Peterson v Peterson (a pseudonym)

[2021] VCC 434

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

KASEY PETERSON (A PSEUDONYM)	Applicant
v
DOUGLAS PETERSON (A PSEUDONYM)	Respondent

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2021 (via Zoom hearing)
DATE OF JUDGMENT:	30 March 2021
CASE MAY BE CITED AS:	Peterson v Peterson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 434

REASONS FOR JUDGMENT
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Subject:CRIMES COMPENSATION

Catchwords:              Application by a victim for a compensation order – sexual assaults – basis for the making of a compensation order

Legislation Cited:      Sentencing Act 1991 (Vic), s85B; Victims of Crime Assistance Act 1996

Cases Cited:DPP v Petersen (a pseudonym) [2020] VCC 1192; Moresco & Ors v Budimir [2015] VSC 51; Brooks v Meade [2017] VSC 172; Willis v Mair [2021] VCC 184; Stevens v Baxter [2009] VSC 257; RK v Mirik [2009] VSC 14; Adkins (a pseudonym) v Kimberley (a pseudonym) [2019] VCC 2093

Judgment:                  Assessment of compensation order in favour of the applicant.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A C Dimsey	Winn Legal
For the Respondent	The Respondent appeared in person	-

HIS HONOUR:

Introduction

1The applicant has applied for a compensation order pursuant to s85B(1) of the Sentencing Act 1991 (Vic) (“the Act”) for the injury inflicted upon her by the respondent.

2There was no issue that the respondent sexually assaulted the applicant, resulting in the applicant suffering injury for which she is entitled to a compensation order.

3Mr A C Dimsey of counsel appeared for the applicant.  The respondent appeared in person.

The Respondent’s criminal conduct

4The applicant tendered the following evidence:

·        the Summary of Prosecution Opening dated 15 July 2020.[1]

·        the Reasons for Sentence delivered 5 August 2020.[2]

[1]        Exhibit A

[2]        DPP v Petersen (a pseudonym) [2020] VCC 1192: Exhibit B

5The respondent is the father of the applicant.  When the applicant was between the ages of eight and twelve years, he engaged in sexual abuse of her, summarised by the sentencing judge as follows:

·        Charge 1 - showing the applicant a pornographic video while the respondent masturbated in her presence.

·        Charge 2 - entering a bath while the applicant was bathing, and having her touch and masturbate his penis.

·        Charge 3 - touching and licking the outside of the applicant’s vagina.

·        Charge 4 - forcing the applicant to perform oral sex on him, resulting in the him ejaculating.

·        Charge five - moving the applicant’s vagina over his penis until he ejaculated. 

6The applicant fled the family home in about 1992 when she was about seventeen years of age[3] when the respondent entered her bedroom in a state of nakedness  with an erect penis covered with a black condom.  It could only have been conduct consistent with an escalation of the respondent’s level of sexual abuse of her.

[3]The accounts of how old the applicant was vary, but she was at least fifteen and perhaps seventeen years of age when she fled the family home

7It is noteworthy that the sentencing judge described the respondent’s moral culpability as high, his offending as prolonged and persistent over a lengthy period of time, constituting a gross breach of trust, and that the evidence pointed to grooming and manipulation by the respondent of the applicant for his own sexual gratification.

The Applicant’s evidence

8The applicant tendered the following evidence:

·        the applicant’s Victim Impact Statement declared on 17 July 2020.[4]

·        the applicant’s affidavit sworn 26 February 2021.[5]

·        the Victims of Crime Assistance Tribunal Award of Assistance and supporting documents.[6]

·        the report of Dr Nicole Phillips, consultant psychiatrist, dated 10 March 2021.[7]

·        a title search of the respondent’s property in Northern Victoria.[8]

·        a contract of sale relevant to the property in Northern Victoria.[9]

[4]        Exhibit C

[5]        Exhibit D

[6]        Exhibit E

[7]        Exhibit F

[8]        Exhibit H

[9]        Exhibit J

9I outlined the nature of the proceeding to the respondent for the purpose of ensuring that he understood the application, and that he had not taken any step to contest any of the applicant’s evidence.  I concluded that he appreciated each of the matters which I outlined for his benefit.  He did not make any submissions contesting the consequences of his criminal conduct suffered by the applicant.

10The applicant’s affidavit and her Victim Impact Statement demonstrate very clearly the consequences of the respondent’s criminal conduct.  Additionally, the applicant described those consequences to Dr Phillips, who recorded them in her report.

11After the applicant fled the family home, she lived with her grandmother.  Her own mother appeared to be powerless to control the fallout of the respondent’s conduct.  The applicant began experimenting with drugs and alcohol, and in particular, alcohol to a significant degree.  Her relationship with members of her family reached a very low point, and so low that she described herself to Dr Phillips as being the black sheep, not cared about by her family, feeling like “a piece of shit”, and wondering whether she had done something which made all of this occur.

12The applicant’s mental state was badly affected.  She experienced nightmares.  She felt that she was disconnected from her body.  She had difficulty falling asleep, ruminating about how she would manage the situation which she found herself in.

13As she progressed through her teenage years, she entered into very unsatisfying relationships.  Her first boyfriend was an alcoholic and a marijuana user.  She was also abusing alcohol and marijuana.  Her first marriage at age twenty-nine lasted for three years.  Her husband was also a heavy drinker and drug user, and was also volatile and abusive.  She and her next partner had a daughter.  This relationship ended in 2018 after some six years when their daughter disclosed that he had been sexually abusing her.

14The applicant, on the positive side, completed her VCE.  She began an arts degree at University.  She lost interest in her university studies after a few months and left.  She then commenced a TAFE course, then worked in a joinery business, then obtained a small business enterprise certificate, and eventually, in 1996, successfully obtained a sub-agent’s certificate in real estate.  She then worked for a real estate agency, then another agency, and then completed her full real estate agent’s licence, leading to her setting up her own real estate agency in 2015 from her home.

15The unsettled nature of the applicant’s choices in her relationships was noted by Dr Phillips.  The applicant considered that what choices she made were affected by the criminal conduct of the respondent.  Dr Phillips recorded that at present, the applicant considered that she was doing well, was a proud parent, and that her child was doing well academically.

16Dr Phillips conducted her examination of the plaintiff through a Telehealth assessment because of COVID-19 restrictions.  What she noted of the mental state examination of the applicant suggests that there were no overt symptoms of a serious mental health problem.  Indeed, in her summary, she noted that the applicant had shown a high degree of intelligence, resilience and was functioning “extremely well considering her early life experiences”.

17Dr Phillips diagnosed that the applicant had developed a Substance Abuse Disorder which is in remission.  She considered that the applicant had suffered a complex Post-Traumatic Stress Disorder, Borderline Personality Disorder, a Major Depressive Disorder and Anxiety Disorders.  Despite that apparently poor diagnosis, she noted that the applicant was “not overwhelmed by typical symptoms that tend to follow childhood sexual abuse”, but considered that she would benefit from monthly support from a psychologist.  In conclusion, she considered that the applicant’s prognosis was excellent.

18Dr Phillips lastly considered the question of causation; that is, whether the subsequent events in the applicant’s life could be linked to the criminal conduct of the respondent.  She considered that the poor choices made by the applicant, both in terms of her relationships and her use of drugs and alcohol, “are typically seen as a result of having been a victim of childhood sexual assault”.

The relevant legal principles

19Applications for compensation have been productive of the publication of a large body of decisions.  I was referred to some of those decisions by the applicant.  I referred to some of those decisions in a previous judgment.[10]  Neither the applicant nor the respondent made any submissions inconsistent with the legal principles which I think exemplify the method to be applied in assessing a compensation order.  For my own part, I think the reference in my previous judgment is a very adequate summary of the principles of law, and the method which should be applied in the calculation of compensation.  I propose to substantially repeat those principles here.

[10]See Willis v Mair [2021] VCC 184. The Reasons for Judgment are noted as ‘Restricted’ and ‘Not Suitable for Publication’

20The first of these is the very helpful decision of Stevens v Baxter,[11] in which J Forrest J summarised the relevant principles as follows:

· The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court, provided the claims fall within categories set out under s85B(2).

·        An order for compensation is determined by the application, where relevant, of common law principles; however, the order itself is one for compensation not damages.   

·        Where a claim for pain and suffering is maintained, it must be a direct result of the offence.   

·        The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.   

·        Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred, may be the subject of a compensation order.   

·        Unlike a common law claim for damages, the financial circumstances of the offender are relevant.   

·        A court is not obliged to reduce the amount of compensation payable on the basis of the offender’s financial circumstances; it is a relevant but not controlling consideration.[12]

[11] [2009] VSC 257 (“Stevens”)

[12](Ibid) at paragraph [5] - footnotes deleted.  His Honour derived his “nutshell” of the relevant principles from a decision of Bell J in RK v Mirik [2009] VSC 14 at paragraphs [15]-[20], [50]-[67], [135]-[142] and [144]-[154]

21A more recent statement much to the same effect is to be found in Moresco & Ors v Budimir[13] in which T Forrest J observed:

“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.  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.”[14]

[13] [2015] VSC 51 (“Moresco”)

[14]        Moresco (ibid) at paragraph [25]

22The distinction of a compensation order under s85B of the Act, as opposed to an order for common law damages, is further clarified by the observation of Weinberg JA in Brooks v Meade.[15] His Honour considered that it was plain that s85B of the Act was intended to facilitate a swift and relatively low cost means of redress for harm suffered by victims of crime. His Honour advocated, therefore, that the summary nature of such an application would make it appropriate to take a somewhat conservative view of the compensation which should be paid and that a broad-brush approach may need to be adopted in assessing the type of evidence that is commonly adduced in an application such as this which is not as detailed as one would expect in a common law claim for damages.

[15] [2017] VSC 172

23Section 85H of the Act provides that I 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. In Moresco, T Forrest J described the respondent as having outstanding financial obligations which he would struggle to fulfil if a compensation order was made.  He considered that alone, favoured a reduction of the quantum of a compensation order.  Additionally, he accepted that the respondent’s rehabilitation would be assisted by the retention of some of the respondent’s funds or assets.[16]

[16]        (Ibid) at paragraphs [52]-[54]

24However, there are decisions where it is plain that the Court found it inappropriate to consider the financial circumstances of the offender.  For example in Stevens, J Forrest J considered that the circumstances of the crime and the consequences for the applicant militated “strongly against such a course”.[17]  I do not propose to undertake a lengthier analysis of a number of other authorities which condescend to the question of whether the financial circumstances of an offender should be weighed into account or not. 

[17]        Stevens (supra) at paragraph [35]

The assessment

25The trite approach of the common law is to assess damages in accordance with the evidence.  The evidence here is that the criminal conduct of the respondent was, as observed by the sentencing judge, wicked.  It had a pronounced impact on the applicant’s most formative years as she proceeded through her prepubescent years into her pubescent and teenage years.  The picture painted by the applicant and repeated in the history taken by Dr Phillips resonates with the plaintiff being racked by a deterioration in her mental health and her resort to alcohol and drugs, and most unfortunately, very poor choices in her relationships.

26The approach that I consider is called for by the evidence is to assess the compensation order rather more for the consequences for the applicant in the past because her present mental health is stable.  Dr Phillips’ prognosis for her for the future is positive, and suggests that she will not be racked with the same problems with her mental health as her past demonstrates.

27The respondent is sixty-five years of age.  He was sentenced to eight-and-a-half years’ imprisonment with a non-parole period of five years.  He is unlikely to be released from prison until he is about sixty-nine years of age, when it is likely that he will be beyond a capacity to pursue gainful employment.

28The respondent’s assets are at least the sale price of the property in Northern Victoria of the $232,000 referred to in the contract of sale.  The respondent informed me that he has superannuation, and documents were produced evidencing that.[18]  The respondent submitted that I should moderate the compensation order to take account of his financial state, and the impact which a compensation order will have on what he will be left with when he is released from prison.

[18]        Exhibit K

29After synthesising the applicant’s evidence and giving full account to the assistance provided by the authorities I have reviewed, I consider that a full, fair and reasonable compensation order is $120,000.  I have given very little consideration to the respondent’s financial state in arriving at the sum of the compensation order.  Part of the compensation order includes a modest sum for the cost of future psychological treatment.

30I should add at this point that the applicant relied upon a decision of his Honour Judge Pillay of Adkins (a pseudonym) v Kimberley (a pseudonym)[19] for two purposes.  The first, which is immediately relevant, is the quantification of the compensation order.  The facts readily distinguish it from the applicant’s case.  I do not accept that it is analogous to the applicant’s case nor provides any particular guidance.

[19] [2019] VCC 2093 (“Adkins”)

Costs

31The applicant’s reliance on Adkins served a second purpose.  His Honour made an order for costs in favour of the successful applicant.  It would appear that there were facts which his Honour considered warranting a departure from s85K which is cast in very direct terms that each party “must” bear their own costs of the proceeding “unless the Court otherwise determines”.

32An interpretation of the provision is that there must be something exceptional, in the sense of there being something unusual, about the proceeding before an unsuccessful party is ordered to bear the burden of the successful applicant’s costs.

33The applicant submitted that she has gone to additional expense to prepare her application, caused by the fact that the respondent is self-represented.  I can well understand that an extra burden is carried by a represented party when the other party is not presented, however, self-represented litigants are part of the litigation landscape and their presence together with the extra burden carried by the represented party is not exceptional or unusual.  I do not accept that such a circumstance warrants a departure from the statutory direction that each party must bear their own costs.

Orders

34I will order that the respondent pay a compensation order to the applicant of $120,000, less the sum of $7,500 paid to the applicant under the Victims of Crime Assistance Act 1996. That deduction must be made under s85I of the Act.

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