Stocker v Loeper

[2001] WASC 176

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
CITATION	:	STOCKER -v- LOEPER [2001] WASC 176

CORAM	: McKECHNIE J
HEARD	: 24 MAY 2001
DELIVERED	: 24 MAY 2001
FILE NO/S	:  MCS 20 of 2001
BETWEEN	: PAUL ROBERT STOCKER

Applicant

AND

PETER JOHN LOEPER

Respondent

Catchwords:

Criminal injuries compensation - Repeated sexual assaults on a child -

Representative counts - Maximum compensation - No new principles

Legislation:

Criminal Injuries Compensation Act 1976

Result:

Award of $22,500

[2001] WASC 176

Representation:

Counsel:

Applicant	:	Mr J J Scudds
Respondent	:	No appearance
Amicus Curiae	:	Ms F B Seaward for Chief Executive Officer,

Ministry of Justice

Solicitors:

Applicant	:	J J Scudds & Associates
Respondent	:	No appearance
Amicus Curiae	:	State Crown Solicitor

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

Bosch v Loeper [1999] WASC 255

Case(s) also cited:

A v D (1994) 11 WAR 481
Assessor of Criminal Injuries v Maher (1996) 16 SR (WA) 355
B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995

BMW v RLW, unreported; DCt of WA (Kennedy J); Library No 4614;

23 August 1995

Bonovich v Radovanovic [1981] WAR 291
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666

Glover v Van Den Ancker, unreported; DCt of WA (Muller J); Library No 4962;

20 June 1996

In re Carter (1984) 4 SR (WA) 219

KLH v Dennison, unreported; SCt of WA (Burt CJ); Library No 5172;

6 December 1983

M v J and J v J, unreported; SCt of WA (Scott J); Library No 920598;

19 November 1992

Milanovic v Dragic [2000] WADC 274

O v J, unreported; SCt of WA (Wallwork J); Library No 920027; 13 February

1992

[2001] WASC 176

Patorniti v Silvestro, unreported; SCt of WA (Templeman J); Library No

970325; 22 May 1997

R v Fraser (1975) 2 NSWLR 521
R v Wright [1971] Qd R 153
RJE v Bandy, unreported; SCt of WA (Burt J); Library No 1365; 31 May 1974
S v Neumann (1995) 14 WAR 452
Sideris v Censori [1983] WAR 17
The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199
Thompson v Ford [2000] WADC 137

X v Y, unreported; SCt of WA (Parker J); Library No 960517; 13 September

1996

[2001] WASC 176

McKECHNIE J

1. McKECHNIE J: The applicant for criminal injuries compensation is now aged 29.

2. When he was about 9 years old, in 1981, he was sexually abused in a serious way on many occasions by the respondent.

3. In 1994 the respondent pleaded guilty to a representative three counts. The first two were counts of unlawful and indecent dealing with the applicant and the third was one count of procuring the applicant to unlawfully and indecently deal with him.

4. These representative counts were part of 105 offences to which the respondent pleaded guilty involving 11 other boys.

5. The respondent received a very heavy sentence of imprisonment.

6. The applicant described in an affidavit the effect that the crimes had upon him as a child and also the continuing psychological effect into adulthood.

7. The applicant's evidence is supported in part by a report from the Warwick Child and Adolescent Clinic, detailing attendances in 1985 and 1986, and more completely in a psychological report prepared by Mr Beaton.

8. It is not necessary for me to particularise the effect on the applicant's life and his mind. Suffice to say I consider the impact of the three offences included physical trauma to a degree and substantial mental and nervous shock.

9. In 1981 the Criminal Injuries Compensation Act 1976 provided for a maximum of $7500 to be awarded.

10. Section (2a) provided relevantly:

    "(2a) Where a person has suffered injury or loss … in consequence of the commission of an offence by two or persons … whether the offences were committed by the same person or two or more persons, … or the offences are otherwise related to each other, the court or judge shall not order that more than seven thousand five hundred dollars be paid in the aggregate in respect of the joint offence …"

[2001] WASC 176

McKECHNIE J

1. These offences are not "related" offences within the meaning of the Act. They constitute separate and distinct violations of the applicant by the respondent.

2. The correct approach to compensation is set out in Bosch v Loeper

   [1999] WASC 255 per Scott J at par [13] and [14].

3. Justice Scott considered another matter to be evaluated.

4. At par 16 he said:

   "There is no allowance in the legislation for inflation so that no account can be taken of the depreciation in the value of an award of compensation over the period of time between the commission of the offence and the making of the award. I would add that there is also no provision for a separate award of out of pocket expenses, which in this case have been considerable."

5. Applying ordinary tortious principles, the loss and damage inflicted on the applicant by the respondent gives rise to an award of the maximum allowable in respect of each offence.

6. I therefore make an award of $22,500.