SL (by her next friend NL)
[2014] WADC 178
•23 DECEMBER 2014
SL (by her next friend NL) [2014] WADC 178
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 178 | |
| Case No: | APP:30/2014 | 3 DECEMBER 2014 | |
| Coram: | STEVENSON DCJ | 23/12/14 | |
| PERTH | |||
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed | ||
| PDF Version |
| Parties: | SL (by her next friend NL) |
Catchwords: | Criminal injuries compensation Sexual abuse by a child cousin Subsequent sexual abuse by adult neighbour Global assessment of compensation by assessor Multiple sexual offences by each offender Two offenders Apportionment Future counselling and therapy Maximum entitlement for multiple unrelated offences by one offender Section 34 Criminal Injuries Compensation Act 2003 |
Legislation: | Criminal Code Criminal Injuries Compensation Act 2003 District Court Rules 2005 |
Case References: | A v D (1994) 11 WAR 481 AJA v PSS [2002] WADC 194 Attorney General v Her Honour Judge Schoombee [2012] WASCA 29 BT v BT [2014] WADC 166 Chappell v Bowe [2006] WADC 29 ELK v CFB [2009] WADC 90 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 Gullelo v Halloran [2008] WADC 145 Hatfield v Undersecretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Hogben v Darcy [2009] WADC 63 JAW v The State of Western Australia [2012] WASCA 7 JAW v The State of Western Australia [2013] WASCA 261 LRE v AFK [2005] WADC 162 MM v MR (Unreported, WADC, Library No D980343, 4 December 1998) Re; Tilbury [2010] WADC 46 S v Neumann (1995) 14 WAR 452 Stocker v Loeper [2001] WASC 176 Tidmarsh v Assessor for Criminal Injuries Compensation [2011] WADC 173 VPAN [2011] WADC 40 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
AND
IN THE MATTER of an appeal by
- Appellant
AND
IN THE MATTER of an appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : ASSESSOR R GUTHRIE
Citation : [2014] WACIC 5
Catchwords:
Criminal injuries compensation - Sexual abuse by a child cousin - Subsequent sexual abuse by adult neighbour - Global assessment of compensation by assessor - Multiple sexual offences by each offender - Two offenders - Apportionment - Future counselling and therapy - Maximum entitlement for multiple unrelated offences by one offender - Section 34 Criminal Injuries Compensation Act 2003
Legislation:
Criminal Code
Criminal Injuries Compensation Act 2003
District Court Rules 2005
Result:
Appeals allowed
Representation:
APP 30 of 2014
Counsel:
Appellant : Mr M D Cuerden SC
Amicus Curiae : Ms R K Hill appeared on behalf of the Chief Executive Officer of the Department of Attorney General
Solicitors:
Appellant : Youth Legal Service
Amicus Curiae : State Solicitor's Office
APP 90 of 2014
Counsel:
Appellant : Mr M D Cuerden SC
Amicus Curiae : Ms R K Hill appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Youth Legal Service
Amicus Curiae : State Solicitor's Office
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
AJA v PSS [2002] WADC 194
Attorney General v Her Honour Judge Schoombee [2012] WASCA 29
BT v BT [2014] WADC 166
Chappell v Bowe [2006] WADC 29
ELK v CFB [2009] WADC 90
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hatfield v Undersecretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hogben v Darcy [2009] WADC 63
JAW v The State of Western Australia [2012] WASCA 7
JAW v The State of Western Australia [2013] WASCA 261
LRE v AFK [2005] WADC 162
MM v MR (Unreported, WADC, Library No D980343, 4 December 1998)
Re; Tilbury [2010] WADC 46
S v Neumann (1995) 14 WAR 452
Stocker v Loeper [2001] WASC 176
Tidmarsh v Assessor for Criminal Injuries Compensation [2011] WADC 173
VPAN [2011] WADC 40
- STEVENSON DCJ:
Introduction
1 The appellant, SL, by her next friend NL (her mother), appeals against a global award of compensation made on 19 February 2014 in respect of injuries suffered as a result of multiple offences of child sexual abuse committed by MRC and JAW separately at different times from each other.
2 At all material times the victim, SL, was aged about 5. When the appeal was heard she was aged 10 years 11 months and 24 days old having been born on 9 December 2003.
3 The learned assessor made a global assessment of compensation of $50,000, resulting from the total offending of both JAW and MRC. In addition, he allowed against each offender the sum of $1,020 for expenses reasonably incurred for psychological counselling.
4 The assessor apportioned the global award as $20,000 to the offences committed by MRC, and $30,000 to the offences committed by JAW. The appellant submits the award is manifestly inadequate. In particular, the appellant contends that the apportionment adopted by the learned assessor attributed too much of the responsibility for the loss to MRC's offending and too little to JAW's offending. On this basis the appellant contends the compensation award in respect of MRC's offending should be increased.
5 The appellant also appeals on the ground that the learned assessor's award of up to $1,020 for future psychological counselling as against each offender, is manifestly inadequate (but not at the expense of the damages award).
6 The appellant also contends that the learned assessor was wrong in failing to make any allowance for loss of earning capacity.
APP 90 of 2014 (MRC)
7 It is convenient to deal with this appeal first because the offending occurred chronologically in time before the offending by JAW, which is the subject of APP 30 of 2014.
8 On 29 July 2009, MRC was convicted in the Children's Court of three counts of indecent dealing with SL, a child under the age of 13 years, contrary to s 320(4) of the Criminal Code by touching her vagina with his erect penis. MRC was also convicted of one count of sexual penetration of SL, a child under the age of 13 years, contrary to s 320(2) of the Criminal Code, by penetrating her vagina with his finger.
9 It is common ground that the offences are representative and occurred between 7 April 2008 and 31 December 2008. There is also evidence that a related cousin was also implicated in some of the offending behaviour but, due to intellectual impairment, was not charged. The details of MRC's offending are set out in the statement of material facts at book 2, pages 91 - 93. At the time, MRC was aged 12, and he is now about 17 years old. MRC is the appellant's cousin and a nephew of her mother (the mothers of SL and MRC are sisters).
10 By an application dated 5 March 2013, filed 7 March 2013, the appellant sought criminal injuries compensation in relation to the offences committed against her by MRC. The application was supported by limited materials.
11 The appellant was informed that the assessor would approve interim payments up to $2,250 for treatment and counselling to reimburse the 'gap' after payment by Medicare. This interim approval was not taken up.
12 At the request of the appellant's mother, MRC was not informed of the appellant's claim by reason of his age and the close familial relationship between the affected parties. As I understand it, MRC is still not aware of the proceedings. However, there is no difficulty, as the proceedings are the subject of an order made by the learned assessor barring recovery against MRC of any compensation awarded to the appellant. Determination of this appeal was delayed pending completion of legal proceedings concerning JAW.
13 As mentioned, by an award dated 19 February 2014, the learned assessor fixed compensation with respect to injuries in respect of MRC's offences at $20,000 to be paid to the Public Trustee upon trust for investment not limited to the Common Fund, and to pay and apply the monies for the benefit of the appellant until she turns the age of 18 years on 9 December 2021.
14 In addition, the appellant was also awarded, pursuant to s 48 of the Criminal Injuries Compensation Act2003 (the Act), a further sum not exceeding $1,020 as the cost (less any relevant rebates), for expenses reasonably incurred in relation to psychological counselling.
15 Finally, pursuant to s 45(1)(a) of the Act the assessor, on the basis that he considered it was just to do so, made an order barring any recovery proceedings under pt 6 against MRC in respect of the award.
16 Appeal 90 of 2014 was commenced on 3 September 2014. Accordingly, the appeal is out of time by several months. Leave is required pursuant to s 55(4) of the Act, which provides the court may, if it is just to do so, allow an appeal to be commenced after the 21-day appeal period has expired.
17 The affidavit in support of the application for leave to appeal was sworn by the appellant's mother on 6 November 2014. The affidavit explains why, on receipt of the award, she did not on behalf of the appellant, want to commence an appeal against MRC. The reasons are understandable and bound up with the global award made by the learned assessor which is the subject of APP 30 of 2014, commenced on 17 March 2014. The learned assessor published his reasons for his award on 9 April 2014. Appeal 90 of 2014 was commenced on the advice of senior counsel who was briefed by the Youth Legal Service to argue APP 30 of 2014 as a result of that appeal's challenge to the sufficiency of the overall award of $50,000.
18 In the circumstances, in my view it is, as a matter of law, just to grant leave for APP 90 of 2014 to be commenced out of time.
APP 30 of 2014 (JAW)
19 JAW was charged and convicted on two separate occasions for two groups of offences against the appellant.
20 JAW was first convicted on 12 May 2011 for two offences occurring on an unknown date between 17 October 2009 and 13 November 2009. The offences took place in JAW's bedroom. The appellant visited JAW's home from time to time. JAW laid the appellant on his bed so that she was lying on her back. After removing her underpants and his clothing, he lay on top of the appellant and put his penis on her vagina (the first count), and then performed cunnilingus (the second count). JAW was convicted of indecent dealing with a child under 13 with respect to the first count, and sexual penetration of a child under 13 with respect to the second count.
21 The sentencing judge (Davis DCJ) said the offences were not isolated, but were representative of sexual offending over a period of approximately one month (book 2, pages 74, 78). The offending only stopped when it was discovered by the appellant's mother. JAW was sentenced to 4 years 8 months' imprisonment for the second count, and 2 years' imprisonment for the first count, to be served concurrently.
22 As to the impact of these offences upon the appellant, the learned sentencing judge said (book 2, page 78):
I don't have a victim impact statement and that's probably understandable, given that the child is now only seven years old. However, the courts have recognised that in recent years, it has been shown that this type of offending has a destructive effect on a child's capacity to trust others, to form relationships and also on the child's sense of self-worth. It may also affect the child's schooling and ability to achieve her full potential in education and employment.
23 After JAW's first convictions on 12 May 2011, the appellant reported further offending to her mother.
24 JAW was charged and convicted on 6 December 2012 of three further offences occurring on an unknown date between 8 December 2008 and 8 December 2009. The first two offences took place in JAW's house, on the same occasion. The appellant had been watching TV at JAW's house after school when he picked her up, took her to his bedroom and put her on his bed. He pulled her pants down and her dress up, and placed his penis in her anus (the first count). He then took her to his lounge room and placed her on the couch, where he lay on top of the appellant and put his penis in her anus (the second count). On a separate occasion to counts 1 and 2, but within the same time period, the offender asked the appellant to lick his penis, but she refused (count 3). The offender was convicted of two counts of sexual penetration of a child under 13 with respect to counts 1 and 2, and of inciting a child under 13 to do an indecent act with respect to count 3. He was sentenced to 5 years and 4 months' imprisonment with respect to counts 1 and 2 (the second sentence being concurrent), and 2 years' imprisonment in respect to count 3 (concurrent with counts 1 and 2).
25 In his sentencing remarks with respect to those offences, the learned sentencing judge, Birmingham QC DCJ said (book 2, pages 83, 84):
The jury were satisfied by their verdict that you had penetrated her anus. That is to say the alimentary canal of her anus and not simply the cheeks of her anus and her fundament.
Those two offences are very, very serious. It is hard to imagine a more serious act to commit against any female, but most particularly, against a young child as young as five.
…
The act of anal penetration, as I've said, is most serious. And one can scarcely imagine a more serious [offence] to commit against a young girl.
26 JAW's offending involved a profound abuse of the appellant's trust and innocence as a young person – see the remarks of the learned sentencing judge, Davis DCJ and Birmingham DCJ above. About this there can be no doubt. The psychological harm and long-lasting damage to young children that this type of offending causes is well understood by this court as a result of having the primary jurisdiction for dealing with this type of offending by adults against children.
27 On 5 March 2013, the appellant's mother filed an application for criminal injuries compensation against JAW. The application was supported by some material which, in all the circumstances, might have been more extensive.
28 Determination of the application for criminal injuries compensation against JAW was delayed by the two separate sets of appeal and an 'in person' appeal against the convictions before Birmingham DCJ: JAW v The State of Western Australia [2013] WASCA 261. This judgment was handed down on 20 November 2013. The appeals against conviction and sentence were dismissed as were the appeals against both conviction and sentence in relation to the earlier offending: JAW v The State of Western Australia [2012] WASCA 7.
29 By letter dated 15 January 2014 the Office of Criminal Injuries Compensation wrote to JAW informing him of the appellant's application for criminal injuries compensation and its intention to proceed to determine the application within 21 days.
30 By letter dated 28 January 2014, JAW replied acknowledging the communication and asserting that he was in the process of 're-appealing' to the Supreme Court and stating that the appeal process would not end there. There is no indication of any acceptance of responsibility, or any evidence of remorse or empathy to SL, the victim of his offending, even accepting his stance of denial.
31 Like MRC, the learned assessor in the compensation award, also pursuant to s 45(1)(a) of the Act, barred proceedings under pt 6 of the Act thereby preventing recovery of the award from JAW. JAW was informed of this fact by the assessor by letter dated 19 February 2014. In Tidmarsh v Assessor for Criminal Injuries Compensation [2011] WADC 173 [21], and more recently in BT v BT [2014] WADC 166 [24], this court has held that there is no jurisdiction to appeal against an assessor's decision to make an order under s 45 of the Act.
32 As mentioned, the application was the subject of the compensation award on 19 February 2014, being a global award incorporating the application the subject of APP 90 of 2014. The determination was delayed by reason of JAW's appeal against conviction and sentence.
33 On 19 February 2014, the learned assessor made an award in relation to the offences committed by JAW of $30,000 compensation for injuries, and a further $1,020 pursuant to s 48 of the Act for future psychological counselling.
34 On 17 March 2014, the appellant instituted APP 30 of 2014 as a result of which the learned assessor published reasons for decision for the global compensation award on 9 April 2014.
35 Appeal 30 of 2014 was filed five days out of time. The reason for that delay is explained in the affidavit by the appellant's former solicitor, Shirley Jane Vine, sworn 27 May 2014. In my view it is appropriate, having regard to the circumstances, to grant leave for the appeal to be filed out of time.
36 The appeal notice in APP 30 of 2014 states the grounds of appeal as:
1. The amount of the assessment of criminal injuries compensation is too low.
2. That the court make a ruling that the appellant does not have to provide her address pursuant to District Court Rules 2005 r 22C.
37 The appellant amended her grounds of appeal by a minute dated 6 October 2014 as follows:
1. The learned assessor's global assessment of compensation for the appellant's injuries the subject of the awards in CI/2013-000538 (being the award the subject of app no 90 of 2014) and CI/2013-000539 (being the award the subject of this appeal) in the sum of $50,000 is manifestly inadequate, alternatively is inadequate.
2. Further and in the alternative, the learned assessor's apportionment of his global assessment of $50,000, namely as to only three-fifths apportioned to the offences the subject of the award in CI/2013-000539 (the subject of this appeal) and as to two-fifths apportioned to the offences the subject of CI/2013-000538 (the subject of app no 90 of 2014) is manifestly wrong, alternatively is wrong, and any global assessment for the appellant's injuries ought to be apportioned in such manner as to reflect the substantially greater consequences on the appellant of the offences the subject of the award in CI/2013-000539 and the relatively lesser consequences on the appellant of the offences the subject of the award in CI/2013-000538.
3. Further and in the alternative, the learned assessor's failure to award any compensation for the appellant's loss of earnings within the meaning of s6(2)(c) of the Act is manifestly wrong, alternatively is wrong. The offences have impacted upon the appellant's education and are likely to impact upon her future education and her future capacity for employment and capacity to earn income, or there is at least a chance or possibility they will do so. Compensation for the appellant's loss in that respect ought to be assessed globally on the basis of the information available.
4. Further and in the alternative, the appellant ought to be awarded the costs of obtaining reports from health professionals or counsellors within the meaning of s6(2)(a)(ii) of the Act. Those costs as at the present dated are $1,980.00.
5. Any assessment of compensation for the appellant's injuries and loss the subject of the award in CI/2013-000539 would exceed the jurisdictional maximum which can be awarded of $150,000, and the appellant ought to be awarded compensation in that maximum amount.
6. Further and in the alternative, the learned assessor's global assessment of the costs of future psychological counselling at $2,040 is manifestly inadequate, alternatively is inadequate. An appropriate global allowance in respect of this loss would be approximately $20,000, apportioned as the Court thinks fit between the award in CI/2013-000539 and the award in CI/2013-000538.
38 The hearing of both appeals was subject to the admission of further evidentiary material which was not available to the learned assessor at the time of his award. The circumstances of this appeal do not make it necessary to enumerate the additional material. In my view, given the age of the appellant and the nature of the additional medical expert opinion provided with respect to her ongoing development, it is appropriate that this information be admitted pursuant to the general discretion to receive further evidence and information in the appeal.
The criminal injuries compensation assessor's award and reasons
39 Reference to the award and the learned assessor's reasons for decision is set out above. It is noteworthy that both applications were the subject of a global assessment of compensation. In my view, this was appropriate given the nature of the injuries, the age of the victim and the information in the material before the assessor.
40 After reviewing the offences committed by MRC and JAW against the appellant and the evidence in the material provided in support of the application for criminal injuries compensation, the learned assessor in his reasons for decision held as follows [10] - [11]:
Having considered all the material provided by the applicant and also having regard for the material available in the files relating to both offenders obtained from the Director of Public Prosecutions, I was satisfied that the applicant sustained significant injuries as a consequence of the offences committed by MRC and JAW. Whilst there was some improvement in the applicant's condition her symptoms had not entirely abated but would hopefully respond to future therapy. In this respect I noted the age of the applicant and that the offences took place over a relatively short period. I noted there had been early disclosure and report of the offences and prompt intervention by professional counsellors. I considered that by and large the therapy to date had resulted in improvements in the applicant's symptoms and that taken together these factors suggested some room for optimism for the applicant's future progress.
The reports and material provided by the applicant's solicitors did not apportion the respective contributions made by the offenders to the injuries sustained by the applicant. I considered that the offences committed by JAW had a greater impact upon the applicant than the offences committed by MRC, though both offences were clearly serious. I noted that the applicant required ongoing therapy and on each application I allowed the sum of $1,020 for future psychological counselling. I considered that an appropriate award for compensation for the applicant's injuries was $50,000. No evidence was provided in relation to loss of earning capacity and I did not consider it appropriate to speculate on this aspect, and accordingly made no award in relation to that head of damage. I apportioned the sum of $20,000 to the offences committed by MRC and $30,000 in relation to the offences committed by JAW and made separate award in relation to each.
The nature of the appeal and the admission of further evidence
41 The principles which govern the determination of the appeal are well understood by the parties and do not need to be referred to in detail. Following amendment of the Act in July 2008, an appeal under the Act, is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5]. The court may confirm, vary or reverse the learned assessor's decision either in whole or in part: s 56(2)(b). However, notwithstanding the application is to be determined 'without being fettered by the assessor's decision', it is still appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. Accordingly, this appeal is a fresh hearing of the appellant's two claims for compensation and is to be determined without being fettered by the learned assessor's decision.
42 In addition, the court may receive further evidence and information: s 56(1). It is trite that the general rule is that, when an appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 - 30 (Malcolm CJ). In addition, because of the beneficial purpose of the Act and the informal nature of a hearing before an assessor, as noted by Macknay DCJ at [37] in Chappell v Bowe [2006] WADC 29, this also conditions the discretion to admit further evidence. As mentioned, in my view for the reasons above, it is appropriate to exercise the courts discretion to admit the further evidence and the additional information sought to be relied upon by the appellant in the appeals. There is no reason for me not to do so: see Martino DCJ in Re; Tilbury [2010] WADC 46.
Maximum amount of compensation award
43 Both MRC and JAW were convicted of multiple offences which were representative of the ongoing sexual abuse of the appellant during each relevant period of time. Pursuant to s 31 of the Act, the maximum amount of compensation that may be awarded in favour of an applicant for a single offence at the relevant time was $75,000. The offending of MRC and JAW was separate and unrelated to each other.
44 Section 33(1) of the Act provides:
Maximum for multiple related offences
(1) For the purposes of this section, 2 or more offences are related to one another if an assessor is satisfied —
(a) that they were committed at approximately the same time, whether by one person or by 2 or more persons acting in concert; or
(b) that they are related for any other reason.
46 Section 33(2) provides that:
If as a consequence of the commission of 2 or more related offences, a person –
(a) suffers injury …
- the amount of compensation must not in aggregate exceed the maximum amount that may be awarded for the last one of the offences committed, namely $75,000.
47 Section 34(2) of the Act provides as follows:
Maximum for multiple unrelated offences by one offender
(2) If as a consequence of 2 or more offences committed by one person that are not related offences within the meaning of section 33(1), another person —
(a) suffers injury; or
(b) suffers loss as a close relative of a victim who dies as a consequence of one or more of the offences; or
(c) suffers both injury as described in paragraph (a) and loss as described in paragraph (b),
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) and any loss also suffered and for the loss described in paragraph (b) must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed.
49 The issue arises with respect to both offenders separately as to whether or not their offending is 'related for any other reason' for the purpose of s 33(1)(b) of the Act. If this is not the case, then pursuant to s 34(2) the maximum compensation available with respect to the award against each offender for the injuries and loss suffered as a result of their separate multiple unrelated offences is twice the maximum amount for the last one of the offences committed, that is two times $75,000, therefore $150,000.
50 In Stocker v Loeper [2001] WASC 176 McKechnie J considered the equivalent provision in the Criminal Injuries (Compensation) Act 1970 (WA). Section (2a) of that Act limited compensation available to an applicant where '… or the offences are otherwise related to each other …' to the single maximum (then) amount of $7,500.
51 In that case, the applicant was sexually abused on multiple occasions which resulted in a guilty plea by the offender to three representative charges, being two counts of unlawful and indecent dealing and one count of procuring the applicant to unlawfully and indecently deal with him. McKechnie J held at [11]:
These offences are not 'related' offences within the meaning of the Act. They constitute separate and distinct violations of the applicant by the respondent.
52 Section 33 of the Act has also been considered by this court in ELK v CFB [2009] WADC 90 [13] - [15]; AJA v PSS [2002] WADC 194 [3]; MM v MR (Unreported, WADC, Library No D980343, 4 December 1998); LRE v AFK [2005] WADC 162 [46] - [55]; and A v D (1994) 11 WAR 481, 483, 491 and 496.
53 It is accepted that the general principles which apply to the approach of statutory construction, particularly when the legislation is beneficial in scope and purpose, should be followed: see Attorney General v Her Honour Judge Schoombee [2012] WASCA 29 [29] - [34].
54 In my view, the Act on its proper construction, does not limit compensation for multiple sexual abuse offences committed on different occasions to the maximum amount for a single offence as set out in s 31(1) of the Act.
55 I am satisfied that, on a proper construction of s 33 and s 34, where there are multiple incidences of sexual abuse over a lengthy period of time, each is an individual crime with the result that the maximum compensation which may be awarded under the Act is twice the maximum amount, namely $150,000: s 34(2).
56 This is a statutory limitation of the maximum amount of compensation which may be awarded. The fact that it is impossible to disentangle or discern the extent of the 'injury' on each occasion an offence was committed is a matter which concerns the question of assessment of the award and not the total allowable amount. Such a case is not one where the individual offences are 'related' for the purpose of limiting compensation to the amount for a single offence.
57 It follows that, in relation to both MRC and JAW, the maximum amount of compensation which may be awarded against each of them for the injury caused by the totality of the individual offences committed by them against the appellant is $150,000 each.
The evidentiary material
58 The appellant filed a chronology for the purpose the appeal. This discloses that MRC's offending occurred in part while the appellant was aged 4 to 5 years old and attending kindergarten.
59 The offending of JAW in the period 8 December 2008 to 8 December 2009 occurred when the appellant was about 5 years old and attending pre-primary school. The actual date of the offending within this period is not specified and is not known.
60 The evidentiary material in support of the appeal includes information from notes made by teachers at school. This will be referred to in general terms only by reference to the entries. It seems as early as 4 March 2009, the appellant has made inappropriate, age-related comments of a sexual nature to other girls at pre-primary. This included specific language describing male and female anatomy colloquially and using phrases which were age inappropriate. The contact and behaviour is documented to have continued through to May 2009 when the appellant's mother informed the school of MRC's offending against the appellant (see book 1, pages 11, 20 and 38).
61 In June 2009, the appellant was assessed by a school psychologist and a classroom behaviour programme organised with her class teacher as a direct result of inappropriate comments and behaviour of an overt sexual nature to other students. She was also recorded as being frequently late for school which, according to her mother, was in part because she herself was having sleeping issues at night-time. She accepted some fault in this regard.
62 In August 2009, the appellant commenced counselling with Anglicare WA's Child Sexual Abuse Therapy Service in relation to the offending of MRC and JAW. She attended 32 counselling sessions between 5 August 2009 and 10 November 2010. In addition, her parents attended four sessions during this period. Anglicare WA noted in their report of 9 October 2014, that during this period, the appellant presented with observable symptoms typically associated with trauma including bed-wetting, anxiety, night terrors, anxiety and startle response, helplessness, clinging to her mother, controlling behaviour, avoidance in personal contact (trust issues), low self-esteem and mild sexualised behaviours.
63 In Year 1, aged 6 at school, in November 2010 again there is a record of a school psychologist which records that the appellant 'has a somewhat unusual demeanour for a 6-year-old – a quiet, curious, gently challenging, and fairly mature demeanour' (book 1, page 40). In this period she received school counselling.
64 In 2011, the appellant was aged about 7 and in Year 2. The school records indicate increased absences from school. The appellant was referred to Parkerville Children & Youth Care Inc for further counselling from therapeutic family services and individual counselling for sessions between 6 May 2011 and 16 December 2011. In a report dated 16 January 2012, the clinical psychologist noted that the appellant presented with numerous symptoms extending from the sexual abuse she had experienced. This included 'significant sleep disruption such as nightmares and waking at night distressed'. According to the appellant's mother, it was reported that the appellant demonstrated emotional labiality, would not separate from her and was expressing a fear of men. The appellant also reportedly demonstrated
sexualised behaviours both at home and at school; engaging in sexualised gestures such as touching herself and others, taking her clothes off and making sexualised movements at school and using sexual language within her conversations with other children including 'let's have sex' to other children.
65 Her reported and assessed behavioural issues concerned low self-image and other behavioural issues including hitting, swearing, self-harm statements and screaming, although the psychological counsellors were unable to determine 'if these were a direct and full consequence of the sexual abuse'. The report notes:
It is possible that [the appellant's] distress relating to the abuse, the reaction of her family and school and the resultant court process, did contribute in part, to the occurrence of these behaviours.
66 The report opines that as a result of the sexual abuse the appellant has 'an elevated risk of other future mental health problems'. It is noted that:
If continued in the long term, the pervasive pattern of impact will continue to impact her enjoyment of life significantly and limit the breadth of her future life opportunities. (See book 2, pages 45 – 49)
67 There is also a closure report from Parkerville dated 15 April 2013 which records alleged continued suicidal ideation and self-harming behaviours by the appellant at the same time as recording that her school reported 'no further occurrences of sexualised behaviours' and that she was beginning to experience minimal sleep disturbance and night waking'. However, it is of concern that the report notes:
At times throughout sessions [the appellant] initiated discussion regarding her understanding and feelings associated with her sexual abuse experiences. These discussions generally resulted in [her] becoming resistant and avoidant to engage in further exploration or activities targeted at these core issues.
68 This is further reflected in contrasting results of psychometric assessments completed by the appellant and her mother. Again, even though there was some progress, it is concerning that the report records the appellant's mother reported at this time that the appellant was using the internet to access pornography sites and that her aggressive behavioural issues had increased (before her mother banned the appellant from using the internet).
69 In summary, the report notes that throughout sessions the appellant made minimal progress toward the referral goals or improvement in the presenting issues and she remained reluctant and avoidant to engage in intervention focusing on issues associated with her sexual abuse and resultant post-traumatic symptoms. For this reason, the appellant was ceased from further individual counselling due to minimal improvements in her presenting issues.
70 Because the appellant continued to demonstrate a number of presenting issues and had made minimal gains at Parkerville, the report recommends she attend for a psychiatric assessment with a clinician trained in the treatment of trauma and abuse. Further intervention was recommended to continue to address her trauma experiences and other ongoing difficulties.
71 The report concludes by emphasising the importance of the development of a stable relationship between the appellant and her mother and attributes her lack of progress to her avoidance and resistance to talk about core issues (see book 2, pages 40 - 44).
72 In Year 3, the appellant at the age of about 8 in 2012 continued to experience issues at school (see book 1 and book 2) which resulted in her receiving school counselling.
73 On 6 December 2012, JAW was convicted for the second time in the District Court of Western Australia of sexual offences against the appellant.
74 In 2013, the appellant was aged about 9 and in Year 4 at school. Book 1 and book 2 contain details of school counselling for the period April to December 2013 and records reference to ongoing issues with the appellant's absences from school. This includes a record of victimisation for use of sexualised language and other social difficulties at school, and also, being physically aggressive at home, together with other behavioural issues as reported by the appellant's mother.
75 Dr Phil Watts, adjunct associate professor in clinical psychology and a forensic psychologist, prepared a report dated 14 September 2014 for the purpose of this appeal. He was asked to prepare an independent psychological assessment of the appellant's current functioning (in regards to the impact of having been previously sexually assaulted by MRC and then JAW). In his report he noted that the 'cousin offences' took place between April 2008 and March 2009, and the offences by the neighbour (JAW) occurred between October 2009 and November 2009. Importantly, at par 8, he notes:
While there is some correlation between the objective nature of any offence and the severity of the impact, it is not a lineal relationship and there are different reasons why a child perceives some aspects quite differently to the objective reality.
76 He observed, as to be expected, that some of the appellant's comments were as a result of things said by her mother because the content indicated that she did not fully comprehend or understand the meaning of what she was asserting. Dr Watts observed, in his opinion
that she is a girl in the average to bright – average range of ability, but it sounds like there is a specific learning difficulty in the area of maths.
77 He said:
Furthermore, she appears to 'zone out'. My observation was not so much of an ADHD nature, but more of an anxiety/trauma response.
78 The appellant described feeling most upset over the things which JAW did and described his behaviour as being 'weird stuff'. She describes one particular nightmare of JAW trying to get into her house and various generalised nightmares which are not specifically people-related. He noted that she feels 'threatened and anxious' when she thinks about JAW. On the other hand, she does not hold any 'ill feelings' towards MRC or her cousins.
79 According to Dr Watts:
If a child is young when sexually abused, not only do they have the trauma reactions but it also impacts on some core personality dimensions. In other words, it affects their world view and how they cope with the world.
80 In his opinion the appellant has both types of reactions present and a number of symptoms which would be consistent with post-traumatic stress disorder with a particularly strong manifestation of anxiety and anger.
81 In his view, the appellant has been
derailed to some degree developmentally, and no amount of therapy will be able to completely resolve these issues. The fact that she is reporting so much anger and reaction in a pre-pubescent state means that it is probably going to escalate markedly over the next few years when she moves into full puberty.
82 Dr Watts believes that a psychiatric assessment would be useful but he is not convinced the appellant will necessarily need psychiatric treatment for sexual abuse trauma. In his opinion, trauma can be better managed through clinical psychological services rather than psychiatric services.
83 Dr Watts is also of the opinion that, because of the very early age of quite significant sexual offending, the appellant
is going to need assistance at both a trauma and a personality level. In other words, she'll need ongoing treatment up until adulthood. It is quite likely that there will be a period of time in her teen years where she will no longer want therapy, but as she moves through her later teens and early 20s in my opinion it will be beneficial for her to receive therapy.
84 In other words, in her early teens she may not be open or benefit from counselling and therapy but, in his opinion, it will become important to her mental wellbeing when she is older.
85 Dr Watts is of the opinion that
there are enough symptoms and psychological history to indicate that [the appellant] will not resolve early or completely, and is quite likely to act out more severely as a teen.
86 He says it is obviously difficult to estimate exactly how much counselling or therapeutic intervention the appellant will require.
87 In his opinion
the biggest single impact on [the appellant] is the offending from the neighbour. This presents as a somewhat unresolved issue for her. The impact from the cousins appears to have diminished somewhat and the divorce of little direct consequence to her at this time (perhaps because the parents still live in the same home).
88 Finally, Dr Watts is of the opinion that it is difficult to offer any sound projection as to the future impact on employment, as that is quite some time away. He thinks that without the sexual assault she may well have had some learning difficulties especially in the maths' area, but in other respects she presents as quite bright. On this basis in his opinion, it is reasonable to contend that her schooling has been impacted in the negative and that she is likely to underachieve. He is unable to offer any opinion as to what this will translate into in adult employment.
89 In the course of hearing the appeal the appellant's mother, NL, gave evidence to explain issues around the appellant's recent attempts at self-harm and her reason for the appellant not presently receiving counselling or therapeutic assistance. NL also explained how she had run out of time for referral to continue the appellant's mental health care plan through counselling. She gave evidence that she planned to arrange for the appellant to re-engage with counselling as soon as possible.
Assessment
90 Section 30(1) of the Act provides that the assessor may award such compensation that he or she is satisfied is just for the injury and for any loss suffered. It is a general discretion and the assessor may have regard to any factors or circumstances that the assessor thinks are relevant in determining the amount of a compensation award: s 29(1) of the Act.
91 Section 3 of the Act defines 'injury' to mean 'bodily harm, mental and nervous shock, or pregnancy'.
92 Mental or nervous shock refers to mental or emotional harm as opposed to physical injury or bodily harm. It is necessary to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury: see S v Neumann (1995) 14 WAR 452, 461 (Murray J).
93 Mental or nervous shock contemplates the impact of the offences on the mind or nervous system (Hatfield v Undersecretary for Law (Unreported, WASC (Burt J), Library No 4012, 15 December 1980)). It must be of an enduring character which amounts to an injury, as opposed to a mere emotional reaction.
94 In assessing the appropriate amount of compensation arising out of the multiple offences committed by MRC and JAW separately against the appellant the court is required to have regard solely to the injury suffered by the appellant arising out of the commission of each offence, and therefore the offences in their totality.
95 It is plainly difficult, if not impossible, in the circumstances of the offending against the appellant by two unrelated offenders, to disentangle the consequences of the injury and to determine the loss suffered as a result of the individual offences. It is not possible to differentiate between the injuries suffered as a result of each offence, or in this case because of the close proximity in time of the offending and the young age of the appellant at the relevant time, to differentiate or disentangle the injury suffered and caused by each of the offenders separately. In such circumstances, it is not only appropriate but necessary as a result of the course of conduct for which compensation is to be awarded to approach the matter on a global basis, subject to the jurisdictional maximum. In doing so, I do not think it is necessary to express the award in terms of a formal apportionment between MRC and JAW. This tends to add a layer of complexity with the risk of obviating the merits of the appeals.
96 Similarly, given the age of the appellant at the time of the offending as a young child, it is difficult to distinguish between the direct 'impact damage' and further damage that may be suffered by such things as the reaction of the appellant's friends and family, court proceedings or public attention. She was at the time in her early developmental stage, and still is. This makes the drawing of inferences from the information currently known about the appellant, even broadly, somewhat artificial and problematical as to what her future holds.
97 There can be no doubt that the horrendous crimes committed against the appellant as a very young child by MRC (and a related cousin, but not material for present purposes), and separately by JAW, have substantially affected the appellant, her progress at school and her emotional development. She has been overtly sexualised as a particularly young child at the age of about 5 and this has impacted on her relationships at school with her teachers and students. This is apparent from the content of her victim impact statements dated 25 August 2014 and 5 March 2013 (see book 3 for details). It is also evidenced by her aspirational statement to become a pole dancer when she grows up.
98 It must also be observed that it has affected her family life with a change in the relationship between her parents occurring at the same time. Much of the evidence refers to issues concerning the relationship between the appellant and her mother (her primary support person or carer). Some allowance must be borne in mind for other impacts that may have occurred in any event as a result of external circumstances unrelated to or caused by the offending.
99 It is accepted that, in order to establish a causal relationship between any offence, or series of offences and the injury and loss claimed, it is not necessary for the appellant 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. However, 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 it was not the sole cause: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason & Wilson JJ).
100 For present purposes, it is trite that compensation is to be assessed by applying the 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.
101 The issue of assessment of damages for loss and injury suffered by a young child at the commencement of her schooling and life is, particularly when the compensation is for mental harm as opposed to direct physical injuries, a complex task: VPAN [2011] WADC 40 [94] (Sweeney DCJ):
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 vagrancies of life generally, even if it were appropriate to do so.
102 I have taken into account the material, in particular the further additional material which was not available to the learned assessor at the time he made his award including the clinical and forensic psychological report of Dr Watts dated 14 September 2014. In my view, the appeal in APP 30 of 2014 with respect to the offending of JAW should be allowed.
103 Drawing the broadest inferences most favourable to the appellant on the material before the court, and allowing for the assumption that she will continue to require future counselling and therapeutic assistance (particularly in her later teenage years), the amount of the criminal injuries compensation award in respect of JAW's offending should be $125,000.
104 I am also satisfied that it is appropriate to vary the award insofar as the amount awarded pursuant to s 48 of the Act is concerned for the payment of future treatment expenses. I note that, pursuant to s 6(2)(b), 'loss' includes expenses likely to be reasonably incurred by or on behalf of the appellant for treatment that she is likely to need as a direct consequence of the injuries suffered from JAW's offending.
105 Pursuant to s 48 of the Act, I would allow a further sum not exceeding $15,000 for the cost, less any relevant rebates, for expenses reasonably incurred by the appellant in relation to psychiatric or psychological counselling. This should include therapeutic counselling associated with mental trauma or mental illness caused by the offending. The object of this part of the award is to provide for costs associated with obtaining treatment and counselling for mental health and behavioural issues associated with or caused by the offending of JAW.
106 As to APP 90 of 2014, in my view the compensation of $20,000 apportioned as a result of the global award should not be disturbed as compensation for injuries arising out of MRC's offending. I have taken into account the comments of Dr Watts and other counsellors as to the currently perceived impact of MRC's offending on the appellant.
107 However, subject to the provisions of s 48 of the Act, I would vary the award to provide that a further sum not exceeding $7,500 for the cost, less any relevant rebates, for expenses reasonably incurred by the appellant in relation to treatment of the nature described above for APP 30 of 2014.
Claim for loss of earning capacity
108 The appellant has filed detailed submissions seeking that the compensation award include a component for 'loss of earning capacity'. This is in contradistinction to s 6(2)(b) of the Act which defines 'loss' to include 'loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim'. The appellant has not suffered any 'loss of earnings' in this regard.
109 The appellant contends that because her schooling has been negatively impacted by the offending against her, it is reasonable to argue she is likely to 'under-achieve' insofar as her earning capacity is concerned. This assumes the appellant will work at some stage in her life. However, in this day and age in our welfare society there is no guarantee about this. She may elect to not ever work. This is not a case where there is any physical restriction as a result of injuries suffered from being part of the workforce. Instead, it is submitted that even though the appellant's loss of earning capacity cannot be accurately quantified, she 'has suffered some loss of earning capacity given the impact of the offending upon her and her education'.
110 I accept such a head of damage could form part of an award in an appropriate case. Future loss of earnings, more properly described as a loss of earning capacity, is permissible to the extent that it might be assessed as an item of pecuniary loss.
111 In my view, there are too many imponderables in this case to make any allowance for this head of damage. This is accepting of course that what is being assessed is the loss of the chance that the appellant might have worked in some different more financially rewarding occupation than she might find herself undertaking at some indeterminate time in the future.
112 The material before the court does not disclose any basis for assessing any such loss. It is too speculative and there is no proper basis upon which the court could make allowance in an award for this component. There are too many external factors and the appellant is still too young to be pessimistic in this regard, even drawing the broadest permissible inferences. I am not persuaded that it is appropriate to make any allowance for alleged loss of earning capacity at this point in time. To the contrary, Dr Watts in his report opines that apart from maths the appellant seems to have good student skills and is capable of achieving academically subject to resolution of the other issues for which compensation has been awarded.
Conclusion
113 For these reasons I would allow both appeals and make the following orders:
APP 30 of 2014
1. The appeal be allowed.
2, The award of the learned assessor made on 19 February 2014 be set aside and in lieu thereof the appellant be awarded the sum of $125,000 for the injuries in respect of the proven offences of JAW to be paid to the Public Trustee upon trust for investment not limited to the Common Fund and to pay and apply the monies for the benefit of the appellant until she attains the age of 18 years on 9 December 2021; and that in paying and applying these monies the Public Trustee shall not be bound by the provisions of s 59(a) of the Trustees Act 1961.
3. Subject to the provisions of s 48 of the Act, a further sum not exceeding $15,000 for the cost, less any relevant rebates, for expenses reasonably incurred by the appellant in relation to psychiatric and psychological counselling and other treatment or counselling for mental health or behavioural issues.
APP 90 of 2014
1. The appeal be allowed.
2. The decision of the learned assessor made on 19 February 2014 be varied to the extent of increasing the sum of $1,020 for the cost, less any relevant rebates, for expenses reasonably incurred by the appellant in relation to psychiatric or psychological counselling including counselling or treatment for mental health or behavioural issues to $7,500 subject to the provisions of s 48 of the Act.
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