Wright (a pseudonym) v Foster (a pseudonym)
[2024] VCC 1429
•16 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| ANNIE WRIGHT (by her litigation guardian Jiang Chen) (A Pseudonym) | First Applicant |
| and | |
| LINDA HARRIS (A Pseudonym) | Second Applicant |
| v | |
| DONALD FOSTER (A Pseudonym) | Respondent |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2024 | |
DATE OF JUDGMENT: | 16 September 2024 | |
CASE MAY BE CITED AS: | Wright (a pseudonym) & Anor v Foster (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1429 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW
Catchwords: Application for compensation pursuant to s85B of the Sentencing Act 1991
Legislation Cited: Sentencing Act 1991, s85B; s85G, s85H, s85I, s85K; Victims of Crime Assistance Act 1996; County Court Act 1958
Cases Cited:DPP v Foster (a pseudonym) [2022] VCC 1901; Stevens v Baxter [2009] VSC 257; RK v Mirik and Mirik (2009) 21 VR 623
Judgment: Judgment for the applicant, Annie Wright, in the sum of $213,000 as an award of compensation pursuant to the provisions of s85B of the Sentencing Act 1991.
Judgment for the applicant, Linda Harris, in the sum of $87,500 as an award of compensation pursuant to the provisions of s85B of the Sentencing Act 1991. A further in award of costs to the applicant, Linda Harris, in the sum of $9,460 fixed in respect of the costs of the reports and appearance of Dr Adlard at court and the preparation of reports.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr D Nguyen | Shine Lawyers |
| For the Respondent | Mr J Willee | McDonald Legal |
HIS HONOUR:
1In this proceeding, there are two applications for compensation pursuant to s85B of the Sentencing Act 1991(“the Act”) being heard simultaneously. Jiang Chen, acting as a litigation guardian for Annie Wright,[1] seeks compensation from Donald Foster,[2] the respondent. Linda Harris,[3] the second applicant, also seeks an order for compensation from the respondent. The joint applications were issued on 21 August 2023. The respondent had been sentenced by Judge Bayles on 28 October 2022.[4]
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4]DPP v Foster (a pseudonym) [2022] VCC 1901
2The applicants were represented by Mr Daniel Nguyen of counsel. The respondent was represented by Mr Justin Willee of counsel. Mr Willee appeared for the respondent in the criminal proceedings. Mr Nguyen relied upon a written outline of submissions dated 31 July 2024 and made oral submissions in support of the two applicants. Mr Willee made oral submissions on behalf of the respondent. The applicants relied upon the following exhibits in these applications:
· Exhibit “A”, report of Dr Stephen Adlard, dated 19 September 2023 (“Annie Wright”) at Court Book 87 to 101;
· Exhibit “B”, report of Dr Stephen Adlard, dated 28 September 2023 (“Linda Harris”), Court Book 102 to 114;
· Exhibit “C”, application for compensation and exhibits, Court Book pages 27 to 77;
· Exhibit “D”, affidavit of Meg Davies, solicitor, dated 13 December 2023, Court Book 37 to 86 and 115 to116;
· Exhibit “E”, affidavit of Meg Davies, solicitor, dated 13 May 2024, Court Book 125 to 138; and
· Exhibit “F”, patient history of Linda Harris, Court Book 146 to 148.
3The respondent relied upon and tendered the following documents:
· Exhibit 1, letter dated 4 September 2024, from Loftier Business Services; and
· Exhibit 2, Court Book 83 (school report of Linda Harris).
4I note that the sentencing remarks of his Honour Judge Bayles were contained within Exhibit “C”.
5Neither applicant gave evidence in this proceeding. The respondent did not require the applicants for cross-examination and the submissions were made based on the documents tendered.
6The respondent did require Dr Adlard for cross-examination in respect of each of the applicant’s reports, being exhibits “A” and “B”. The thrust of the examination was that the applicant, Annie Wright, had proceeded with her education in a normal and uninterrupted manner, despite the offending against her directly. Dr Adlard’s opinion was that the applicant, Annie Wright, was a very intelligent young girl and she would be able to continue with her education in a high level of achievement, this did not take away from his diagnosis of Post-Traumatic Stress Disorder symptoms (“PTSD”) and Unspecified Depressive Disorder.
7There was only limited cross-examination of Dr Adlard in respect of the applicant, Linda Harris. Dr Adlard maintained his diagnosis of Linda Harris, the mother of Annie Wright, as suffering from PTSD, along with Major Depressive Disorder.
Relevant provisions of the Sentencing Act 1991
1The applicants bring these proceedings 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, the first applicant, Annie Wright, is a direct victim within the meaning of the Act. The second applicant, Linda Harris, who is better described as a secondary victim and the mother of the first applicant and, at the relevant time, partner of the respondent. The respondent was convicted and sentenced on 28 October 2022 as an offender by Judge Bayles of the County Court.
2The legislative provisions set out in the Act relating to s85B compensation claims has been considered by Bell J in RK v Mirik & Mirik[5] and J Forrest J in Stevens v Baxter.[6] Bell J, with whom J Forrest J agreed, set out the following relevant principles applicable to claims for compensation under the Act:
· 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 s85B (2).
· An award of compensation is determined by the applicant where relevant, of the 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 or offending.
· The Sentencing 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 as outlined in s85H of the Act.
· The Court is not obliged to reduce the amount of compensation payable based on the offender’s financial circumstances. It is relevant, but not a controlling factor.[7]
[5](2009) 21 VR 623
[6][2009] VSC 257
[7]Stevens v Baxter (supra) at paragraph [5]
Background to the applications
3The first applicant, Annie Wright, is the daughter of Linda Harris, the second applicant. At the time of the offending, Annie was an eight-to-nine-year-old girl. When she was approximately six years of age her parents separated, and her father returned to China. At the time of this offending, Annie lived with her mother, Linda Harris.
4In or around July 2016, Linda Harris commenced a relationship with the respondent. By December 2017, the respondent had moved into the family home with the applicants, Linda Harris and Annie Wright. The respondent had told the Linda Harris that he was going to be a strong, positive and guiding influence as a father for Annie Wright.
5The offending by the respondent against Annie Wright occurred between January 2018 and May 2018. In May 2018, the couple separated. Nevertheless, the respondent offended on one further occasion after the separation when he had the sole and complete control of Annie Wright in his own home. This was the most significant of the sexual offending against Ms Wright.
6It was not until April 2021 that Annie Wright disclosed to her mother, Linda Harris, the offending committed by the respondent against her.
7In total, there were five separate occasions when the offending by the respondent occurred against Annie Wright. It is unnecessary to detail the nature of the offending, save and except to say, that it was sexual offending against a very young child who was in, effectively, a stepchild relationship with the respondent. He breached both the trust of his stepdaughter, Annie Wright, and her mother, Linda Harris.
8The offending which is detailed in the Prosecution Opening and Reasons for Sentence clearly sets out the process of grooming and trust building prior to the offending by the respondent. The offending did not involve penetrative sexual activity, but was still grave criminal behaviour on behalf of the respondent. He offended for his own sexual gratification.
9The respondent was sentenced to a total effective sentence of four-years-and-nine months’ imprisonment with a non-parole period of two years and eight months. He has been registered on the Sex Offenders Register for life and sentenced as a serious sexual offender.
The second applicant: Linda Harris
10Linda Harris entered into a relationship with the respondent in 2016. By the end of 2017, the respondent had moved into Linda Harris’ home. Linda Harris had placed full and total trust in the respondent as someone who could fill in the role of a father for her daughter.
11In her victim impact statement, Linda Harris set out the shock and panic that she felt when her daughter had disclosed the criminal events to her. She further stated how she felt betrayed and could not believe that the offending had occurred. She blamed herself and felt guilt for not protecting her daughter. Furthermore, Ms Harris, set out how she felt angered, ashamed and disgusted, and continues to have intrusive thoughts about what the abuse meant for her daughter. She is extremely worried about her daughter all the time and is very careful about what she says in front of her, and that she will not be able to enter into a new relationship herself, due to her loss of trust in everyone.
12Ms Harris has been assessed by Dr Adlard, psychiatrist, for the purpose of this application. In his evidence and in his report dated 28 September 2023, Dr Adlard maintained his opinion that the applicant, Linda Harris, had developed a significant psychiatric illness as a result of the sexual abuse of her daughter. In Dr Adlard’s opinion, the second applicant, Linda Harris, presents with symptoms and signs consistent with both PTSD, along with Major Depressive Disorder.
13Dr Adlard stated that Linda Harris will need to continue with psychological treatment in the next two-year period, which he estimated to cost between $5,000 and $9,000. He further noted that at a later stage of the first applicant, Annie Wright’s life, that the second applicant, Linda Harris, may need to attend further psychological treatment, which he estimated to be in the order of $2,500 to $3,000.[8] Dr Adlard also noted that the second applicant, Linda Harris, will probably require attendance on a psychiatrist with the administration of antidepressant medication, and his estimate of that treatment is $4,000 to $6,000.
[8]CB 113-144
14The grief and mistrust giving rise to the diagnosis set out by Dr Adlard for the second applicant, Linda Harris, are proper considerations for the award of compensation for pain and suffering in this application. I assess the appropriate sum of compensation for pain and suffering for the applicant, Linda Harris, to be $80,000. I further award the sum of $7,500 for past and future medical treatment by way of medications, psychiatric and psychological treatment that the applicant, Linda Harris does, and will require, into the future.
The first applicant: Annie Wright
15At the time of the offending against her, Annie Wright, was eight-to-nine years of age. The respondent was some thirty-seven years older than her. The respondent was her mother’s new boyfriend and became, in effect, a father figure in the household. Annie Wright stated in her victim impact statement how she was so happy to have a father role in her life. The respondent has completely abused the trust that Annie Wright placed in him.
16As mentioned, a victim impact statement was filed by Annie Wright in the criminal proceedings and it was also filed in this application. The applicant, Annie Wright, described how much she looked up to the respondent. She trusted him and saw him as a father for her. She further set out her confusion and lack of understanding about the matters that constituted the first part of the offending. Initially she felt it was her fault and she was the person who had done something wrong. As time went on, she lived in fear about what the respondent would do to her when her mother was not present. As a little girl, and looking back, she blamed herself for not stopping it. She felt ashamed of what had occurred.
17In the course of one occasion, the respondent’s offending involved her practising her gymnastics. The applicant, Annie Wright, has ceased doing gymnastics. She has also ceased playing basketball. She stated to Dr Adlard that she had withdrawn from her previous life in the sense that she has few friends and basically stays in her own room, in her own house. All of these consequences and reactions by Annie Wright are at a time when she is going from effectively Year 6 in primary school to secondary school at Year 7 level, as a result of the respondent’s offending.
18Dr Adlard, in his report which was Exhibit “A”, has diagnosed Annie Wright as suffering from PTSD as a direct result of the respondent’s serious and repeated sexual abuse. The applicant, Annie Wright, continues to re-experience and reminder symptoms of that trauma. The symptoms affect her concentration and sleep. She is now hypervigilant.
19In Dr Adlard’s evidence, he maintained that the applicant, Annie Wright, also suffers from an Unspecified Depressive Disorder. He noted that because she was a very intelligent young girl, she could cover most of the symptoms when she was at school by concentrating on her studies. Dr Adlard said this accounted for her ability to continue doing reasonably to very well at school, despite the offending by the respondent. I accept that opinion. Dr Adlard also opined that he thought the applicant would have considerable difficulty with relationships in the future, particularly involving the trust of men and involving sexual contact with men.
20In Dr Adlard’s opinion, he thought the applicant, Annie Wright, would require psychological support and counselling, which would cost in the order of $10,000 to $16,000 over a period of two to three years. He went on to say, in the event that Ms Wright was to become a mother, having her own children, she would need further counselling at that time, which he estimated to be in the order of $3,000 to $7,000. In that part of his opinion, it is an assumption by Dr Adlard that Annie Wright will in fact go on to be a mother in her future life. That is unknown. At this time, the applicant, Annie Wright, has not attended any psychological treatment and has in fact declined the offer of such.
21I accept that the applicant, Annie Wright, in time, will require some treatment by psychologists in an extensive and extended manner, as a result of the accepted diagnosis by Dr Adlard. The applicant, Annie Wright, is young and has a long and extended life in front of her. The impact of this psychological and psychiatric sequelae as a result of the offending against her by the respondent is significant.
22I assess the appropriate level of compensation for pain and suffering for the applicant, Annie Wright, to be $200,000. I allow a sum of $13,000 for future psychological treatment, as the minimum figure set out by Dr Adlard at page 100 of the Court Book.
23I note that the applicant, Annie Wright, is a minor and the order for compensation will be for the sum of $213,000 to be paid to the Senior Master of the Supreme Court and held by that court on behalf of the applicant, Annie Wright, until she becomes an adult pursuant to s39C of the County Court Act 1958.
Financial circumstances of the Respondent
24Pursuant to the provisions of s85H of the Act, I am required to take into account the financial circumstances of the respondent in the proceedings for compensation brought against him. I have done so. In the course of this hearing, Exhibit 1 was tendered as an outline of the net financial position of the respondent. The letter sets out that his nett position is approximately $410,000.
25The respondent gave evidence at the commencement of this proceeding, setting out his financial position. His evidence did not directly align with the matters set out in the letter of 4 September 2024 prepared by Loftier Business Services, who I understand to be his accountant. The respondent referred to a portfolio of shares and how the proceeds of the sale of those shares had been placed in the Bank of Melbourne account, which has a balance of approximately $330,000. Further, he is a director of a company which manages the superannuation fund for himself. It was unclear from his evidence what amount of money was held in a currently in the superannuation fund for the respondent. It is not referred to in any way in the letter dated 4 September 2024, which was Exhibit 1.
26The respondent is approximately fifty-two years of age, and may be fifty-four before he is released from prison. He is a qualified engineer and presented in an articulate in the manner in which he spoke. I have no doubt, upon his release from prison, that despite the submissions of his counsel, the respondent will be able to obtain employment.
27Nevertheless, the awards I propose to make and the assessments I have completed on the two applicants’ claims, are able to be satisfied within the net position set out in the letter of 4 September 2024, which was approximately $410,000.
28I am satisfied that the respondent will not be destitute upon his release from prison as a result of these orders and that he will have more than sufficient capacity to regain employment and have somewhere to live once released from prison.
Orders
29I order that the respondent pay the sum of $87,500 to the second applicant, Linda Harris, pursuant to s85B of the Sentencing Act.
30I note that the second applicant, Linda Harris, has made no claim under the Victims of Crime legislation, and hence s85I of the Act has no application in this case.
31I award compensation to the first applicant, Annie Wright, in the sum of $213,000. I further order that, pursuant to s39C of the County Court Act, the sum of $213,000 be paid to the Senior Master of the Supreme Court, to be held by that court on behalf of the applicant, Annie Wright.
32I note that the applicant, Annie Wright, has made no claim under the Victims of Crime legislation and hence s85I has no application in this case.
33Pursuant to s85K of the Sentencing Act, I order that the respondent pay the sum of $9,460 costs of the application in respect of the reports prepared by Dr Adlard and his attendance at court. The reason for awarding the costs in respect to Dr Adlard’s report is that his expert evidence was important to the case for the applicants and that the respondent was entitled to challenge that evidence, and did so. I have directed this award of costs be made to Linda Harris as she is both an applicant and parent of the first applicant who actually lives in the jurisdiction.
34I further order that the parties otherwise bear their own costs.
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