Sunderland v Curnack
[2002] WASC 158
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SUNDERLAND -v- CURNACK [2002] WASC 158
CORAM: WHITE AUJ
HEARD: 10 JUNE 2002
DELIVERED : 20 JUNE 2002
FILE NO/S: MCS 23 of 2002
BETWEEN: LINDA KAYE SUNDERLAND
Applicant
AND
LAWRENCE JOSEPH CURNACK
Respondent
Catchwords:
Application for compensation for criminal injuries - Eight offences of rape and one of indecent dealing - Representative of conduct over some three years - Finding that applicant suffered bodily harm and both mental and nervous shock as a direct consequence of the commission of the offences when she was a child
Legislation:
Criminal Injuries (Compensation) Act 1970, s 4
Result:
Award of $18,000.00 to the applicant
Category: A
Representation:
Counsel:
Applicant: Mr G J Huggins
Respondent: No appearance
Amicus Curiae : Mr C C Lomma for the Chief Executive Officer, Department of Justice
Solicitors:
Applicant: Shaddicks Lawyers
Respondent: No appearance
Amicus Curiae : State Crown Solicitor
Case(s) referred to in judgment(s):
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
In re Carter (1984) 4 SR (WA) 219
M v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992
RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974
Sideris v Censori [1983] WAR 17
Case(s) also cited:
B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995
B v W (1989) 6 SR(WA) 79
BMW v RLW, unreported; DCt of WA (Kennedy DCJ); Library No 4614; 23 August 1995
Glover v Van Den Ancker, unreported; DCt of WA (Muller DCJ); Library No 4962; 20 June 1996
Grist v Leunig, unreported; DCt of WA (O'Sullivan DCJ); 12 June 1995
KLH v Dennison, unreported; SCt of WA (Burt CJ); Library No 5172; 6 December 1983
Law & Ors (1999) 105 A Crim R 407
The Applicant v Larkin & Ors [1976] WAR 199
WHITE AUJ: This is an application for an award of criminal injuries compensation pursuant to s 4 of the Criminal Injuries (Compensation) Act 1970 ("the Act") in relation to eight offences of rape and one offence of indecent dealing committed by the respondent against the applicant and said to have occurred between August 1970 and August 1973. On 5 August 1999, the respondent was convicted on his own plea of guilty of these offences.
Section 4 of the Act permits this Court to make an award of compensation in relation to injuries and losses suffered by reason of the commission of an offence in relation to which a person has been convicted. Section 4(1) of the Act provides that the jurisdictional limit with respect to offences committed between 22 January 1971 and 17 October 1976 is $2,000.00 for each offence.
The onus lies upon the applicant to prove on a balance of probabilities that she is entitled to the compensation claimed by her: In re Carter (1984) 4 SR (WA) 219 per Hammond DCJ at 220‑221.
While the applicant's affidavit discloses that the nine offences of which the respondent was convicted were only some of numerous other such offences, the claim is necessarily confined to the offences of which the respondent was convicted.
In her deposition, the applicant said that the first of the offences against her occurred when she was nine or ten years old at occurred at the respondent's house at the corner of Lockhart Street and Costello Street. In her affidavit, the applicant says, in part:
"7. I really cannot remember the first occasion when the respondent sexually abused me. However, when it started and for some time thereafter, I did not know that what he was doing was wrong. Eventually, I realised that what was happening was wrong but then I didn't know what I could do to stop it. I felt helpless. I felt scared. I was terribly confused.
8. The abuse stopped a short time before my thirteenth birthday ... "
As the applicant was born on 1 August 1960, she turned 10 years of age on 1 August 1970. She cannot be compensated for an offence that took place prior to 22 January 1971, the date of commencement of the act
I have had handed to me by the applicant's counsel a copy of the certificate of title relating to the property at the corner of Lockhart Street and Costello Street (being portion of Sussex Location 196 and being Lot 12 on Plan 8790.) That shows that the property was transferred to the respondent and his wife as joint tenants in March 1972. There is nothing to indicate that the respondent had occupied that property prior to its transfer to him and his wife and I am satisfied on a balance of probabilities that the first offence against the applicant must have taken place in or after March 1972 and that the applicant's recollection as to her age at the time is mistaken. Her deposition was signed on 2 December 1998 in reliance upon her memory and it is understandable that she might make such an error of recollection after the lapse of such a time.
Before granting the applicant's claim, the Court must be satisfied that the injury occurred in consequence of the commission of the offence and the question whether there a causal relationship between the commission of the offence and the injury or loss is primarily a question of fact: Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666; Sideris v Censori [1983] WAR 17.
"Injury" means bodily harm and includes pregnancy, mental shock and nervous shock. In RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974, Burt J (as he then was) said at p 3:
"I do not think that the expressions 'mental shock' or 'nervous shock' are to be understood in any technical sense and on the facts of this case I find that the applicant suffered both, and both she suffered by reason of the commission of the Act of rape upon her."
Fright, humiliation or anguish are necessarily excluded from the term "mental and nervous shock": M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992, per Scott J.
Paragraph 10 of the applicant's affidavit describes in the following words the effects of the abuse she suffered:
"10.The effects of the abuse have pervaded all phases of my life and just seem to go on and on.
(a)At the time the abuse was actually occurring I did not know what to do in order to stop it or who to turn to for help. My childhood and innocence were taken away from me. I developed a distrust of others and that distrust carried on over the years resulting in my being a 'loner' with few friends. The distrust and lack of respect I felt particularly towards older people persists today.
(b)The issue of pregnancy was mentioned by the respondent on at least one occasion while he was abusing me. I really did not understand how having sex with the respondent could make me pregnant but it was something which worried me greatly. I knew what was happening was bad. I remember often standing in front of the mirror concerned as to whether I was putting on weight and whether I might have fallen pregnant.
(c)After the abuse stopped, I found that the effects of what had happened to me did not go away as I had initially thought they would. The actual ongoing abuse might have stopped but the problems did not.
(d)Throughout my adolescent years I remained isolated and ashamed. I wanted to talk to my parents or to someone else about what had been done to me and how I continued feeling so cheap. However, I somehow believed that I was guilty. I was ashamed. I remained distant from my father and I simply could not bring myself to raise the subject with my mother.
(e)Over the years I suffered many nightmares and disturbed sleeping patterns.
(f)Although I consider myself to be quite bright, at school I simply couldn't cope. I could not make friends, I could not concentrate, I always 'downgraded' myself (something which I continue to do), I could not put the issues of the sexual abuse behind me.
(g)In my teenage years I felt very much on the outer and being a person of 'no account'. I was ashamed and disgusted of what I had been involved in. I would often cry alone.
(h)During my teenage years in particular, I felt like a person living 'on the edge'. I always had a sense of 'nervousness'; I was anxious, I was uncertain, I felt stressed.
In these teenage years I developed indigestion problems and these problems would be worse at night. When I was in bed alone and it was quiet, I remember I couldn't get the memories and thoughts of the abuse out of my head. This just added to my stress and I had difficulty falling asleep.
From the time I was about 13 years old until my early 20's I would take medication (Mylanta and Gastrogel) to try and help settle my indigestion. It was horrible stuff which my mother was quite concerned that for one so young I had to take.
(i)At nineteen years of age, I married Neville Sunderland. He was the first person I had revealed the abuse to. From the very start, sex was a real issue in our relationship. Throughout the sixteen years of marriage the abuse that I had suffered as a little girl haunted me. I found it difficult to express what I was feeling and Neville simply couldn't comprehend what was wrong. I would often suffer bouts of depression and moodiness. We attended marriage counselling specifically aimed at trying to normalize sexual relations within our marriage. In the end, I am convinced that my marriage with Neville failed due to, in large part, my inability to have normal sexual relations with him.
(j)The breakdown of my marriage also bought with it a desire on my part to clear the skeletons of the past and to make a fresh start.
Soon after my separation from Neville, I spoke to people of the Seventh Day Adventist Church at Busselton and to the police. Although it had taken me many years to confront my demons, it was the first time I actually felt as if I was going forward to reclaim what had so wrongfully been taken away from me.
(k)The time leading up to the eventual disposition of charges against the respondent was extremely difficult. There were a number of interviews with police and prosecutors. I was seeing a counsellor at Waratah regularly; so too was my mother who blamed herself for so much of what had happened. The whole of Busselton seemed to know about the matter. It was very public and I felt as if everyone's eyes were on me.
(l)It made me very sad to see the way my mother's life was devastated by the disclosures.
(m)The respondent pleaded not guilty to all charges involving not only myself but also Lucy Cousins and Jenny Scott.
Lucy's Indictment contained only one charge and it went to trial first. I was to be next in line. I remember being so scared at the thought of having to go through the trial process.
(n)The respondent was found guilty in Lucy's case. He then changed his plea to guilty on the charges concerning myself and Jenny. I recall being told of this by the Detectives while I was at work at the Post Office in Busselton. I did not know what to make of it. I burst into tears and could no longer function at my duties. My immediate superior (Joe Lavorgna) was very supportive and understanding. He told me to go home and come back to work once I felt up to it.
(o)Both I and Jenny Scott were encouraged to attend the respondents [sic] sentencing in the Bunbury Supreme Court on the 5th August 1999. We were told it was important for us to be in Court to see the respondent eventually dealt with for what he had done. For my part, I found the hearing to be a terrible ordeal but I think that it turned out to be in my long term interests that I attended the court and saw the case finalised."
A report by Ms Lianne Woods, Sexual Assault Counsellor at the Waratah Support centre, Bunbury also describes the effect of the sexual abuse on the applicant. Her conclusion is:
"Ms Sunderland's case is one of the worst I have encountered whilst counselling survivors of sexual abuse. She believes that although her life runs relatively smoothly now, the memories of her abuse will be with her forever.
The overall impact of these years of sexual abuse against Linda by Lawrence Curnack is obvious. It has effected [sic] all areas of her life:
•She lost her innocence and her virginity at age 10 years and so too her right to a happy and carefree childhood.
•Linda therefore, lost her right to normal social and sexual development – free from fear, guilt and shame.
•Linda also lost her right to be able to function well at school.
•Linda lost the right to a carefree, comfortable and loving relationship with her mother, her father and her two brothers.
•She lost her marriage, due to an inability to enjoy a healthy sexual relationship with her husband, and along with the break‑up, she feels she also lost her son.
•Linda also lost the ability to be able to trust enough to form normal and lasting friendships.
•Linda has lost some of the confidence she needs to be able to function at a level that most people take for granted."
In my opinion, it is probable that the very act of rape itself causes bodily harm to the victim. Weighing all the evidence, I am satisfied on the balance of probability that the applicant suffered bodily harm and both mental and nervous shock as a direct consequence of the commission of the eight acts of rape upon her as a child and that she suffered mental and nervous shock as the result of the act of cunnilingus she was compelled by the respondent to perform on him.
I take this opportunity to acknowledge with appreciation the assistance given by counsel for the Chief Executive Officer who appeared as amicus curiae at the hearing and who made helpful submissions.
I would, were it not for the limitation prescribed by the Act, award a larger sum as damages than the amount so limited.
In the result, I award to the applicant compensation in the total sum of $18,000.00, being the maximum amount applicable to the 9 offences the subject of the indictment on which the respondent was convicted.
The respondent is to pay the applicant's costs of the application.
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