V3 (a pseudonym) v Hewitt (a pseudonym)
[2020] VCC 280
•17 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| V3 (A Pseudonym) | Applicant |
| v | |
| GEORGE HERB HEWITT (A Pseudonym) | Respondent |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2020 | |
DATE OF JUDGMENT: | 17 March 2020 | |
CASE MAY BE CITED AS: | V3 (a pseudonym) v Hewitt (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 280 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: Application for compensation pursuant to s85B
Legislation Cited: Sentencing Act 1991, s85B; Victims of Crime Assistance Act 1996.
Cases Cited:Stevens v Baxter [2009] VSC 257; RK v Mirik and Mirik (2009) 21 VR 623; Cronin & Ors v Lee [2019] VSC 509.
Judgment: Judgment for the applicant in sum of $75,000 less $7,500 made pursuant to the provisions of the Victims of Crime Assistance Act 1996, leaving a net of $67,500 as an award of compensation pursuant to the provisions of section 85B of the Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms V Katotas | Advice Line Lawyers |
| For the Respondent | In person |
HIS HONOUR:
1 The applicant, V3,[1] seeks an order for compensation from the respondent, George Herb Hewitt[2], pursuant to s85B of the Sentencing Act 1991 (as amended) (“the Act”).
[1]‘V3 is a pseudonym name
[2]‘George Herb Hewitt’ is a pseudonym name
2 The applicant was represented by Ms Katotas of Counsel. The respondent, Mr Hewitt appeared in person from prison and was unrepresented. V3 gave evidence in this proceeding. Mr Hewitt declined the opportunity to cross examine the applicant.
3 The applicant relied upon her affidavit dated 31 January 2020, and the eight exhibits attached to it. The affidavit was marked as Exhibit “A” on the application. The exhibits to the affidavit included the following:
1) The unsigned statement made by the applicant to police on 11 May 2015. The applicant adopted this statement as her evidence in the prosecution case against Mr Hewitt at the Committal Hearing on 8 August 2016.
2) Reasons for Sentence by Judge Gaynor dated 19 October 2017.
3) Restraining Order dated 20 March 2018, in respect of 36 Bannerman Avenue, Greensborough by this Court.
4) Letter from Ryan Carlisle Thomas Lawyers to the applicant dated 12 June 2018. This letter was not relevant to this part of her application.
5) Medical records of applicant as at 29 January 2020.
6) Victims of Crime Assistance Tribunal (“VOCAT”) Award of Assistance for the applicant dated 22 January 2019.
7) Victim Impact Statement by the applicant dated 19 October 2017.
8) Psychological report by Joan Callahan dated 12 July 2018.
4 In her evidence, the applicant, expanded on her evidence set out in her affidavit. She explained how it was ‘hugely traumatic’ to come forward and make a statement to the police about this offending. The applicant described the relief she experienced when she realised the police believed her about the revelations. She stated the allegations made by her ‘opened up a can of worms for her’. In the applicant’s own words she stated she had a successful working life and family, ‘I’ve got it.’ Her life fell apart. The applicant remains married to her husband, a policeman. He is very supportive of the applicant. She has recommenced employment assisting indigenous students with the advancement of their education. This work has recommence after nearly a year out of the work force.
Relevant provisions of the Sentencing Act 1991
5 The applicant brings this proceeding pursuant to s85B of the Act. Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from the offender. In this case, V3, the applicant, is a “victim” within the meaning of the Act. The respondent, George Herb Hewitt, was convicted and sentenced on 19 October 2017 as the “offender”.
6 The legislative provisions set out in the Sentencing Act relating to s85B compensation claims has been considered by Bell J in RK v Mirik and Mirik,[3] and J Forrest J in Stevens v Baxter.[4] Bell J, with whom J Forrest J agreed, set out the following relevant principles applicable for claims for compensation under the Act:
[3](2009) 21 VR 623
[4][2009] VSC 257
• “The determination of the amount of compensation to be paid to an applicant is entirely within the discretion of the court provided the claims fall within categories set out under s 85B(2).
• An order for compensation is determined by the application, where relevant, of common law principles, however the order itself is one for compensation not damages.
• Where a claim for pain and suffering is maintained, it must be a direct result of the offence.
• The Act does not permit an award for either aggravated or exemplary damages which may be sought in a separate civil claim.
• Expenses, medical or otherwise, actually incurred and reasonably likely to be incurred may be the subject of a compensation order.
• Unlike a common law claim for damages the financial circumstances of the offender are relevant.
• A court is not obliged to reduce the amount of compensation payable on the basis of the offender’s financial circumstances; it is a relevant but not controlling consideration.”[5]
[5]Stevens v Baxter (supra) at paragraph [5]
7 In a more recent case of Cronin & Ors v Lee[6], Taylor J adopted and applied these principles.
[6][2019] VSC 509
8 An award of compensation under the Act is not made as a form of punishment of the offender. His incarceration in prison is the punishment for his offending. The purpose of an award of compensation is to address through the payment of money the injury and loss suffered by the applicant in this case.
9 Section 85(I) of the Act provides that a Court must reduce the amount of the compensation by the amount of any award made to the applicant under the Victims of Crime Act 1966 for the expense or other matter for which compensation is being sought under Subdivision 1 of Division 2 of Part 4 of the Act. In this case V3 was awarded $7,500 by VOCAT on 22 January 2019. This sum will be deducted from the award of compensation made by this Court.
Background to the Application
10 The respondent was sentence for offending against the applicant on 19 October 2017 by Judge Gaynor. The Reasons for Sentence were Exhibit “2” of the applicants affidavit dated 31 January 2020. The applicant was granted leave to bring this application pursuant to Section 85D of the Sentencing Act by Judge Brookes on 2 March 2020.
11 The applicant is the niece of the respondent. The offending against the applicant occurred when she was between nine and 11 years old. The respondent lived with his parents who were V3’s grandparents. The first offending against V3 occurred at her grandparents’ home whilst the cousins were playing a game of hide and seek. The respondent had V3 on his knee counting to 100 whilst the other children ran away and hid. Whilst V3 was in that position the respondent moved his hand inside V3’s underpants and place a finger insider her vagina.
12 The second occasion of offending by the respondent against V3 occurred when she was 11 years old between November 1975 and December 1976. V3 was sleeping on the green couch at the grandparents’ house. The respondent got out of bed during the night and sat on the side of the couch and put his hand inside V3’s pyjama pants and touched her vagina. V3 woke up and asked the respondent what he was doing. The respondent told V3’s mother that V3 had a nightmare and he had given the applicant a drink of water.
13 This summary of offending against the applicant is taken from the Reasons for Sentence. The applicant sets out far more persistent offending in her statement. The salient point that ended this series of offending was when the applicant as a little 11 year old girl told the respondent to ‘get off.’ The applicant, in my assessment, is a strong minded, articulate and clever woman. Her response at that tender age allowed her to resort to the “I’ve got this’ method of self-reliance in order to bury the psychological harm this offending has caused her.
14 The applicant successfully completed her Secondary education. She went on to complete a Bachelor of Applied Science, Diploma of Education and then a Master of Education by Research. The applicant started and conducted a consulting firm in advice for Tertiary educators. In the years 2016 to 2018, the applicant held a senior position of Learning Space Innovation Research for Learning and Teaching at a leading Australian university.
15 From 2018 to early 2019, the applicant was a Director at another leading Australian university with a budget of $400 million. The applicant resigned that employment because of her diagnosed complex Post Traumatic Stress Disorder (“PTSD”) with major depressive episodes.
16 At first blush, the applicant appears to be highly motivated and successful Tertiary educator when the reality was that she was struggling to keep buried her anger, sexual dysfunction, sleep deprivation, and ultimate breakdown in health to the extent of vomiting blood by November 2018. The applicant’s daughter encouraged her to cease working at this high level of stress at the university. The applicant makes no claim for loss of income. The applicant has recently commenced employment as a consultant to indigenous education which she describes as a ‘big dive’ in remuneration compared to her former work life.
17 The applicant is married with three children, all of whom live at home. The applicant described the difficulties she has with intimate relations with her husband. She stated she was unable to enjoy sex. She describes her husband as understanding and supportive of her.
18 The Court processes were very traumatic for the applicant. She described the relief and jubilation she felt when the respondent pleaded guilty after a contested Committal Hearing. I accept that she was ‘gutted’ when four days later she was informed the respondent had reversed his plea of guilty. It was almost a full year after that hearing that the plea of guilty was finalised in the County Court.
19 The fact that the applicant made the allegations against her father’s youngest brother has caused disharmony and dislocation within the applicant’s family. She has tried to repair relations within the family but this has met limited success and satisfaction.
20 I have referred to the clinical diagnosis of Ms Callahan, psychologist. The applicant has received counselling over 15 sessions. The applicant is not on medication. In her own words she self-medicated with alcohol to blunt the emotional pain she experienced due to the offending.
21 Ms Callahan’s diagnosis is complex PTSD with major depressive episodes. The applicant has been diagnosed with sexual dysfunction disorder which has impacted on her ability to enjoy intimacy with her husband. Fortunately, the applicant has an understanding and supportive husband. Ms Callahan recommends the applicant continue to receive counselling to assist her recovery.
22 I accept the offending has had a considerable adverse impact on the applicant in the form of grief and pain due to the betrayal by the respondent by his sexual abuse and breach of trust he owed to his niece.
23 In making my assessment for compensation for pain and suffering, I have taken into account all the matters I have referred to in these Reasons. I have also taken into account that despite the considerable impact the offending has had on the applicant, she had managed to have a career as a teacher, consultant and Director of a significant department in a leading university.
24 Further, she has maintained a relationship with her husband for 33 years. Together they have raised three adult children all of whom still live in the family home. The applicant is a very resourceful and resilient person. The applicant’s resilience does not mean that she has not suffered greatly in terms of pain and suffering and grief at the loss of an uncle and family relationships through the offending by the respondent.
25 I am also required pursuant to section 85H to have regard to the financial circumstances of the respondent. I received no evidence from the respondent about his financial circumstances. He declined the opportunity to give evidence at the hearing. That is his right. The respondent did explain from his position in ‘the dock’ that the restrained property at Greensborough was sold for $640,000. He confirmed that his share of his parents Estate was about $180,000, which was held by the Asset Confiscation Office. He informed the Court that he had agreed to pay $100,000 to V5 (as referred to in the Reasons for Sentence) as compensation. He was unable to give any information about the status of his superannuation from 40 years of working at Bowater-Scott except that he had made some bad investments and has nothing left. The respondent referred to expending funds on two overseas holidays as part of the dissipation of superannuation funds. I am not satisfied that I have been given a full and frank disclosure by the respondent in respect of his financial circumstances.
26 The fact that I am unable to get an accurate picture of the respondent’s financial circumstances does not preclude me from making an award of compensation in favour of the applicant.
27 I assess the appropriate award of compensation for pain and suffering for the applicant to be $75,000.00.
Costs
28 I did not seek to hear any application for costs in this application. I have decided that there be no order for costs in this application. The Act, at s85K, sets out that each party must bear its own costs unless the Court otherwise determines. I am not satisfied this claim for compensation is so exceptional or different from similar claims that a costs order is warranted. This procedure is different from a common-law claim for damages where costs are routinely part of an order.
29 Pursuant to Section 85B (1) of the Act, I order the respondent pay compensation in the sum of $67,500.00 to the applicant, V3.
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