Poland v Poland
[1999] WASC 226
POLAND -v- POLAND [1999] WASC 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 226 | |
| Case No: | MC:36/1999 | 12 NOVEMBER 1999 | |
| Coram: | MILLER J | 12/11/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Award of $22,500 | ||
| PDF Version |
| Parties: | THERESE KATHLEEN POLAND CLEMENT PETER COURTNEY POLAND |
Catchwords: | Criminal injuries compensation Post traumatic stress disorder caused by sexual assaults Offences committed when applicant 6 10 years of age Principles of assessment Turns on own facts |
Legislation: | Criminal Injuries (Compensation) Act 1970 |
Case References: | "B" v "S", unreported; SCt of WA; Library No 950223; 10 May 1995 "M" v "J", unreported; SCt of WA; Library No 920598; 19 November 1992 "O" v "J", unreported; SCt of WA; Library No 920027; 13 February 1992 KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983 R v Forsythe (1972) 2 NSWLR 951 B v W (1989) 6 SR (WA) 79 BMW v RLW, unreported; DCt of WA; Library No 4614; 23 August 1995 "C" v "BC", unreported; SCt of WA; Library No 970287; 5 June 1997 Fagan v Crimes Compensation Tribunal (1982) 42 ALR 511 Glover v Ancker, unreported; DCt of WA; Library No 4962; 20 June 1996 RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974 Sideris v Censori [1983] WAR 17 The Applicant v Larkin [1976] WAR 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : POLAND -v- POLAND [1999] WASC 226 CORAM : MILLER J HEARD : 12 NOVEMBER 1999 DELIVERED : 12 NOVEMBER 1999 FILE NO/S : MC 36 of 1999 BETWEEN : THERESE KATHLEEN POLAND
- Applicant
AND
CLEMENT PETER COURTNEY POLAND
Respondent
Catchwords:
Criminal injuries compensation - Post traumatic stress disorder caused by sexual assaults - Offences committed when applicant 6 - 10 years of age - Principles of assessment - Turns on own facts
Legislation:
Criminal Injuries (Compensation) Act 1970
Result:
Award of $22,500
(Page 2)
Representation:
Counsel:
Applicant : Mr A R Dale
Respondent : In person
Amicus Curiae : Ms C Bathurst
Solicitors:
Applicant : Anthony Dale
Respondent : In person
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
"B" v "S", unreported; SCt of WA; Library No 950223; 10 May 1995
"M" v "J", unreported; SCt of WA; Library No 920598; 19 November 1992
"O" v "J", unreported; SCt of WA; Library No 920027; 13 February 1992
KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983
R v Forsythe (1972) 2 NSWLR 951
Case(s) also cited:
B v W (1989) 6 SR (WA) 79
BMW v RLW, unreported; DCt of WA; Library No 4614; 23 August 1995
"C" v "BC", unreported; SCt of WA; Library No 970287; 5 June 1997
Fagan v Crimes Compensation Tribunal (1982) 42 ALR 511
Glover v Ancker, unreported; DCt of WA; Library No 4962; 20 June 1996
RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974
Sideris v Censori [1983] WAR 17
The Applicant v Larkin [1976] WAR 199
(Page 3)
1 MILLER J: This is an application for an award of criminal injuries compensation in respect of seven counts of sexual offences for which the respondent was on 1 September 1995 convicted in the Supreme Court at Perth. The application comes before the court under the provisions of s 4 of the Criminal Injuries (Compensation) Act 1970 ("the 1970 Act").
2 The respondent was convicted by a jury on 30 August 1995 of one count of unlawful and indecent dealing at Rockingham in or about 1977; one count of unlawful and indecent dealing at Rockingham in or about 1979; another count of unlawful and indecent dealing at Rockingham in or about 1979; one count of carnally knowing the applicant who was his daughter as he then well knew at Rockingham in or about 1979; one count of unlawful and indecent dealing between 1 January 1980 and 10 February 1980 at Rockingham; another count of unlawful and indecent dealing during the same period at Rockingham; one count of inciting the applicant, a child under the age of 14 years, to unlawfully and indecently deal with him at Rockingham during the period 1 January 1980 and 10 February 1980; and one count of unlawful and indecent assault at Rockingham between 1 January 1985 and 31 May 1985. For these crimes the respondent was on 1 September 1995 sentenced by Pidgeon J to an effective term of imprisonment of seven years with eligibility for parole. A sentence of seven years imprisonment was imposed for the offence of incest (count 6) with two years imprisonment on each of the other counts to be served concurrently with the sentence imposed on count 6. Because any compensation in respect of the final count falls to be considered under the provisions of the Criminal Injuries (Compensation) Act 1982 no application for compensation is being pursued in this Court in relation to that matter.
3 The applicant was born on 20 October 1970 and is now 29 years of age. The offences committed by the respondent (her father) occurred between 1977 and 1985 during which time she was between 6 and 14 years of age. In a deposition which she made for the purpose of the criminal proceedings against her father, the applicant stated that she was in grade 1 and just turning 6 years of age on the first occasion when the respondent sexually assaulted her. The first incident involved an unlawful and indecent assault in which the respondent incited the applicant to indecently deal with him by washing his penis whilst the two were in a shower. This was the subject of count 2 on the indictment. Count 4 on the indictment involved an offence approximately two years later when the respondent rubbed the applicant's vagina with vaseline. She was then almost 10 years of age. On another occasion (the subject of count 5) in the same year the respondent penetrated the applicant's vagina with his
(Page 4)
- fingers, and not long afterwards he penetrated her vagina with his penis thus committing the offence of incest. This was the offence contained within count 6 in the indictment. Further offences occurred in early 1980 (counts 9, 10 and 11) when the respondent respectively rubbed the applicant's vagina and penetrated her vagina with his fingers and incited the applicant to rub his penis.
4 In her deposition for the purpose of the criminal proceedings, the applicant stated that she left home when she was about 20 years of age. She told nobody about what had happened to her until 1992 when she confided in a friend. This led to counselling from a member of her church and ultimately to more professional assistance. Between 1995 and 1999 the applicant received counselling from Ms Marie Carpenter of the Family Counselling and Medical Centre in Castle Hill, New South Wales. A report from Ms Carpenter dated 19 April 1999 reveals that the applicant complained of experiencing rejection and isolation from her immediate family which in turn had caused her deep emotional pain, particularly in the relationship with her mother. Public knowledge of the abuse she sustained had also impacted upon her life and prevented her being involved in career possibilities which she had intended. Ms Carpenter was of the view that she had "bravely continued to persevere to recover" but had found great difficulty in establishing personal relationships particularly with the opposite sex. She was considered to have experienced considerable loss of enjoyment of life in being unable to communicate easily in family and friend relationships, had struggled with low self-esteem and self-acceptance due to the lack of parental protection as a child and was "deeply hurting and grieving".
5 In a report dated 19 April 1999 Ms Vivienne Riches, a clinical psychologist with the Family Counselling and Medical Centre at Castle Hill, New South Wales, provided a comprehensive assessment of the impact of the sexual assaults upon the applicant. Ms Riches concluded that the applicant had suffered post-traumatic stress disorder (moderate to severe) as a result of the various indecent dealings and indecent assaults against her by her father over the period in question. This disorder is a disorder with a number of criteria all of which must be met for the diagnosis of it to be applied. Each of the criteria were found to exist in the applicant's case. In summary, Ms Riches found that:
a. the indecent assaults sustained by the applicant had had a profound effect upon her relationship with both her parents and her whole family system. Her mother had rejected her and her siblings refused to believe her in
(Page 5)
- relation to the allegations she had made, with the result that she has had no contact with her family for a long period of time;
- b. the applicant has persistent and distressing memories, flashbacks, thoughts and perceptions associated with various aspects of her physical, sexual and emotional abuse over the years. Although these have abated a little since counselling, they keep returning and can be triggered by minor events. She has regular nightmares with major themes relating to being attacked and these nightmares are said to be consistent with the abuse she has suffered;
c. the applicant (now 29 years of age) has avoided relationships with men. She has never had a boyfriend and has only been out a few times with men. She says she cannot relate to men and has had no real relationship with any man. Instead she has most of her time working in an attempt to escape from intimacy. She works late and on most weekends for this purpose;
d. the applicant has "avoidance behaviour" which extends to a number of activities in addition to her avoidance of relationships with men. She hates association with things like vaseline, petroleum jelly and Vicks vapour rub, all of which cause her great distress. She hates the smell of alcohol and avoids any place where there is alcohol. This means that she is forced to avoid nightclubs and other venues. She dislikes films and if when watching a film there is any sexual or violent content she is forced to flee from the cinema;
e. the applicant has vast areas of her early life which she cannot recall. She has no memories of many aspects of her early life, but does have specific memories of abusive encounters with the respondent;
f. the applicant has a number of symptoms of increased arousal that appear to be a result of the trauma she experienced over the years in question. She has battled for many years with not being able to sleep properly. She has experienced difficulty in concentration in relation to
(Page 6)
- her studies and otherwise. She shows evidence of marked hyper-vigilance, particularly at home and at night. She is extra cautious, even with friends, and shows signs of anxiety;
- g. there are indications that the applicant suffers from an eating disorder, generally in the form of anorexia, although sometimes with binge eating phases.
6 The prognosis expressed by Ms Riches is that although the applicant has made significant progress to date with counselling, there are many symptoms consistent with the diagnosis of post traumatic stress disorder which are still present or fluctuate depending upon general life pressures. She displays real determination to overcome the crippling effects of the trauma she sustained by reason of the sexual assaults upon her, but it is said that this a daily struggle. Although her efforts should result in further significant improvement it is difficult to judge how long this will take. A major issue which will always remain to be addressed concerns intimate relationships and interactions, especially with men. In this area little improvement has been seen and further support and counselling will be required for some considerable time. The fact that the applicant has been forced to sever all ties with her family is a significant area of loss and grief for her.
7 The entitlement of the applicant to criminal injuries compensation is subject to a jurisdictional limit. That limit for the offences committed between October 1976 and December 1992 is $7500 for each offence and under s 4(2a) of the 1970 Act the limit applies "in aggregate" to offences committed at the same time. Because a number of counts occurred on the same date (counts 4 - 6 inclusive and 9 - 11 inclusive) the limit in relation to those counts is $7500 in each instance. The result is that under the 1970 Act, for offences committed between 1976 and 1982, the applicant is entitled to a maximum of $22,500.
8 The principles of assessment are clear. Compensation under the 1970 Act is for "injury" within the meaning of the definition contained in s 3. The word "injury" is defined to mean bodily harm and includes pregnancy, mental shock and nervous shock. There is no difficulty with the concept of compensation for bodily harm. Some difficulties have arisen in relation to the meaning of the words "mental shock and nervous shock", but as to that, I respectfully adopt the following passage of Murray J in "B" v "S", unreported; SCt of WA; Library No 950223; 10 May 1995:
(Page 7)
- "That has long held to be a phrase of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. It has therefore been held that a distinction needs to be drawn between a mere emotional reaction and something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: The Applicant v Larkin &Ors [1976] WAR 199 per Wickham J at 201. That view of the Act and the concept of 'injury' has often been applied since and, with respect, I adopt it for present purposes."
9 I accept a number of propositions advanced by counsel for the Chief Executive Officer of the Ministry of Justice which were conveniently set out in counsel's helpful outline of submissions. They are:
(1) The maximum compensation prescribed by the Act is merely a jurisdictional limit and is not reserved for the worst case: KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983.
(2) The correct approach to adopt in fixing the amount of compensation which is payable is to apply the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit imposed by the Act: "M" v "J", unreported; SCt of WA; Library No 920598; 19 November 1992.
(3) In assessing the amount of compensation which should be awarded the Court must have regard solely to the injury suffered by the Applicant in consequence of the commission of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: R v Forsythe (1972) 2 NSWLR 951; "O" v "J", unreported; SCt of WA; Library No 920027; 13 February 1992.
10 I have no difficulty in the present case in concluding that the applicant has suffered bodily harm within the meaning of the 1970 Act together with mental shock and nervous shock as that phrase has been interpreted in the decided cases. Post traumatic stress disorder is a well-established diagnosis, and the symptoms of it to which Ms Riches
(Page 8)
- has adverted in her report of 19 April 1999 seem to me clearly to fall within the definition of mental and/or nervous shock.
11 In relation to the offences for which the applicant is entitled to compensation under the 1970 Act I am prepared to award the maximum of $22,500. Were it not for that jurisdictional limit, the applicant would, in my view, be entitled to an award well in excess of that sum for the injury sustained in consequence of the offences contained within counts 2, 4, 5, 6, 9, 10 and 11 of the indictment.
12 In the result, there will be an order that the respondent pay out of his property to the appellant by way of compensation for injury suffered by the applicant, the sum of $22,500.
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