| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NBS -v- MAC [2013] WADC 83 CORAM : STEVENSON DCJ HEARD : 18 MARCH 2013 DELIVERED : 30 MAY 2013 FILE NO/S : APP 91 of 2012 MATTER : IN THE MATTER of Part VI of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER of an Appeal by
BETWEEN : NBS Appellant
AND
MAC
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : R GUTHRIE Citation : [2012] CI 485 (Page 2)
Catchwords: Criminal injuries compensation - Appeal - Leave to appeal out of time - Consensual adult incest - Whether alleged victim engaged in same criminal conduct or committing a separate offence at the same time as the commission of the offence said to give rise to injury - Section 39(1) of Criminal Injuries Compensation Act 2003 - - No award if victim did not assist in identification and apprehension of offender - Behaviour and attitude of the victim to be considered in making award Legislation: Criminal Code s 319(1), s 329(7), s 329(8)
Criminal Injuries Compensation Act 2003 (WA) pt 6, s 12, s 16, s 23, s 38, s 39(1), s 41, s 45(1)(b), s 47, s 55(3), s 55(4)
Evidence Act 1906 s 36BD Result: Appeal allowed
Extension of time to appeal granted
The criminal injuries compensation award of $77,273.30 dated 4 September 2012 be wholly set aside
Representation: Counsel:
Appellant : In person
Respondent : No appearance
Amicus Curiae : Mr P D Spragg appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
(Page 3)
Case(s) referred to in judgment(s):
B v T [2011] WADC 98
Bentham v Wass [2004] WADC 47
Easterday v The State of Western Australia (2005) 30 WAR 122
Gallo v Dawson (1990) 93 ALR 479
Lucas v Assessor of Criminal Injuries Compensation (1998) 21 SR (WA) 40
McGowan v Colvin [2008] WADC 93
Re Hondros [1973] WAR 1
Scott v Kevill (2002) 28 SR (WA) 226
Smith v The State of Western Australia [2012] WASCA 239
(Page 4)
Introduction 1 For the following reasons I would allow this appeal and wholly set aside the learned assessor's award of $77,273.30 made in favour of the respondent on 4 September 2012 (the award), including the order that the appellant pay the respondent $20,000 of the amount awarded. As far as the law is concerned, the appellant and the respondent are victims of each other's crimes as a result of knowingly being parties to the commission of the same unlawful acts against each other. 2 The appellant is the biological father of the respondent. The respondent is the biological daughter of the appellant. At all relevant times they were both adults and knew they were lineal relatives. The sexual acts between them, which formed the sole basis of the award, were consensual. 3 The award was made as a result of an application by the respondent under the Criminal Injuries Compensation Act2003 (the Act) because of incidents she described as: 'sexual penetration lineal relative'. It is, and always has been, an uncontested fact that the sexual relations between the appellant and the respondent were consensual acts between an adult father and his adult daughter. 4 This appeal concerns s 39(1) of the Act which provides that an assessor must not make a compensation award if the applicant was committing a separate offence at the same time of sustaining injuries as a consequence of the commission of an offence by the offender. The primary issue in this appeal is whether s 39 precludes the making of the award in favour of the respondent. 5 In addition, there is also scope for the operation of s 38 (no award if applicant did not do any act which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence) and s 41 of the Act (behaviour and attitude of the victim to be considered). Both requirements alone could potentially result in no award being made in favour the respondent. 6 For whatever reason (possibly to secure a conviction of at least one of the offenders), only the appellant was charged with committing the criminal offence of sexual penetration of a lineal relative contrary to s 329(7) of the Criminal Code (WA) (the Code). (Page 5)
7 The respondent does not contend that the sexual relations with her father were anything but consensual. She was given an opportunity before the award was made, and also after the appeal was heard, to say otherwise. By her conduct she plainly accepts that the sexual acts in respect of which she sought an award of criminal injuries compensation were consensual. 8 Accordingly, the respondent could have been charged with the same offence (given the wide definition of 'sexual penetration' in sexual matters) as the appellant was. Alternatively, she could have been charged with consenting to being sexually penetrated by the appellant contrary to s 329(8) of the Code because she knew the appellant was her lineal relative.
The offending acts 9 On 11 August 2011, the appellant pleaded guilty to six counts of sexually penetrating the respondent when he knew she was his lineal relative contrary to s 329(7) of the Code. 10 The offences consisted of four counts of penile penetration of the respondent's vagina and two counts of fellatio over a period of about five months between 1 August 2009 and 31 December 2009. 11 The appellant successfully appealed the sentence imposed by the primary judge on 27 September 2011. The appeal was heard on 22 August 2012 and allowed by the Court of Appeal on 31 August 2012 (four days before the award was made). The reasons for decision of the Court of Appeal were not published until 23 November 2012: Smith v The State of Western Australia [2012] WASCA 239. 12 A convenient summary of the facts is contained in the judgment of McLure P including, relevantly: (Page 6)
[23] Some time in July 2009, shortly after the complainant had turned 19, she was contacted on Facebook by one of the appellant's sons. Following that first contact, the complainant had a telephone conversation with the appellant and then, a week later, met him and his family at his home for the first time. The appellant was living in a long-term relationship with his partner with whom he had seven children, four of whom were still living in the home. [24] Within a few weeks of the first meeting, the complainant moved out of the home she shared with her partner and into the appellant's home. Sometime in August 2009 the appellant made a sexual advance towards the complainant in the presence of the complainant's friend. After that initial approach, the appellant and the complainant engaged in a consensual sexual relationship. [25] The full prosecution brief, including the complainant's deposition, was formally tendered at the sentencing hearing. The agreed facts were read to the court by the prosecutor. However, the sentencing judge's remarks strayed well outside the agreed facts. In the course of his reasons, the sentencing judge made frequent references to what the complainant said in her deposition. She said that the appellant in his dealings with her was watchful and controlling. She described behaviour that the sentencing judge described as 'well outside the bounds of proper parental conduct' (ts 109 - 110). Indeed, the impression conveyed by the complainant's deposition as a whole is that the appellant engaged in intimidating and coercive conduct that went to the reality of the complainant's consent. The appellant's counsel, quite properly, objected to the prosecutor's reliance on the deposition. Notwithstanding the appellant's objection, there was no trial of issues. [26] The sentencing judge found that, as a member of the appellant's household, the complainant was in his care and under his influence (ts 111). The sentencing judge said: 'It matters not that she was … an adult and a willing participant. She may well have been, as teenagers often are, sexually experienced and perhaps even aggressively so. The images sent to you from her mobile phone suggest a highly sexualised relationship.' (ts 111) [27] The State submitted that there had been a breach of trust, a proposition not accepted by the sentencing judge. However, he said: '[I] am satisfied, beyond reasonable doubt, that the relationship between you was far from equal. You were, at the material time, a fully mature adult male and she was barely out of adolescence. You were her father. She, having been raised as an only child, was welcomed by you (Page 7)
into your family and your home. As such, she came under your influence and, it seems, your control. You abused, in my view, those circumstances' (ts 111). (emphasis added) [28] The findings in italics must be based on material in the complainant's deposition. On the subject of the appropriate penalty, the sentencing judge said: 'It is true that the Criminal Code provides for a maximum penalty of three years' imprisonment which, in the context of offences dealt with in that particular chapter of the Code, is not particularly severe. I do regard your offending, however, as being offending of a serious nature that does require the imposition of a term of imprisonment to be immediately served. This is not offending which, in my view, can or should be dealt with by imposing a term of imprisonment and suspending that term.' (ts 112) … [33] In this case, the appellant had no contact at all with the complainant whilst she was a 'child', as that term is defined in the Code. His only 'relationship' with the complainant before the commencement of the offending was biological. His position was analogous to that of a sperm donor. Approximately a month after they first met, they commenced a consensual sexual relationship. It is more likely that happened despite their biological connection rather than because of it. In all the circumstances, the appellant's offending is at the low end of the scale of seriousness of offences under s 329(7). A sentence of immediate imprisonment was inappropriate and manifestly excessive. 13 In addition, their Honours Buss and Mazza JJA in a joint judgment said: [50] As we have mentioned, at the material time the complainant was aged 19. The appellant had no role in her upbringing, and she had not known the appellant's identity until she was contacted, via Facebook, by one of his sons. [51] By the time the first offence occurred, about two months after they met, the complainant had left her partner and moved into the home the appellant shared with his then partner and some of his ten children. Part of the complainant's purpose in moving into the appellant's home was to connect, in an emotional sense, with the man she had recently discovered was her biological father. [52] After the first incident of sexual intercourse between the complainant and the appellant at a motel, the appellant, according to what he told the author of the pre-sentence report, realised that (Page 8)
his behaviour was 'inexcusable' and that he had made a 'big mistake'. He obviously appreciated that what had occurred was wrong, and should not be repeated. Nevertheless, the conduct continued. In total, there were four separate occasions when the appellant engaged in penetrative sexual behaviour with the complainant at various locations. The offending was not isolated or impulsive and occurred over a period of some months. Despite his appreciation that it was wrong for him to behave as he did, he showed no restraint. 14 I am satisfied on the material before the court for the purpose of this appeal that the above factual findings are open and, importantly, are not contested by the respondent. The respondent has not sought a trial of issues as to whether the sexual relations she engaged in with her father were consensual or otherwise. 15 In addition, I have considered the respondent's victim impact statement dated 24 August 2011 provided to the primary judge for the purpose of sentencing the appellant. It is not appropriate to disclose the content of the statement. However, I note the respondent, in explaining her reasons for engaging in sexual relations with her father, did not assert that she did not consent to the acts as that term is understood by the law, namely as consent that is freely and voluntarily given (s 319(2) of the Code). 16 On the issue of consent, I note the appellant in his written submission dated 26 June 2012 to the learned assessor said: The facts of the matter is that it was a consensual relationship between two consenting adults. 17 The appellant went on to say: Due to the fact that both parties are equally responsible by law, I am currently in the process of seeking legal advice and some sort of fair justice due to only myself being charged and sentenced for an offence which both parties are equally responsible for as the law states. 18 The appellant referred to his appeal against sentence due to be heard on 22 August 2012 and I infer that the learned assessor was aware of the outcome of the appeal before making the award on 4 September 2012. According to the appellant, he was the party which caused the sexual relationship between himself and the respondent to finish. I accept his evidence in this regard and that the sexual relations continued over a period of about five months. (Page 9)
19 Section 38 of the Act provides: No award if applicant did not assist investigators An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion that the victim or close relative did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. 20 Due to the operation of s 38 of the Act, it is arguable that the learned assessor did not have jurisdictional power to make the award because it could be said that the respondent did not make a complaint for a period of about five months to the police or to anybody else who might have been appropriate in the circumstances. I am mindful of s 36BD of the Evidence Act 1906. 21 The act or thing which the respondent should have done must relate to 'assist(ing) in the identification, apprehension or prosecution of the person who committed the offence'. On a strict literal interpretation, this may not include making a formal complaint about the commission of the alleged offence in the first instance. It may be that the operative obligation only relates to the time after disclosure of the alleged offence, that is, the investigation and prosecution phase of the criminal process. The section may be aimed at victims who 'do not cooperate' to ensure that the offender is dealt with according to law. The victim 'can't have his or her cake, and eat it too' – it is the price the victim must pay to be entitled to a compensation award arising out of the crime which caused his or her injuries: see Lucas v Assessor of Criminal Injuries Compensation (1998) 21 SR (WA) 40 which was concerned with a similar provision in a predecessor Act. In effect, victims can not change their mind or position on an act or matter which is material to the investigation of the alleged offence. 22 But for the proper application of s 39(1) of the Act preventing the making of a lawful award in favour of the respondent, I would have also allowed the appeal on the basis that the learned assessor should not have made the award by reason of the failure of the respondent to disclose the appellant's alleged offending against her over the period of five months. She was in this sense a party to the continuing offences and complicit in their commission against her. She perpetuated her own status as an alleged victim and did nothing, presumably for reasons personal to her, to prevent the unlawful conduct against her continuing. (Page 10)
23 In my view it was not the intention of Parliament to allow the victim, in the circumstances of this case to, in effect, 'bank' an amount of compensation payable from the public purse each time she consensually allowed the appellant to commit an offence against her. In the circumstances of this case I would give s 38 a purposive meaning, and therefore wider reach, because it is not unreasonable to have expected the respondent to have disclosed the offending behaviour earlier than she did, and certainly at a time before the appellant decided to terminate their sexual relations. 24 Unlike the respondent, the appellant accepted full responsibility for his wrongdoing, both morally and legally, but (perhaps understandably) was aggrieved at the prospect of being ordered to pay compensation to the respondent. He considered she was a co-offender and that she was as equally culpable for what occurred between them. 25 As mentioned, the appellant says he ended the sexual relationship with the respondent. This fact invites consideration of s 41 of the Act which is concerned with the conduct of the victim at the relevant time. 26 Section 41 provides: Behaviour etc. of victim to be considered In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor — (a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and (b) may, if he or she thinks it is just to do so — 27 The amicus curiae's written submissions dated 13 March 2013 included submissions on the possible application of s 41 of the Act. Section 41 of the Act requires the assessor to have regard to any behaviour, condition, attitude or disposition of the applicant which contributed, directly or indirectly, to the victim's injury. The learned (Page 11)
assessor, and therefore the court, may refuse or reduce the amount of compensation by reason of any such contribution. 28 While it would be an abuse of process for the court hearing a criminal injuries compensation appeal to go behind a conviction (at least in relation to any facts relied upon by a party that are inconsistent with the conviction: Re Hondros [1973] WAR 1, 3; Scott v Kevill (2002) 28 SR (WA) 226 [7]; Bentham v Wass [2004] WADC 47 [5]), the court is obliged to look at the circumstances of the offences (and the other alleged offending) and the conviction by reason of s 41 of the Act. 29 In his written submission of 26 June 2012 to the assessor, the appellant appears to assert that a previous alleged sexual assault by a third party contributed to the mental injuries suffered by the respondent, and that the respondent had a pre-existing history of 'mental issues'. The appellant has not provided any evidence in support of these assertions. The respondent denied the assertions in her letter to the assessor dated 18 July 2012. 30 The amicus curiae's written submissions at [50] contain the following contention: 50. Pre-existing and subsequent injuries must be taken into account in accordance with section 41 of the Act: Reed v Assessor of Criminal Injuries Compensation, unreported; DCt of WA (Viol DCJ); Library No 970170; 5 June 1997 at 22-23; Krukiewicz v Hayes [2004] WADC 242. Alternatively, pre-existing injuries should be dealt with under the ordinary principles of assessing damages as they apply in tort: SW v BB [2010] WADC 86 at [103]. 31 As the evidence before the court is inconclusive on this point, no finding is made on this issue. Any finding if made would not have changed the outcome of the appeal. 32 In my view having regard to the circumstances of the offences and the alleged offending relied upon by the respondent for her compensation award, it is not just to make an award because of her own conduct and contribution to the injuries allegedly suffered as a result of the sexual relations with the appellant. To the extent that s 41 provides for a reduction of any award that would otherwise have been made, in my opinion the reduction should be the whole amount of the award in view of the nature of the offences and alleged offending, the consensual nature of the acts and the lineal relationship between the parties. (Page 12)
33 The appellant's submission dated 26 June 2012 to the learned assessor was provided to the respondent for her perusal and response. In her submission to the learned assessor dated 18 July 2012, the respondent did not refute or contest the appellant's assertion that their sexual relationship was entirely consensual. Her conduct in this regard is consistent with her conduct on this issue in the appeal. This factual issue goes to the root of her application for compensation, and, accordingly, is at the core of the appeal.
The respondent's application for criminal injuries compensation 34 On 30 March 2012, six months after the appellant was sentenced by the primary judge to a term of imprisonment for the offending, the respondent made an application for criminal injuries compensation. In her application, she described the nature of the incident for which she asserted criminal injuries compensation was payable as: 'sexual penetration lineal relative'. According to her application, she reported the offence to the police on 28 August 2010, almost one year after the offending started. 35 The application was supported by a copy of the indictment containing the alleged offences committed by the appellant, the respondent's victim impact statement and claims for various medical expenses allegedly incurred as a result of the offending.
The criminal injuries compensation award 36 On 4 September 2012, the learned assessor published his award in favour of the respondent. He awarded the respondent $77,273.30 compensation, which he assessed as follows: Injuries: $45,000.00 Loss of earnings: $30,000.00 Reports: $539.00 Treatment expenses: $714.30 Future treatment expenses to a maximum of: $1,020.00 Total amount of award: $77,273.30 37 In making the award, the assessor also relied upon a number of other alleged sexual penetrations of the respondent and two counts of indecent assault, noting that the State had not proceeded with these matters based (Page 13)
on its acceptance of the appellant's pleas of guilty to the six counts in full satisfaction of the indictment in the District Court. 38 To this extent, the award was based in part on s 16(2) of the Act which allows the assessor to award compensation as a result of an 'alleged offence' if satisfied that the person suffered an injury as a consequence of the commission of the alleged offence. 39 Pursuant to s 45(1)(b) of the Act, the learned assessor ordered that only $20,000 be subject to recovery from the appellant in proceedings under pt 6 of the Act. 40 Section 45 of the Act provides: 41 I note the power to make an order with respect to the extent of recovery from an offender of any compensation awarded is limited to an award made under s 12 of the Act. 42 As mentioned, the award in this case was made partly pursuant to s 12 and partly pursuant to s 16 of the Act, that is, for offences committed and for 'alleged offences' said to have been committed. 43 The award makes no express findings as to the basis of the limitation of recovery of $20,000 from the appellant and does not distinguish between the amount of compensation awarded under s 12 and s 16 of the Act. It is a global award. A presumption of regularity would result in the $20,000 ordered to be paid by the appellant to relate to that part of the award under s 12 which is concerned with the six counts of admitted sexual penetration of the respondent for which the appellant served a term of imprisonment. (Page 14)
44 The appellant was sentenced by the primary judge on the basis that each offence for the s 12 part of the award was a consensual sexual act. This was accepted by the State (and the respondent) for the purpose of the sentence appeal heard by the Court of Appeal. 45 The respondent, for the purpose of her criminal injuries compensation award, did not put in issue the fact that the offences, both admitted and alleged, by the appellant were, on each and every occasion, totally consensual. 46 The award was amended by the learned assessor on 6 November 2012 in respect of a matter which does not materially change the award for the purpose of this appeal.
The appellant's appeal against the compensation award 47 On 22 November 2012, the appellant filed an appeal against the award in this court. The stated grounds of appeal are: 48 By s 55(3) of the Act the appeal must be commenced within 21 days after the date of the decision. Therefore the last day for commencing the appeal was 25 September 2012, the award having been made on 4 September 2012. The amendment of the award on 6 November 2012 only concerned an aspect of payment of the award not involving the appellant. Accordingly, the notice of appeal was filed 58 days out of time. 49 Section 55(4) of the Act provides that the District Court may allow an appeal to be commenced after the 21-day period 'if it is just to do so'. 50 In Gallo v Dawson (1990) 93 ALR 479 the High Court held that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. Factors considered by the High Court in considering whether to exercise the discretion to extend time to appeal included the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant, or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is (Page 15)
always necessary to consider the prospects of the applicant succeeding in the appeal. 51 On 28 August 2012 (six days after the Court of Appeal hearing), the respondent asked the assessor how much longer the application would take. On 7 September 2012, within three days of the award being made, well before the expiry of the appeal period, the respondent filed an acknowledgment of the award and a request for payment with the assessor. A payment voucher authorising payment to the respondent of $75,000 pursuant to the award was signed on 27 September 2012 (two days after the date for commencement of any appeal) and payment was remitted to the respondent on 4 October 2012. No check appears to have been made by anybody to ensure the appellant was aware of the existence of the award, let alone to ascertain whether he intended to file an appeal. This may prove to be an expensive error for the public purse as it seems likely that relevant administrative procedures do not exist to minimize the risk adverted to. 52 By an affidavit sworn 22 November 2012, the appellant deposed that notice of the award was delivered to Acacia Prison and not forwarded to him. As a result he was not aware of the award within the 21-day appeal period. His evidence is that the first time he was made aware of the award was when the sheriff's department visited his home, at the instigation of the criminal injuries recoveries department, to issue him with a notice for payment of the $20,000 contribution to the award. Although the date of first knowledge of the award is not stated, I am satisfied that the appellant acted with appropriate expedition to commence the appeal. 53 On the issue of prejudice to the parties, if the appeal is successful the appellant will not be subject to recovery action for payment of $20,000 of the award made in favour of the respondent. His appeal is as to the whole of the award, and not limited to that part which directly concerns him. 54 If the appeal is successful, it is not clear whether the respondent will be required to repay the amount of the award received. The Act does not expressly deal with recovery by the State if an award is reduced on appeal or wholly set aside after final payment has been made to the respondent. Section 47 provides that payment under a compensation award must not be made until the appeal period has elapsed and any appeal commenced determined, unless it is with the written authority of an assessor. 55 It seems full payment of the award has been made to the respondent as opposed to an interim payment (s 23) and, as such, no right of recovery (Page 16)
by the State of the payment of the award is legislated for by the Act. Whether the respondent may become liable to repay the award amount, if the award is set aside, is moot. This is not a live issue in the appeal. It is not a matter that would be determinative of the exercise of the court's discretion to extend time for the appeal in this case: see McGowan v Colvin [2008] WADC 93 [42] - [44]; B v T [2011] WADC 98 [70] - [77]; Easterday v The State of Western Australia (2005) 30 WAR 122 [31]. 56 It is accepted that the respondent is concerned and therefore prejudiced, by the prospect of being subject to an application by the State for repayment of the compensation received. I note the respondent informed counsel for amicus curiae by email sent from her iPhone on 15 March 2013 (three days before the appeal was heard) that the court should be informed that she would not be attending the hearing and I can only ask that the Judge does not reduce the award that was made by the Assessor as asking me to repay it will cause me more stress. 57 In exercising the courts discretion, it is in the interests of justice, the appellant having explained the delay by reason of not receiving notice of the award having been made, that time be extended to allow the appeal to be heard. The importance of finality of legal proceedings does not, having regard to, amongst other things, the history of this matter, require otherwise. 58 The appeal was heard on 18 March 2013. The appellant appeared in person. There was no appearance by the respondent. The court was assisted by Mr Spragg, counsel for the chief executive officer, who appeared as amicus curiae. 59 At the commencement of the hearing, Mr Spragg informed the court of the above communication from the respondent to him advising that she did not intend to participate in the appeal. 60 The hearing was delayed briefly to enable inquiry to be made whether the respondent was in the court building because there was a suggestion she was. She did not respond to the matter being called and the hearing proceeded after the delay. 61 There is no doubt the respondent was served with the notice of appeal and had notice of the hearing date. She elected not to attend. No explanation was given and no opportunity for her to participate from a remote room (if required) was therefore canvassed. (Page 17)
62 After hearing submissions, and given the likely outcome of the appeal, I made an order requiring the respondent to file and serve a notice of intention to appear within seven days of receipt of the order if she wished to be heard before the appeal was determined. The amicus curiae was asked to ensure service of the order on the respondent. 63 On 19 March 2013, Mr Spragg informed the court that he had arranged for the order to be served on the respondent by email; that she had confirmed to him receipt of the email and advised that she did not intend to enter a notice of intention to appear. 64 I infer that the respondent does not wish to contest that she did not freely and voluntarily consent to the sexual acts the subjects of the counts for which the appellant was convicted and also the alleged offences which did not proceed to trial (and were relied on, in part, for the award).
No award if victim was engaged in criminal conduct 65 Section 39(1) of the Act provides that an assessor must not make a compensation award if the injury was suffered when the applicant was committing a separate offence. 66 Section 39(1) provides: If an assessor is satisfied — (a) that a person was injured as a consequence of the commission of an offence; and (b) that the injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person. 67 The appellant contends that the respondent was as 'equally guilty' of committing the same offence contrary to s 329(7) of the Code or, alternatively, was guilty of an offence under s 329(8). Those sections provide: (Page 18)
(8) A person of or over the age of 18 years who consents to being sexually penetrated by a person who he or she knows is his or her lineal relative is guilty of a crime and is liable to imprisonment for 3 years. 68 The uncontroverted acts the subject of the appellant's offending (actual and alleged) constitute sexual relations with the respondent at a time when they were both consenting adults to the doing of those acts. It is not to the point whether one party was more morally culpable than the other. Who is to judge this and on what basis? The only issue is whether the respondent was also committing a criminal offence at the time that she alleges she suffered her injuries as a consequence of the commission of the offence or alleged offences committed by the appellant. 69 Sexual penetration has an extended meaning for the purpose of the Code. Sexual penetration includes manipulation of any part of the body of 'another person' so as to cause penetration of the vagina or to introduce any part of the penis of the person into the mouth of another person, or to engage in fellatio (s 319(1)). 70 It follows that the respondent committed precisely the same crime that the appellant committed at the same time as she allegedly suffered the injuries the subject of her compensation claim. Alternatively, she was guilty of the same offences contrary to s 329(8) by consenting to being sexually penetrated by the appellant when she knew he was her lineal relative. 71 The maximum penalty for both offences is imprisonment for up to three years. For a commentary on the history of s 329 of the Code dealing with sexual offences by relatives see her Honour McLure P's judgment in Smith v The State of Western Australia [8] - [21]. Given the complexity and subtlety of adult sexual relationships, the law of incest is not concerned with the issue of power imbalance or which party is more morally culpable than the other. 72 The only defence of the respondent to potential legal liability for the sexual acts with the appellant in relation to s 329(7) is if she did not know that the appellant was her lineal relative. As to s 329(8) the only defence of the respondent to potential legal liability is if she did not consent to being sexually penetrated, or if she did not know that the appellant was her lineal relative. (Page 19)
73 The gravamen of the offences is knowledge and consent to acts of a sexually penetrative nature with an adult lineal relative. Both factual elements were present with respect to the conduct of the respondent in relation to the sexual acts with the appellant. 74 Consequently, as a result of the operation of s 39(1) of the Act, there is no legal basis or power for the assessor to make an award of compensation in favour of the respondent arising out of her sexual relations with her father - because they occurred at a time when they were both consenting adults with knowledge of their relationship. 75 The Code is concerned with acts of sufficient gravity which the community believes should be criminalised as constituting illegal conduct. The provisions of s 329(7) and s 329(8) of the Code are the result of policy decisions made by the Parliament of Western Australia as to the elements of offences involving consensual incest between adults. There is no room for an assessment of power imbalance or which party was more morally culpable than the other in the application of these provisions when it comes to adult sexual relationships. There is either knowledge or consent, or both, on the part of the parties involved, or there is not. 76 The object of the Act is to 'provide for the payment of compensation to victims of offences in some circumstances'. There can be no doubt that the intent of Parliament is to ensure that co-offenders do not receive compensation for injuries received as a result of a crime committed by an offender if they themself are committing the same, or a separate offence at the time they receive their injuries. 77 For the purpose of this appeal, I find that the respondent's alleged injuries were suffered (if at all) at the same time that she herself was committing an offence contrary to either s 329(7) or s 329(8) of the Code. 78 Accordingly, pursuant to s 39(1) of the Act the learned assessor did not have the power to make the compensation award dated 4 September 2012 and it should be wholly set aside.
Conclusion 79 For these reasons, the following orders should be made: 1. The time for the commencement of the appeal be extended to 22 November 2012, and leave is granted for the appeal to be heard out of time. (Page 20)
2. The appeal be allowed and the compensation award made by the learned assessor on 4 September 2012 (as amended on 6 November 2012) be wholly set aside.
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