S J R v J J C
[2020] WADC 161
•18 DECEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: S J R -v- J J C [2020] WADC 161
CORAM: SHARP DCJ
HEARD: 12 OCTOBER 2020
DELIVERED : 18 DECEMBER 2020
FILE NO/S: APP 79 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: S J R
Appellant
AND
J J C
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION
Coram: C HOLYOAK-ROBERTS
File Number : CIC 2285/2018
Catchwords:
Criminal Injuries Compensation - Appeal - Proved offences - Sexual abuse - Extension of time to bring compensation application appeal - Injury or loss - Amount of compensation - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Extension of time to make an application for compensation granted
Appeal allowed
Compensation increased
Representation:
Counsel:
| Appellant | : | Mr J N Trigg |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms J J E Perera on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Stephen Browne Lawyers |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
BAS v The Estate of NAS (Dec) [2000] WASCA 270
Bothma v Hildebrand [2019] WADC 92
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Commissioner for Consumer Protection v Murphy [2013] WASCA 89
CY [2014] WADC 41
KBR v ADM [2018] WADC 120
Puterangi [2017] WADC 168
Re McHenry [2014] WADC 92
S v Neumann (1995) 14 WAR 452
Underwood v Underwood [2018] WADC 13
SHARP DCJ:
Introduction
The appellant (Appellant) was the victim of sexual assault by the respondent (Respondent) in 2006, namely sexual penetration of a child under 13 years and indecent dealing with a child under 13 years. The Respondent was charged with and pleaded guilty to those offences.
The Appellant on 30 August 2018 applied for compensation under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) for injuries suffered by her as a result of those offences. The Chief Assessor of Criminal Injuries Compensation (Assessor) considered the application and was satisfied that the Appellant had suffered injury and loss as a consequence of the commission of those offences. On 2 October 2019 the Assessor awarded the Appellant compensation of $21,215, made up of $20,000 for pain and suffering and $1,215 for future psychological treatment.
The Appellant appeals to this court the decision of the Assessor. The Appellant's notice of appeal was filed on 14 October 2019.
The Appellant was represented in her appeal by Mr J N Trigg. The Respondent did not appear. The Chief Executive Officer of the Department of Justice (CEO) appeared as amicus curiae and was represented by the State Solicitor.
At the conclusion of the hearing on 12 October 2020, I reserved my decision. This is my decision and the reasons for it.
Facts of the Respondent's offending
The Respondent pleaded guilty to one charge of sexual penetration of a child under the age of 13 and one charge of having dealt indecently with the Appellant. This necessarily involves an admission by him of the material facts comprising the elements of the offences: Bothma v Hildebrand [2019] WADC 92 (Bothma) [35]; Underwood v Underwood [2018] WADC 13 (Underwood) [55] ‑ [57].
The facts which follow have been drawn from the statement of material facts and the sentencing transcript and these are the material facts for this appeal.
The Appellant and the Respondent were known to one another, the Respondent being a friend of the Appellant's brother. The Respondent was a 14‑year‑old male of medium build and the Appellant was an 8‑year‑old female of slim build.
During the afternoon of 27 May 2006, the Respondent attended the Appellant's residence to play with the Appellant's 12‑year‑old brother. The brother was not home, so the Respondent was allowed to stay at the premises by the Appellant's mother until the Appellant's brother returned home.
While waiting for the Appellant's brother to return, the Respondent and the Appellant went into the rear yard and entered the shed to play. The shed contained a king sized mattress which was on the ground. The pair played on the mattress by jumping upon it. The Respondent suggested to the Appellant that they play the 'strip game' which entailed the Appellant removing her clothing.
The Appellant removed her clothing and the Respondent undid his pants and slipped them down around his knees. Whilst on the bed the Respondent requested the Appellant to suck his penis. The Appellant refused to do so.
The Respondent became aroused and positioned himself so that the Appellant was seated across him whilst on the bed. The Respondent inserted his erect penis into the Appellant's vagina, by his own admission, for a period of about five seconds.
During this period, the Appellant's mother entered the shed and located the Respondent with his pants down with the Appellant. The Appellant's mother told the Respondent to leave the premises and called the police.
The Respondent was interviewed on 21 June 2006. The Respondent stated that he believed the Appellant was about 6 years old. He admitted inserting his penis into the Appellant's vagina, although he would not go into any further details because 'he was embarrassed'.
The Respondent was advised that he was under arrest and charges were preferred.
The Respondent on 29 June 2006 pleaded guilty to one charge of sexual penetration of a child under the age of 13 and one charge of indecent dealing with a child under the age of 13 (Offences).
The Respondent was sentenced on 28 July 2006 to a conditional release order for a period of 12 months.
The application for compensation, the Assessor's decision and the reasons for it
In her application to the Assessor of 30 August 2018, the Appellant claimed compensation for injuries and losses she suffered as a consequence of the Offences.
The Assessor on 2 October 2019, having considered the circumstances of the Offences, the impact of the non‑compensable stresses, the Appellant's injuries and previous decisions to which she had been referred, determined that $20,000 was appropriate compensation for the Appellant's injury arising from the Offences. Further, taking into account the Appellant's presentation, self‑identification of her need for ongoing treatment and the other information before her, the Assessor also awarded the sum of $1,215 for 10 rebated sessions of psychological counselling.
The Assessor published her reasons for her decision ([2019] WACIC 28) on 26 November 2019 (Assessor's Reasons).
In the Assessor's Reasons, the Assessor states that the application for compensation was made by the Appellant with support from a Youth Support Worker at Perth Inner City Youth Service. The Assessor notes that the application was submitted without a victim impact statement, but the Assessor was nonetheless satisfied that there was sufficient evidence in the medical and police records to ascertain the impact of the Offences on the Appellant: Assessor's Reasons [5].
The Assessor had before her copies of medical records from Princess Margaret Hospital and the Child Protection Unit (CPU) at Princess Margaret Hospital. Those records documented conversations between the Appellant's mother and hospital staff about the circumstances of the Offences and what she observed at the time. The Assessor noted that, when providing a history of the Appellant, the Appellant's mother had informed medical providers and authorities that the Appellant's father had sexually abused the Appellant in the past: Assessor's Reasons [6].
The Assessor also noted that the referral of the Appellant to the CPU also recorded that the Appellant was 'sexually abused by her father in 2004': Assessor's Reasons [7].
The CPU's case notes refer to the Appellant's home life as 'extremely chaotic and disorganised'. The notes state that the Appellant was being teased at school about 'being a slut'. They also refer to the Appellant's brother, who attended the same school as the Appellant, making provocative comments to the Appellant about the Respondent. There was some suggestion that the Appellant's brother was encouraging the Appellant to engage in 'inappropriate sexual behaviour': Assessor's Reasons [9].
The Assessor stated that she was satisfied that the Appellant suffered psychological injury as a result of the Offences. She noted that this occurred against a background of:
(a)allegations of sexual abuse by her father at a young age; and
(b)being a member of an unstructured and disorganised household with her siblings displaying challenging behaviours requiring input by third party services.
The Assessor was also satisfied that hospital records indicate that the Appellant displayed responses to a range of traumatic stresses, some of which were compensable as they were as a result of the Offences and some of which were not. The non‑compensable stresses related to the behaviours associated with the alleged abuse by the Appellant's father, the chaotic household in which she lived, the conduct of her brother and the difficulties she experienced with the Respondent's brother, all of which caused problems for her at school.
The Assessor noted that she could only compensate the Appellant for injuries which arose from the Offences and could not compensate the Appellant for non‑compensable stresses.
District Court appeal
Notice of appeal
Under s 55(1) of the CIC Act an interested person may appeal to the court against an assessor's decision to make a compensation award or the amount of an award. The Appellant is an interested person.
On 14 October 2019, the Appellant filed a notice of appeal against the decision of the Assessor. The Appellant's grounds of appeal are set out in the notice as follows:
The Chief Assessors [sic] award of compensation in respect of the appellants [sic] injuries and other compensable loss is inadequate.
Directions hearing on 21 January 2020
By an order dated 21 January 2020, leave was given to the CEO to appear in the appeal as amicus curiae.
Orders were not sought by the Appellant to suppress the names of the parties. However, in the Assessor's order of 2 October 2019, the Assessor included a prohibition on the publication of any particular of her compensation award that may identify the Appellant or the Respondent. I have in these reasons replaced the full names of the parties with the parties' initials.
Materials before the court
I have before me for the purpose of the appeal the same materials which were before the Assessor, together with new material which the Appellant filed. Overall, the Appellant filed something in excess of 6000 pages of new materials; Appellant's Additional Documents (AAD). From my perusal of those materials, they comprise the contents of a file from the Department of Communities, clinical records from the Perth Children's Hospital, three information reports from WA Police, People First Program clinical records and the Appellant's MyGov Medicare claims history. They also include a psychiatric report from Dr Frederick Ng, a consultant psychiatrist, dated 6 August 2020 (AAD pages 6748 - 6761) and a copy of Dr Ng's invoice for the cost of that report.
The Appellant has also provided the court with an affidavit sworn by her on 24 September 2020 (AAD pages 6726 - 6735) and an affidavit from the Appellant's aunt sworn on 24 September 2020 (AAD pages 6736 - 6747).
The court has the power to receive the AAD: CIC Act s 56(1). There is no requirement for a party to file an application pursuant to r 51 of the District Court Rules 2005 (WA) in order to rely on their further evidence. The power to receive the evidence arises from the CIC Act at s 56(1): Underwood [36].
As the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the beneficial purpose of the CIC Act and the informal nature of a hearing before an assessor: Underwood [37].
I will receive the AAD and consider those materials in this appeal.
I also had before me the submissions made in this appeal on behalf of, respectively, the Appellant dated 6 October 2020 and the CEO dated 7 October 2020.
Hearing de novo
In hearing the appeal, the court under s 56(1) of the CIC Act:
must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
The appeal is a hearing de novo. I am to treat the application as if it has come before the court for the first time. Importantly, the Appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Underwood [19].
It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part: s 56(2)(b) of the CIC Act.
I must decide the application 'without being fettered by the assessor's decision': s 56(1) of the CIC Act. I therefore must form my own view on the merits of the case, without having regard to the Assessor's decision.
However, there is in my view a distinction between a decision‑maker's decision on the one hand and the process of reasoning of that decision‑maker on the other. While I fully concede that I cannot give weight to the decision of the Assessor, I consider that I may take into account the Assessor's expressed process of reasoning, in the same way that I may give weight to the submissions of the parties: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598, 603; Commissioner for Consumer Protection v Murphy [2013] WASCA 89 [50].
Issues in the appeal
I set out below the issues which I consider arise in this appeal. Those issues are:
1.Should leave be granted for the Appellant to commence her compensation application out of time pursuant to s 9(2) of the CIC Act?
2.Has the Appellant suffered an injury or loss such that she is entitled to an award of criminal injuries compensation?
3.If the Appellant is entitled to an award of criminal injuries compensation, what is the appropriate amount?
First issue - should leave be granted for the Appellant to commence a compensation application out of time?
Under s 9(1) of the CIC Act, an application for compensation must be made within three years after the date on which the offence to which it relates was committed or, if it relates to more than one offence, the date of the last of the offences to which it relates was committed. Section 9(2) of the CIC Act provides that an assessor, and so in this case the court, may extend this time 'if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose'.
The Appellant must make out a substantial case for it being just for the court to exercise its statutory discretion to extend time: KBR v ADM [2018] WADC 120 (KBR) [14].
In Re McHenry [2014] WADC 92 [34] – [56], Herron DCJ identified a set of non-exhaustive factors which might be relevant when considering whether it is just to exercise that discretion. I respectfully agree with what his Honour said there and I accept and adopt the summary of those factors which was set out as follows in KBR at [16 ]:
(a)the history and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed application;
(e)the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the Respondent;
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
There is no doubt that the delay in commencing the Appellant's application for compensation, which should have been lodged on or before 27 May 2009, is significant. However, it is not uncommon for an extension of time to be granted in compensation claims arising from historical child sexual abuse.
The Appellant was 8 years old when the Offences occurred and she would have been around 11 years old when the three year time limit expired.
The court has not been provided with any explanation from the Appellant direct about the delay.
However, having considered the Appellant's history, her application, the nature of the Offences and the prospects of the compensation application succeeding, I am in no doubt that an injustice will be suffered if an extension of time is refused. There is no specific prejudice to the Respondent in the delay.
On this basis, I consider that an extension of time should be granted.
Second issue - has the Respondent suffered any injury or loss?
Proved offence
The application was made under s 12(1) of the CIC Act. Section 12(3) of the CIC Act precludes an Assessor from awarding compensation under s 12(1) unless satisfied that the claimed injury occurred and did so as a consequence of the commission of a 'proved offence'.
A proved offence is defined in s 3 of the CIC Act to be a crime, misdemeanour or simple offence of which a person has been convicted.
I am satisfied that the Offences are both proved offences.
The injury
The standard of proof in criminal injuries compensation cases is the civil standard: BAS v The Estate of NAS (Dec) [2000] WASCA 270 [11]. The burden is on the Appellant to establish, on the balance of probabilities, that she has suffered the injury claimed and that the injury was a consequence of the commission of the Offences: CY [2014] WADC 41 (CY) [25] ‑ [26].
Injury for the purpose of a claim for compensation relevantly means 'bodily harm [and] mental and nervous shock': CIC Act s 3. The phrase 'mental and nervous shock' in s 3 of the CIC Act contemplates the impact of the offence on the mind or nervous system: Bothma [42]; Underwood [83]. It refers to 'mental or emotional harm as opposed to physical injury or bodily harm': S v Neumann (1995) 14 WAR 452 (Neumann), 461; Bothma [42]; Underwood [83]. It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Bothma [42]; Underwood [83]. For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: Bothma [42]; Underwood [83].
Materials before the court
As I have previously indicated, the materials before the court include information reports from WA Police relating, respectively, to the Offences (AAD pages 6721 - 6722), the Appellant's complaint in 2004 of sexual abuse by the Appellant's father (AAD pages 6718 - 6719) and a 2015 report that in 2013, when the Appellant was 15 years of age, she had 'been in a sexual relationship' with an older male (AAD pages 6724 - 6725).
The two latter reports are inconclusive as to any other occurrences of a criminal nature either before or after the Offences.
Also included is a report from Dr Frederick Ng, a consultant psychiatrist dated 6 August 2020 (AAD pages 6748 - 6761).
Dr Ng is an accredited Member of the Faculty of Child and Adolescent Psychiatry. He has, in my view, the qualifications and experience appropriate to provide his report and the opinion contained in it.
In his report, Dr Ng says that he saw the Appellant on 6 August 2020 for medico‑legal psychiatric purposes. He says that she was then 22 years old and she attended the assessment appointment with her aunt and with her 3‑year‑old daughter. Her daughter was wearing headphones so she could not hear the discussions which took place.
Dr Ng referred to the Appellant being in a 'good 4‑month relationship' with a partner, however she lives separately from him.
The Appellant told Dr Ng that her childhood was 'not great' and that she started to consume alcohol when she was 6 years old and smoking cigarettes when she was 7 years old. Dr Ng considers that this may indicate a lack of appropriate care, control and supervision by the adults in the Appellant's childhood at that time.
The Appellant reports that she was taken into the care of her aunt when she was about 10 years old.
The Appellant indicated that when she was 15 years old she entered into a relationship with a 24‑year‑old man.
Dr Ng understands that the Appellant was bullied at school from grades 1 to 3 and from grade 4 she did not go to school because of that bullying.
Dr Ng further understands that she would say to others at school 'I am [name of Appellant], I have been raped'. This apparently led to difficulties with her peers.
She attended high school and graduated having completed Year 12. She said that she found school work to be difficult and that she attended a 'special school'. She has not pursued any further studies since leaving school, nor has she worked in any paid employment.
When considering the Offences, the Appellant indicated that she was significantly emotionally traumatised by the incident. She reported that even now the Offences still came into her mind. She feels angry about it and frightened about it.
She said that she had no clear memory of her father sexually abusing her.
Dr Ng considers that the Appellant 'provided a compelling history of being emotionally traumatised by the [Offences]'. Dr Ng considers that more likely than not the Offences led to an onset of Post‑Traumatic Stress Disorder (PTSD). He says that any prior sexual abuse by her father, even though she may have no memory of that, may have mildly predisposed her to the onset of PTSD.
Dr Ng says that the emotional trauma arising from the Offences would more likely than not, at least mildly to moderately impair her capacity to assimilate, retain and process information which would have affected her learning. That in turn would have contributed to her impaired capacity to pursue further studies beyond school and to secure work.
Dr Ng is of the view that although the Appellant's lack of proper care and supervision as a young child may also have mildly predisposed her to her current psychiatric difficulties, the Offences were the most significant contributing factor in directly precipitating the onset of the PTSD. Dr Ng considers that the Offences and the resulting PTSD derailed her psychosocial development and contributed to her being promiscuous. When asked specifically what proportion of her current psychiatric symptoms Dr Ng would attribute to the Offences, he said at least between 25% - 30%.
He considers that the Appellant would benefit from at least 12 sessions of trauma specific individual psychotherapy which should occur at least once every two or four weeks. A trial of antidepressant medications may also be indicated. If the antidepressant medications were commenced, they should be taken on a daily basis rate for at least one to three years.
If psychotherapy was provided by a consultant psychiatrist, each session would cost approximately $355 and he considers that the antidepressant medication would cost approximately $50 - $100 per month.
I have also considered the terms of the Appellant's affidavit (AAD 6726 ‑ 6735).
What the Appellant says in her affidavit is consistent with what she told Dr Ng and does not provide any further assistance in connection with the issue under consideration.
Further, I have also read the affidavit of the Appellant's aunt (AAD 6736 ‑ 6747). Again, the contents of the affidavit are consistent with the Appellant's affidavit and Dr Ng's report and again, it does not provide any further assistance in connection with this issue.
Conclusion on second issue
The materials before the court indicate that the Appellant was subject to other traumatic events after the offending by the Respondent of a scale that may well have given rise to some psychological condition. However, '[t]he 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': Underwood [88]. I am satisfied that the commission of the Offences materially contributed to the Appellant's psychiatric difficulties. That is sufficient in order to make an appropriate award of compensation.
Third issue - the appropriate amount of compensation
Turning to quantum, the general power of an assessor is contained in the CIC Act at s 30(1). It provides that:
On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
In assessing the amount of compensation which should be awarded, the court must have regard solely to the injury suffered by an applicant in consequence of the commission of the offence concerned, and not to the seriousness of the offence. The limits in the amounts of compensation which can be awarded under the CIC Act are jurisdictional limits, and are not reserved for the worst cases: Neumann (463); Underwood [112]; CY [30]. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: Underwood [115]; CY [29].
The maximum amount of compensation that may be awarded for a single offence is $75,000: CIC Act s 31(1).
In this case, there were two offences. However, if two or more offences are related then the amount awarded must not exceed the maximum amount that may be awarded for the last of the offences to be committed: CIC Act s 33(2).
Two or more offences will be related when either they were committed 'at approximately the same time, whether by one person or by 2 or more persons acting in concert', or they are related 'for any other reason': CIC Act s 33(1).
In this case, the Offences occurred on the same day within an extremely short time frame of each other.
However, even multiple offences which occur on the same day are not necessarily related offences: Puterangi [2017] WADC 168 [85] ‑ [86]. Given the very close proximity of the two Offences, it is my conclusion that the two Offences were related offences for the purpose of s 33 of the CIC Act.
Accordingly, I conclude that the available maximum compensation for the offences is $75,000.
It is evident from the report of Dr Ng that the consequences of the Offences on the Appellant have been devastating and will have ongoing effects without appropriate treatment. Based on Dr Ng's report, of which the Assessor did not have the benefit, I am entirely satisfied that the appropriate amount of general damages that is just for the undoubtedly serious injuries sustained by the Appellant as a consequence of the commission of the Offences, when taking into account the Appellant's future medical expenses, exceeds the court's jurisdictional limit of $75,000. I assess compensation at $75,000, which includes the sum of $7,860 for future treatment costs, comprising $4,260 for psychotherapy and $3,600 for antidepressant medication. I will order that the amount of $7,860 is not to be paid to the Appellant except as provided in s 48 of the CIC Act.
Final orders
For these reasons, I make the following orders:
1.The time within which the Appellant may make an application for compensation be extended to 31 August 2018.
2.The appeal is allowed and the decision of Chief Assessor C Holyoak‑Roberts made on 2 October 2019 is set aside.
3.The Appellant is entitled to an award of $75,000, of which $7,860 is subject to s 48 of the Criminal Injuries Compensation Act 2003 (WA).
4.Each party do bear its own costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TH
Associate to Judge Sharp
18 DECEMBER 2020
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