JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : K [2023] WACIC 3

CORAM : R CAPARARO

DELIVERED : 5 APRIL 2023

FILE NO/S : CIC 239 of 2021

BETWEEN : K
Applicant

Catchwords:

Nil

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 9, s 12, s 16, s 17, s 30, s 31, s 33, s 34, s 45, s 64

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Sparke Helmore Lawyers

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

AKM v GJH [2020] WADC 152
B v W (1989) 6 SR (WA) 79
Hansen v Bolton [2017] 25 WADC [14]
Hatfield v Under Secretary for Law (Unreported, WASC Library No 4012, 15 December 1980)
Houlahan v Pitchen [2009] WASCA 104 [107]
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 [125]
S v Neumann (1995) 14 WAR 452 [463]
Underwood v Underwood [2018] WADC 13

Reasons for Decision:

1 By application dated 12 February 2021, “K” (the applicant) made an application for compensation for incidents in the period between 31 July 1993 and 1 November 1993. On 14 June 2022, I awarded the applicant $100,000. The offender, ACC, has advised of his intention to appeal the decision. The reasons for my decision are set out below.
2 The application was made pursuant to sections 12 and 16 of the Criminal Injuries Compensation Act 2003 (the Act). Section 12 of the Act authorises an assessor to award compensation if satisfied the injury claimed occurred as a consequence of a proved offence. Section 3 of the Act provides a proved offence is a ‘crime, misdemeanour or simple offence of which a person has been convicted’.
3 Sections 16 of the Act authorises an assessor to award compensation if satisfied the injury claimed occurred as a consequence of alleged offences in certain circumstances. Section 3 of the Act defines an alleged offence as a ‘crime, misdemeanour or simple offence of which no person has been convicted’.
The offences
4 The applicant was born on 10 August 1979 and is currently aged 43 years. At the time of the offences the applicant was 14 years.
5 The offender was convicted of offences between 31 July 1993 and 1 November 1993 of indecently dealing with a child over 13 years and under the age of 16 years at Koongamia in the District Court at Perth on 4 April 2018.
6 The offender was charged with 30 charges relating to the applicant on various dates between 31 July 1993 and 13 March 1994.
7 On 17 January 2017 counts 1, 2 and 5 were discontinued, these related to allegations of indecent dealing in the period 31 July 1993 to 22 August 1993 at Hovea and a date unknown between 31 July 1993 and 13 March 1994 at Koongamia.
8 A further indictment was filed on 16 March 2018, comprising of 27 charges relating to the applicant. The trial proceeded and on 21 March 2018 a further 4 counts, that had not formed part of the original indictment, were discontinued. The offender was convicted of a single offence against the applicant as identified above.
9 The offender was acquitted of over 20 counts relating to the applicant, with these generally related to allegations of sexual penetration and indecent dealing.
Proved offences
10 The offender was convicted of an incident on a date unknown between 31 July 1993 and 1 November 1993 at Koongamia. This pertained to the offender showing the applicant and an associate of the applicant video footage on a handheld video camera that the offender owned. The footage showed school aged boys, some naked in the showers in a changeroom, with the penises of the naked boys in the video able to be seen. The offender told the applicant and his associate that he had shot the video himself at school. At the time of these incidents the offender was aged 21 years.
Alleged offences
11 The applicant also alleges on the same date the offender had showed him porn containing boys and children. On other occasions he had showed the Applicant gay porn, normal porn and child porn. These did not form part of the offences for which the offender was charged.
12 His statement records the alleged offender mainly showed him child porn with young children in them. The offender was not charged with these incidents, but I accept that they occurred and whilst they did not form part of the award were indicative of behaviour generally of the alleged offender.
13 I am satisfied a proved offence as defined in the Act was constituted. I am also satisfied alleged offences, which had been discontinued, were likely to have occurred and that alleged offences as defined by section 16 of the Act were constituted.
Extension of time
14 The application was lodged by the applicant on 12 February 2021. The offence for which the offender was convicted occurred in November 1993. This is a delay of 28 years.
15 Pursuant to section 9(2) of the Act an application for compensation must be made within three years after the date on the offence relates was committed; or if it related to more than one offence, the date on which the last one of those offences were committed. However, an assessor may allow an application for compensation after the three year period if she or she think it is just to do so on any conditions that he or she thinks it is just to impose.
16 As the last incident alleged occurred in 1994, the application was required to be lodged by 1997. The application was in fact lodged on 12 February 2021. Accordingly, the applicant requires an extension of time within which to bring his application for compensation.
17 His Honour Judge Herron, DCJ outlined the factors relevant to the exercise of the courts discretion in considering when it is appropriate to allow an extension of time. Factors that may be relevant to the exercise of the court’s discretion under s 9(2) of the Act include:
(a) the history of and background to the proposed application;
(b) the length of the delay;
(c) the reasons for the delay;
(d) the nature of the proposed application;
(e) the consequences for the parties of grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f) the prospects of the compensation application succeeding; and
(g) whether injustice will be suffered if an extension of time is refused.
18 I accepted the applicant had had a troubled life since the incident being incarcerated from an early age. The applicant had substance abuse issues, as well as ongoing mental health issues. He did not report the incident to police until his mid-thirties, after which time the offender was prosecuted.
19 The applicant was only released from prison in 2019 and found the process of providing evidence about the incidents to police difficult.
20 The applicant recorded in his victim impact statement he did not feel mentally capable of bringing the application immediately after the conclusion of the trial against the offender as he did not want to remember the incidents again. He also recalled difficulties in obtaining assistance due to his ongoing incarceration and hospitalisations.
21 I accepted it was just and reasonable in the circumstances to grant an extension of time in which the applicant could lodge his application for compensation.
Evidence
22 In support of the application, the applicant provided the following documents:
(a) District Court transcript of sentencing.
(b) Statement of applicant dated 20 January 2021.
(c) District Court indictment and list of witnesses.
(d) Applicant’s police statement dated 28 August 2015.
(e) Report of Diane Paddon-Jones, Southwest Psychological Solutions dated 27 April 2020.
(f) Letter from Annie Rickman, Southwest Support Coordination, undated.
(g) Psychiatric report of Dr Adam Brett, Consultant Psychiatrist, dated 10 May 2017.
23 In addition, a notice was issued to the Department of Corrections for a copy of all documents relating to the applicant, in particular his medical records.
24 Where applicable these documents will be referred to further below.
25 In the statement of the applicant dated 20 January 2021, the applicant states, that he had a good childhood and was a happy kid with older sisters and that his parents had separated when he was four. He participated in little athletics and judo and was always happy and safe. He confirmed that he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and was a rebellious child, but just prior to the incident he had moved from his mother’s home to live with his father. He recalls being happy living with his father, having two step‑brothers and one step‑sister.
26 In relation to the circumstances of the incident, the applicant recalls that in 1993 when he was 13 years he met the offender. He identified himself as “Adam Troy” and he had met him on the bus. The applicant recalls he later found out the offender’s true name was in fact ACC.
27 He recalls he hung out with the offender as he thought he was cool because he was older, tough and strong.
28 The applicant recalled the offender appeared to be doing things that seemed fun to him at the time and that the offender had lots of cool stuff and would often buy alcohol for the applicant. The offender had a car which the applicant thought was great as he could drive, and he would often go to the applicant’s house to pick him up.
29 The offender told the applicant on occasions that he was a police officer and at the time the applicant said he believed him. He recalls that in 1993 the offender took the applicant and another boy to a bedroom. He remembered the bedroom was separate to the main structure of the house that the offender lived in and was like a granny flat out the back.
30 The applicant recalled that the offender got a video camera out, showed them the video, he said that he took. The video was of young boys showering. He said the video was from a school.
31 The applicant recalled the offender showing him lots of pornographic videos and pictures, touching him and that he did a lot of things to him on many occasions.
32 The applicant recorded in his statement of 20 January 2021 the abuse started in August 1993 and finished a week or two before he went to gaol for the first time in 1994. He recalls he got away from the offender by going to gaol and when he was released he hung out with a new group of friends. At the time it was difficult for him to talk about what happened. The applicant recalled there were seven other incidents which did not form part of the charges against the offender.
33 With regards to the impact of the events, the applicant records following the offender showing him pornography for the first time, it was the beginning of the end of his life. He records in his statement that since the incident he has been in and out of jail and mental hospitals or homeless. It was his perception that following the incidents he started to act out.

34 At the age of 14 years the applicant was placed in detention for stealing cars. It was the applicant’s belief the offender had ruined his life and brought him as a child into an adult world. He did not want to watch the videos, but the offender made him watch. He did not understand what was happening. The applicant records in his victim impact statement every relationship since that time has been strong and confused and that sex is associated with negative feelings and confusion. He records he has flashbacks during sex, struggling with erections and during the majority of his sexual relationships he has been on drugs or out of control. He recalls that the pornography and what the offender did affected him and that as a result and a way to block out the trauma, he started to inject methamphetamines at age 19 years and continued to take drugs, including methamphetamines on a daily basis to age 35 years.
35 At age 21 years he had a drug induced psychosis and had had other periods in which he suffered from drug induced psychosis. He had abused drugs and had been addicted to drugs. He recalls being in mental hospitals a number of times connected to his drug use. He also records as a result of taking methamphetamines to block out the trauma he often felt agitated and aggressive and could recall talking about the devil. He records following his release in 2019 he had counselling which has assisted.
36 The applicant records “I still struggle everyday with the trauma. I have traumatic thoughts constantly running through my head and I have extremely difficult time with it. I have thoughts of pornography and about being raped or murdered by men.” He also records that after the offences occurred, he was not able to continue with his education. He started a job as a spray painter, but struggled to concentrate and spent time in and out of gaol. This occurred in his opinion as he became angry and violet towards grown men as he associated the offender with grown men. He stated not a single day passes in which he does not have horrible thoughts about the offender.
37 As indicated above, such was the trauma caused that he only first reported the incidents to the police in 2015 after which time police proceeded to prosecute the offender and the case was concluded in 2018.

Method of assessment
38 Section 30 of the Act sets out the general powers of an assessor providing:
(1) On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
39 Section 3 of the Act defines ‘satisfied’ to mean ‘satisfied on the balance of probabilities’.
40 In assessing the amount of compensation which should be awarded the Court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim (B v W (1989) 6 SR (WA) 79).
41 The amount of damages for non‑economic loss must be fair and reasonable compensation for the injuries received by the applicant and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 [125]; Underwood v Underwood [2018] WADC 13; Houlahan v Pitchen [2009] WASCA 104 [107]. The amount must be proportionate to the situation of the particular applicant: Houlahan [107]. Having considered the information available to me, I found the applicant suffered a clear psychological injury with various reports giving the applicant a diagnosis of schizoaffective disorder, with a differential diagnosis of recurrent drug induced psychotic episodes; polysubstance abuse; attention deficit hyperactivity disorder and dissocial (anti-social) personality disorder.
42 His decline in mental state seems largely to have coincided with the event for which the offender was charged and convicted. Whilst the applicant had had challenging behaviours, his psychological condition spiralled after the incidents with him being diagnosed as suffering from bi-polar effective disorder and the applicant embarking on a path of drug abuse and delinquent behaviour.
43 The applicant himself has described his struggles since the incident as identified above.
44 Whilst the applicant did suffer from ADHD at the time when he was suffering from issues at school, I accept the acceleration in his behaviour and deterioration in mental state was triggered by the incident for which the offender was convicted and for those incidents for which he was charged and the matters then discontinued.
45 Psychological symptoms are compensable as defined in the Act. In Underwood v Underwood, Gething, DCT comments the term ‘injury’ in sections, 12, 13 and 16 include “mental and nervous shock”: (CIC section 3). This phrase contemplates the impact of the offence on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported, WASC Library No 4012, 15 December 1980), Burt, J. It refers to ‘mental or emotional harm as opposed to physical injury or bodily harm’: S v Neumann (1995) 14 WAR 452 [463]. It must be of a more enduring character so as to amount to an injury, as opposed to a mere emotional reaction.
46 I am satisfied that the applicant’s symptoms were enduring in character and continued to this day so as to amount to mental and nervous shock for the purposes of the definition of ‘injury’ under section 3 of the Act. This was exemplified by his inability to deal with the incidents or even acknowledge they had occurred until his mid-thirties.
47 I accepted the applicant suffered and continues to suffer from a significant psychological injury which has had an ongoing impact on his everyday life.
48 The maximum amount of compensation that could be awarded for a single offence at the time of the incident was $50,000 (s 31(1) of the Act). As the injury occurred to the applicant as a consequence of two or more offences committed by one person that are not related offences within the meaning of s 33(1) then the amount awarded must not in aggregate exceed $100,000 (s 34 of the Act).

49 I determined the appropriate award for general damage injuries suffered by the applicant to be is $100,000, taking into account the jurisdictional maximum permitted under section 34 of the Act for more than one offence.
50 I apportioned $50,000 to the proved offence for which the offender was convicted and $50,000 to the alleged offences I was satisfied occurred.
51 I ordered pursuant to section 45(1)(b) of the Act that the offender, ACC be limited to pay $20,000.
52 When I made the compensation award, I considered it appropriate to prohibit publication likely to lead to the identification of the applicant due to the nature of the offences. I hereby extend the prohibition on publication of anything likely to lead to the identification of the applicant to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

R Capararo, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

5 APRIL 2023