Sweetman v Lilley - [2021] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SWEETMAN -v- LILLEY [2021] WADC 74
CORAM:   TROY DCJ
HEARD:   21 JULY 2021
DELIVERED          :   29 JULY 2021
FILE NO/S:   APP 61 of 2020
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   KEITH AARON SWEETMAN
Appellant
AND
JEMMA VICTORIA LILLEY
First Respondent
TRUDI CLARE LENON
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 2070 of 2019

Catchwords:

Criminal injuries compensation - Appeal - Proved offences - Psychological injury - Injury or loss - PTSD - Amount of compensation - Turns on own facts - Out of time

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed
Compensation awarded increased to $75,000

Representation:

Counsel:

Appellant	:	Mr H J E Skinner
First Respondent	:	No appearance
Second Respondent	:	No appearance
Amicus Curiae	:	Mr C A Payne on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	DLA Piper Australia - Perth
First Respondent	:	Not applicable
Second Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41
DCN v RJS [2004] WADC 63
Guy v Hampson [2019] WADC 19 [14]
Lilley v The State of Western Australia [2019] WASCA 164
Martin v Martin [2015] WADC 138
Michael v Panetta (1994) 10 SR (WA) 323
Moncrieff v Bishop [2007] WADC 198
R v Fraser [1975] 2 NSWLR 521
Re Hojetzki [2009] WADC 77
Robinson [2017] WADC 18
Simonsen v Legge [2010] WASCA 238
TAW v NJS [2011] WADC 187

TROY DCJ:

On 13 June 2016 the respondents murdered Mr Keith Sweetman's only child, his 18-year-old son, Aaron Pajich-Sweetman. Aaron had autism. He was targeted for that reason. The respondents were convicted as charged. I am satisfied that Mr Sweetman suffered, as a consequence, severe, enduring and debilitating mental and nervous shock.
The egregious nature of this crime emerges from the decision of the Court of Appeal in Lilley v The State of Western Australia.[1]
[1] Lilley v The State of Western Australia [2019] WASCA 164.
On 13 June 2016, the respondents intentionally killed Mr Pajich at a residential property occupied by the respondents. Mr Pajich had been attacked with a knife and a wire garrotte. The garrotte caused fine abraded bruising to his neck. He was stabbed three times with the knife. Two of the stab wounds, one to his neck and the other to his chest, were fatal. Mr Pajich also suffered some defensive wounds to his hands. Police had found Mr Pajich's body buried in the backyard of the property. His body was wrapped in a white rubber-backed drop sheet and covered by a blue tarpaulin. A cement pad and red tiles had been placed over the burial site.
In his sentencing remarks on 28 February 2018, the trial judge, his Honour Justice Hall said as follows:
It's plain from the victim impact statements (including Mr Sweetman's) that the shock of Aaron's death is still raw. Members of his family have suffered grief, nightmares, sleeplessness, stress, and relationship issues. The loss of a child in these circumstances is every parent's worst nightmare. There is something else that the victim impact statements make clear, and that is that Aaron was greatly loved. His family have many fond memories of him. Unfortunately, those memories are now tainted with the knowledge that he was killed so callously and so young.
His Honour sentenced each respondent to life imprisonment. His Honour ordered each respondent to serve 28 years before being eligible for parole.
On 20 May 2020, the Chief Assessor of Criminal Injuries Compensation awarded Mr Sweetman $25,000 for compensation under the Criminal Injuries Compensation Act 2003 (WA) (Act) for mental and nervous shock and loss of personal items suffered as a consequence of Aaron's murder. The chief assessor found that Mr Sweetman had suffered a psychological injury as a consequence of the murder and was eligible to receive compensation as the parent of Mr Pajich.
Mr Sweetman appeals out of time. His original claim for compensation was also out of time.
The principles governing such an appeal are well settled. Mr Sweetman does not have to demonstrate that the chief assessor erred in order to succeed. He has exercised his right to appeal under s 55 of the Act. The powers of the District Court on appeal are provided for by s 56.
I have previously expressed the view in the case of Robinson[2] that even though the appeal is a hearing de novo, it is appropriate to have regard to the assessment made by the assessor, being a specialist tribunal in the field. With the benefit of reflection, however, it seems to me that there is a tension between, on the one hand, according some deference to the assessor because they constitute a specialist tribunal and, on the other hand, conducting an appeal as a fresh hearing. I now consider the preferable view to be that as indicated by his Honour Judge Bowden, in Guy v Hampson:[3]
It is not appropriate to have regard to the assessment made by the assessor but rather to independently review the evidence. A hearing de novo requires that the Appeal Court consider the matter afresh without regard to any previous decision.
[2] Robinson [2017] WADC 18 [9].
[3] Guy v Hampson [2019] WADC 19 [14].
Compensation is payable where a person has suffered 'injury' in consequence of the commission of an alleged offence: s 17(2). The maximum amount of compensation that may be awarded for a single offence is $75,000: s 31(1). The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.
The burden is on Mr Sweetman to establish, on the balance of probabilities, a causal relationship between the murder of his son and the injury and loss for which compensation is sought: s 3. It is not necessary for Mr Sweetman to establish that the death of Aaron was the sole cause of any injury or loss. It is sufficient for him to establish that the assault materially contributed to any injury or loss: see Martin v Martin[4] and the authorities cited therein.
[4] Martin v Martin [2015] WADC 138 [83] (Derrick DCJ).
Section 3 defines injury as including mental and nervous shock. Section 35(2)(d) permits a compensation award for mental and nervous shock suffered by a victim who was a parent of the person who died as a result of the commission of the offence.
The correct approach in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and the jurisdictional limit. In assessing the amount of compensation which should be awarded I must have regard solely to the injury suffered by Mr Sweetman in consequence of the commission of the offence, and not to the seriousness of the offence. The amount is not to be fixed as punishment of the offender. Nor should it represent an expression of sympathy for the victim.
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. The court will not generally rely on conclusions made by an unqualified person on the basis of medical records without such supporting evidence: Re Hojetzki.[5]
[5] Re Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
Generally, a psychiatrist, not a clinical psychologist, should provide a diagnosis of mental disorder. Section 18, however, permits an assessor to inform him/herself as he/she thinks fit and so the question is one of weight rather than admissibility. In Moncrieff v Bishop[6] Commissioner Ley accepted that an applicant suffered from post‑traumatic stress disorder based on reports from two clinical psychologists, in circumstances where the psychologists' opinions were supported by a general practitioner who stated the applicant's symptoms fulfilled the diagnostic criteria for PTSD found in the DSM IV and do not need to be restated.
[6] Moncrieff v Bishop [2007] WADC 198 [32] ‑ [36].

The original application and this appeal are out of time

The chief assessor made her decision on 20 May 2020. The 21 day period for filing an appeal expired on 10 June 2020. Mr Sweetman's application for legal assistance was referred to DLA Piper on 10 September 2020. The appeal was then filed (promptly) on 15 September 2020, being out of time by approximately four months.
I apply the general principles governing the grant of an extension of time to commence an appeal as set out by the Court of Appeal in Simonsen v Legge.[7]
[7] Simonsen v Legge [2010] WASCA 238 [8].
I accept that the four month delay in this case is significant. There is, however, absolutely no prejudice to either respondent arising from the delay and I do not perceive there to be any prejudice to the State Solicitor's Office as amicus curiae.
I accept that on a strict view Mr Sweetman is substantially responsible for the delays. I also accept, however, that Mr Sweetman's responsive emails show he was not merely inattentive. I accept that he genuinely had difficulty with understanding or properly accessing email correspondence. The ordinary rule is that the time limit should apply. Here, however, Mr Sweetman finds himself in the appalling position of having suffered the death of his child through a brutal murder and as a consequence (as I will explain) has suffered psychologically. The court would be less sympathetic to a person who had not suffered such trauma. As I remarked during the hearing, there would be few litigants who would be in the position that Mr Sweetman tragically finds himself in.
A key, albeit not determinative factor, is the merit of the appeal and the prospects of success. I will turn to that shortly.

Can a compensation award be made?

Section 12(1) of the Act provides:
A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
Here, a proved offence occurred. Mental and nervous shock are included in the definition of 'injury'. Compensation for such injury, and for any loss also suffered, may be awarded under s 30(1) of the Act, subject to s 35(2).
Mr Sweetman is Aaron's father and so, it is open to make an award of compensation to him under s 35(2)(d).

Assessment of compensation

Mr Sweetman adduced evidence in the form of his victim impact statement dated 23 February 2018 and medical notes provided by 360 Health.
The materials reveal, for example, that as of 2 February 2018 Mr Sweetman was experiencing depression and that he had experienced a previous traumatic life event, namely being abused by a priest as a child. He was struggling to cope, was tearful, and was experiencing poor sleep as a consequence of these events.
As of 2 March 2018, he was on the 'extremely severe range' for Depression, Anxiety and Stress Scale. He was suspected of having issues with drug and alcohol addiction, and anger management, although they were not listed on the GP's referral.
As of 6 May 2019, Mr Sweetman was also experiencing suicidal ideation or self‑harming behaviour, he was drinking heavily due to having nightmares; and was in financial stress.
With the caution that is justified having regard to the written submissions of the amicus at [57] - [62], helpfully augmented in oral submissions, I also have regard to:
•medical records by the general practitioners at Kwinana Medical Centre;
•a letter from Angelhands dated 7 October 2020;
•a referral letter from Kwinana Medical Centre to Aurora Allied Health dated 18 January 2021;
•their response of 19 February 2021;
•a referral letter from Kwinana Medical Centre to Perth Clinic dated 24 February 2021; and
•a referral letter from Kwinana Medical Centre to Hollywood Medical Centre dated 23 April 2021.
On 19 February 2021 Nives Crvenkovic, a mental health social worker wrote to Mr Sweetman's general practitioner advising that having completed two sessions with Mr Sweetman it was evident that he was experiencing symptoms of complicated grief and post‑traumatic stress disorder. The author believed it was possible that his condition could escalate to self‑harming and or retaliatory behaviour. The author recommended a referral be made to Perth clinic for a mental health assessment and therapeutic intervention as soon as possible.[8] His general practitioner referred Mr Sweetman accordingly on 23 April 2021 to the Hollywood medical centre for an urgent assessment.[9]
[8] Book of documents, page 169.
[9] Book of documents, pages 177 - 178.
My review of the documents reveals that Mr Sweetman's medical records do not indicate any specific depression prior to the murder. He had never been diagnosed with, nor treated for, any mental illness or condition. The abuse he experienced as a child did not impact on his mental state or day-to-day life. I accept his affidavit that his childhood abuse had not caused him any mental illness or similar condition.
Without underestimating the severity of such an occurrence, it does appear that throughout Mr Sweetman's subsequent life, he was able to deal with that without extensive or indeed any psychological support. There then came the event of Aaron's murder, which is an event so extraordinary as to completely dwarf, in relative terms, what had happened to him as a child. Mr Sweetman's mental condition since that time is, to a very significant extent, far worse than anything that preceded it. Therefore, the overwhelming inference is that the vast majority of Mr Sweetman's symptoms as documented are attributable, unsurprisingly, to the impact on him of the brutal murder of his only child.
In DCN v RJS[10] his Honour Judge Jackson relevantly held as follows:
I incline to the view that the evidence of appropriately experienced and trained counsellors and social workers should be accepted as admissible in this field, as well as that of clinical psychologists and, of course, psychiatrists. All may have significant relevant knowledge and experience. Obviously, in a given case, questions of weight will be affected by experience, training and the like, and in a case of conflicting evidence, questions of judgment will arise. Even in the absence of conflicting evidence, courts are not bound to accept evidence tendered even by experts. But here, there is no conflicting evidence and the evidence given in the form of the reports is entirely consistent with the applicant's evidence, and with common sense and judicial experience. The spirit of criminal injuries compensation legislation … support my conclusion. …
[10] DCN v RJS [2004] WADC 63 [32].
I respectfully agree, particularly given the inference I draw as noted at [31] and I apply that approach to the materials before me.
I am satisfied that Mr Sweetman has suffered a compensable injury, of sufficient character and magnitude to enable me to properly assess the quantum of any award.
Mr Sweetman must satisfy me on the balance of probabilities that his injuries and loss can properly be characterised as having occurred as a consequence of the offending. The possibility exists that Mr Sweetman's mental health was adversely affected not just by the murder of his son but by his own abuse by a priest as well as an extended period (pre-dating Aaron's murder) of chronic lumbar back and neck pain,[11] that might be expected to affect his mental health.
[11] As noted on 13 January 2015; Book of documents, page 93.
In the event that Mr Sweetman establishes on the balance of probabilities that the claimed injury is a consequence of the compensable offence, it is not necessary to establish that this was the sole cause of the injury. However, the quantum may be reduced where there is a propensity for non-compensable events to have caused or contributed to the injury.
Aaron was Mr Sweetman's only child, and he was very vulnerable. Whilst the only persons responsible for this appalling murder are the respondents, it is entirely understandable that Mr Sweetman would still, wrongly, blame himself for his son's death. He has not been able to accept Aaron's death.
I find that Mr Sweetman, who is now aged 52, has recurring nightmares related to Aaron's murder, and despite treatment never feels fully rested. The medications he takes to assist with his sleep have an unfortunate side effect in that they cause his hands to tremble to the extent that he cannot undertake manual tasks, such as horological work. I find that Mr Sweetman drinks to a far greater extent than he did prior to Aaron's murder. Entirely understandably, he now relies on alcohol and other drugs in order to sleep. As a result, on one occasion, he was hospitalised for pancreatitis.
Mr Sweetman's psychological injuries were further aggravated in early June 2021 when he received Aaron's personal effects from a senior detective.
I accept that Mr Sweetman's mental state severely restricts his ability to attend to usual day-to-day activities. He suffers extreme anxiety whenever he leaves the house for any reason. He was unable to attend this appeal. His mental condition restricts his ability to attend medical appointments, tend to other necessary outings and from undertaking further training in horology. It adversely impacts his ability to take any steps to return to work, as he previously hoped and expected to do.
The position was crystallised in the following exchange during the hearing:
SKINNER, MR: He's not here today because of the extreme anxiety he feels when he leaves the house. This is obviously a very important matter for him, and you'd ordinarily expect an interested party to want to see the outcome of an appeal of this kind, but he simply …
TROY DCJ:Well, he's never going to be the same again, is he?
SKINNER, MR: No, he's not. This is a matter which is plainly going to impact him for the rest of his life, regardless of the treatment that he receives. It's not a mere emotional reaction. The psychological scars that Keith suffers will endure for the rest of his life.
I have had some regard to other assessments involving criminal injury compensation, in particular Blezard v CEO of the Ministry of Justice.[12] In so doing I adopt the approach of his Honour Judge Jackson QC in Michael v Panetta,[13] cited with approval by his Honour Judge Bowden in TAW v NJS.[14] The task of assessing the appropriate amount of compensation can only be carried out by way of a broad and subjective assessment of what, according to community attitudes, would be regarded as reasonable compensation: R v Fraser.[15]
[12] Blezard v Chief Executive Officer of the Ministry of Justice [2000] WADC 41.
[13] Michael v Panetta (1994) 10 SR (WA) 323, 323 ‑ 324.
[14] TAW v NJS [2011] WADC 187 [24].
[15] R v Fraser [1975] 2 NSWLR 521, 523 (Wootten J).
As his Honour Judge Jackson set out in Blezard v Chief Executive Officer of the Ministry of Justice [15] - [17] (citations omitted), the phrase 'mental and nervous shock' as used in s 3 of the Act, comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence as those events impact on the mind or nervous system. In assessing mental and nervous shock the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention.
The term 'mental and nervous shock' includes distress, horror, disgust and similar adverse mental reactions but excludes mere fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. It seems clear that conditions such as post-traumatic stress disorder and depression are compensable, subject to proof of causation regardless of remoteness or foreseeability and that news of an event may be relevantly causative. Further, long delay in disclosure does not break the chain of causation.

I am entirely satisfied that the injuries relied upon by Mr Sweetman exist and are solely a consequence of the compensable offence and not the abuse or any other factor. To so conclude is, it seems to me, consistent with common sense.
I accept the submissions by the amicus that Mr Sweetman has not felt able to engage with or commit to psychotherapy. It is not the case that he is disinclined to engage in psychotherapy and psychological treatment, but up until this point has found substantial difficulty in so doing, and that that is likely to continue. I cannot be satisfied that Mr Sweetman will be likely to incur expenses for psychological treatment in the future.
In all the circumstances, I grant leave to Mr Sweetman leave to apply for criminal injuries compensation and to commence this appeal out of time.
Having found that the injuries relied upon by Mr Sweetman exist and are solely a consequence of the compensable offence and not the abuse or any other factor and applying the usual tortious principles I agree with counsel for Mr Sweetman that any fair and reasonable award to compensate Mr Sweetman for pain and suffering and psychiatric injuries caused by the respondents' murder of Aaron, having regard to current general ideas of fairness and moderation, must exceed $75,000. And that accordingly the court should award compensation in the sum of $75,000.
In assessing the merits of this appeal and having reviewed the available materials, I regard it as appropriate to allow the appeal. I have found that Mr Sweetman suffered extremely severe mental or nervous shock as a result of his son's murder. I award Mr Sweetman $75,000 in damages for that mental or nervous shock.
It is pointless contemplating an order of costs against the respondents who, quite possibly, will never be released from prison. Nor is it appropriate to make an order against the Chief Executive Officer who has appeared as amicus curiae. There will be no order as to costs.

Orders

1.The appeal is allowed.
2.I award compensation of $75,000 for the injuries sustained by Mr Sweetman.
3.No order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
29 JULY 2021