Re VPAN - [2011] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: VPAN [2011] WADC 40

CORAM: SWEENEY DCJ

HEARD: 7 MAY 2010

DELIVERED : 17 MARCH 2011

FILE NO/S: APP 69 of 2007

MATTER :IN THE MATTER of Part 7 of Criminal Injuries Compensation Act 2003

BETWEEN: VPAN
LFJN
TPHH (By their next friend NH)

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
Citation  :CI 1035 of 2005

Catchwords:

Criminal injuries compensation - Sexual abuse by father - Alleged offences - Mental and nervous shock - Loss of earning capacity

Legislation:

Criminal Injuries Compensation Act 2003, s 6, s 17, s 34(2), s 38
Evidence Act 1906, s 31A

Result:

Appeal allowed

Representation:

Counsel:

Appellants: Mr B L Nugawela
Amicus Curiae : Ms L Smith appeared on behalf of the Chief Executive Officer

Solicitors:

Appellants: CLP Legal
Amicus Curiae : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v D (1994) 11 WAR 481
B v B [2004] WASC 6
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Hatfield v Under Secretary for Law (unreported; WASC, Library No 4012; 15 December 1980)
LMC v RJO [2002] WADC 147
M v J and J v J (unreported, WASC, Library No 920598, 19 November 1992)
MJN v MJAS (2003) 35 SR (WA) 219
S v Neumann (1995) 14 WAR 452
VPAN [2007] WACIC 41

SWEENEY DCJ:

Introduction

The original respondent in this matter has played no part in this hearing. He has never been charged with any offence in relation to the three appellants, V, L and T, his natural children. An order was made some time ago by the learned assessor that he is not to be pursued for payment of any compensation award made in this case.
On 31 March 2005 N, the children's mother, applied on their behalf for criminal injuries compensation for injury and loss suffered as a result of their having been sexually abused by the respondent. There were no 'proved offences' (see s 12 Criminal Injuries Compensation Act 2003), there having been no convictions, but the learned assessor was satisfied, pursuant to s 17 of the Act, that V was indeed sexually penetrated by the respondent in her vagina, anus and mouth on more than one occasion and that L and T were each sexually penetrated by the respondent on at least one occasion. She also found that L and T heard their father's sexual abuse of their sister V.
The appellants assert that the maximum that could be awarded in respect of each child was $100,000. The maximum that could be awarded each child in respect of a single offence was $50,000. The learned assessor did not, however, make a finding that L and T had been subjected to more than one act of sexual abuse and so the maximum sum that the assessor must have contemplated for each of the boys was in fact $50,000. For the reasons which I detail below, however, I am satisfied that T was sexually penetrated on more than one occasion. I am not so satisfied in relation to L. $50,000 is the maximum L can be awarded.
In respect of V and T however, and for the reasons set out below, multiple offences are established. By virtue of s 34(2) the maximum sum that may be awarded an applicant who has suffered multiple unrelated offences at the hands of the one offender is limited to $100,000. It is not suggested that the offences are related offences and so that is the applicable maximum.
On 1 June 2007 the learned assessor made awards of compensation of $36,500 to V and $20,000 to each of L and T. This appeal is against the inadequacy of those awards, essentially on the grounds that the assessor made no award for loss of future earning capacity for any of the children and that the sums are manifestly inadequate.
For the reasons set out below, I have allowed each appeal and substituted awards of compensation for $100,000 to V, $100,000 to T and $50,000 to L.
Certain materials were put before me that were not put before the learned assessor and I granted leave for that evidence to be put before the court.
The appeal has also been lodged well out of time. The decisions were handed down on 1 June 2007. The reasons for decision were sought and delivered on 29 August 2007. The notice of appeal was not filed until 26 November 2007. The reasons for the delay revolve around waiting on the reasons for decision to be available and the law firm that previously represented the appellants exercising a lien over their file for unpaid costs. Neither excuse is entirely adequate, but no prejudice has been caused to the respondent and, there being something of an explanation for the delay and substantial merit in the appeal, leave is granted to appeal out of time.
The hearing is an appeal de novo: s 56(1). In those circumstances, the appellants conceded that I need to be satisfied on the balance of probabilities that the alleged acts of sexual abuse did occur before any award of compensation can be made. I have approached the matter on that basis. For the reasons which appear below, I am satisfied that each of the children was subjected to sexual abuse.
The next issue for determination is whether the award made was so inadequate as to reveal error, or whether there was a specific error by failure to take into account loss of earning capacity.
In fairness to the learned assessor, it emerged during discussions that, at the time these applications were made, the standard form application for compensation did not include a heading of future economic loss or loss of earning capacity and so the appellants in this case did not expressly claim under that head of damages. That of course is not fatal to their appeal, this being an appeal de novo, but obviously materials and submissions have been put before me directed to that specific issue which were not put before the learned assessor. It is difficult to see how an assessor can be said to have erred in not awarding an amount which was not claimed. But as I am hearing the matter afresh and as the claim for loss of earning capacity is now clearly being made, it should form part of the award. And, as is so often the way, significant materials were before me which were not before the assessor.
For the reasons which appear below, I conclude that the awards were manifestly inadequate, both in the amounts to be awarded for pain and suffering, including mental and nervous shock, and in failing to reflect an appropriate amount for loss of earning capacity.

Did the alleged offences occur in relation to V?

I have had access to the same materials that the learned assessor referred to in her reasons for decision: VPAN [2007] WACIC 41. I will turn to those materials shortly, but I have also had access to a file from the Director of Public Prosecutions which may or may not have been before the learned assessor. Indeed, the appellants' counsel appeared to be generally unaware of it but, having read its contents, I invited counsel to tender that file, which he did. The learned assessor did refer to the fact that, on 12 June 2000, the respondent was remanded in custody on charges of sexually abusing children from his neighbourhood and was subsequently imprisoned in January 2001, but said nothing more about that.
Those matters are directly relevant to these matters in that, while they relate to different children, they amount to propensity evidence within s 31A Evidence Act 1906.
The facts as related by the sentencing judge, Blaxell DCJ, on 25 January 2001 were as follows:
Following your pleas of guilty, you have been convicted of five offences on indictment and one offence the subject of a section 32 notice. The five indictable offences are two counts of indecently dealing with a child under 13 years of age, two counts of procuring a child under 13 years of age to do an indecent act and one offence of threat to kill, and the section 32 offence is an offence of assault.
The facts of those matters are that, in respect of count 1 of the indictment, the complainant was a 9‑year‑old girl who was living in the same street as you in Port Kennedy. She was accustomed to coming round to your house to play, as I understand it, with your children and during 1999, while she was playing in the backyard of your house, you called her over to an open bathroom window from inside the house and when she came across, you dropped your pants and you masturbated in front of her and she then walked away.
The facts of count 2 are relatively minor in the sense that on 22 April 2000 you kissed that same 9-year-old complainant on the lips to gain some form of sexual gratification. On the same day, you committed count 3 by asking her to pull her pants down, which she did. You then asked her to pull her underwear aside but she refused. Shortly afterwards, you offered to pay her $5 if she would show you her private parts but she again refused that request.
Count 4 is much more serious and that was committed also on 22 April 2000. The complainant in this instance was a different girl, a 6‑year‑old who also lived in the neighbourhood and also came round to your house to play with your children. On the same date as counts 2 and 3 she was at your house. You told her to come into the bedroom. When she was in the bedroom, you told her to pull her dress up and to show you her rude part.
She apparently resisted this request but you then locked the door and you threatened to put a knife under her chin if she didn't show you her rude part. She then complied with this request out of fear of your threat. All that happened was that you looked at her vagina when she exposed it.
Count 5, the offence of threatening to kill: the facts of that are that the mother of the 6-year-old girl discovered what had happened from her daughter and that same day as counts 2 to 4 she confronted you. At the time you had come to the front door of her house. There's an argument and a bit of a scuffle of some sort. You then went away home and you came back with a knife and you then confronted the complainant and you struck her with an open hand to her face, which is the assault the subject of the section 32 notice.
You then committed count 5 on the indictment by threatening to kill her while holding the knife you'd brought back with you under her chin. I accept at the time of these offences you were intoxicated by alcohol. You're 39 years of age. You have a de facto wife and eight children and stepchildren. You don't have a very long record of prior offences but you do have a previous conviction in 1990 for aggravated sexual assault on your 8‑year‑old niece, for which you received 5 years 5 months' imprisonment.
It also appears from the file that, when interviewed by police on 26 April 2000, the respondent made significant admissions. He commented: 'It turns me on to see private parts of young girls', 'Sometimes after I have had a few beers I start thinking about this kind of thing. I sort of take the opportunity. I need help if I am there by myself', and 'I need help. It's like a sickness. I do it and I feel so bad for it for my children's sake and my wife's sake. I need something to make me stop thinking the way I think. All my kids are lovely'.
At the time that police felt there was insufficient evidence to lay charges in relation to V, the state of the law was such that the prosecution could not have led such evidence in any prosecution concerning his abuse of the appellants. The law has since changed. These matters for which the respondent was sentenced in January 2001 are now clearly admissible against the respondent (see s 31A Evidence Act 1906) because they are significantly probative of a tendency he had during the relevant time period to form a sexual attraction to young children, or at least young girls, and to act upon that sexual attraction by committing sexual offences against them.
While I do not have the details of the previous conviction in 1990, plainly that was also criminal behaviour of a sexual nature against a young niece. That too is admissible.
Further, this material reveals a tendency to behave coercively, threatening the young 6‑year‑old child in count 4 with violence if she did not comply. The facts as recited do not specify whether or not the respondent actually had a knife in his possession at the time of threatening her, but it must have been a very terrifying threat for a young child to hear. Further, the facts of count 5 and the s 32 matter reveal that the respondent had a tendency to actual violence, wielding a knife against an adult woman in precisely the same manner as he had threatened to the 6‑year‑old child.
While this material does not, of itself, establish that the respondent committed acts of sexual abuse upon his children in this case, it does provide compelling support to each of the children's accounts, in that it increases the objective likelihood that the account given by each of the children is true. This is particularly significant in light of the specific allegations made by these children, including aspects of coercion and violence.
Returning then to the allegations in this case, the background is that the children's mother N and the respondent were in a de facto relationship from early February 1992 for a period of four years, separating in February 1996. After the separation, the respondent had weekend access to the children. In mid‑1997, because their mother was not coping, the three children were placed into respite care and it was noted that two of the children, V and her older brother L, were behaving in a sexualised manner. Because of that, on 3 June 1997, their mother took the children to Princess Margaret Hospital where both V and L were examined by Dr Danica Bredemeyer.
At the time of her examination V was but 2 1/2 years old. Not surprisingly, the doctor was unable to get any meaningful sort of history from her. The examination was normal apart from the doctor's note that the child's hymen was 'rather scanty', that the edge was uniformly blunt and that the opening in the hymen appeared relatively large. The doctor was suspicious that V had been subjected to some form of sexual interference such as digital fondling, but the findings were not conclusive. Given what has emerged since, the likelihood is that V had been sexually abused by the time of that examination but, at the time, there was insufficient information and, significantly, no intelligible disclosure from the child, to enable that conclusion to be drawn.
At the time of his examination, L was 3 1/2 years old. Dr Bredemeyer was unable to obtain any history from him, nor indeed any meaningful conversation. The doctor did not make any findings leading to a conclusion, or even a suspicion, of sexual abuse. N has given contrary information over the years to counsellors, asserting that L was found to have been abused, but there is nothing to that effect in the medical report before the court.
It does not appear that T was examined and at that time he would have been an infant.
Following the examination of V at Princess Margaret Hospital, her mother made a report to the police alleging that V had been sexually abused by the respondent. Not surprisingly, V made no disclosure to police when they interviewed her. L denied any offending behaviour and no charges were laid.
N's inability to cope with raising her children because of alcohol abuse and domestic violence saw her children stay in respite care until, in January 1998, the Family Court gave guardianship and custody of the children to the respondent. That occurred notwithstanding the conviction in 1990 for aggravated sexual assault on his 8‑year‑old niece, referred to in the sentencing comments of Blaxell DCJ.
It is during the period of his guardianship and custody of the children that it is asserted the respondent sexually abused them.
Two and a half years later, on 12 June 2000, the respondent was remanded in custody on the matters for which he was then sentenced by Blaxell DCJ in January 2001. The three children remained in the care of his de facto wife until they were returned to their mother in January 2002. They had not seen her for a significant period of time because they had been living up north.
Until then, it would appear that none of the children had actually made a disclosure that they had been sexually abused. In April 2002, however, their mother made complaint to the police alleging that each of the children, individually, had disclosed having been sexually abused by their father.
V was again examined at Princess Margaret Hospital, this time by Dr Anita Banks on 24 April 2002. V was now 7 years old and Dr Banks found that her hymen was very deficient and more so than was noted in the 1997 examination. Although there were no findings to the anus, Dr Banks also found that this did not exclude penetration and noted that the majority of children who suffer penile/anal penetration do not present with significant findings. In Dr Banks' opinion the findings could indicate further chronic sexual abuse between the period of the two examinations.
V's mother informed Dr Banks that V had disclosed to her that the respondent had had sex with her including 'the front and the back' and had also told her mother that vaginal penetration 'doesn't hurt any more'. Her mother also told Dr Banks that, since being returned to her care, V had been suffering nightmares, wetting the bed and soiling herself, although Dr Banks thought the child may also have been suffering from constipation which may have contributed to that situation.
The police interviewed V on 29 April 2002. It is apparent from the transcript of the interview that V was extremely immature for her age, inarticulate and did not display the level of concentration one would ordinarily expect of a 7‑year‑old child. She found it difficult to focus on the questions and quite often went off on tangents. Her disclosure to the police did not contain sufficient particulars of any alleged offence to ground a charge, nor sufficient particulars to found a general charge of having a sexual relationship with a child. It is also readily apparent that, at that level of maturity, she would not have been able to give reliable evidence and would certainly not have grasped the process of cross‑examination that would have occurred in any trial.
In her own childish way, however, V did give an account of being sexually abused by her father. It is necessary to separate out the childish fantasy of what she wished had occurred to him, or had been assured would occur to him, from what actually had occurred to her.
Making allowances for her childish way of speaking however, V did specifically complain that he took her clothes off and 'plays sex' by telling her to lie down on her back and that he put his private part in hers. She was able to explain that his private part was at the front and that she had a private part both at her front and at her back. She described her father laying on top of her and said that when he put his private part in hers it felt hard and it took longer to go to the toilet. She indicated that this had occurred multiple times and that he had also put his finger in her private part. She said that the incident occurred when it was dark and really late and after she had gone to sleep, but then she had got up to go to the toilet. She complained that she could not sleep because he kept bringing her into his room.
I take into account that there were some answers given by V which indicated that the respondent and his family had been discussed within her family. But I am satisfied that she did, allowing for her obvious immaturity, make clear complaints of sexual abuse by the respondent upon her and that those complaints came from her own memory, rather than the suggestions of others.
Although it is not entirely clear, because of the somewhat idiosyncratic way in which V expressed herself, she also appeared to be disclosing that she had been penetrated both vaginally and anally. She appeared to indicate that she had been penetrated many times. She nominated 30 to 31 occasions however, given her obvious immaturity, one could not be satisfied that she had any concept of those numbers, but one can be satisfied that she was indicating this had occurred multiple times. It is also apparent from her disclosure, which was quite clear on this aspect, that he had digitally penetrated her vagina.

Around this stage all three children were also referred for counselling to Yorgum Aboriginal Family Counselling Service where they were seen by a counsellor, Ms Hong, and also a child psychologist, Mr Henry.
During sessions with Ms Hong, which commenced in May 2002 and went for approximately a year, V made some explicit disclosures and made it very clear that the sexual abuse perpetrated upon her was a frequent and regular event. She disclosed that the respondent would forcibly take her from the bed she slept in with her brothers and take her to his room and have sex with her and would also follow her to the toilet and wait outside the door and then take her to her room to abuse her.
Unfortunately the counselling was discontinued because of N's constant concerns over Yorgum's record‑keeping, the inactivity on the part of the police in laying any charges, communications between Yorgum and the Department of Community Development and her continual focus on a potential criminal compensation claim. N was obviously bewildered as to why no charges were laid by the police when, no doubt to her mind, disclosure had been clear.
The difficulty the police had however is that V made no adequate disclosure to them and the process of a criminal trial would have required V to give evidence and be cross‑examined, with no opportunity for her to acquire any level of rapport with the counsel involved at trial. She has never demonstrated an ability to provide adequate particulars of individual incidents of abuse sufficient to ground individual charges, although a general charge of sexual relationship with a child might have been applicable if V had been able to disclose to the police and in evidence the level of detail she disclosed in counselling.
Their mother declined to allow the police to interview L and T at this time. That decision was not too surprising given that, having interviewed V, the police felt there was insufficient evidence to lay charges and the boys' mother did not want them to go through that same process to no avail.
During T's counselling sessions, he confirmed that he had seen his sister V being forcibly removed from their bed and also, by the use of dolls, demonstrated understanding of sexual acts with reference to what had occurred to his sister. Likewise L disclosed that he and his brother would hear their sister screaming and also spoke of the respondent lying on top of her. He also described their various efforts to escape their father. That last aspect may or may not have happened and may have only been his immature attempt to reassure himself that he had attempted to help his sister. But those disclosures certainly do support V's account.
On 21 May 2003 V was again interviewed by police at the child abuse investigation unit. She was a very difficult interview subject, regularly expressing her frustration at having to answer any questions, her anger at having to talk about these things and her desire to leave the room. The interview in effect shut down several times because she was angry at the interviewer. The majority of the interview centred around a disclosure that someone else (on my understanding one of the sons of the respondent's de facto wife) had had sex with V on several occasions.
In relation to the respondent, V disclosed that he had had sex with her twice. That topic of discussion broke down when V became frustrated because she thought the police officer did not understand that she was making disclosures about her 'real dad' as opposed to her 'stepdad'. She was very angry and resentful during the interview. She was also obviously very immature for her age and unable to concentrate during the conversation. It is readily apparent that she would have been quite incapable of bearing up under the strain of giving evidence in a criminal trial.
She also answered questions in a way which suggested that her mother or stepfather may have pressured or influenced her to disclose various matters. It is apparent from materials before me that the mother had herself been subjected to child abuse and had unresolved issues concerning that. V's disclosures do rather suggest that the abuse she had suffered had been the subject of very regular discussion within the family home and that her mother was intent on the matters being disclosed to the authorities.
There is nothing sinister in that: the chronic abuse N suffered as a child was not reported to police and she has described being, in effect, blamed by her foster‑mother for the abuse perpetrated upon her, a claim I can believe. In June 2003, Dr Banks expressed the view in a report that N herself probably suffers from post‑traumatic stress disorder. She explained that N is 'not currently seeking counselling for herself, as she says her children are her priority'.
As a result, it is not surprising that N was determined that her own children would be heard and that action would be taken. I conclude that, whatever pressure had been put upon V to disclose, it was well‑meaning and, having read the transcripts of V's interviews, it may well be that her mother was attempting to break down V's obvious strong resistance to discussing the issues. The difficulty with that approach, however, is that it does tend to adversely affect V's credibility as a witness, which would not have escaped the interviewing officers.
That same day, L was interviewed. He was then 9 years old. He was considerably more articulate than his little sister and more focused in the interview. He described his real father as doing 'rude stuff to kids' and said:
He's done it to [V] before, and then. I don't like him myself and he done it about 30 or 20 times, 30 or 29 times. I don't know why he did that stuff, maybe he's a kind of murderer or something of kids.
A great deal of the interview revolves around L disclosing his anger and bitterness at being taken from his mother and the lies his stepmother told him. There is a strong suggestion of indoctrination from his mother in these various comments. He also focused on disclosing sexual abuse perpetrated on V by the same boy she had also made complaint about.
As to L's knowledge of anything the respondent had done, he stated:
I don't know some of it cos that's what I finded out when he was in gaol. My mum said he was in gaol cos he's done naughty stuff to kids, cos you don't like it when other people do stuff to you.
He also said that the respondent had done rude stuff to V and 'I am listening to outside'. When asked what rude stuff he had seen he said 'raping stuff, rude stuff, and they put rude stuff into girls' and they 'put white stuff in the girls' mouths from the boys' private parts'. He then stated that the older boy had done that to V.
When the interviewers again tried to get him to focus on the respondent and what rude stuff he had done, L appeared convinced that he had already disclosed that and then stated 'This was when I was about 4, and then he done it but I can't remember. It was way long ago'. He said that the rude stuff happened to V, but when asked what rude stuff had happened to her he said 'I don't know, I don't know really'. He also said that he had seen the respondent do 'rude stuff and that' to V, but when asked what he had seen, said 'Well, I don't know'. He said he had seen 'both laying on bed and running and hiding and that from him, me and my brother [T]'. When asked why, he said 'We think he's going to do rude stuff to us' and 'Well, we tried a good hidey place, nobody can't find us by hiding. That's why me and [T] good at hiding'. When he was asked who the respondent had done rude stuff to, he said that was to V and nobody else. When asked what he saw, he stated 'Well, [V] was on the bed, I think my dad's a murderer, murdering kids and making kids sick'. He gave significantly differing accounts as to when these things happened and where.
L would not have made a good witness at that age. His account was somewhat changeable and it was clear he was very uncomfortable talking about the subject matter, which is not surprising. While he was a rather better interview subject than his little sister V on that day, the details of his accounts were changeable and showed some sign, although to a rather lesser degree than V, of having been spoken to about these matters by his mother and her partner.
Nevertheless, in broad terms, L's account supported V's disclosure that she had been sexually abused by the respondent and indeed by a boy of about 18 who appeared to be one of the sons of the respondent's partner. Although both V and L make comments on occasion that suggest that every member of that family was sexually abusive, when pressed for details it always came back to the same boy.
In September 2005 the children's mother sought psychiatric assistance for them due to their behaviour at school. The psychiatrist, Dr Lois Achimovich, began a series of counselling sessions with V and noted, in her report of 20 April 2007, that V had disclosed to her that her father had sexually penetrated her both vaginally and anally and had also penetrated her mouth with his penis. She said:
It was hard. It hurt a lot. I peed my pants because of that and pooed as well. He came at night or when [his partner] was out.
She believed her brothers had been able to hear the sexual abuse. That account was supported by L in his sessions with Dr Achimovich who stated:
He forced her to have sex with him and made us watch. Sometimes he would take her out of the bed to another room. Sometimes we could hear her crying. [T] and me just stayed in bed and tried not to hear it.
T told Dr Achimovich that he and L:
Used to hear [V] screaming. We used to put a pillow over our heads and cry.
Making every allowance for the possibility that the children have been subject to far too many discussions about this topic with their mother, who obviously holds firm beliefs about what has happened to them and may have well-meaningly encouraged them to disclose, and making every allowance for the fact that the children may have discussed amongst themselves what occurred and that memory may have become blurred with hearsay evidence, the overall picture remains one in which V was subjected to repeated sexual penetration of every description against her will by the respondent. It is also consistent with the disclosures made by T and L that she was subjected to forced acts of sexual penetration and was both physically and emotionally traumatised on a repeated basis.
When one takes into account V's disclosures, L's and T's descriptions of her being abused, the propensity evidence - which lends significant support to the children's characterisation of the respondent as a violent person who was forcibly dragging V from the bed in order to sexually abuse her - together with the medical evidence, I am satisfied on the balance of probabilities that V was subjected to repeated acts of sexual penetration and that she was chronically sexually abused by her father and possibly by other members of his family, particularly the one older boy that both she and L consistently mentioned.

Did the alleged offences occur in relation to L?

L received eight counselling sessions with a counsellor at Yorgum between August 2002 and April 2003. He had been referred by his mother due to behavioural issues, namely his urinating all over the bathroom and not paying attention to his mother and her partner. During two such sessions he disclosed abuse of his sister V by the respondent and another, but made no disclosure concerning himself.
He was interviewed by police only once, on 21 May 2003 when he was 9 years old. He was difficult to interview, but not as resistant as V. He made no disclosure of having been sexually assaulted. He focused exclusively on his knowledge of sexual offences against V by the respondent and the older boy. When asked whether the respondent had done 'rude stuff' to anyone other than V, L replied 'No, nobody else'.
In their joint letter of 15 July 2004 to the appellants' then solicitor, Mr Bannerman, Ms Hong and Mr Henry of Yorgum expressed the view that 'while [L] has not to our knowledge been a direct victim of sexual abuse' he was showing symptoms of trauma. They described L as introverted and displaying a high level of anxiety, night fears and persistent phobias, and attributed this to L's knowledge that V and T had been abused and from having witnessed some of those events.
It was not until his later sessions with Dr Achimovich, that L disclosed having personally suffered abuse. When the doctor first saw him in September 2004, she described his behaviour as 'extremely abnormal'. He would not sit down, would not make eye contact and had a large bald spot on his head from pulling out his own hair.
When she saw L again in November 2006 and February 2007 he was 'a different child', 'settled and composed, rather than hyperactive, and totally age‑appropriate in his responses. He answered my questions directly and without apparent anxiety'. One can theorise that perhaps the counselling sessions at Yorgum had had some beneficial effect, even though L had not disclosed. By the time Dr Achimovich saw him he had also been to seven schools in his young life but had recently been able to settle in at one particular primary school which had offered more support.
He told Dr Achimovich that he was ashamed about the abuse of his sister and that he had on occasion been forced to watch and on other occasions had heard it occur in another room. The doctor reported in her letter to Mr Bannerman of 9 April 2007:
When I said some children get very angry about things that are done to them that they do not want, he said 'I was angry'. When I asked about what, he said 'About what my real dad did to me'. I asked what he did, he said 'He hit us and he hurt [V] and he did the sex thing to me'. Asked was he able to say what he meant, he said, 'In my bottom'. He refused to discuss this further and looked 'dreamy' (slow blinking, defocusing, loss of concentration) …This may have indicated transitory dissociation, as it occurred in the context of a report of a painful occurrence. This could only be confirmed by ongoing therapy, should he wish to pursue this.
Dr Achimovich also stated in relation to his earlier presentation that 'in my opinion, [L] exhibited … classical signs of a child who had experienced severe trauma in earlier life'.
In February 2009, however, when L was seen by Dr German‑Belmont, psychiatrist, he said 'he could not recall whether or not his father had sexually abused him, or any other traumatic event that may have occurred'. L saw the doctor only once and clearly lacked the necessary rapport to disclose to her and may also have been genuinely dissociating from past events.
Although Dr German‑Belmont appeared to be working on history that L had been chronically sexually abused from infancy to about four years then again from the age of five until seven years, and indeed appeared to be under the impression that this had been proved in a court and that the respondent had been imprisoned for it, there is no evidentiary basis for concluding that L has been sexually interfered with on more than one occasion. Although N has reported to Dr Achimovich that the doctors at the Child Protection Unit at Princess Margaret Hospital said that L was 'ripped and torn in his bottom. They said it must have been an adult and it could have been a finger', there is no such finding or conclusion in the medical reports.
There is no clear eyewitness account by V or T of L being subjected to sexual abuse by the respondent.
On the basis of the materials before this court, L's only disclosure has been to Dr Achimovich and one cannot draw multiple instances of abuse from that disclosure. Dr Achimovich herself remarked in her notes that L 'remembered one incident of abuse of himself by his father'. It may well be that L has been chronically abused and his early sexualised behaviour makes one suspicious, but this court cannot substitute suspicion, or sympathy, for actual evidence.
Clearly the police could never have laid charges in respect of L. They had no evidence on which to do so and L's unwillingness to disclose would have made it quite impossible to proceed to any prosecution. The disclosure to Dr Achimovich lacks the particulars necessary at law to sustain a charge, even if L had been willing and able to give that evidence. But I am mindful that this is not a criminal prosecution and there is no accused entitled to particulars.
I take into account the propensity evidence of the respondent's convictions and I also take into account the propensity evidence consisting of the allegations made by V and T. T's account is particularly significant. Without his account, it might be said that the propensity evidence shows only a tendency on the respondent's part to abuse young girls. T's account, which I have accepted below, shows a tendency on the part of the respondent to engage in sexual penetration of young boys as well. I am also satisfied that the tendency of the respondent to behave violently in these situations indicates that his sexual interference with children is motivated not only by sexual attraction, but also by a desire for control and domination and that, within that context, he has a real likelihood to offend against male children as well as females.
The propensity evidence cannot be used to fill a gap in the evidence, but it does increase the objective probability that L's single disclosure, later all but retracted, was nonetheless the truth. I am satisfied on the balance of probabilities that L was subjected to one act of anal penetration by the respondent and I am prepared to infer to that standard of proof that it was an act of penile penetration, given L's reference to 'the sex thing'. That being so, the applicable maximum L can be awarded is $50,000.

Did the alleged offences occur in relation to T?

The police never interviewed T. His first disclosure was to a counsellor at Yorgum, Ms Hong, who conducted 12 counselling sessions with him between August 2002 and June 2003, when T was 6 and 7 years old. Most of the sessions consisted of T drawing. He was described in a letter of 15 July 2004 to the appellants' solicitor as initially 'very frightened, reserved and bewildered. [T] was not talkative; however he drew many explicit pictures'.
During his sixth session, however, T was asked how it was living with his Dad, to which he replied: 'Bad!' and explained: 'Dad got me by the arm and … Dad slung us and has sex in the bum'. He said this occurred when he was 2 years old and that 'he had sex 100 times, 10,000 times … sex bad!' He also demonstrated an understanding of sexual acts by use of anatomical dolls.
Clearly at that age T demonstrated little concept of the numbers he was using and it is also difficult to be sure that the numbers are being used to refer to sexual acts performed upon him exclusively, or others too. But this does appear to be a disclosure that he was victim to more than one act of sexual penetration.
Dr Achimovich saw T in November 2006 when he was 10 and in February 2007, when he had just turned 11 years old. She found him far more forthcoming and confident than his siblings and described him as 'an attractive, highly articulate child, whose personality is confident and engaging'.
I am satisfied, from the contents of Dr Achimovich's letter of 9 April 2007 to the appellants' solicitor, that T disclosed to her, in clear terms, having been subjected to more than one act of anal penetration by the respondent and another, the older boy. He explained that his father had 'raped' him, many times and that what he meant by that was 'they do sex on you, in your bottom'. He also gave some particulars on one occasion, when asked to.
When I take into account both T's own account but also the propensity evidence and V's account, I am satisfied, on the balance of probabilities, that T was subjected to multiple acts of anal‑penile penetration by the respondent. The maximum that T can be awarded is $100,000.

General principles in relation to assessing compensation

Pursuant to s 17 the appellants may apply for compensation for any injury and loss suffered as a consequence of the commission of the offences.
'Injury' includes bodily harm and mental and nervous shock: s 3. 'Mental or nervous shock' contemplates the impact of the offence on the mind or nervous system (Hatfield v Under Secretary for Law, unreported; WASC (Burt J), Library No 4012; 15 December 1980 5) of an enduring character which amounts to an injury, as opposed to a mere emotional reaction: S v Neumann (1995) 14 WAR 452, 461 (Murray J). Mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: M v J and J v J, unreported; WASC (Scott J); Library No 920598; 19 November 1992.
'Loss' includes 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim': s 6. Loss of earnings includes loss of earning capacity: A v D (1994) 11 WAR 481, 489 (Pidgeon J).
In order to establish a causal relationship between any offence and the injury and loss claimed, it is not necessary for the appellants to prove that the offence or offences were the sole cause of that loss or injury. The injury or loss must be proven to have been caused by the offences but, once that is proved, 'the fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause': Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason and Wilson JJ).
Compensation is to be assessed by applying ordinary tortious principles for assessment of damages. The maximum applicable award provides no guidance to a worst case scenario. It is simply a jurisdictional limit. Compensation is assessed first without regard to that limit and then awarded subject to that limit: S v Neumann (463, Murray J).
The appellants in this case were young children at the time of any offending behaviour. Clearly they had no earning capacity at that age and so will be unable to point to any demonstrated earning capacity which has been diminished. Earning capacity can only be a matter of inference. The court must do the best it can to assess what earning capacity each is likely to have had in adult life and the extent to which that capacity may have been diminished by the offending behaviour.
There are obviously many unknown and unpredictable factors which might have beset the appellants in their lives and which may have impacted upon their earning capacity.
In November 1997 at age 3, when assessed by the Family Court appointed psychiatrist, Dr Manners, V was thought to show signs of parental neglect and had poor verbal skills, making only unintelligible noises.
L was seen by Dr Bredemeyer at PMH in June 1997 when he was 3. She could not get any intelligible word from him and noted that he had suffered from chronic ear infections and had hearing problems and delayed speech. Dr Ross Manners saw him a few months later in November when he was 4. Dr Manners found his hearing very impaired and his speech to consist of only a few unintelligible words. Dr Manners noted that L was 'inattentive, distractible and may be likely to develop attention‑deficit/hyperactivity disorder'.
Dr Manners saw V and L only once and they have a history of taking some time to establish rapport, but having read the transcripts of their police interviews when they were older, the conclusion is inescapable that their communication skills were very poor for their age and they were each very immature, consistent with Dr Manners' impression.
Dr Manners assessed N, the children's mother, as being of about average intelligence with average verbal skills. She had a history of foster care and child abuse. She left school at Year 10 and had done some study after leaving school. N had little stable parenting and any academic ability she had would hardly have been fostered in an atmosphere of abuse. In addition she had self‑esteem issues, not surprisingly.
The respondent was raised by a foster family with whom he got along and they adopted him, so his childhood was apparently less dysfunctional than N's. He left school part‑way through Year 12 but reported to Dr Manners that he was unable to cope academically. He was told at school that he would never do well academically. He was also subjected to bullying because of his aboriginality. Dr Manners assessed the respondent as being 'of at least bright‑normal intelligence' with good verbal communication skills. Following his incarceration in 1990, he had studied for an Associate Diploma in Aboriginal health and had steady full‑time employment in that field.
Drawing the broadest inference, which is all the court can do, I infer that each of the appellants is of at least average intelligence. As they became more mature, both V and T demonstrated perhaps higher levels of intelligence. Leaving sexual abuse to one side, however, all of the children have been subject to neglect and unstable living arrangements in their early formative years. At a young age, each showed significant immaturity and poor communication skills. L was also disadvantaged by chronic ear infections which affected his hearing and must have impacted on his ability to hear and concentrate at school.
Again, drawing the broadest of inferences, had they never been subject to any sexual abuse, their unstable childhood and their mother's inability to cope with raising them for a significant period of time is unlikely to have resulted in secure, confident children who would eventually become high achievers. They are of at least average intelligence, but would require considerable resilience and personal fortitude to achieve academically to an average standard or to achieve steady full‑time employment in a job of an average level of difficulty, given their poor start in life. Many people with average intelligence and difficult backgrounds, however, do go on to do just that: work capably in employment in average jobs and raise and support families of their own. In the absence of any abuse, these children might have risen above the neglect which marked their early years, as others have done before them.
The recognised and well documented long term effects of child abuse, particularly chronic child abuse by a family member, however, are such that it would be quite impossible for this court to attempt to disentangle the long term effects of any offending behaviour from any possible long term effects from other childhood factors and the vagaries of life generally, even if it were appropriate to do so.
There is some arguably competing authority on that point: (see B v B [2004] WASC 6, LMC v RJO [2002] WADC 147 and MJN v MJAS (2003) 35 SR (WA) 219) but, in a case such as this, the legal issue is purely academic and I do not intend to attempt to resolve it. As each child was so young when subjected to abuse, there is no potential in this case for distinguishing between pre‑existing or co‑existing issues in these children's lives and the long term potential effects of those factors and the potential long term effect of sexual abuse. The assessment of damages in such a case as this cannot be a matter of calculation based on any sort of precise figures and is essentially a matter of judgment, taking into account multiple unknowns and reaching a just figure.
Section 38 provides that an award must not be made
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.
The learned assessor reached the view that N's actions on refusing to allow L and T to be interviewed by police were reasonable. I agree, but I do not consider s 38 has any application to this case in any event. The victims are the children, not N, and the stance of a 'close relative' only relates to the 'close relative of a deceased victim' who is claiming compensation.
Finally, s 21 was raised with me briefly: it empowers the court to require the victim to enforce other remedies if the court is of the opinion that the victim has reasonable grounds to take proceedings for damages against some party.
In this case, there might be grounds to sue for damages in connection with the placement of the children with their father, despite his prior conviction for sexually assaulting a young niece.
But I have little information available to me concerning the situation of N at the time the children were taken off her and the matter did proceed through the Family Court, which sought an expert report on these issues. Certainly I am not confident that there are reasonable grounds for the appellants to take proceedings against some department or another and I do not require the appellants to defer these proceedings for that purpose.

Assessment of compensation payable to V

I am satisfied that V was subjected to chronic sexual abuse. It is readily apparent from the material before the court that V has been profoundly damaged as a result. Indeed it is impossible to imagine that she could have emerged unscathed.
In April 2002, after V had eventually been returned to her mother some time after the respondent's imprisonment, N took V to the Child Protection Unit at Princess Margaret Hospital, complaining, amongst other things, that V had started to wet her pants, was not wiping herself properly after a bowel motion and was having nightmares. V had disclosed to her mother both vaginal and anal penetration, saying that sex does not hurt any more in her vagina but still hurts anally. Dr Anita Banks examination of the child, referred to earlier, revealed findings consistent with 'further chronic abuse'. V was then 7 years old.
At that stage, she was beginning to show behavioural difficulties and commenced counselling on a weekly basis at Yorgum. When Ms Hong made notes of her first counselling session with V on 24 May 2002, she described V's eyes as 'dark and dead looking'. In her second session V drew pictures of her nightmares of a lion with horns and sharp teeth. In her third session she drew pictures of her father's body parts and spoke about her nightmares where monsters come with sharp teeth. In several of the sessions V disclosed specific details of the sexual abuse perpetrated upon her.
There are repeated references in the notes to V being angry. In June 2002 Ms Hong attended a case conference at V's primary school regarding her aggressive behaviour at school. The 18^th counselling session in February 2003 revolved around a report by N that V had been caught giving her sister urine to drink and V was also becoming very violent. The counsellor asked V why she did that and V said it was because 'they made us drink it'. In March 2003 the counsellor was telephoned by the principal of V's school complaining that she was being violent towards her teacher. In the 25^th session in April 2003 V spoke of having dreams of her mother and her stepmother chasing her and her brothers with a knife.
Overall the picture that emerges from the counsellor's notes of those sessions conducted over a period of a year is of a highly anxious child who was having great difficulties dealing with her constant anger. In her report of those sessions dated 15 November 2002 Ms Hong explained:
I have worked intensively with [V] over nine sessions of counselling where she began to draw quite explicit pieces of art to describe how she was abused. [V] feels very strong about having her drawings safely locked away and that no-one at this stage other than myself have access to her explicit drawings (being her story). She has presented at different sessions showing extreme mood changes fluctuating between being angry, being full of hate, being sad plus at times being very scared.
Ms Hong noted that some of the sessions of counselling had focused on V's anger issues and that she appeared to be gaining a little more stability, self esteem and ability to conform to boundaries within her family, but that she was still receiving medication for problems with soiling and that there was still a need for ongoing and intensive counselling.
In a note of 28 April 2003 Ms Hong made notes that:
[V] continues to have outbursts of uncontrollable anger at school … Because of the flashbacks [V] has become very angry and react to this anger. For example she has kicked the principal and other members of staff and went on a rampage in the schools office lasting for several minutes before they were able to calm her.
In a letter of 1 May 2003 to N, Mr Henry, psychologist at Yorgum, explained that, while all three children had in his view progressed in their ability to relate and to speak about their abuse, they had now all entered a stage of counselling where they were likely to act out their emotional distress both at home and at school. Mr Henry was urging N to not withdraw the children from counselling.
In their joint report of 15 July 2004 to Mr Bannerman, the solicitor for the appellants, Ms Hong and Mr Henry described all three children as exhibiting
some of the most severe trauma responses that I have seen in my years of work. [V] particularly displays chronic symptoms and behaves in ways that are congruent with a history of severe sexual abuse. She initially presented with chronic withdrawal symptoms and symptoms of acute trauma and fear. She was almost totally adverse to communicating to anyone outside her immediate family. She had had a long history and an entrenched pattern of bedwetting and encopresis that was the result of and is characteristic of children who have suffered sustained sexual abuse. She was constantly in fear states.
Further, [V] had ongoing nightmares and generally fear reactions, aberrant and delayed social development and displayed an ongoing emotional reactivity and volatility that was both shocking and seemingly unmanageable for her teachers, mother and de facto father. Relatively trivial behavioural management situations can quickly escalate with [V] into the full expression physically destructive rage. This behaviour continued throughout the course of counselling and escalated during periods in which [V] was able to speak openly about her abuse. This is a very common experience with children who are progressing through counselling for abuse.
The counsellors also concluded:
All these children have chronic anxiety disorders and trauma reactions to abuse. … The prognosis for these children is that they will continue to need intensive support and treatment throughout their childhood and into adolescence and early adulthood from educators, psychologists, psychiatric intervention and mentors.
They further stated:
According to most statistics victims show that the abuse can impact on lives of people at significant stages in their lives, such as at puberty, and in forming meaningful relationships with the opposite sex, during marriage, when the victim has children themselves, or if [V] is indeed is able to bear children. In my opinion [V] will need ongoing treatment and counselling particularly as she reaches these milestones.
In her report of 27 May 2003, Dr Banks stated that V's nightly bedwetting had resolved but she still had occasional problems with soiling and ongoing behavioural difficulties by way of aggression and fighting at school. She was also suffering from weight gain and tended to cry at home for no reason and appeared to be sad most of the time. She had also been called a 'slut' at school. At that time V was attending a primary school which had provided a full‑time education assistant to assist her with her schooling. Dr Banks considered it to be of paramount importance that V resume the counselling which was discontinued by N. Dr Banks was concerned that from the history given by N 'it would appear that [V] is likely suffering from depressive symptoms'. She recommended a psychiatric review and referred V for that purpose through South West Metropolitan Child and Adolescent Mental Health Services. In that referral of 5 June 2003 Dr Banks explained:
Several years ago [V] had formal psychometric testing done. She did not perform well, probably related to other factors. It has however enabled the school to provide her with a teacher's aid. Her teacher feels she would not cope in the school environment without this support. There is no real suspicion of a primary learning disability.
She also explained:
I have recently seen [N], but I have not recently seen [V]. I liaised with the school's psychologist to have [V] fill in a Birleson questionnaire (screening tool for depression), which I enclose. She scores 11 on this, which is in the borderline range. I am also concerned about post‑traumatic stress disorder.
During the months of March, April and May 2003 V was reported by her school as becoming aggressive and was suspended. On 4 May 2005 both V and L were suspended from school and brought home by police following fighting with other children at school. There appeared to be an ongoing problem with a particular family at the school and N expressed the view on more than one occasion that they were bullying her children and calling V a slut.
There was another issue on 10 June 2005 when V was suspended for more than two weeks from school because she hit another child at school who laughed at her. She was taken to the police station. On 16 August 2005 V reported to her counsellor that a member of that same family of children who were bullying her had written somewhere that she was a slut.
In September 2004 V began seeing Dr Lois Achimovich, psychiatrist. The major issue at presentation was V's behaviour at school. At her first session V told her that her problems were all at school and that the other girls did not like her and that she kept getting into fights which saw her being suspended. When Dr Achimovich spoke to V's school deputy principal, she described V's behaviour at school as 'generally good' and saw V 'as a bright student, who could do well if she could concentrate in class' but said that occasionally V became enraged and physically struck out at teachers and students.
Dr Achimovich said that V presented as a pleasant, shy girl who took a parental role with her younger siblings, that she was of normal intelligence with a good vocabulary and was able to express herself clearly. V did not initially wish to discuss the sexual abuse, nor the nightmares she was experiencing, but expressed concern about the threats and violence at school and was worried about being suspended.
Dr Achimovich spent a year engaging in regular sessions with V, focusing particularly around her anger management issues and self esteem issues. She said she did not press V to disclose or discuss the sexual abuse, as the presenting issue was behavioural problems at school. V did, however, over the course of the sessions, make explicit disclosures to the doctor about sexual abuse.
Dr Achimovich diagnosed V at the age of 12 years old as suffering from post‑traumatic stress disorder. In her letter of 20 April 2007 to the appellants' solicitor she described V as
functioning remarkably well, given the extreme trauma she has experienced. Her major difficulties are anger outbursts and nightmares. She has had a couple of in-school suspensions but has not been sent home. She is also anxious about her father coming to the house, though she knows this is unlikely.
As she is coming into adolescence, the abuse she has suffered may make this transition difficult. Both precocious sexuality and avoidance of sex are common with severe sexual abuse. Her self esteem, though improved, is still tenuous and she may be vulnerable to depressive and anxiety states because of this.
A promising sign is [V's] care for her health, her diet and her appearance.

Dr Achimovich recommended psychotherapy and noted that V would need encouragement and support from friends, family and the school in order to continue with 'her present positive development'.
In August 2007 when V was 12 years old, her weight was noted to have increased from 78 to 83.98 kg and she was placed on a diet with monitoring. Dr Hobday of St John of God Clinics considered that she was gaining weight because 'basically she was getting teased at school, is getting angry, has been suspended, because of the teasing then aggression'. By then of course she was going through puberty and hormonal changes, a stage which Dr Achimovich had predicted would be difficult.
In a letter of 6 December 2007 to V's then high school, Dr Achimovich noted that she had treated V over the last three years and described V as 'an intelligent girl and would benefit from assistance for educational and social difficulties'.
In August 2008 N referred all three children to Dr German‑Belmont, psychiatrist. Unfortunately, she felt that V was not making progress with Dr Achimovich and described V's current issues as being teased and bullied at school, although she had not been attending school for the previous four months, suffering from a weight problem, talking about suicide and expressing violent behaviour towards her younger siblings and giving the appearance of being depressed. By then, V was 13 years of age.
In her report of 30 December 2008 Dr German‑Belmont noted that, after her initial appointment in September 2008, V failed to keep the four scheduled follow‑up appointments. At that stage N gave a history of V talking about suicide and also smoking cannabis. V's anger at school was also still an issue and she was also threatening to 'smash up the house'. T told the doctor that V 'bashes up both boys and girls at school'.
At that stage Dr German‑Belmont described V as overweight but not obese and having very little self esteem. V frankly told her that she was 'naughty at school', did not have many friends and quarrelled a lot because she got teased because of being overweight. The doctor concluded that V had very few social skills and was more likely to be the offender at school than the victim. The doctor noted:
She does not appear to know how to make good friends with boys, as it would appear that she prefers to beat them up, rather than to talk to them and work out an agreeable compromise. If this attitude continues in the future this aggressive will not allow her to make good intimate relationships.
The doctor stated 'It is difficult at this time to make a good prognosis for [V]'. The doctor considered her early history of childhood sexual abuse predisposed her to post-traumatic stress disorder, which she described as a chronic and severely disabling condition which is hard to eliminate. She considered that V has developed early symptoms of social dysfunction, depression and severe anxiety and also lacks the social skills to work with a group and has anger management issues. She also noted that V has clearly externalised her traumatic feelings and thus her pain is more noticeable than in her siblings.
On a positive note, V told the doctor that she was very interested in 'turning old clothes around' by which she meant that she was altering second‑hand clothes. The doctor felt that she should attend a dressmaking course which would give her pride in her achievements and give her more self confidence.
Dr German-Belmont predicted, however, that the likely outcome for V is that she will always be psychologically fragile and vulnerable to even small stresses in the future and that her post‑traumatic stress disorder will be chronic and associated with significant disability which is already apparent.
Finally, Dr Achimovich provided a final report dated 15 December 2009 following a session with V in her surgery on 19 November 2009 and an extended telephone conversation with her on 15 December 2009. Prior to those two sessions the doctor had not seen V for 18 months. The doctor noted:
The information from the school indicates an extreme regression in her ability to maintain acceptable behaviour in the school situation and deterioration in her attendance.
Dr Achimovich said that V was open with her about the abuse she had suffered and was willing to talk about it, but 'was extremely distressed and cried through most of the session'. V said that she had no friends, was not going to school and sat in her room and cried most of the time. She had been placed in a special unit at her school because of some serious incidents. When the doctor called the unit they reported that V's behaviour was very good and that they liked her, but she had refused to attend most days.
Dr Achimovich considered that V's mental status 'has deteriorated dramatically since I saw her 18 months ago'. She described V as having above average intelligence, as being polite, pleasant and well groomed but overweight, but stated that she
cried through the interview, was in despair about her life and her future and contemplates suicide frequently. School records show both suicidal threats and aggressive behaviour, alternating with crying. She is sleeping poorly, has nightmares, has minimal affect regulation and is hypervigilant.
… There is no question that her mental status is affecting her school performance. It is impossible for her to concentrate when she is experiencing flashbacks and nightmares as details of the abuse are breaking through.
[V] needs an in-patient trauma unit to assist her at this time. Unfortunately, such a unit does not exist in WA.
[V] is in need of intensive psychotherapy over a number of years. This is unlikely to be available. Even with therapy, children who have experienced this kind of abuse are highly likely to become long-term psychiatric patients and are compromised in their ability to work or study.
Dr Achimovich regarded V's sexual abuse at the hands of her father to be the primary and most important factor in the psychiatric difficulties that she faced and considered his contribution to her psychiatric problems to be at least 95%. She likened the abuse to V having been tortured for a period of years, after which 'the body and mind become numbed and dissociation occurs'. The doctor referred to this really as a coping mechanism and said:
There is no way that [V] could have continued primary school in … without the ability to dissociate. Her high school behavioural problems are the result of her memories and the associated emotions breaking through the dissociative defences and are being acted out.
In relation to her current psychiatric state the doctor concluded:
[V] is now not only profoundly post-traumatic, but has a dysthymic (depressive) disorder, which must be addressed in order to help her get back to school.
As to the future:
The prognosis must be guarded given [V's] severe psychiatric problems over the last two years. Her outlook for work and study will be bleak without ongoing psychotherapy. It is appropriate to also prescribe antidepressants to assist her in affect regulation.
I am satisfied on the basis of the above materials that V suffers from post‑traumatic stress disorder and has done for a significant number of years. I am also satisfied that she now suffers symptoms of depression and that both of these conditions are likely to be chronic. Her self esteem has been shredded, she has limited trust in adult figures apart from her mother and perhaps her stepfather, has limited social skills enabling her to make lasting friendships and has serious anger management issues.
All of these factors I find, on the balance of probabilities, have reduced her earning capacity significantly. From an unfortunate start in her early life when she was patently very immature for her age and lacking in verbal skills, V developed as a young teenager into a girl who had at least normal verbal communication skills and impressed Dr Achimovich and Dr German‑Belmont as being of above average intelligence. She was also displaying some interest in dressmaking which might, in one form or another, have turned itself into steady work. She developed that interest and enjoyment despite her tragically dysfunctional childhood. Had V never been the victim of sexual abuse, there is no reason to suppose that the other factors in her life would have prevented her from at least enjoying some form of meaningful employment in an average sort of job. She might indeed have been more committed to a more meaningful career, but I can only draw the broadest of inferences in a case such as this. V has clearly had no opportunity at all to reach her full potential. She may find a way yet to rise above her difficulties but the likelihood, I am satisfied, is that she will not and that steady employment in any field will be too much for her to cope with. I am satisfied on the balance of probabilities that her earning capacity has been reduced to nil.
For the pain and suffering of the chronic sexual and violent abuse suffered by V and the mental trauma which followed upon it, I consider an appropriate award to be $100,000. For the consequent impact upon V's earning capacity, which I consider to have been eroded totally, I consider an appropriate global award to be $200,000. I assess her total loss as $300,000. In the circumstances, I accept that the learned assessor's award was manifestly inadequate. The maximum I am able to award V is $100,000 and, accordingly, I award her the maximum.

Assessment of compensation payable to L

L was the least forthcoming of the three children and his disclosure limits the applicable maximum payable to him.
The materials before the court present a consistent picture, however, of a very damaged boy. In September 2004, when he was 10 years old, Dr Achimovich regarded his behaviour as 'extremely abnormal' and also remarked on his large bald spot from pulling out his own hair. At that time he had been getting into trouble at school at lot and had been suspended more than once for fighting. Though she noted marked improvement by late 2006 – early 2007 and L had settled down at school, she noticed an affect that suggested dissociation from traumatic memories. When he made his one and only disclosure of abuse to her, he exhibited extreme anxiety and refused to discuss it further. He also expressed being ashamed about what he knew his father had done to his sister. Dr Achimovich considered that L 'exhibited … classical signs of a child who had experienced severe trauma in earlier life'. She noted:
There was also evidence from the material supplied to me, of sex play with his siblings of a compulsive and abnormal nature (e.g. trying to get his brother to drink urine)' failure of affect regulation (outbursts of anger and anxiety) and failure of development of age-appropriate psychological milestones and social competence.
Dr Achimovich considered L's reticence to discuss the sexual abuse was understandable at his age. She was concerned that he exhibited some elements of dissociative disorder - 'periods of apparent absence, some residual problem with affect control, continuing nightmares containing material related to the abuse'. At that time L did not wish to engage in therapy and Dr Achimovich considered that choice to be right for him at that time, given that he appeared to have settled considerably into his school. His school was setting up work experience for him in a carpentry shop because he was interested in getting involved in the building trade. At that stage, the doctor considered that L had made considerable progress overall.
By 9 February 2009, however, when L was 15 and saw Dr German‑Belmont, the picture was bleak. This material post‑dates the assessor's award of compensation.
Dr German‑Belmont saw L only once, but described the session as 'not very productive' and considered it likely he was under the influence of cannabis. He admitted substance abuse issues. He claimed to have no memory of his early life at all and to have no memory of whether or not he had been abused, demonstrative of either a complete unwillingness to deal with past issues, or a possible severe dissociation disorder. Given that there was no history of mental illness in the family, the doctor attributed any dissociation to sexual abuse.
L admitted to current anger problems at school, quite often leading to suspension. N confirmed that. The work experience had not gone well. L also admitted that he quite often truanted to hang out with friends and drink and smoke cannabis. His presentation was depressed. He displayed no interest in any career path at all. The doctor also noted that society places cultural expectations on young male victims of sexual abuse to be stoic and male victims place expectations on themselves to be in control and to dominate any sexual situation. She concluded that L had not received the emotional support needed to help him work through his feelings about the abuse and now sought unhealthy ways of dealing with his trauma. She described his social activities as possibly criminal. She said he has difficulty trusting anyone and has self‑care issues relation to his grooming.
Dr German‑Belmont diagnosed L as suffering from post‑traumatic stress disorder, evidenced by his re‑experiencing the events through nightmares, exhibiting avoidance behaviour and experiencing hyper‑arousal symptoms by way of inappropriate anger. She described this disorder by its nature as severe, chronic and difficult to treat. She said it is associated with significant disabilities, already apparent in L. She suggested that L needed cognitive behavioural therapy over a five year period. She also regarded L as needing an unusually long period to establish rapport, possibly due to genuine dissociation from past traumatic events. According to literature, abused boys are more likely to act out violently or abuse substances, to regain a sense of control. L shows both tendencies.
Dr German‑Belmont concluded: 'It is difficult at this time to make a good prognosis for [L], as there are important negative factors that operate against him', those factors being the development of post‑traumatic stress disorder, anger management problems leading to multiple suspensions from school and a history of social dysfunction with the presentation of early signs of substance dependence, severe depression and severe anxiety.
I accept Dr German‑Belmont's conclusions. Although she only saw him once and probably while he was under the influence, the pattern of his schooling is consistent. L is now not long off adulthood and has no vision for his future and continues to be a very angry young man. That situation is likely to be chronic. Long term intensive therapy might produce some amelioration of the symptoms of post‑traumatic stress disorder, but L is, in my assessment, unlikely to undergo any such treatment. He has consistently presented as emotionally unable to deal with confronting his past.
I find that L has been severely traumatised both by the sexual abuse perpetrated against him and also by the knowledge that his sister V was the victim of chronic abuse and he could do nothing to protect her. The former is compensable and the latter not, but it is impossible to distinguish between the two factors. I am satisfied his own abuse was a real cause of the injury suffered. I am also satisfied that, but for the sexual abuse, he stood an average chance of gaining modest employment, perhaps in some physical trade requiring neither great academic ability nor significant commitment to acquiring a certificate or licence of some sort. L's true academic ability and motivation will never be known due to his chronic hearing problems associated with chronic ear infections. In his current situation I consider it likely he will not sustain employment of any more than a transitory and casual nature.
In a case such as this, any estimates I make can only be on the broadest basis. For the pain and suffering of the single act of sexual abuse itself and the obvious severe and chronic mental trauma which followed upon it, I consider an appropriate award to be $50,000. For the consequent impact upon L's earning capacity, which I consider has been markedly reduced, I consider an appropriate global award to be $100,000. I assess his total loss as $150,000. In the circumstances, I accept that the learned assessor's award was manifestly inadequate and I award L the maximum applicable to him of $50,000.

Assessment of compensation payable to T

T is perhaps the most resilient of the three children. He was referred to Yorgum for counselling for behavioural issues at school and home. His issues were not as problematic as those of his older siblings but he had displayed outbursts of anger and was intermittently violent such as throwing a chair at a teacher. At around the age of 6, when most of his sessions consisted of drawing, all his drawings of the people he most trusted in his life showed people with sad or angry faces. He only drew in black. Over time he became more verbal and eventually disclosed abuse he had suffered. In a joint report, Mr Henry, psychologist, and Ms Hong, counsellor, described all three children as exhibiting 'some of the most severe trauma responses that I have seen in my years of work'.
T's presentation to Dr Achimovich in November 2006 and February 2007 when he was 10, going on 11, gave cause for optimism. He exhibited no sign of depression nor hyperactivity. He liked his life, had a girlfriend, was good at sport, was in the school play and wanted to be an actor or singer when he grew up. Dr Achimovich did note, however, that he exhibited symptoms of fear and regarded him as suffering from post‑traumatic stress disorder. He wished for a billion dollars and also wished the respondent was 'in heaven because I'm still frightened of him'.
He complained of ongoing severe nightmares connected to the abuse and expressed fear that the respondent would abduct him. He was reluctant to talk about the abuse. He expressed anger over the authorities' perceived failure to protect him and his siblings and no doubt he had been exposed to his mother's frustration on that score on a regular basis. He had on occasions displayed anger and violence since being returned to his mother's custody although, by the time Dr Achimovich saw him, he had reportedly settled down in this regard.
Dr Achimovich regarded T as being functionally competent when she saw him, however she cautioned that:
Breaking a child's attachment bonds at such an early age predisposes the child to a number of psychiatric disorders, particularly depression and anxiety, leading to impulsivity. The PTSD, which he is now keeping under control, may become manifest in adolescent drug taking and risk‑taking behaviour.
Dr German‑Belmont only saw T the once, on 13 October 2008 when he was 12 years old. By that age he was reportedly using cannabis and had begun to come to the attention of the police. He is described as suffering feelings of betrayal, anger directed at each parent, grief and isolation. His mother reported that he had started mixing with 'the wrong crowd'. Still, he demonstrated some positive goals, expressing a desire to join the army. He said he liked rap music and breakdancing and he liked to write. The doctor pointed out that there are few career opportunities in these areas, but the salient point is that T does not appear to have lost all joy in life. He also looked neat and clean when he attended the appointment.
Dr German‑Belmont cautioned, as she did in relation to L, that male victims of child abuse often do not get the support they need to deal with their issues and can as a result act out by violence or substance abuse. It is of considerable concern that T was smoking cannabis by age 12, which could in time have considerable negative impact on his schooling and general interest levels. But the doctor did conclude that T has some positive factors in his life, including a good relationship with his mother, sporting ability which makes him popular, some interests in life, having had professional help through counselling at Yorgum and with Dr Achimovich and having developed some coping mechanisms to avoid fights. He also appeared to the doctor, however, to have internalised much of his trauma and hence had developed coping mechanisms such as mixing with anti‑social friends and sometimes staying away from home for days, as a way of distracting himself from the trauma. Dr German‑Belmont considered that T suffered from post‑traumatic stress disorder, which was likely to be chronic and concluded that he was likely to be psychologically fragile and vulnerable to even small stresses in the future. Long term cognitive behavioural therapy was recommended but it is unlikely really that T will commit to a five year course of therapy.

I consider that the overall picture in relation to T does not exclude cause for optimism about his future. His natural resilience may yet see him rise above these difficulties and live a productive life. I have no reason to think that he is not capable intellectually of holding down steady employment in an average sort of job. His interest in writing may well suggest that he is quite bright.
I am satisfied, however, on the balance of probabilities, that his underlying anger and sense of loss and betrayal will always leave him vulnerable to wishing to engage in escapist and anti‑social behaviour and make it less likely that he will display the commitment and discipline needed to maintain steady employment.
He is still young and I cannot possibly predict with any certainty whether he will rise above his childhood or, in time, succumb further than he has done to his underlying trauma. But difficulties in drawing any sure conclusions are no reason not to make an award. I must do the best I can with the information before me.
For the pain and suffering of the chronic sexual abuse suffered by T and the mental trauma which followed upon it, I consider an appropriate award to be $50,000. For the consequent impact upon T's earning capacity, which I consider has been reduced to an extent, I consider an appropriate global award to be $60,000. I assess his total loss as $110,000. In the circumstances, I accept that the learned assessor's award was manifestly inadequate and I award T the maximum applicable to him of $100,000.

The matter of costs

Counsel for the appellants raised a matter of $6,270 worth of disbursements by way of costs of reports. I am not asked to, and do not intend to, interfere with the order made barring proceedings against the respondent. In those circumstances, however, I consider there to be no practical scope for making a costs order against him. It is also inappropriate that any such order be made against the State Solicitor's Office, which appears as amicus curiae. Accordingly, I make no order and any expenses will have to be borne out of the awards made.

Conclusion

The appeal is allowed and awards of $100,000 to both V and T and an award of $50,000 to L are substituted for those made by the learned assessor. As the appellants are still children, each sum is to be held in trust by the Public Trustee until the respective appellant reaches adulthood.
I direct that publication is prohibited of any part of this judgment which is likely to cause members of the public to identify any of the parties involved.