of this Court in s85B Applications.[19]
[19]Adkins v Kimberley [2019] VCC 2093, Lyndsay v Hermanus [2016] VCC 569, Curtis v Patton [2018] VCC 91, Peterson v Peterson [2021] VCC 434, V3 v Hewitt [2020] VCC 280, AA v Cooper [2015] VCC 185.
52As the applicant's counsel pointed out in written submission, these proceedings are not a conventional examination of the cases of the applicant. As such, the court should show moderation in its award of compensation. As Bell J said in the case of RK v Mirik[20]:[21]
“In crimes compensation proceedings, offenders do not have the assistance of “mechanisms such as pleadings, discovery and interrogatories, which are available in civil proceedings.”[210] For want of the kind of detailed forensic and judicial examination that is available in civil proceedings, there exists a potential for compensation orders to be made against offenders when they shouldn’t or in amounts that exceed the victim’s correct entitlement. That potential exists in practically every case, and I should guard against it happening here. The offenders have not had the opportunity to test the claims of the victim as fully as they could in ordinary civil proceedings. It is important that injustice is not done to offenders by making assessments of compensation that overshoot the mark. Doing justice by victims can’t be at the expense of doing injustice to offenders. The victim’s right to bring civil proceedings for “any expense or other matter” not satisfied by an order of compensation is not affected by an order under s85B(1), so any undershoot can be recovered. The offender is in the obverse position.”
[20][2009] VSC 14 at [153].
[21]At paragraph 153.
Discussion
53In the written submission of an earlier counsel for the applicants, reliance was placed upon the sentencing remarks of the sentencing judge of the nature and effect of the offending, especially upon Ms Marks in her capacity as a direct victim and mother of two other victims.
54Although there was some stress placed upon the moral culpability of Mr Bolton, the dominant consideration is the effect of these offences upon the victims themselves. This is so because, generally, the seriousness of the offending, the relationship between the offence and the victim and the relationship between the offender and the victim find expression in the injuries suffered by the victim. That is so here. The psychological injuries suffered by the applicants are set out in great detail by Ms Ferrari in her reports and also in their victim impact statements.
55In relation to Ms Marks, whose mood is anxious and depressed. This translates into deficiencies in concentration, energy, motivation, appetite, sleep and pleasure. Unfortunately Ms Marks thinks about suicide regularly. This is a disturbing symptom. Self-destruction is the most significant adverse consequence of a psychological disorder and regularly thinking about it is very significant. I doubt if a person was planning to suicide he or she would tell anyone for fear of being prevented from doing so. I expect a psychologist, specialising in the effects of trauma, would be capable of reducing or eliminating such thoughts and preventing any action being taken of them.
56Reading Ms Ferrari's recommendations for future treatment, if undertaken, the prognosis is reasonable.
57As to Gemma, her mood is depressed and anxious. The existence of post-traumatic stress disorder and generalised anxiety disorder point to the level of anxiety she experiences. The DASS test placed her anxiety in the extremely severe category. These disorders result in the same deficiencies suffered by her mother: sleep, appetite, concentration, energy, motivation and anhedonia. Assuming the recommended treatment, her prognosis is more positive than that of her mother, but she retains the same long term vulnerability.
58As to Willow, she is severely anxious and depressed. This translates into the immediate symptoms of poor sleep, energy and motivation. It goes further in affecting her relationships, her self-esteem and her education. However, she is insightful. Ms Ferrari is more positive about Willow’s prognosis although noting the same long-term vulnerability as exists with her mother and sister.
59The financial position of the offender is relevant because one does not want that person committing further offences in order to satisfy an order. Although my orders will necessitate the sale of the property and deprive Mr Bolton of a home upon his release from prison, they will allow him some surplus monies. His financial position does not cause me to reduce the amounts of compensation for they should not cause Mr Bolton to reoffend in order to satisfy them. They will be satisfied long before his release from prison.
60The loss of a property should not otherwise inhibit Mr Bolton’s rehabilitation. Given his likely age upon release, the nature of the offending and the deterrent impact of the sentence, his risk of reoffending in the like or any other matter will not be affected by my orders.
Conclusion
61Despite the recommendations of Ms Ferrari as to future treatment, the applicants have confined themselves to seeking compensation for pain and suffering only. As to that, I will award these amounts:
(a) Joanne Marks, $200,000;
(b) Gemma Harrison, $150,000;
(c) Willow Harrison, $125,000.
62From these amounts I will deduct the sums of $10,000 each as received by way of special financial assistance leaving the respective figures of $190,000, $140,000, and $115,000 respectively.
63Since Willow is under 18, I will hear the parties on the form of the order concerning payment in respect of her.
64I will ultimately hear the parties on any other issue.
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