| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VMH by her next friend THE PUBLIC TRUSTEE -v- JAB [2014] WADC 47 CORAM : WAGER DCJ HEARD : 1 MAY 2013 (GOETZE DCJ) & 12 MARCH 2014 DELIVERED : 9 APRIL 2014 FILE NO/S : APP 91 of 2011 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN : VMH by her next friend THE PUBLIC TRUSTEE Appellant
AND
JAB
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : R GUTHRIE File No : CI 000884 of 2011 Catchwords: Appeal from assessment of quantum of criminal injuries compensation award - Proved offences - Alleged offences no person charged - Intellectual disability - Turns on own facts Legislation: Criminal Injuries Compensation Act 2003 Result: Appeal allowed
Award of $72,420
Representation: Counsel:
Appellant : Mr B L Nugawela
Respondent : No appearance
Amicus Curiae : Ms A Johnson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General on 1 May 2013
Amicus Curiae : Ms R K Hill appeared on behalf of the Chief Executive Officer of the Department of the Attorney General on 12 March 2014
Solicitors:
Appellant : Public Trustee (WA)
Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chappell v Bowe [2006] WADC 29
MJN v MAJS (2003) 35 SR (WA) 219
RJE v Bandy (Unreported, WASC, Burt J, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
1 WAGER DCJ: VHM appeals the decision of Mr R Guthrie, Assessor of Criminal Injuries Compensation, awarding her $12,300 in respect of offending against her by JAB and $5,000 in respect of offences for which no-one was charged but that the assessor was satisfied had occurred between 1989 and 31 October 2004 at various locations. A further $2,300 was ordered for a medical report and personal items. The sum of $2,000 was ordered to be the subject of recovery from JAB.
2 The grounds of appeal are set out in the notice of appeal dated 9 December 2011. Grounds 1 and 2 relate to the offending by JAB: s 12(2). Grounds 3 and 4 relate to the offending by persons unknown: s 17(2). The grounds are as follows: 1. The Assessor failed to give sufficient weight to the evidence of (VMH's) intellectual disability as a factor preventing her from articulating the psychological trauma caused by the proven offence. 2. The Assessor failed to give sufficient weight to the evidence of (VMH's) psychological trauma, and the fact that she was suffering ongoing nightmares as a consequence of the proven sexual assault. 3. Having found that there were numerous instances of sexual abuse against (VMH) by persons other than the Respondent and having amended the application to include an application under s 17(2) of the Criminal Injuries Compensation Act 2003 (WA), the award of $5,000 is manifestly inadequate. 4. Having found that there were numerous instances of sexual abuse against (VMH) by persons other than the Respondent and having amended the application to include an application under s 17(2) of the Criminal Injuries Compensation Act 2003 (WA), the Assessor ought to have requested further submissions and evidence from the Appellant to enable him to assess the consequences, injury and loss to (VMH) arising out of those alleged offences. By failing to do so, the Assessor denied the Appellant a proper opportunity to advance (VMH's) claim for compensation on the other alleged offences and as such constituted a denial of natural justice. 3 JAB has been served with a notice of appeal but has not taken any step in it: District Court Rules 2005 r 56(3). 4 An appeal under the Criminal Injuries Compensation Act 2003 is a hearing de novo. I need to be satisfied on the balance of probabilities the alleged acts of sexual abuse that were not perpetrated by JAB did occur and that the claimed injury and loss has occurred as a consequence of the commission of those offences before an award of compensation in respect of those acts can be made: s 17. 5 The appellant seeks to introduce additional evidence including a psychiatric report prepared by Dr Kay dated 3 January 2014 and school, DCP, DSC and medical notes relevant to both the s 12(2) and s 17(2) claims. 6 The court has a general discretion to receive and admit further evidence: s 56(1). Given the appeal is a fresh hearing and that materials specifically relevant to the s 17(2) alleged offences were not before the assessor when he made the order there was no reason why the evidence should not be received. This will place the court in a better position to determine the compensation entitlement: Chappell v Bowe [2006] WADC 29 [37]. 7 VMH was born on 22 April 1987. She is a disability pensioner because she suffers from cognitive impairment which denies her any capacity for realistic judgment or insight. Her IQ has been reported as being 'at about the borderline level'. She functions in this 'mild retardation' range: AB 86. 8 The respondent JAB is VMH's uncle.
Facts giving rise to the claim for criminal injuries compensation 9 On 9 August 2008 JAB indecently assaulted and twice sexually penetrated VMH without her consent, such penetration being digital and penile. At the time VMH was approximately 32 weeks pregnant. 10 On 24 June 2010 JAB pleaded guilty to all three offences and was imprisoned for a period of four years backdated to 20 November 2009, the date when he was taken into custody. He was made eligible for parole, however it is not known whether he was granted parole. 11 The learned assessor was provided with: 1. A victim impact statement of VMH, being the same victim impact statement provided to the sentencing judge. 2. The statement of material facts from the prosecution brief. 3. Other material from the prosecution brief. 4. A report from Dr George Lipton, consultant psychiatrist dated 16 February 2011. 5. Progress reports from the Disability Services Commission revealing, amongst other things, that VMH had been a victim of both physical and sexual abuse on several occasions. One report, dated 23 October 2008, detailed the allegations against JAB together with an action plan to assist her in coping with the offending by him against her. Another report, dated 4 November 2008, described VMH's family background and her then situation. 6. Copies of orders from the State Administrative Tribunal appointing The Public Trustee to be plenary administrator of VMH and her father to be her limited guardian. These orders were made on 13 January 2010 and 12 January 2012 respectively. 7. 'Sexual Violence Against Intellectually Disabled Victims', an article by Associate Professor S Hayes, Head Department of Behavioural Sciences in Medicine, University of Sydney, NSW. 12 The application for criminal injuries compensation was brought pursuant to s 12 and did not rely upon any other matter other than the offending by JAB.
Grounds 3 and 4 – The offending by persons other than JAB 13 The learned assessor unilaterally determined to amend the application to include sexual offending by persons other than JAB. This was no doubt because the material filed in support of the application revealed other offending of a sexual nature against VMH. The assessor specified that the abuse was 'at the hands of her stepfather in 2004 and probably her father sometime earlier', and further, that there was also sexual activity to which she may have 'consented', but which consent was 'vitiated' by reason of her mental impairment. 14 The assessor did not seek further submissions nor evidence from VMH as to these matters. 15 The appeal book contains blue paper copies of materials that were provided to the assessor and white paper copies of further materials that were not supplied to the assessor. The appellant seeks to rely on all materials. 16 It does not appear that there is any document indicating that VMH was sexually abused by her father save to say that her mother believed the father to have been a paedophile: AB 114, and a note that in August 2008 VMH is reported to have told another person that her father 'has physically and sexually abused her all of her life', recorded in a DCP report in respect of future care for her unborn child: AB 142. 17 The father was VMH's guardian from 1988 onwards when VMH's mother left to live with another man, JD. On assessment the father is described as having 'always been the primary carer' for VMH and her brother: AB 99. It is noted that 'over the years there have been many contacts with the family, largely because of the father's limited parenting skills or harsh punishment methods': AB 99. In response to concerns raised in June 1999 that VMH was masturbating on the school bus her father reported that she had put her hands into her underwear since an early age: AB 98. There is no admission nor allegation that her actions in masturbating were prompted by any sexual offending perpetrated by her father. 18 In December 2000 a report was made to the Peel District Office DSC that VMH asked her 11-year-old cousin to 'put his ? in her?' saying 'it's been done to me': AB 96. At that time VMH was 13 years old. The report indicates that following this revelation she was taken outside and beaten over the head by her father leaving bruising and swelling. 19 In 2001 VMH disclosed that she had been staying with her father at a caravan park in Sydney when A, a 20-year-old male, touched her: AB 98. 20 During 2004, VMH moved to Geraldton to live with her mother and her mother's partner JD. The DCP reported that it had substantiated allegations that JD sexually assaulted VMH in 2004. The reports state that the offending was with her mother's encouragement because her mother (who also suffers from a mental and intellectual disability) was infertile and wanted VMH to have JD's baby. The mother then intended to rear the baby: AB 159, AB 171. VMH was returned to live with her father: AB 3, AB 67, AB 111 – 112, AB 124, AB 127 – 128, AB 160- 164, AB 166, AB 138, AB 170 – 171. 21 In evidence not supplied to the learned assessor VMH was said to have claimed that 'nothing happened' with JD: AB 111, however a detective observed JD touch VMH in an inappropriate manner: AB 116. JD was reportedly charged but it is not known if a conviction resulted. On 18 July 2011 VMH applied for a violence restraining order against JD as a result of his sexual abuse of her. 22 In 2004 a person named AJ from her school allegedly raped VMH. Soon after on 28 September 2004 VMH reported the offence in detail to her teacher and principal: AB 91. The principal spoke to VMH's father noting 'father did not want to go to police'. The school report noted VMH said 'she didn't tell dad because he would get mad': AB 91. A 'People at Risk Plan' dated 1 November 2004 notes the father supported VMH to report to police about AJ: AB 116. VMH reported that she suffered bad dreams in the context of her complaint about AJ: AB 91. 23 The charge against AJ was either dropped by reason of inconsistency arising from VMH's police statement (AB 91, AB 93 and AB 94, AB 114, AB 120 and AB 151), or because it was retracted two weeks after the alleged incident: AB 116. 24 VMH also claimed that another uncle, K, indecently dealt with her on 10 September 2005: AB 138. 25 In December 2004 VMH admitted to several sexual partners during the previous five years, that is, from the ages of 12 years to 17 years. In January 2005 reports disclosed that VMH suffered genital herpes: AB 144. She has a history of sexually transmitted disease: AB 145.
Grounds 1 and 2 – The offending by JAB 26 The offender accepted the statement of material facts contained within the prosecution brief. At the time of the offending VMH was 21 years old and 7 months' pregnant: AB 148, AB 404. The offender was VMH's uncle. He came to visit her on an isolated property and led her to a donga. Once inside and with the door secured he touched her on the breasts. She told him to cease however he told her he had not had sex for three months and proceeded to place his hands down her pants and digitally penetrate her vagina with two fingers. She again told him to stop. He then pushed her onto the ground and penetrated her vagina with his penis. She told him on numerous occasions to stop and not to lie on her stomach because she was pregnant. Nonetheless he continued penetration until he ejaculated inside her vagina. The offender then told her not to tell anyone about the offending. 27 According to VMH's victim impact statement she was worried about her unborn baby because she thought the baby would be hurt. She was frightened. She suffered bruising (which is consistent with the bruising noted on medical examination): AB 50. VMH stated she experiences nightmares about what happened in the donga. She would wake up and feel scared. She did not like being alone because she became frightened. She remains frightened it may happen again. When she was shown a picture of her uncle she felt frightened. 28 A DSC document reveals that this was not the only time VMH alleged sexual offending by JAB: AB 43.
The medical reports 29 The learned assessor had only one psychiatric report to consider being the report of Dr George Lipton, consultant psychiatrist, dated 16 February 2011 that was prepared when VMH consulted him accompanied by her father. 30 Dr Lipton's report was challenged by VMH's counsel Mr Nugawela on the basis that: 31 For these reasons Mr Nugawela submitted that Dr Lipton's report was insufficient. Mr Nugawela sought and obtained an adjournment of the appeal so that a further report (the report of Dr Kay dated 3 January 2014) could be obtained. In summary Dr Lipton sets out at that time he was of the opinion that: 1. VMH had an IQ which he estimated 'at about the borderline level'. 2. She did not have any apparent insight, nor did he think she had a capacity for realistic judgment. 3. It was a little hard to assess her emotional injuries, part of which was probably related to her level of intellectual development. Nevertheless she had had, and continued to have, bad dreams about JAB. These woke her up. Dr Lipton thought the dreams should be ascribed to her trauma and diagnosed her as suffering a mild post-traumatic adjustment disorder. 4. Her emotional state has been influenced both by the events of sexual offending and also by reason that the DCP took her baby from her after it was born. 5. VMH was making her own adjustments in life. Her symptoms did not interfere with her life. She did not require ongoing psychological or medical treatment. 6. VMH felt unsafe and was relieved that her uncle was in prison. JAB was sentenced on 24 June 2010 to a term of 4 years' imprisonment with eligibility for parole backdated to 20 November 2009. Dr Lipton expected that in due course VMH would learn of his release. It was difficult to anticipate whether VMH would be compromised in the future should her uncle re-appear in her life however Dr Lipton assumed that VMH will be compromised when she learns of his release. 7. VMH did not demonstrate any loss of function. 32 It was noted, consistent with material contained in the appeal book, that the baby with whom VMH was pregnant when the offending occurred was taken away from her in hospital soon after his birth by the DCP. The reason why the DCP took the baby into care was primarily because VMH's partner had in the past been charged with abusing his own children, approximately six of them, and DCP did not wish to have the baby left with him. The DCP was also concerned about VMH's ability to parent given her disability and inability to comprehend the care a baby required. She had access to the child. At the time of the birth she was living with her natural father and his parents. VMH's partner was killed in a motor vehicle accident on 4 June 2012: AB 174, AB 176. 33 VMH's father told Dr Lipton that he did not think that she had changed much as a result of the offending by her uncle. He recognised how upset she was when her baby was taken away implying her distress was related to separation from her son. 34 It is difficult to assess the impact of the father's presence on VHM's responses reflected in Dr Lipton's report. As a result of the material contained in the appeal book, I am satisfied the father had limited parenting skills and was physically violent towards VMH. I am also satisfied he was not protective of her sexually. However, I am not satisfied that he sexually abused her. I have reached these conclusions because of the repeated comments in the DCP and DSC reports in respect of the father's parenting including the report that, on the occasion VMH was challenged about sexually abusing her cousins when she was aged 13, she made comments implying she had been sexually penetrated before and her father responded by beating her physically resulting in injury. I also accept that he failed to protect her from sexual corruption because he took no action in response to her allegation that his friend A had sexually touched her. I find the father's previous violent conduct and response would have led VMH to the belief that he would be mad if she made a complaint in respect of the sexual assault perpetrated by AJ. 35 Dr Lipton is a highly qualified expert, however his findings were based on information that minimised the offending against VMH and minimised her response to it. The report is therefore of limited weight. 36 Dr Kay, psychiatrist, examined VMH on 18 December 2013 when she was accompanied by her companion Dave. I accept Dave is DJB who has sworn an affidavit dated 20 March 2014 in support of VMH's appeal. Dr Kay describes VMH as being a sparse historian. DJB was able to 'flesh out the history': Dr Kay report 3 January 2014. 37 Dr Kay refers to Dr Lipton's report and notes that although Dr Lipton noted a number of symptoms such as nightmares compatible with psychiatric distress he did not make a specific psychiatric diagnosis. Dr Kay notes that it has (subsequently) come to light that VMH was probably sexually assaulted at other times before the rape. 38 VMH was reluctant to talk to Dr Kay about her adverse experiences and tended to minimise any problems thus arising. It was through DJB that Dr Kay was advised that DJB had known VMH and her partner Paul since before the rape by JAB. DJB describes VMH as having been a bubbly fun-loving gregarious girl. DJB notes her personality changed markedly following the rape. She became quieter and more withdrawn. DJB assesses that she is now somewhat better than she was immediately after the rape but has not returned to her previous self. DJB also refers to VMH conducting herself in a manner that is hyper-vigilant. He describes her clinging to him in the shopping centres and the like, particularly when she sees people she finds threatening. DJB describes VMH as being a poor sleeper, sleeping about three hours at a stretch without medication at night and suffering night sweats and nightmares with obvious restlessness. Sometimes she climbs into bed with DJB for what, Dr Kay was advised, is platonic support. Dr Kay accepted the information provided by DJB. 39 A DCP report on planning/preparation for birth of C October 2012 notes under the heading Self-Care/Wellness Plan: 'DJB (DB) (V shares a house with David)'. The reference in the plan to DB is in the context of people known to her who could offer support to her if she felt low about being separated from her baby. I accept DJB is a support person for VMH. 40 I also accept DJB has known VMH for over 10 years and she has lived in his home with him since at least late 2013. DJB confirms the information relied on by Dr Kay is accurate: affidavit of DJB sworn 20 March 2014. Based on that information, Dr Kay made the following assessment in response to the questions posed: 41 I accept the expert opinion of Dr Kay. The opinion is based on accurate information provided by DJB.
General principles 42 The maximum compensation payable in respect of both the non-charged events and the offending by JAB is $75,000 for each course of conduct: s 31. The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463. 43 I need to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definition of 'injury and loss' in the Act and subject also to the jurisdictional limit imposed by the Act: RJE v Bandy (Unreported, WASC, Burt J, Library No 1365, 31 May 1974) 3. 44 Mental and nervous shock are included in the definition of injury under the Act and include adverse mental reactions. Post-traumatic stress disorder is an adverse mental reaction.
Findings on non-charged events 45 It appears that the learned assessor made a finding that the father, stepfather and others sexually offended against VMH. 46 The burden of proving this behaviour rests on VMH and the standard of proof is the civil standard, such that she must prove on the balance of probabilities that it is more probable than not that an alleged perpetrator sexually interfered with her. Given the serious nature of such an allegation, it is appropriate that it be proved to the civil standard, bearing in mind the requirements of Briginshaw v Briginshaw (1938) 60 CLR 336, 361 as follows: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences. 47 Although it is clear VMH was inappropriately sexualised as a child and suffered some sexual interference prior to 1996 that, given her young age was contrary to law, there is no evidence to the civil standard that her father was the perpetrator. 48 There is only one recorded report of a disclosure by VMH that A touched her when she was 14 years old. I am however satisfied this occurred because her father was not protective of her enabling A to take advantage of an opportunity to touch her sexually. 49 I am also satisfied that the sexual assault alleged against AJ in 2004 occurred. I accept the reports of the teacher and principal who had concerns about AJ's conduct. I also accept VMH made a detailed complaint to the teacher and principal soon after the alleged assault. The charges were retracted or dropped but this must be considered in light of VMH's perceiving her father as being unsupportive of VMH making a complaint because in the past her father had beaten her when she complained of being sexually penetrated at the age of 13. Her retraction of or the dropping of any charges relevant to AJ must be considered in the context of VMH's intellectual disability, her fear of physical violence and her fear of making her father mad in the event that she chose to proceed. 50 I am also satisfied JD sexually offended against VMH on more than one occasion. The DCP reports include the detective's observation of inappropriate touching by JD. The appeal book contains reports of VMH's mother's actions and VMH's application for a violence restraining order against JD. The reports are consistent with JD's offending conduct. 51 Although reference is made to an uncle, K, and a significant history of sexually transmitted diseases I am not satisfied given the serious nature of the allegations that any further offending has been proven to the civil standard. 52 I accept VMH has been the victim of sexual abuse since she was a child. Although, consistent with Dr Kay's report, this abuse appears to have had a minimal effect upon her, the previous assaults have made her more sensitive to the adverse consequences of future assaults. I accept, consistent with Associate Professor Susan Hayes' findings in her article: AB 8, that the feelings experienced by non-disabled victims of sexual violence are also experienced by victims with an intellectual disability, except that intellectually disabled victims are at a further disadvantage because of their feelings of helplessness and powerlessness in most other areas of their life, and their poor verbal skills which may inhibit attempts at counselling. 53 I accept the sexual offending against VMH prior to the offending by JAB caused a desensitisation and confusion in respect of sexual choice and a feeling of helplessness and powerlessness. 54 The DCP reports refer to VMH being directed, when living with her father and/or mother and stepfather, to attend counselling or other programs. These attempts were often not successful and it is suggested that was because VMH lacked parental support to attend counselling and because of the difficulties identified by Associate Professor Hayes. I accept, given VMH's concerns about her nightmares, that she is willing to attend the counselling sessions recommended by Dr Kay in order to be assisted. I also note she has the support of DJB who is concerned about her future welfare and is likely to assist her to attend counselling sessions.
Award for non-charged events 55 For the reasons outlined the award for non-charged offending is the sum of $10,000.
Findings on offending by JAB 56 I accept Dr Kay's assessment that VMH suffers a chronic post-traumatic stress disorder having experienced nightmares in relation to the offending by JAB and related sleep disorders and having become hyper-vigilant and withdrawn socially. Dr Kay's report and assessment is based on information provided by DJB. 57 I accept the history provided by DJB to Dr Kay is accurate. 58 I find VMH's belief or hope that JAB be incarcerated forever is part of the fear she experiences on a daily basis. VMH was pregnant when the offending occurred. She was worried about the baby being hurt. Clearly VMH was angered and depressed by the actions of the DCP in removing her son after the alleged offending. Since the birth of her son VMH's partner from that time has died and she has given birth to a daughter who has also been made the subject of care and removed from her care by the DCP. However, her nightmares and her concern about JAB's incarceration relate solely to JAB and not to other matters. It is her fear of JAB and the response to his offending that has materially contributed to her symptoms of post-traumatic stress disorder consistent with the assessment of Dr Kay. 59 I find it is not possible to fully disentangle the consequences of VMH having her children taken from her and the death of her partner from the consequences of the sexual assault by JAB. VMH is entitled to compensation for the full injury and loss suffered because she has established the offences by JAB contributed materially to her injury: MJN v MAJS (2003) 35 SR (WA) 219 [47] – [52]; TAW v NJS [2011] WADC 187 [84].
Award for offending by JAB 60 I accept, consistent with Dr Kay's report, VMH's chronic post-traumatic stress disorder relates to the offending by JAB. The previous sexual assaults have made her more sensitive to the adverse consequences of the assault by JAB. For this reason the rape by her uncle has had a significant deleterious effect upon her. I allow an award in respect of the offending by JAB in the sum of $55,000 together with additional sums of $100 for damaged clothing, $2,200 for the report of Dr Lipton, $1,200 for the report of Dr Kay and $9,120 to cover 40 sessions of treatment with a clinical psychologist at the rate of $228 per hour. 61 The award is as follows:
| Injuries s 12 | $50,000 | | Injuries s 17 | $10,000 | | Damage to personal items | $100 | | Provision of two psychiatric reports | $3,400 | | Future treatment: psychological counselling | $9,120 | | Total | $72,620 | |